Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.36(2), 36(3), 425, 425A, 425A(3), 441A(5), 441C(5), 441G(2), 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Migration Regulations 1994 (Cth), reg.4.35D(b)

Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332; (2001) 116 FCR 154

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220

Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543

Minister for Immigration & Multicultural & Indigenous Affairs v VOAO [ 2005] FCAFC 50

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Rajaratnam v Minister for Immigration & Multicultural Affairs [2000] FCA 1111; (2000) 62 ALD 73

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211clr441.html">211 CLR 441

SZEAS v Minister for Immigration [2005] FMCA 1776

SZFIH v Minister for Immigration & Anor [2005] FMCA 1847

SZFKF v Minister for Immigration [2005] FMCA 1152

Tio v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 53; (2003) 36 AAR 549

WAGH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 194; (2003) 131 FCR 269

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

(1)

The applicant has leave to file a further amended application setting out the grounds which were argued at the hearing.

(2)

Order that a writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 10 December 2004 in matter N04/49289.

(3)

Order that a writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 14 May 2004.

(4)

Order the first respondent to pay the applicant's costs in the sum of $3,000.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

This is an application filed on 6 January 2005 under s.483A of the Migration Act 1958 (Cth) ("the Migration Act") which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 16 November 2004 and handed down on 10 December 2004. The Tribunal affirmed a decision of a delegate made on 14 May 2004, which refused to grant a protection visa to the applicants. The applicants are a husband and his wife, whose claims were dependent upon those of her husband. As did the Tribunal, I shall refer to the husband as "the applicant".

The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A and has restructured the Court's jurisdiction in relation to migration decisions. However, these amendments apply only to proceedings commenced on or after 1 December 2005 and the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth), s.8).

3.

Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which have the effect that that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [15] and [76]-[77] and subsequent cases). I do not have power myself to decide whether the applicant's claims should be believed, nor whether he qualifies for a refugee visa.

The applicant arrived in Australia from Nepal in April 2004, and lodged an application for a protection visa on 30 April 2004. The application was supported by a statement by the applicant and supporting documents, and a similar statement and further documents were forwarded to the Tribunal. The applicant attended a hearing conducted by the Tribunal on 12 October 2004.

In its statement of reasons under the heading "Findings and Reasons", the Tribunal identified two "central claims" made by the applicant as the basis of his fear of persecution by Maoists if he returned to Nepal, and described them:

• He was targeted by Maoists because he was a trade union official;

• He was an eye witness to the murder of [a town mayor], and assisted with the identification of the Maoists who murdered the Mayor.

The Tribunal dealt with each of these claims separately. It accepted the factual basis for the applicant's first "claim", but it said:

the problem the Applicant had with the Maoists, by his account was one related to extortion. The Applicant by his own account was targeted for money by the Maoists. He was not subject to persecution by the Maoists on account of his membership or association as such with the trade union or any specific political views he may have held. ... the Tribunal does not see any evidence that the extortion was one that related to any Convention reason. ...

In relation to the second "claim", the Tribunal considered that the applicant's description of the murder of the mayor differed significantly from news accounts of the incident. It preferred those accounts, and concluded "that the Applicant's claims that he was at the murder scene are not credible ... and should be rejected ...". It also said: "if he was indeed to be targeted by Maoists for being at the murder scene and helping to identify the murderer, these in themselves will lack the appropriate Convention nexus".

The Tribunal said that, if it was wrong in concluding that "the Applicant does not have [a] Convention related claim", "the Applicant has the right to enter and reside in India", and implicitly found that Australia was "taken not to have protection obligations" to the applicant by reason of s.36(3) of the Migration Act.

The applicants' grounds for challenging this reasoning have been differently formulated in two amended applications, written submissions filed by both counsel, and oral submissions in the course of the hearing. I consider that essentially four grounds were maintained by counsel for the applicants, and were fully responded to by counsel for the Minister. If the matter proceeds further, these should be formally included in a further amended application, which I shall give leave to file. On my understanding of counsel's arguments, they were:

i)

The Tribunal's decision was invalid due to a failure when rescheduling its hearing from 28 September 2004 to 12 October 2004 to allow "at least the prescribed period" of notice in its invitation, in compliance with s.425A(3) of the Migration Act.

ii)

It was not open to the Tribunal to characterise the applicant's claims in relation to his targeting as a trade union official as not relating "to any Convention reason". By doing so, it failed to address claims which it was required to consider when performing its review.

iii)

The Tribunal similarly misunderstood or misconstrued the applicant's claims arising from his witnessing the murder of the mayor, when finding that any consequential targeting by Maoists would not be for a Convention reason.

iv)

The Tribunal failed to consider relevant matters when applying s.36(3), by failing to consider whether the applicant had a right to enter India which was "legally enforceable", and whether he had not taken all possible steps to avail himself of such a right.

