Federal Court of Australia

DQD16 v Minister for Immigration and Border Protection [2021] FCA 1586

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 1 and 2 of the orders of the Federal Circuit Court made on 20 January 2021 be set aside and in their place the following orders be made:

1.    The application filed on 29 November 2016 and amended on 16 March 2020 be allowed.

2.    The second respondent’s decision dated 9 November 2016 be set aside.

3.    The matter be remitted to the second respondent, differently constituted, to be determined according to law.

4.    The first respondent pay the appellants’ costs of the proceeding in the Federal Circuit Court, to be fixed in accordance with the schedule of costs that applied at the date of the hearing in the Federal Circuit Court or by way of an agreed lump sum.

3.    The first respondent pay the appellants’ costs of the appeal, to be fixed by way of an agreed lump sum.

4.    By 4.30pm on 7 February 2022, the parties are to file any proposed minute of consent order as to costs.

5.    In the event the parties cannot agree on a lump sum for the purposes of Orders 2 and 3, the question of costs in the Federal Circuit Court and on the appeal be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

Introduction

1    On 9 November 2016, and for the second time, the Administrative Appeals Tribunal decided to affirm the decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellants protection visas under s 65 of the Migration Act 1958 (Cth).

2    This is an appeal from the (then) Federal Circuit Court’s dismissal of an application for judicial review of the Tribunal’s decision. The appellants seek orders that the Federal Circuit Court’s orders be set aside and, in their place, new orders be made to quash the Tribunal’s decision and remit the matter to the Tribunal to be re-determined according to law.

3    For the reasons that follow, the appeal will be allowed.

Background

The appellants

4    The appellants are husband and wife, from the Indian state of Punjab. Their son, who was born in Australia on 23 February 2020, is not a party to this appeal, but the appellants submit he would be eligible for a protection visa, on the basis of his membership of the appellants’ family unit. That does not appear to be disputed by the Minister.

5    The appellants are both of the Sikh religion, but the husband, DQD16, is of the Jatt caste, while the wife, DQE16, is of a lower caste. Because of the inter-caste nature of their marriage, the appellants claimed to have suffered persecution in their home state. The persecution that DQD16 also claimed to have suffered was said to be intertwined with his political opinion and an ongoing land dispute between his father and his other relatives.

6    The appellants entered Australia on 7 April 2009 as the holders of student visas – DQE16 was enrolled in a course of studies in Australia and DQD16 was her dependant. DQE16’s visa ceased in August 2011 and her application for a further visa was refused early in the following year. On 22 July 2013, DQD16 applied for a protection visa. DQE16 applied for a protection visa on 9 September 2013.

7    The applications were considered and dealt with together. On 12 February 2014, a delegate of the Minister refused the appellants’ applications for protection visas.

8    The delegate reached this decision because he considered that it would be safe and reasonable for the appellants to relocate to a different part of India outside Punjab, if they were removed back to India.

9    The appellants applied for review of the delegate’s decision on 11 March 2014. A review hearing was conducted by the (then) Refugee Review Tribunal (RRT) on 11 November 2014. On 27 August 2015, the RRT affirmed the delegate’s decision to refuse the appellants’ applications for protection visas.

10    The RRT held that, while it had “some reservations about the veracity of [DQD16’s] claim”, it was “prepared to give him the benefit of the doubt” based on the evidence given at its review hearing by a third party from India. In terms of relocation within India (the basis for the delegate’s decision), the RRT found the appellants’ individual circumstances, assessed in the light of the country information, would not necessarily make it unreasonable for them to relocate. However, it concluded it was not necessary to decide the issue, because it had concluded that the appellants had a right to enter and reside in Nepal.

