FEDERAL COURT OF AUSTRALIA

Applicant A106/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 538

APPLICANT A106/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 681 of 2003

FINN J

ADELAIDE

28 APRIL 2004         

THE COURT ORDERS THAT:

  1.  The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicants, who are husband and wife, are citizens of Nepal.  They arrived in Australia on 22 April 2000.  Their application for a protection visa was refused, not because the Tribunal did not consider that the male applicant (who was the only applicant to make specific claims under the Refugees Convention) did not have a well-founded fear of persecution in Nepal, but because he had effective protection available to him in India.  In consequence the Tribunal found that he did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) (‘the Act’).

2                     As to the fear of persecution in Nepal, the Tribunal indicated that it accepted:

‘[t]he applicant’s claims that he has a genuine subjective fear from the Maoists because he is an active member of the Nepali Congress Party (political opinion), that he is part of the ruling elite and because he belongs to the ruling Thakur caste (membership of a particular social group).’

3                     The Tribunal found the applicant to be credible:

‘His claims are consistent with the independent evidence before it.  There is abundant evidence before the Tribunal that there is a real chance that the applicant, as a member of the Nepali Congress Party and ruling elite, would be seriously harmed by the Maoists should he return to Nepal now or in the reasonably foreseeable future.’

4                     The Tribunal had previously set out the provisions of ss 36(2), (3), (4) and (5) of the Act.  They are in the following terms: 

‘(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

                        (i) is mentioned in paragraph (a); and

                        (ii) holds a protection visa.

Protection obligations

(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.

(4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

(5) Also, if the non-citizen has a well-founded fear that:

            (a) a country will return the non-citizen to another country; and

(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

    subsection (3) does not apply in relation to the first-mentioned country.’

5                     The Tribunal then went on to consider the issue of effective protection in a third country.  It summarised the provisions of ss 36(3), (4) and (5) of the Act in the following terms:

‘In determining whether these provisions apply, relevant considerations will be:  whether the applicant has a legally enforceable right to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; whether he or she has a well-founded fear of being persecuted for a Convention reason in the third country itself and whether there is a risk that the third country will return the applicant to another country where he or she has a well founded fear of being persecuted for a Convention reason.’

6                     The Tribunal also outlined its understanding of what, apart from s 36(3), it understood to constitute effective protection as “a matter of practical reality and fact”, and in so doing referred to the Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543.  In its treatment of country information the Tribunal referred to the Treaty of Peace and Friendship 1950 between India and Nepal and the reciprocal rights thereby granted to the citizens of the two countries.  In relation to effective protection, it made the following findings:

‘Independent country information set out in this decision states that as a matter of practical reality; the applicant, as a citizen of Nepal, can enter, re-enter and live in India with all the rights and privileges available to nationals of India without any fear that he will be forced to return to Nepal.  The applicant's own evidence confirms this.  Furthermore the applicant has some property in India and both he and his family have had a long connection with India/Calcutta since 1948.

The Tribunal notes the applicant’s claim that because the border between India and Nepal is porous and as Calcutta is so close by air he could be found easily.  However the independent country information before the Tribunal states that the Maoist’s activities are restricted to Nepal and the Tribunal finds therefore that the applicant will not be at risk of harm from Maoists in India.’

7                     The applicant now concedes that according to decided case law binding upon me I would be obliged to conclude that the Tribunal’s decision on the issue of effective protection is unimpeachable.  As I understand the applicant’s case it seems to be contented that the Tribunal did not rely upon s 36(3) to deny that Australia owed the applicants protection obligations but, rather, that it relied upon the principles of international law governing effective protection in third countries.

8                     The reason why the case may be being so put – and this is not clear from what has been put to the Court – is so as to bring the present matter within the reasoning of the Full Court of this Court in NAGV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 202 ALR 1 which held that Thiagarajah’s case was wrongly decided.  NAGV is a case which did not involve the construction of s 36(3) of the Act.

9                     An application for special leave has been lodged in that case.  Notwithstanding the unanimous views there taken concerning Thiagarajah, the majority nonetheless considered that Thiagarajah should be followed.  I was one of the judges in the majority in that case and made the following observation, with which Conti J agreed:

‘There is now a developed jurisprudence on “effective protection” which has been shaped, endorsed and applied in the case law referred to above.  That jurisprudence, as Emmett J has noted, has a significance beyond what is now provided for in s 36(3) of the Migration Act 1958 (Cth).’

If I might interpolate at this point, it is for that reason I draw the distinction between s 36(3) and the ordinary principles of international law.  I continued:

‘Notwithstanding the false foundation on which the jurisprudence is founded, I do not consider that it would be appropriate for this court now to depart from what hitherto and in many decisions, has been regarded as settled law.  If such a departure is to be made it is for the High Court to make it.’

10                  Mr Clisby, for the applicant, has submitted that I should reserve my decision in this particular matter until the High Court has considered the special leave applications in NAGV and NAEN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 6(the decision of a differently constituted Full Court, which arrived at a contrary conclusion to NAGV), presumably so that I will then have the guidance of the High Court on the proper construction of s 36 of the Act.  This clearly is not a course which I properly can take.  There is a considerable body of case law binding upon me that is declaratory of the law as it is presently understood.  No good reason exists, at the moment, for doing other than applying that law. 

11                  The application in this matter must be dismissed and I will order accordingly.  

Associate:

Dated:              28 April 2004