This issue was first raised by counsel for the Minister, but was embraced by counsel for the applicants. It is clear that the hearing originally appointed by a duly served invitation under ss.425 and 425A was vacated and rescheduled at the instigation of the Tribunal "due to circumstances beyond our control" (see the Tribunal's first letter of 27 September 2004).

The issue is whether for the purposes of s.425A(3) it then "gave" a period of notice of the rescheduled hearing which was "at least the prescribed period", and whether the legislation should be construed as intending that the non-compliance would result in the invalidity of the Tribunal's substantive decision.

The Tribunal sent a letter addressed to the applicant on the same day telling him: "a new hearing date has been arranged for you" on 12 October 2004 at 1.30 p.m. Although there is no direct evidence as to how it was sent, I am prepared to infer from the folio numbers on relevant Court Book pages 239 and 238, that the letter was sent by facsimile to the applicant's agent at 15.19 p.m. on 27 September 2004. Since the applicant had appointed the agent as his "authorised recipient" and had provided his facsimile number, service by that means was taken to be service on the applicant (see s.441G(2)).

13.

Service by fax transmission is permitted under s.441A(5), and under s.441C(5) the applicant was "taken to have received the document at the end of the day on which the document is transmitted".

Migration Regulation 4.35D(b) of the Migration Regulations 1994 (Cth) provides that the prescribed period for s.425A(3) in the case of the applicant "starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received".

In the present case, the "end of 14 days" after 27 September 2004 is the "end" of 11 October 2004. The facsimile therefore gave sufficient notice if the applicant was deemed by s.441C(5) to have received it before the end of 27 September 2004, and not at the start of 28 September 2004.

This issue is not solved by reference to s.36(1) of the Acts Interpretation Act 1901 (Cth). It provides that "where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such an act or event". The present issue is not whether a date on which the applicant is deemed to have received the facsimile is to be excluded when identifying the 14 day period - this is clear. The difficulty is deciding whether the effect of s.441C(5) is to deem receipt of a facsimile on the day after its transmission.

Neither counsel addressed me on the effect of s.441C(5) nor cited any authorities relevant to its construction. Both counsel seem to have assumed that the rescheduling letter was sent by post, and was therefore clearly lacking in sufficient notice. However, I have found that it was sent by fax.

It is possible to argue that the "end" of one day is necessarily also the "start" of the next day, so that a document deemed to be received at that instant of time is, in effect, received on both days (c.f. Tio v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 53; (2003) 36 AAR 549 at [39]- [40]). On that construction, in the present case the letter was deemed to be received at the start of 28 September 2004, and the counting of the 14 day period of notice must begin with 29 September 2004 and include the whole of 12 October 2004. Insufficient notice would therefore have been given.

However, in my opinion, the reference to "end" of a day in s.441C(5) should be given its more natural meaning as intending to deem receipt on that day, but at its end. I consider that it is straining the language, and is inconsistent with the intent of the provision, to read it as providing for a deemed receipt also at the start of the day after its transmission. I therefore consider that the rescheduling of the present hearing did comply with s.425A(3).

20.

Moreover, I am not persuaded that, if the notice of the rescheduled hearing was one day short, the legislature intended that this should in all cases lead to the invalidity of the substantive decision. There are some differences of opinion concerning this issue, which I recently canvassed in SZFIH v Minister for Immigration & Anor [2005] FMCA 1847. In that case, I declined to give unqualified support for the proposition of Barnes FM in SZFKF v Minister for Immigration [2005] FMCA 1152 at [48] that a full period of notice is mandatory "if the hearing is rescheduled at the behest of the Tribunal". I considered that this would not be so, if the lesser period of rescheduling received the consent or acquiescence of the applicant and was not inconsistent with procedural fairness.

