FEDERAL COURT OF AUSTRALIA

Applicant A168 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 250

Migration Act 1958 (Cth) s 36

Plaintiff S157/2002 v Commonwealth of Australia (1993) 211 CLR 476 followed

Applicant A105 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 214 referred to

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

Applicant A125 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 213 referred to

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1; [2001] HCA 30 referred to

Craig v South Australia (1995) 184 CLR 163 referred to

APPLICANT A168 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, SUSAN MCILLHATTON, MEMBER, REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL

S 736 of 2003

MANSFIELD J

12 MARCH 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         Applicant pay to the respondent costs of the application.

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

REASONS FOR JUDGMENT

1                     This application was issued in the High Court of Australia on 24 March 2003 and remitted to this Court for further hearing and determination by order of 11 June 2003.  The applicant sought orders under s 75(v) of the Constitution, by way of mandamus, prohibition and certiorari, in respect of a decision of the Refugee Review Tribunal (the Tribunal) given on 14 February 2003.  The Tribunal affirmed a decision of a delegate of the respondent of 21 June 2002 not to grant to the applicant a protection visa under the Migration Act 1958 (Cth) (the Act), for which he had applied on 10 April 2002.

2                     It is necessary for the applicant to demonstrate jurisdictional error on the part of the Tribunal to be entitled to the orders which he seeks.  (See Plaintiff S157/2002 v Commonwealth of Australia (1993) 211 CLR 476; [2003] HCA 2 (Plaintiff S157/2002)). 

3                     The applicant is a national of Nepal.  He claimed to have a well-founded fear of persecution in Nepal, both from the Nepalese authorities and the Maoists, because each believes him to be aligned to or supportive of the other.  Consequently he claimed, on that basis, to be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees' Protocol (the Convention):  see s 36(2) of the Act.

4                     The foundation for the applicant's claims is his exposure of human rights violations by both the government and the Maoists, in his capacity as a human rights worker.  He claimed before the Tribunal that between 1990 and when he left Nepal in April 2002 he worked with the Human Rights and Peace Campaign (HURPEC) as an executive member and that he had a high profile, by reason of his activities. 

5                     The Tribunal considered his claim at two levels:  firstly on the basis that he claimed to have a deep and prominent involvement in the human rights movement through HURPEC; and secondly on the basis that he had some involvement in human rights issues in Nepal, including possible involvement with HURPEC, but did not have such a prominent and deep involvement as to be the target of specific vengeful conduct either from the authorities or from Maoists.

6                     As to the first level of involvement, the Tribunal accepted that since February 1996 numerous human rights abuses have been committed by both Maoists and by government forces in Nepal.  It also accepted that a person who falls into disfavour with the authorities because of their actual or imputed involvement with the Maoists may face serious harm which, depending upon the circumstances, may give rise to a well-founded fear of persecution under the Convention.  It also accepted that a person who falls into disfavour with the Maoists may face serious harm, again which, depending on the circumstances, may give rise to a well-founded fear of persecution within the meaning of the Convention.

7                     However, the Tribunal did not accept that while the applicant was in Nepal he was at any risk of persecution as a human rights worker with HURPEC.  It did not accept that he was or would be imputed with an adverse political opinion by either the authorities or the Maoists for exposing their respective human rights violations.  It did not accept that he had the level of involvement with HURPEC which he claimed.  Its reasons were that his evidence about HURPEC and its activities was, in certain respects, inconsistent with other independent information about HURPEC.  It concluded that if the applicant had been involved with HURPEC at the level to that he claimed, he should have known things about HURPEC which

he did not know.  He could give no meaningful explanation to the Tribunal about the difference between his level of knowledge or asserted knowledge and independent information about HURPEC's activities.

8                     One of the documents the applicant produced to the Tribunal in support of his claim was what appears to be a HURPEC identity card.  It describes the applicant as an ‘Executive Member’.  The Tribunal said:

‘I note that the applicant has provided a copy of what purports to be his HURPEC identity card.  However, in view of the applicant's lack of knowledge about HURPEC, I am not satisfied that the provision of this document of itself substantiates the veracity of his claim that he was an executive member of HURPEC.’

9                     The Tribunal then addressed the applicant's claims on the basis that he had some involvement in human rights issues in Nepal over a number of years, including quite possibly being involved with HURPEC.  That is, it did not accept that he had a deep and prominent role in the way he claimed, but it accepted that he may have had some role in human rights issues in Nepal.