11    Thus, the reason for affirming the decision under review was that, pursuant to s 36(3) of the Act, Australia was taken not to have protection obligations in respect to the appellants, because the appellants had not taken all possible steps to avail themselves of their right to enter and reside in Nepal. The RRT was satisfied that the appellants had this right because article 7 of the Indo-Nepal Treaty of Peace and Friendship of 1950 provides that Indian nationals such as the appellants can enter and reside in Nepal. The RRT considered whether the appellants had a well-founded fear of persecution in Nepal for a reason recognised under the Refugees Convention, and whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellants availing themselves of their right to enter Nepal, there would be a real risk of them suffering significant harm in Nepal. Under s 36(4) of the Act, an affirmative answer to either of these questions would have meant that s 36(3) did not apply to Nepal. However, the RRT answered each question in the negative, and so affirmed the delegate’s refusal to grant visas to the appellants.

12    The appellants sought judicial review of the RRT’s decision. By consent orders made on 1 March 2016, the Federal Circuit Court set the RRT decision aside, on the agreed basis that the RRT erred in failing to consider DQD16’s claim to face a real risk of significant harm in Nepal. The matter was remitted for re-hearing in the Tribunal. The order did not expressly require the Tribunal to be differently constituted.

13    On remitter, the review was allocated to the same Tribunal Member who conducted the RRT review. The Tribunal conducted two further review hearings – on 28 June 2016 and on 12 October 2016. It was necessary to conduct two hearings because, at the start of the first hearing, as the Tribunal records at [24] of its reasons, the appellants informed the Tribunal that they were:

surprised to see that the case had been allocated to the same member after it was remitted by the Federal Circuit Court.

14    The Tribunal’s reasons then state (at [28]-[31]):

[DQE16] explained that they felt they were taking a risk by appearing before this member in circumstances where their lives were at stake if they were to return to India.

The Tribunal advised them that it did not consider that the reasons they had advanced were sufficient for the member to recuse himself. The Tribunal said it intended to go ahead with the hearing but if the decision is ultimately taken by the head of the Migration and Refugee Division or the President of the Tribunal that the matter should be allocated to another member, they will be notified of that decision.

The Tribunal then proceeded with the hearing. At the end of the first hearing, the Tribunal reminded the [appellants] that their recusal request will be considered. At that point, both [appellants] expressed their surprise and said that they had agreed to go ahead with the hearing with this member. They explained that they could not go through the trauma of another hearing if the case is reallocated to a new member and he or she wants to hold a further hearing.

In light of the [appellants’] own decision to abandon the recusal request, the Tribunal has proceeded to make a decision.

15    It may, with respect, be an exaggeration by the Tribunal to describe what occurred as an ‘abandonment’. Why the matter raised by the appellants was not in any event referred to the head of the Migration and Refugee Division is unclear. It should have been. There were clear doubts expressed by the Tribunal in its first review decision about the credibility of the appellants’ claims. It made a series of adverse findings against them (even if qualified) which may well have been capable of giving rise to an apprehension in a reasonable lay observer that it might not bring an impartial mind to the second review, given the appellants’ claims remained the same in most respects, and the issues remained the same. Nevertheless, it appears no further action was taken, and no ground of apprehended bias was pressed on this appeal.

16    Perhaps because of the ground on which the RRT decision was set aside, the Tribunal considered in more detail the state of the appellants’ mental and physical health, and the effects they claimed this would have on their capacity both to relocate within India, and to live in Nepal. DQE16’s general practitioner provided a letter to the Tribunal attesting that DQE16 has been suffering from a severe major depressive disorder since 2013, and attributing this disorder to the persecution DQE16 suffered on account of the inter-caste marriage. She was referred to a psychologist and prescribed antidepressant medication in July 2016. A letter from a psychologist for both of the appellants stated that the appellants both suffer from extremely severe depression, anxiety and stress and that DQE16 has been diagnosed with post-traumatic stress disorder (PTSD). The doctor and the psychologist each advised against relocation to India or Nepal.

The Tribunal’s decision

17    On 9 November 2016, the Tribunal affirmed the delegate’s decision to refuse the appellants’ applications for protection visas.

18    Relevantly to the grounds of appeal in this Court, the Tribunal stated that it took into account all available evidence before it in order to reach its decision. It noted that it was required to consider information prepared by DFAT, and referred to documents provided by the appellants that included “country information about Nepal and India”.