In the present case, no evidence was led by either party as to the circumstances of the rescheduling, the nature of communications about it with the applicant or his advisor, and what was said about it at the hearing which was attended by the applicant on 12 October 2004. In particular, the applicant has not given evidence that he took any point about any inadequacy of notice. In the absence of fuller evidence, I am not prepared to infer that the applicant did not give consent to nor show acquiescence in the notice given to him. I think it more likely that he did.

For both the above reasons, therefore, I consider that this ground must fail.

The applicant's claims relating to trade union membership

The Tribunal's full reasoning concerning these claims was:

The Tribunal accepts that the Applicant may have been a member of the Nepal Trade Union Congress, but this in itself does not necessarily assist the Applicant's case. In support of his claims that he was targeted by Maoists and could in fact be subject to persecution on his return to Nepal, the Applicant submitted a letter from the Nepal Trade Union Congress which listed 52 people as National Nepal Trade Congress personnel who have allegedly been killed by Maoists on different dates in Nepal. The Tribunal notes that the letter did not indicate why the trade union members had been killed by the Maoists. The Tribunal further notes that the letter form the Nepal Congress Party which indicates that the Applicant is 'suffering from Maoist terrorists' does not say why the Applicant was suffering from terrorists if indeed he was suffering from such an organisation at all. The Tribunal accepts that persecution because of membership or association with a trade union may be a Convention reason and may provide a valid basis for persecution. However in the particular instance of this case, the problem the Applicant had with the Maoists, by his account was one related to extortion. The Applicant by his own account was targeted for money by the Maoists. He was not subject to persecution by the Maoists on account of his membership or association as such with the trade union or any specific political views he may have held. The threatening phone calls he claims to have received were in relation to his failure to meet the extortion demands from the Maoists and not his membership or association with the trade union. His membership of the trade union was only incidental to the interest of the Maoists in him. This is not to suggest that extortion may not have a Convention nexus. Where for instance an applicant is subject to extortion and subsequent threats of persecution because of the applicant's political opinion or some other Convention reason, the extortion in such cases would of course have the needed Convention nexus. In the case before the Tribunal, the Tribunal notes that the Applicant may have been subject to extortion, but the Tribunal does not see any evidence that the extortion was one that related to any Convention reason. On its own and on the available evidence, the Tribunal is accordingly not satisfied that the Applicant's claims relating to his association with the Nepal Trade Union Congress discloses any Convention basis to support his claims that he has a well founded fear of persecution should he return to Nepal.

Understanding this reasoning presents some difficulties. At the start, the Tribunal appears to present a fear of "extortion" or being "targeted for money" as necessarily unrelated to a Convention ground. If the Tribunal did take this view of the applicant's claims, without considering the motives of the extortionists and their reasons for selecting the applicant as a victim, it would make serious legal error (see Rajaratnam v Minister for Immigration & Multicultural Affairs [2000] FCA 1111; (2000) 62 ALD 73 ("Rajaratnam") per Moore J at [10] and Finn and Dowsett JJ at [46]-[50]).

However, the Tribunal later appears to recognise that extortion can give rise to a well founded Convention fear, when it said: "where for instance an applicant is subject to extortion and subsequent threats of persecution because of the applicant's political opinion or some other Convention reason, the extortion in such cases would of course have the needed Convention nexus". I am prepared to give the Tribunal the benefit of some doubt about this, even though it does not expressly recognise the possibility of mixed motives or "duality" on the part of the Maoist extortionists (c.f. Rajaratnam at [49]).

However, the Tribunal's failure to find a Convention reason in the applicant's claims followed from its opinion as to what was in the applicant's "own account". The Tribunal clearly took a construction of his claims as not suggesting any Convention relationship for the extortion. It described the applicant's "own account" as being that "he was not subject to persecution by the Maoists on account of his membership or association as such with the trade union or any specific political views he may have held". The Tribunal's reference here to "specific political views" must, in view of its subsequent reasoning, also be understood as encompassing imputed general political opinions or associations, since otherwise the Tribunal would have failed to address this relevant aspect. From its over-all characterisation of the applicant's claims, the Tribunal concluded that "the Tribunal does not see any evidence that the extortion was one that related to any Convention reason".

This reasoning would be affected by jurisdictional error if the finding of the absence of evidence suggesting a Convention motivation for the extortion overlooked relevant evidence which was in the material before it (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v VOAO [2005] FCAFC 50 at [5] and [11]-[13]). Moreover, as was said in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 ("NABE") at [63]:

if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.