10                  As indicated, it did not accept that given such a role on the applicant's part he has a well-founded fear of persecution for a Convention reason in any event in Nepal.  The Tribunal addressed that issue upon the basis of his possible involvement in human rights issues in Nepal, including with HURPEC, both in relation to the authorities and in relation to Maoists.

11                  It noted that he did not claim nor suggest any specific difficulties with the authorities.   He did not report any incidents of arrest, detention or mistreatment by the authorities owing to a perception that he was suspected of Maoist affiliation.  He did not claim or suggest that he was accused by the authorities of Maoist affiliation.  He did not complain of any impediment from the authorities in him pursuing his human rights activities in Nepal.  The Tribunal was not satisfied, on the evidence, that the authorities believed the applicant to be or perceived him to be a Maoist supporter or to hold Maoist sympathies, notwithstanding the level of his human rights activities.  It noted independent country information about Nepal indicating that merely being a human rights worker or reporting on human rights abuses does not generally lead to an imputation by the authorities of an adverse political opinion.  Consequently the Tribunal was not satisfied that the applicant has a well-founded fear of persecution at the hands of the authorities.

12                  It then addressed his claims to have a well-founded fear of persecution at the hands of Maoists, by reason of his human rights activities.  Again he did not report anything which had happened to him in Nepal which he attributed to the Maoists.  He reported an incident, after he had left Nepal, when the Maoists allegedly came to his home and looked into his bags and papers, an incident which he said occurred in about October or November 2002.  The Tribunal did not accept that evidence.  It could not reconcile it with the long period of apparent disinterest on the part of the Maoists while he was in Nepal.  It was not consistent with his own evidence of his dealings with the Maoists and what had happened to him whilst he was in Nepal.  It noted:

‘He does not claim, nor does his evidence suggest, that he was actually prevented or hindered by the Maoists from pursuing his human rights activities.  In view of these matters and the vague manner in which the applicant expressed his claims I am not satisfied from the evidence before me that he had any contact at all with the Maoists or that he was threatened by them.’

The Tribunal further took into account that if the applicant's activities in exposing human rights violations had prompted the ire of the Maoists, particularly since 1996, it would have expected some adverse interests on their part to have been displayed towards him.

13                  The Tribunal concluded that the applicant's evidence did not provide any objective basis for his fear of the Maoists.  He did not have a specific profile with the Maoists, or anything that would enable the Tribunal to be satisfied that the Maoists imputed to him an adverse political opinion arising from his human rights activities.  Consequently the Tribunal was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason at the hands of the Maoists or at the hands of the authorities.

14                  The Tribunal had a further reason for rejecting the applicant's claim.  As noted, it is necessary that the applicant satisfy the decision-maker that he is a person to whom Australia has protection obligations under the Convention if he is to satisfy the criterion for the grant of a protection visa in s 36(2) of the Act.  The Tribunal referred also to s 36(3)-(5) of the Act.

15                  As I have found, in Applicant A105 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 214 (Applicant A105 of 2003), those provisions provide a legislative description or explanation of factors or matters relevant to whether or not the criterion in s 36(2) of the Act is satisfied.  (See in particular at [13].)

16                  In this matter the Tribunal concluded that as a matter of practical reality and fact the applicant could enter and live in India, with rights and privileges commonly available to nationals of that country and without fear that he would be forced to return to Nepal.  It rejected his claim that he had any well-founded fear, if he were to live in India, from the Maoists.  It said:

‘I am satisfied that the government of India is willing and able to provide effective protection to anyone threatened by Maoists within its border.  The authorities in India have monitored, controlled and more recently detained, Nepalese Maoists living in India and expelled them from the country.  In my view the government of India has demonstrated, through action, that it will intervene and prevent Maoist activity in its territory.  In that context I am satisfied that the government of India is willing and able to protect the applicant from Maoists in India and I do not accept the applicant's claim that he is at risk of harm by Maoists in India.’

17                  For that additional reason the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention and so did not satisfy the criterion set out in s 36(2) of the Act.

18                  The contentions of the applicant on this application to demonstrate jurisdictional error were brief.  It was contended that the Tribunal committed jurisdictional error by failing to take into account a relevant consideration.  I assume, for the purposes of considering the contention, that the failure by the Tribunal to take into account a relevant consideration may amount to jurisdictional error.  The respondent did not present any contrary argument on this application.  That may simply be because she did not perceive the need to do so.  In both Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180  ALR 1; [2001] HCA 30 at 21-22, [82]-[84], and in Craig v South Australia (1995) 184 CLR 163 at 179 jurisdictional error was expressed in such terms, but that was before the decision of the High Court in Plaintiff S157/2000.

