SZUBI v Minister for Immigration and Border Protection

IN THE TRIBUNAL 6 On 20 September 2013, the applicant sought review of the Delegate's decision in the Tribunal. On 5 February 2013, the applicant attended an oral hearing before the Tribunal to give evidence with the assistance of a Nepalese interpreter. On 12 February 2014, the Tribunal affirmed the Delegate's decision not to grant the protection visa to the applicant. By its decision, the Tribunal found that, for reasons concerning the availability to the applicant of 'safe third country protection', it was not necessary to reach conclusions as to whether Australia had protection obligations towards the applicant under the Refugees Convention or on other complimentary protection grounds based upon his claimed fear of returning to Nepal. 7 The Tribunal identified (at [52]) the primary question as being, in this case, whether Australia owed protection obligations to the applicant because he had a right to enter and reside in India within the meaning of s 36(3) of the Act. If third country protection was available to him in India and he did not take 'all possible steps to avail himself… of a right to enter and reside in' India, then Australia does not owe the applicant any protection obligations under s 36 of the Act. 8 The Tribunal found (at [75]) that the applicant had a right to enter and reside in India, and had not taken all possible steps to avail himself of that right. The Tribunal also found (at [76]) that the applicant did not have a well-founded fear of being persecuted for a Convention reason in India, and that there were not substantial grounds for believing that there would be a real risk of him suffering significant harm in India. It went on to find (at [77]) that the applicant did not have a well-founded fear of being returned from India to a country where he would have a well-founded fear of being persecuted for a Convention reason, nor were there substantial grounds for believing that, as a necessary and foreseeable consequence of entering and residing in India, there would be a real risk of him suffering significant harm. Accordingly, the Tribunal concluded (at [77]) that Australia did not have protection obligations in respect of the applicant.

BEFORE THE FEDERAL CIRCUIT COURT 9 The applicant sought judicial review of the Tribunal's decision in the Federal Circuit Court under s 476 of the Act, asserting that the Tribunal had erred, resulting in jurisdictional error. 10 The application for judicial review in the Federal Circuit Court was first listed on 14 April 2014, and was subsequently adjourned to 8 October 2014. The applicant did not appear on 8 October 2014. On that date, the Minister applied to have the proceedings dismissed. The primary judge dismissed the review proceedings pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). 11 On 6 November 2014, the applicant filed an interlocutory application in the Federal Circuit Court seeking an order under r 16.05 of the FCC Rules setting aside the orders made dismissing the original proceedings on 8 October 2014 and reinstating his application for judicial review. Reasons were delivered by the primary judge on that interlocutory application on 5 March 2015. On the question of the applicant's explanation for his non-attendance, the primary judge found (at [18]-[19]) that the applicant's forgetfulness was not a satisfactory explanation for failing to attend court on 8 October 2014. On the more substantive question of whether or not the applicant would have reasonable prospects of success, the primary judge concluded (at [28] and [30]) that this was not so in respect of both proposed grounds of review. 12 The first proposed ground of review alleged that the Tribunal had breached s 425 of the Act by failing to inform him that the interpretation of s 36(3) of the Act had changed in the period between the Delegate's decision and the Tribunal's decision as a consequence of the Full Federal Court decision in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35. 13 The primary judge (at [28]) was not satisfied that this ground had sufficiently reasonable prospects of success because the fact that the applicant was unaware of the interpretation in SZRHU was not relevant to his awareness of the issue posed by s 36(3) of the Act, namely, whether the applicant had taken all possible steps to avail himself of his right to enter and reside in India. 14 The applicant alleged in his second proposed ground of review that, when determining under s 36(3) whether an applicant has taken all possible steps to avail themselves of a right to enter and reside in a third country, the Tribunal had failed to determine whether it would be reasonably practicable for the applicant to exercise that right. 15 The primary judge noted the applicant's argument that there was a symmetry in approach between s 36(3) and the internal relocation principle, which is to the effect that an applicant facing persecution in one part of their country of habitual residence will not be entitled to protection under the Refugees Convention if it is 'reasonably practicable' that they relocate to a different part of that country where persecution would not be faced: see Minister for Migration and Border Protection v SZSCA (2014) 314 ALR 514. 16 His Honour held (at [30]) that the unambiguous terms of s 36(3) did not and could not accommodate that symmetry. He concluded (at [30]) that the inclusion of the words 'all possible steps' in s 36(3) were emphatic and more demanding than a test which required only reasonable steps to be taken. 17 The primary judge concluded (at [31]) that because the applicant had not provided a satisfactory explanation as to his failure to attend court on 8 October 2014, and because neither of the proposed grounds of judicial review had reasonable prospects of success, leave to reinstate the proceedings should not be granted. The primary judge dismissed the applicant's application.

BEFORE THIS COURT 18 The primary judgment is interlocutory in nature. Accordingly, the applicant requires leave to appeal in this Court pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant is also out of time in his application for leave to appeal, which must be filed within 14 days of the date on which the judgment from which leave to appeal is sought was pronounced or the orders were made pursuant to r 35.13 of the Federal Court Rules 2011 (Cth). The applicant was eight days out of time. The Minister has made it clear that he would not oppose the application for leave on the grounds of delay in filing it. I have addressed the matter on the basis of the substantive grounds.