In my opinion, the Tribunal has made this error in the present case. I consider that the applicant's evidence given to the Tribunal did "clearly articulate" (c.f. NABE (supra) at [55]) a claim, which it was open to a Tribunal to accept, that the extortion and threats to which he was subjected was motivated by his perceived political hostility to the Maoists and his membership of the Trade Union Congress and the Nepali Congress Party. In my opinion, it was not open to the Tribunal to say that such a claim was not contained in the applicant's "own account", nor that it did not have some support in the evidence.

This is shown in the following parts of the evidence:

a) In his visa application form, the applicant referred to a "constant threat on my life by the Maoist" and "I have already been targeted by the Maoist mass jury". He gave three reasons for thinking that this would recur if he returned. These reasons were plainly intended to be read cumulatively, so as to give a total picture of why the applicant feared the Maoists:

Firstly, my involvement with the trade union on behalf of the Royal Nepal Airlines and with the Nepali Congress Party.

Second, I failed to pay up the ransom the Maoists asked from me, which was way out of my reach.

And the most important of all, is my involvement in capturing one of the Maoists along with the help of the police after the incident which involved the death of (a town mayor) sub-metropolitan city by the Maoist as I have outlined in detail in the paper that I have enclosed along with this form.

b) He referred to a general situation of Nepali Congress supporters, and clearly identified himself as one of them:

I have seen hundreds of people who have dedicated their lives to the Nepali Congress and democracy who have been helplessly agonized as they fell under the pray of the Maoist mass jury as declared by the rebels.

c) In the applicant's "details document" attached to his application he presented a personal history of "political involvement" which was plainly intended to show how he would be regarded as an opponent of the Maoists and a target for their persecution:

After completion of my school-leaving certificate exam on 1987 I had joined to the Engineering College on 1988. During that period I was actively involved in Nepalese Students Union, which is sister organization of Nepali Congress political party.

On the period of political movement of Nepal in 1990, I was actively involved in the democratic reform. On that period we were directly against the Panchayat system. From that period my father was also actively involved in the Nepali Congress Party. So from my family as well, I got positive symptom to involve in the politics. Our family was well known as active member of Nepali Congress Party.

I had a strong belief in the Nepali Congress Party, thus affiliating myself in the Nepalese Multiparty democracy. I was also involved with the trade union, on behalf of the [major institution] and therefore played a vital role in the People's movement that is currently been going on in Nepal.

d) The applicant's statement then gave an account of his being targeted for extortion by the Maoists. This was summarised by the Tribunal:

The Applicant gave an account of Maoist activities in Nepal and said that the Maoists approached him on 1 September 2003 and asked for a donation, which he could not pay because he was a 'nine to five office worker'. He nonetheless agreed to pay the Maoists the amount they required in instalments. He also claimed that the Maoists took away all his harvests from his village. He said that in October 2003 his father returned to the village and was threatened for money. He further claimed that on 17 November 2003 the Maoists called him at his office and abused him and said that if he did not pay the money they were requesting from him they would 'take action' against him. After that incident he made a request to his superiors to allow him to work regular hours. He claimed before this period he was doing morning and evening shifts. He said this resulted in a decrease of his income and he became very distressed as he could not pay what the Maoists wanted.

e) With his application, he provided a March 2004 certificate stating that he was "ordinary member of Nepali Congress. He has been participating in all activities of the party for its betterment. His contribution to developing and strengthening the multiparty democratic system is highly negotiable and worthpraising. He is suffering from Maoist terrorist".

f) He provided a confirmation that he "is an active member of Nepal Trade Union Congress". The letter identified the Nepal Trade Union Congress as "a common front for all those Nepalese workers who solely believe in the set-up nerves and values of multiparty democratic system in the country. Moreover, it is matter of pride to note that our union is good wisher of Nepali Congress Party which is only the Democratic Party in the political history of Nepal".

g) He provided a list of 52 "NTUC personnel from different districts of Nepal who were killed by Maoists Terrorists on different dates". The Tribunal referred to this list in its reasons, which I have extracted above, with the dismissive statement: "The Tribunal notes that the letter did not indicate why the trade union members had been killed by the Maoists". However, in the context in which it was submitted, the applicant was clearly suggesting that one reason was their membership of a political group espousing principles of democracy which was hostile to the Maoists. He was clearly claiming that this document, and the other documents confirming his own membership of the NTUC and NCP provided substance to a claim to fear by reason of that membership, and was presenting the documents to establish this membership as a Convention motive for past acts of persecution directed at him. It was not open to the Tribunal to exclude this evidence when assessing the motives of the Maoist extortion and threats directed at him.