19                  The alleged ‘relevant consideration’ is the applicant's HURPEC identity card.  In my view the contention must be rejected.  It must be rejected for two reasons.

20                  The first is that the Tribunal did take into account the HURPEC identity card.  In its recital of the material it had available, it specifically referred to the HURPEC identity card including that it described the applicant as an executive member.  In the ‘findings and reasons’ section of its decision, it specifically referred to that document and gave a reason why, notwithstanding its content, it did not accept the veracity of the claim that the applicant was an executive member of HURPEC.  Whether that process of reasoning is correct or not it does not demonstrate that the Tribunal failed to have regard to that piece of evidence.  It may be that the Tribunal considered the expression on the card ‘Executive Member’ to convey something by way of involvement in HURPEC at a lesser level of prominence than that which the applicant asserted.  It specifically addressed his claim to be a prominent member of HURPEC by reason of his human rights activities and rejected it.  In rejecting it it had regard to that piece of evidence.

21                  The second reason, in my view, is that that piece of evidence is not itself a relevant consideration.  It is a piece of evidence going to a relevant consideration.  That is, it was a piece of evidence going to an integer of the applicant's claim.  He claimed to be a prominent member of HURPEC and therefore to have been imputed with an adverse political opinion by reason of his activities on behalf of HURPEC, by both the Nepalese authorities and by the Maoists.  The HURPEC card was a piece of evidence going to that topic.  The Tribunal considered the claims and rejected them.  It had regard to the piece of evidence.  The piece of evidence itself was not a relevant consideration in the sense of being a consideration which the Act requires the Tribunal to have addressed.  What the Act requires the Tribunal to have addressed is each integer of the applicant's claims.  The Tribunal did so. 

22                  In any event the application must fail, in my view, because the Tribunal considered that, by reason of the applicant's capacity to enter and live in and remain in India without fear of refoulement to Nepal and to have effective protection in India he failed to meet the criterion in s 36(2) of the Act.  It was not satisfied that he is a person to whom Australia has protection obligations under the Convention as he could secure effective protection in India.

23                  Whether one approaches the matter purely on the basis of s 36(2) as it has been interpreted, or upon the basis of section 36(2) as informed by s 36(3) to (5) the same result is reached.

24                  Section 36(2) has been explained in the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 and in subsequent decisions of the Court.  If a visa applicant has effective protection in a third country and is able to enter and remain in that country without risk of refoulement, then Australia does not owe protection obligations to such a visa applicant because Australia, by returning that person to the third country, would not be in breach of Art 33 of the Convention.  Certain of the Full Court decisions of this Court demonstrating that conclusion are discussed in Applicant A125 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 213.

25                  In addition, as I have said, by reason of the way in which the meaning of s 36(2) is informed by s 36(3) - (5), as discussed in Applicant A105 of 2003, the same conclusion is reached.  The Tribunal has made findings of fact which reflect the focus of each of s 36(3)-(5).  Those findings mean that the applicant is not a person to whom Australia has protection obligations under the convention because of his capacity to enter into and remain in India without risk of refoulement to Nepal and to secure effective protection in India.

26                  As that is an independent reason for the Tribunal's conclusion, unless it were successfully attacked by the applicant to demonstrate jurisdictional error, that would be a sufficient reason to dismiss the application in any event.  Counsel for the applicant suggested, albeit faintly, that the Tribunal had fallen into jurisdictional error by failing to consider whether India is able to provide meaningful protection to the applicant from anyone threatened by Maoists within its border.  Counsel referred in particular to the expression ‘willing and able’, in the passage quoted above.  However, as the whole of the passage quoted in [15] above illustrates, the Tribunal did consider not simply whether the government of India is willing, but also whether it is in a position, to provide meaningful protection to anyone threatened by Maoists within its border.  It has addressed that matter appropriately and has made findings.  I do not think any jurisdictional error is demonstrated on the part of the Tribunal in that conclusion.

27                  Accordingly, in my judgment the application must be dismissed.  I so order.  I order that the applicant pay to the respondent the costs of the application.

Associate:

Dated:              16 March 2004