Written submissions 19 At the hearing before me the applicant relied upon the following written submissions dated 3 August 2015 in these terms: 1. My delay in filing an appeal and my absence in the hearing before the Federal Circuit Court Judge Cameron at 2.15 pm on 8 October 2014 should not be a big issue whereas I have already explained the reasons truthfully and I am clearly a victim of [sic] unlawful decision made by the Tribunal Member. 2. I submit that Judge Manousaridis's judgements [sic] in SZTOG -v- Minister for Immigration and Border Protection [& Anor [2015] FCCA 180] and in SZTQN -v- Minister for Immigration and Border Protection [[2015] FCCA 188] and the Judgement [sic] of Federal Court [sic] dated 4 June 2015 in SZTOX v Minister for Immigration and Border Protection [[2015] FCAFC 77] should be applied in the interest of justice in my case. 3. I submit that the Respondent's submissions do not solve the jurisdictional error committed by the Tribunal Member on the issue of relocation to India. 4. I submit that my case be remitted to the Tribunal and directed [sic] to determine according to law. 5. The respondent [sic] should be dismissed with costs. 20 No notice of these submissions had been given to the Minister. 21 The three grounds of appeal before this Court were as follows: 1. The Federal Circuit Court erred by failing to find that the Tribunal Member made a legal mistake in that it failed to make correct findings and assessment on the issue of relocation to India. [Ground 1] 2. It is contended that the Tribunal Member overlooked my claims on the issue of relocation to India that I am unable to relocate to India because I am subject to discrimination based on my nationality and adverse interest to the Maoists and Indians as there is no law that I can permanently remain in India. [Ground 2] 3. As a Nepalese citizen I cannot expect justice from Indian law so it leads to a feeling of lack of power over my freedom and a deep-seated insecurity concerning my life. To be not supported by the law in India is surely to be persecuted even in India. [Ground 3] 22 But for one issue which I flagged at the oral hearing, there is, in my view, and for reasons which follow, no proper basis for success on any of the grounds of appeal. 23 The additional issue that I flagged was whether it was appropriate for the Tribunal to move directly to s 36(3) of the Act without reaching a conclusion in relation to s 36(2). I have now addressed that issue separately in SZUDE v Minister for Immigration and Border Protection [2015] FCA 1202 and reached the conclusion that it is open to the Tribunal to take that course. Thus there is no occasion for me to call on the Minister to make any submissions in relation to that issue (a possibility to which I alluded to at the hearing). The applicant himself did not advance the argument, so other than raising it myself, it was not before me as a ground of appeal. 24 I move to the grounds of appeal.

Ground 1 25 In relation to the alleged errors of the Tribunal in relation to its findings and assessment as to the applicant's relocation to India, it is not apparent that the Tribunal Member made any legal error. The Tribunal correctly set out the test in relation to s 36(3) of the Act (at [52]-[54]) in its reasons in the following manner: 52. The primary issue in this case is whether Australia does not owe protection obligations to the applicant because he has a right to enter and reside in India within the meaning of s.36(3). There is no suggestion that he applicant has a right to enter and reside in a third country other than India. 53. The matters which must be considered by the Tribunal in determining whether third country protection is available to the applicant are: • whether the applicant, a citizen of Nepal, has a right to enter and reside in India (s.36(3)); • whether he is at risk of Convention-related persecution or 'significant harm' in India (s.36(4)); • whether the Indian authorities might return him to Nepal or another country where he is at risk of Convention-related persecution or 'significant harm' (s.36(5) and s.36(5A)); and • if he has a right to enter and reside in India, whether he has taken all possible steps to avail himself of that right. [sic] • Whether the applicant has a right to enter and reside in India. 54. The Full Federal Court in considering an appeal from the Federal Magistrates Court in relation to [SZRHU] held that the term 'right' in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include [or does not exclude] the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question. 26 The reference to SZRHU was correct, and the proper approach to a 'right' for the purpose of s 36(3) of the Act has also been set out in SZUDE, as referred to above (at [23]). 27 The Tribunal correctly identified (at [53]) the five matters to be considered in order to determine whether third country protection was available to the applicant. Underlying all of this was the importance of the actual findings concerning the applicant and by reference to those findings. The Tribunal was entitled to and did conclude (at [74]-[75]) that third party protection was available to the applicant, but he had taken no steps to seek it. As noted, the primary judge concluded (at [29]-[30]), in my view correctly, that the reasoning of the High Court in SZSCA on the internal relocation principle had no application to s 36(3) of the Act. His Honour said: 29. The applicant also wished to allege that, when determining under s.36(3) whether an applicant has taken all possible steps to avail him or herself of a right to enter and reside in a third country, the Tribunal must determine whether it would be reasonably practicable for the applicant to exercise that right. The applicant sought to draw an analogy between s.36(3) and the internal relocation principle, which is to the effect that an applicant facing persecution in one part of his or her country of habitual residence will not be entitled to protection under the Refugees Convention if it is reasonably practicable that he or she relocate to a different part of that country where persecution would not be faced: Minister for Immigration & Border Protection v SZSCA (2014) 314 ALR 514. The applicant observed that in SZSCA the High Court had extended the reasoning applicable to internal relocation to a case where an applicant had already relocated within Afghanistan but said that circumstances in the new location had changed such that new risks had developed which raised the practicability of him remaining there. The present applicant submitted that if such considerations are to be taken into account "in respect of internal relocation, or even remaining in the same place within the same country", then a similar question of reasonable practicability must inform the operation of the term "all possible steps" in s.36(3). 30. The applicant's argument propounds a symmetry in approach which the unambiguous terms of s.36(3) do not accommodate. The words "all possible steps" are emphatic and more demanding than a test requiring reasonably practical steps be taken. The Parliament could have drawn the test by reference to an applicant's reasonable efforts and the fact that it has not done so cannot have been inadvertent. The sub-section means what it says and so the second ground of the applicant's proposed amended application would not have reasonable prospects of success were leave to be granted to rely on it. 28 SZSCA concerned the reasonableness of requiring a person to restrict his or her movement to their home region. The present appeal, however, concerns the application of a different principle, namely, the safe third country provision set out in s 36(3) of the Act. The consideration that subsection raises, in this instance, is the conduct, if any, the applicant has undertaken to avail himself of a right to enter and reside in a safe third country. 29 Having concluded that the applicant had taken no steps at all, the Tribunal necessarily found that the applicant had also failed to establish that all reasonably practicable steps had not been taken, which the applicant had contended was the correct test. In any event, to impose this gloss on the statute goes beyond its plain words. 30 Ground 1 has no reasonable prospects of success.