h) The relevant parts of the applicant's written statement to the Tribunal repeated his earlier statement, and again clearly linked the extortion to which he was subjected to his membership of democratic trade union and political groups. This is overt in the opening sentence of paragraph 3, where the applicant presented the reason for the extortion demands directed at him as being because he was one of "the people in the trade union, who were affiliated with the Nepali congress party [and who] were threatened both mentally and physically and even molested for donations". In the context provided by the country information before the Tribunal, it was not open to the Tribunal to deny that this claim was made and had evidentiary substance.

i) The relevant paragraphs said:

1. I had a strong belief in the Nepali Congress Party, thus affiliating myself in the Nepalese Multiparty movement and development for the last decade. I was also involved with the trade union, on behalf of the [institution] and therefore played a vital role in the People's movement that is currently been going on in Nepal.

2. The Maoists started a countrywide agitation and robbed many government banks. They even started attacking Ward Police station. Before the peace talks, the Maoists used to threaten some high profile leaders and party workers for donations, but after the cease-fire they started threatening and attacking the people who were affiliated with the Congress party. During that period, they attacked a ward Police station in [village] and caused a great loss, both infrastructure and lives. Another group of rebels attacked a nearby Nepal bank, by taking the security guards as hostages and escaped with nearly 1 core (AUD$200,000). This enormity continued with attack on the Regional administration office and telecommunication relay towers, thus immobilizing communication with the village and the central authorities, which, to this day hasn't been restored. So when there was no communication, the Maoists got an opportunity to do more harm and destructions. They started stopping the night buses that were coming from the district capital and burned them ruthlessly. The police team who were mobilized at the ward police station fled to the district capital, thus creating an open environment for the Maoists to loot and destroy the villages by the day.

3. During this rampage, the people in the trade union, who were affiliated with the Nepali congress party were threatened both mentally and physically and even molested for donations. On the 1st of September 2003, they asked me for a donation, the sum, which I could not pay at once as being a 9 to 5 office worker. Therefore, I agree to pay them in instalments. They even took away all my harvest at the village. My father pledge to the Maoists, saying that we are just simple farmers and if they take away all the harvest, it could be very difficult to survive financially. But the Maoists insisted upon doing so, as it was the decision of their committee. They also decided to take one person from a family every Dashain, the biggest Hindu festival that comes once in every year. Immediately after that, I had a talk with my father and we had to celebrate Dashain in Katmandu, which was on 5th October 2003 the last time.

4. After my father returned to the village, the Maoists rebels came to him and threatened his life for money. They even called me up at work. The first time they did that was on 17th November 2003 and they abused me and told me that they are going to take some actions, since I did not act according to their wish. After that incident, I made a request to my superiors at the office to allow me to do regular hours, before which, I was doing morning, evening and night shifts. This resulted in a decrease income and slowly I was facing a financial crisis. My physical and mental stress gradually climbed up to an unbearable level.

j) The applicant presented to the Tribunal a large volume of general country information establishing the depredations of the Maoists in Nepal after the breakdown of a ceasefire in August 2003. Much of this was press reports of individual atrocities. However, it included a "GlobalSecurity.org" history of the Maoist insurgency, which included statements giving credibility to the applicant's claim that he was targeted for Convention reasons. These included: "The Maoists most often have targeted political leaders, local elites, and suspected informers. These targets included not only members of the majority Nepali Congress Party (NCP), but also members of the opposition Communist Party of Nepal-United Marxist/Leninist (CPN-UML)".

k) The applicant presented a further letter dated 8 September 2004 from a Senior Vice President of the NTUC, which said:

According to your concern the present situation in Trade Union and Nepal, I would like to suggest and inform you that, situation in Nepal is quite unfair-able and unsafe for politicians and trade unionists who believe in democratic norms and value. Numbers of trade union members killed by violent brutally in Nepal. Hundreds of industries are being closed due to threat of Maoist so thousands of workers are out of work. Government is unable to keep security in the capital city in Kathmandu. Therefore I would like to suggest you to live in abroad till situation is considerable.

l) Further evidence that membership and activity as a democratic trade unionist was a reason for targeting by Maoists was provided in a report by an Indian trade union delegation in July 2004. This traced the history of the insurgency, and included the opinions:

The NTUC has borne the brunt of Maoist violence. As of now, 250 NTUC activists and leaders had been killed by the Maoists. In fact, for its trade union victims, it seems the NTUC has been singled out for killings. Most of the victims were teachers. Some of the teachers were killed in front of their students while taking classes.