19    On the basis of the medical evidence before it, the Tribunal accepted that the appellants suffer from depression, anxiety and stress and that, further or in the alternative, DQE16 suffers from PTSD.

20    The Tribunal accepted that the appellants were in an inter-caste marriage, which was a particular social group for the purposes of s 36(2) of the Act, and that the appellants faced a real chance of serious harm in Punjab on the basis of their marriage and on the basis of political opinion. The Tribunal found (at [140]) that it would be unreasonable for the appellants to relocate to another part of India because “they may not be able to access health care they need in relation to mental health”.

21    However, as it had on the first review, the Tribunal concluded (at [141]-[148]) that s 36(3) of the Act applied to the appellants and Australia therefore did not owe them protection obligations. In reaching this conclusion, the Tribunal found (as it had on the first review) that the appellants had no well-founded fear of persecution in Nepal for a Convention reason and that there was no real risk of significant harm in Nepal, for the purposes of the complementary protection criteria. In particular, the Tribunal found that the appellants’ inability to access health services in Nepal for their physical and mental conditions (either of the same standard as in Australia or at all) lacked the required nexus with the Convention reasons. The Tribunal also found (at [158]-[174]) that any harm suffered by the appellants by reasons of no, or no adequate access to health services in Nepal did not rise to the level of “significant harm” as defined in the Migration Act.

Procedural history of the present appeal

22    The appellants applied to the Federal Circuit Court on 29 November 2016 for judicial review of the Tribunal’s second decision.

23    The appellants’ grounds of judicial review, which were amended on 16 March 2020, included a contention that the Tribunal erred in its construction of s 36(3) and that the Tribunal breached s 499 of the Act and Ministerial Direction No 56 by failing to have regard to the most recent DFAT Country Information Report on Nepal.

24    On 20 January 2021, the Federal Circuit Court rejected each of these grounds, and the appellants’ other ground of judicial review, and dismissed the application: see DQD16 v Minister for Immigration and Border Protection [2021] FCCA 57.

25    Relevantly, the Federal Circuit Court rejected the appellants’ submission that the Tribunal was required to consider the appellants’ ability to obtain employment, welfare benefits and medical services in Nepal in connection with its assessment under s 36(3). The Court found that the Full Court in SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97; 187 FCR 109 had rejected a submission that a person could not meaningfully have a right to reside in a country if that person had no ancillary rights such as a right to work and to access welfare that would enable them to establish a residence.

26    The Federal Circuit Court also found that, on a fair reading of the Tribunal’s reasons, it was reasonable to infer that the Tribunal had considered all of the available country information that was specifically referred to in its decision. In the alternative, if the Tribunal did not, contrary to the relevant ministerial direction, consider the most recent DFAT Country Information Report on Nepal, there was no probative material in that report to show that medical care would be withheld from the appellants for a reason recognised in the Refugees Convention, or at all, if they were to reside in Nepal. Therefore, the Federal Circuit Court was satisfied that a failure to consider the report could not have materially affected the Tribunal’s decision that the appellants were not owed protection obligations, and the Tribunal’s decision was not affected by jurisdictional error as a result of its failure to consider the report.

27    The appellants filed a notice of appeal in this Court on 3 February 2021, raising two grounds of appeal:

(a)    that the Tribunal erred in its construction of s 36(3), in that the “right” held by the appellants under the Indo-Nepal Treaty should not be construed as a right to enter and reside in a third country for the purposes of s 36(3) of the Act; and

(b)    that the Tribunal contravened s 499 of the Act, by failing to apply Ministerial Direction No 56 and take into account in its decision the DFAT Country Information Report – Nepal dated 21 April 2016 (DFAT Report on Nepal).

28    I consider the parties’ submissions on each ground in turn, and express my conclusion on each ground.

Ground 1: The Tribunal’s construction of section 36(3)

The appellants’ submissions

29    In the appellants’ submission, the Tribunal erred because it required the appellants to take steps to exercise a right to enter or reside in Nepal, despite also finding that it would be unreasonable for the appellants to relocate within India.