Ground 2 31 Ground 2 was somewhat confused. It complained of an overlooking of claims on the part of the Tribunal in relation to the issue of relocation to India, on the basis that the applicant was subject to discrimination based on his nationality and adverse interest to the Maoists and also to the Indians, as there was no law that he could permanently remain in India. 32 This is essentially an attempt to seek impermissible merits review because it cannot seriously be contended that the claims were overlooked. They were considered but decided adversely to the applicant. Relying upon independent country information, the Tribunal concluded (at [65]) (footnotes omitted) that: [t]he Tribunal has found no information to indicate that Nepalese or Indian Maoists target Nepalese migrants in India. In particular, no information was located which indicates that Nepalese Maoists, now or recently, cross the border into India to pursue, identify and target persons they have previously threatened in Nepal. Although the applicant asserted at [sic] hearing that there had been such instances, he has provided no supporting evidence. No information was located which indicates that Nepalese living in India are currently, or have been recently, targeted by political opponents because of their association with Nepalese political parties or groups. The Tribunal is satisfied that, even taking at face value the applicant's own account of his circumstances in Nepal, there is not a real chance that those he says have harassed or threatened him in Nepal would be motivated, or able, to pursue, locate and target him in India. 33 Further (at [66]), the Tribunal said: The lack of available objective country information to indicate that a Nepalese citizen living in India would be at risk of harm because of their association with a Nepalese political party leads the Tribunal to conclude that there is not a real chance the applicant would face harm from either Nepalese or Indian Maoists on account of his support for or involvement with the Nepali Congress Party. The Tribunal is therefore am [sic] not satisfied that he has a well-founded fear of persecution or there is a real risk that he will suffer significant harm in India because of his political opinion. 34 The Tribunal, accordingly, found as a fact that it was not satisfied that the applicant had a well-founded fear of persecution or that there was a real risk that he would suffer significant harm in India because of his political opinion. 35 This factual conclusion was open to the Tribunal and properly made. It is not now open to the applicant to challenge it. 36 Accordingly, ground 2 has no reasonable prospects of success.

Ground 3 37 Ground 3 complained of the applicant's inability to expect justice from Indian law, which he claimed would lead to a feeling of lack of power over his freedom and a deep-seated insecurity concerning his life, which in turn constituted persecution. 38 This is another way of objecting to the factual conclusion reached by the Tribunal. As the Tribunal's factual findings (at [65]-[66]) set out above reject such a risk, ground 3 adds nothing to ground 2, and must also have no reasonable prospects of success.

Additional matters 39 In relation to the additional matters raised by the written submissions for the applicant regarding SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77, these submissions did not in any way raise arguments relevant to the grounds of appeal. Nor, in any event, did they raise any other issue of which the applicant might succeed. The cases referred to in the submissions, particularly SZTOX, go to the question addressed in SZRHU and went to the nature of the right in s 36(3) of the Act, but the finding by the Tribunal in this instance was that the applicant failed to take all possible steps to avail himself of a right to enter and reside in India. Hence, the nature of the 'right' did not fall for determination.

conclusion 40 An appeal would not have reasonable prospects of success and the application for leave to appeal must be refused with costs. The following orders are made:

1. The application for an extension of time within which to file a notice of appeal is refused.
2. The applicant pay the costs of the first respondent, to be taxed if not agreed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.