The political victims also happen to be predominantly Nepali Congressmen. Journalists and other sections of the intelligentsia also have been falling prey to the Maoist violence.

...

The NTUC leaders explained the situation in their respective places. Many areas were under the control of the Maoists. The villagers had the choice of either joining the Maoists or forced to leave. Most of the people have become domestic refugees. Maoists even issue visa for intra-district visits. The presence of government is only at the district level and not in interior areas.

The Maoists main target is democrats. They only went to Congress supporters for assistance and do not go to Communists so that their friends are not exposed. The people are harassed by security forces accusing them of assisting the rebels.

m) A transcript of the applicant's evidence when questioned by the Tribunal is not in evidence. However, on the Tribunal's summary, the applicant maintained his claim that he was targeted for extortion because of his trade union activities:

The Tribunal asked the Applicant why he left Nepal. The Applicant responded by saying that he left Nepal because he repeatedly got threats from the Maoists who were demanding donations and persisted in their threats which forced him to change his address.

...

The Applicant concluded his statement by saying that the Maoists were initially interested in him because of his trade union activities, but that now they want him because he was an eye witness who assisted in the arrest of one of the Maoists who was involved in the murder of Gopal Giri. He claimed that he also spoke to the police but they could not help him.

In view of all the above evidence, I consider that the Tribunal did "misunderstand or misconstrue" the claim advanced by the applicant, when making its critical finding which excluded a Convention nexus: "The Applicant by his own account was targeted for money by the Maoists. He was not subject to persecution by the Maoists on account of his membership or association as such with the trade union or any specific political views he may have held".

I consider that this ground of jurisdictional error is made out.

The applicant's claim to have witnessed a Maoist murder

It is unnecessary for me to examine closely the applicant's arguments challenging the Tribunal's reasoning in relation to this claim. This is because the Minister's counsel conceded that it was not necessary to find an error, if I were satisfied that the Tribunal failed properly to address the applicant's "extortion and threats" claim. She conceded that the Tribunal's rejection of the applicant's credibility in relation to the "eyewitness" claim was not expressed in a way which independently supported its earlier reasoning adverse to the applicant.

At a factual level, the Tribunal's reasons for rejecting the applicant's detailed sworn evidence as to what he saw is unconvincing. Its unexplained preference for a brief and unsourced news report of the murder is open to criticism. However, I doubt whether this can provide jurisdictional error.

If the rejection of the applicant's evidence was legally unflawed, then, in my opinion, it is irrelevant whether the Tribunal erred in its characterisation of the applicant's fears arising from the incident. I am inclined to accept that the Tribunal failed to appreciate and consider the applicant's implicit claim that one motivation for the Maoists pursuing him as a result of the incident was that they perceived him to have been a political associate of the deceased mayor, and that they also regarded him as a political opponent of the Maoists because he assisted in the arrest of a perpetrator. However, I am not persuaded that this would allow me to find a material error vitiating the Tribunal's ultimate decision.

I accept the submission of counsel for the Minister that it would only be possible to find jurisdictional error in this section of the decision, if the Tribunal's credibility finding were read as indicating doubts sufficient to require it to apply the "real chance" test in relation to the rejected history (c.f. Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at 231-233). However, although the Tribunal did address the situation on the alternative hypothesis introduced by the statement "even if the Tribunal was wrong", I do not consider that this shows that it had any real doubt about its previous rejection of the applicant's claim by disbelieving it. The rejection was expressed unequivocally and without doubt. I consider that the Tribunal presented two independent reasons for failing to be satisfied that this claim brought the applicant within the Convention definition, and one of them was legally impregnable.

I therefore do not uphold the third ground argued by counsel for the applicants.

The Tribunal's s.36(3) reasoning

The Tribunal presented as an alternative reason for affirming the delegate's decision its finding that "the Applicant has the right to enter and reside in India". This finding was given without any discussion of a body of authority which, at the time of its decision, had examined two pathways by which it was thought Australia might not owe protection obligations to a visa applicant. The first, and easiest pathway, was through the implication into s.36(2) of a doctrine of "effective protection" in a third country (see Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 and subsequent cases). A right of entry and residence in the third country was not required, if third country protection was available as a "practical reality". This doctrine was subsequently overruled by the High Court in NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6.

