FEDERAL COURT OF AUSTRALIA

SJQB v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1284

SJQB vMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 450 OF 2003

SELWAY J

7 NOVEMBER 2003

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant to pay the respondent’s costs to be taxed or agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for prohibition, mandamus and certiorari, made pursuant to s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’) given on 11 March 2002.  It is accepted by the parties that the applicant can only succeed in this application if he can show that there was some jurisdictional error in the process, reasoning or decision of the Tribunal.

2                     The applicant is a Nepalese citizen who arrived in Australia on 29 September 2001.  On 25 October 2001, the applicant lodged an application for a protection visa.  Under s 36(2) of the Migration Act 1958 (Cth) the applicant can only obtain such a visa if the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) is satisfied that Australia has protection obligations to the applicant by reason of the applicant having a well-founded fear of being persecuted for a Convention reason.  In this case the applicant claims that he fears harassment, persecution, torture and extortion from Nepalese persons with Maoist political beliefs.  He says he has been active in opposing Maoists in Nepal and that they have threatened to kill him because of this.  He says that the Nepalese authorities are unable to protect him.

3                     The application was initially considered by a delegate of the Minister.  The delegate refused the application on 14 June 2002.  The applicant applied for review by the Tribunal of that decision.  The Tribunal accepted that the applicant may face some harm from Maoists if he returned to Nepal.  The Tribunal did not need to deal further with that issue.  This was because the Tribunal found that the applicant was entitled to reside in India.  In its reasons the Tribunal discussed Australia’s legal obligations and the concept of ‘effective protection’:

‘In this context, the Tribunal put to the applicant independent information before it to the effect that as a citizen of Nepal he had a right to enter, reside in and re-enter India under a legal agreement between the two countries.  He would have the right to work there, a right to own property and a right to free movement.  The applicant accepted this was the case, but said that he has read articles to the effect that Maoists are targeting Nepalese in Bombay (for example) for donations.  The Tribunal put to him that the independent information before it indicates that Maoist activity in India is restricted mainly to the border areas from which they re-supply and plan incursions back into Nepal.  That evidence does not indicate that Nepalese Maoists in India target members of the Nepali Congress Party or those connected with that party.  The Tribunal suggested that even if the applicant had evidence of Nepalese being targeted for donations by Maoists, this on its own does not amount to persecution under the Convention.  The Tribunal added that there is no evidence that the Indian government targets such people.  The applicant maintained that Maoists are everywhere in India, even in cities like New Delhi and Calcutta, and they would eventually find and target him.  He acknowledged he had travelled to India on business on several occasions, his last visit being in the early 1990s.’ 

4                     In relation to all this the Tribunal concluded:

‘As outlined above, Australia does not have protection obligations to a person who has effective protection in a third country.  I must consider whether the applicant has a legally enforceable right to enter and reside in a third country or whether, as a matter of practical reality, the applicant is likely to be given “effective protection” in a third country by being permitted to enter, re-enter and live in that third country where he will not be at risk of being returned to his original country.  If the applicant has such effective protection already available to him, then Australia can return the applicant to that country.

As noted above, I discussed with the applicant the concept of “effective protection” under Australian law and the independent evidence before me in relation to India.  That evidence indicates that as a matter of practical reality the applicant, as a citizen of Nepal, can enter, re-enter and live in India, with most of the rights and the privileges available to nationals of India and without any fear of being returned to Nepal.  Although the applicant has visited India for business reasons, I accept that he has never stayed in India for long periods.  The applicant expressed concern at a possible Maoist presence in India, where he said Maoists in some cities target Nepalese for donations.  He provided an article in support of his assertion, which I accept as genuine.  However I do not accept that any targeting for donations of Nepalese in Bombay amounts to persecution in the relevant sense, and as put to the applicant the independent country information before me indicates that the violent activities of the Maoists are restricted to Nepal and do not extend into India.

The newspaper article provided by the applicant after the hearing refers to a particular instance in which India recently stopped deportation proceedings against a Maoists (sic) at the request of the UNHCR.  However that article itself refers to the earlier deportation of several Maoists and I find the weight of independent evidence indicates that India has promised to assist Nepal in its fight against the Maoists and in rooting out terrorism.  There is no evidence before the Tribunal that members or supporters of the Nepali Congress Party are actively targeted in India, either by Maoists or the Indian authorities.

I am therefore satisfied on the evidence before me that the applicant will not be at risk of persecution from the Maoists in India.  The authorities in India have monitored, controlled and more recently detained and expelled, Nepalese Maoists living in India.  The government has demonstrated it will intervene to protect Maoist activity in its territory.  In these circumstances I am satisfied that the government of India is willing and able to protect the applicant from Maoists in India, and that it will not refoule the applicant to Nepal.’

5                     The applicant says that the Tribunal failed properly to consider whether the applicant suffered a real chance of persecution.  To a certain extent, that is true, but that is because the Tribunal did not have to do it in the sense in which it is put.  This is because of the terms of s 36(3) of the Migration Act 1958 (Cth) which provides:

‘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.’

6                     On the material before the Tribunal, it was clearly open to the Tribunal to find, as it did, that the Indian authorities were willing and able to protect the applicant.  More to the point, there was simply no evidence before the Tribunal which would have suggested that the Indian authorities are not capable of carrying out that task.  It is true, as Ms Nunan has argued, that some of the analysis by the Tribunal may suggest that there are some minor inconsistencies within its own reasons.  However, none of these matter much in the context.

7                     There is no jurisdictional error shown, particularly in circumstances where there was no material before the Tribunal upon which it could have reached any result other than that the Indian authorities were willing and able to protect the applicant from Maoists in India.  The application must be dismissed.

Associate:

Dated:              3 December 2003