The second pathway was provided by s.36(3), which provides:

(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

The Tribunal "noted" this provision at one point in its reasons, but this was after it made its finding that the applicant "has the right to enter and reside in India". Nowhere did it make any apparent reference to the Thiyagarajah doctrine of "effective protection". Both counsel submitted to me that the Tribunal had purported to apply s.36(3) rather than the authorities on effective protection. I am inclined to read the Tribunal's reasoning similarly, although it is far from clear that the Tribunal appreciated that it could have considered two pathways and that they presented different tests.

However, if the Tribunal did purport to apply s.36(3), in my opinion, it overlooked that the section's reference to "a right to enter and reside" has received a judicial interpretation which requires a factual finding on whether a claimant's ability to enter a safe third country can be characterised as "an existing legally enforceable right" and not some lesser expectation of a discretionary permission to enter for residence (see Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332; (2001) 116 FCR 154, per Stone J at [62], with whom Gray and Lee JJ agreed, upholding the opinion of the primary judge expressed at [35]; also WAGH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 194; (2003) 131 FCR 269). As a result of failing to appreciate this, the Tribunal failed to consider and make essential findings on whether the "right" it found for the applicant answered the statutory description. This was a serious legal error, which in my opinion vitiated this part of the Tribunal's reasons.

Two aspects of its reasons cause me to draw the inference that the Tribunal overlooked the nature of the "right" of entry to India which needed to be found. The first is the complete absence of any discussion of the legal basis of the ability of a citizen of Nepal to enter India for residence, including by reference to authority on the effect of s.36(3).

Counsel for the Minister sought to find an implication that the Tribunal correctly informed itself as to the law, by pointing to a concluding finding that "the applicant has an option to enter and reside in India". However, in the context - which was a discussion of whether the applicant might be targeted by Maoists if he resided in India, I do not consider that the word "option" was used as a synonym for "legally enforceable right".

The second reason for finding error by the Tribunal is the nature of the evidence to which the Tribunal referred under the heading "Refuge in India", and which apparently provided the evidentiary basis for its finding. The material to which it referred suggested a de-facto "ability" of some Nepali nationals to enter India and obtain refuge there. However, the legal framework under which such entry was achieved was not identified nor discussed. In my opinion, the evidence cited by the Tribunal clearly fell short of establishing a legally enforceable right to enter universally enjoyed by all Nepali nationals in the situation of the applicant (and compare, similarly, the more extensive country information found by a different Tribunal which I discussed recently in SZEAS v Minister for Immigration [2005] FMCA 1776 at [35]- [40]).

Counsel for the Minister argued that such a right was found in Art.7 of a 1950 Treaty of "Peace and Friendship" between the governments of India and Nepal. However, this records only an inter-governmental agreement to accord equal "privileges" to nationals when they are "in the territories of the other" (my emphasis). I cannot read into it an obligation on each government to allow free entry into India by all nationals of Nepal, and I think it would be exceptional to find such an obligation in a treaty of "peace and friendship". Moreover, absent some identified provision in Indian domestic law giving enforceable rights of entry to all Nepali nationals or evidence that the Treaty had legal effect under Indian domestic law, it would not have been open to the Tribunal to find such a right merely from a bilateral treaty obligation between governments.

In my opinion, on the material to which the Tribunal referred, it would not have been open to it to find that the applicant had a "right to enter and reside in" India in the sense of an "existing legally enforceable right". This reinforces my opinion that the Tribunal failed to investigate and consider the making of such a finding. Its purported application of s.36(3) was therefore vitiated by jurisdictional error.

I also have doubt whether the Tribunal properly identified and addressed the second issue arising under s.36(3): whether the applicant had "not taken all possible steps to avail himself" of a legally enforceable right of entry. The Tribunal certainly did not address this expressly, and I am unpersuaded that it did so by implication. However, I do not need to decide this point.

For the above reasons, I have concluded that the Tribunal made jurisdictional errors both when concluding that the applicant had not made any claim to fear persecution under the Convention definition, and when purporting to apply s.36(3). The applicant is therefore entitled to the relief sought. A costs award has been agreed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Smith FM