30    Section 36(3) of the Act provides:

Australia is taken not to have protection obligations in respect of 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.

31    The appellants submit that the “right to enter and reside in” a third country should not be construed as including a situation where a person could not achieve meaningful protection, having regard to their personal circumstances as found by the Tribunal.

32    The appellants contend this submission is supported by the context and purpose of s 36(3). Specifically, the appellants refer to extrinsic material quoted by Allsop J (as his Honour then was) in V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018; 114 FCR 408 at [24]. Allsop J referred to the Senate debates on the Border Protection Legislation Amendment Bill 1999 (Cth), which introduced s 36(3) to (5). In those debates, Senator Paterson said that the objective of the 1999 legislation was to curb the use of the refugee process “as a means of obtaining residence in the country of their choice, without taking reasonable steps to avail themselves of protection which might already be available to them elsewhere” (my emphasis).

33    The appellants also refer to the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth). That Bill inserted new versions of subss (4) and (5), as well as subs (5A), into s 36. At [94], the explanatory memorandum explains the interaction between subss (3) and (4) in the following terms:

The purpose of substituted subsection 36(4) is to ensure that subsection 36(3) does not operate in relation to a person who could have sought effective protection in another country apart from Australia if, in relation to that other country, they have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to that country.

34    At [99], the memorandum expresses a similar purpose for the interaction between subss (3) and (5A).

35    The appellants submit that the concepts of “protection” and “effective protection” should be understood to incorporate in the concept of a “right to enter and reside” a meaningful right to enter and reside in a third country. The adjective “meaningful” is contended to embody (as I understood it) notions of reasonableness and practicability in the same way the authorities have approached internal relocation principles.

36    The appellants contend further that their submission is supported, or at least not precluded, by current case law on s 36(3). They refer to Minister for Immigration v SZRHU [2013] FCAFC 91; 215 FCR 35 at [77]-[80], and submit that Buchanan J’s construction of the right of entry and residence in s 36(3), with which Tracey, Robertson and Griffiths JJ agreed, was that the right need not be legally enforceable, but it must at least be “real”. They also note Flick J’s obiter dictum in SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43; 224 FCR 570 at [48] that a “right to cross a border into a third country but to thereafter remain in economic or physical conditions so devoid of any acceptable standard may be found to not constitute a right of the kind being described [in s 36(3)]”.

37    Insofar as the Full Court’s judgment in NBLC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 272; 149 FCR 151 at [2], [12] and [64] precludes the phrase “all possible steps” being read down to mean “all steps reasonably practical in the circumstances”, the appellants submit that this does not prevent s 36(3) being understood to require the right of entry and residence to be meaningful before a person becomes obliged to avail themselves of it.

38    A “right to enter and reside” means, the appellants submit, more than a right to be lawfully physically present in a country. Similarly, the Act does not intend that the phrase “all possible steps” in s 36(3) be read literally. Rather, the appellants submit it has some qualitative meaning, in addition to a practical step of actually trying to enter, in the sense that a step towards entry will not be “possible” if it is unreasonable for a person to take that step because of the conditions they are likely to experience in that third country.

39    The appellants submit that the Tribunal accepted that the appellants “have never been to Nepal, they have no desire to go to Nepal, they do not speak, read or write Nepali, and they do not own real estate in that country, and Nepal is a developing country”. They submit that the Tribunal accepted that the appellants’ mental health made internal relocation within India unreasonable, yet failed to have regard to the adequacy of mental health services in Nepal beyond considering whether medical treatment would be deliberately withheld by Nepali authorities for a discriminatory reason or would amount to the intentional infliction of harm. In these circumstances, the appellants submit that:

The perverse outcome of the construction adopted by the Tribunal in this case was that the appellants were entitled to protection from refoulement to India, where they faced a well-founded fear of persecution in Punjab, and where it would be unreasonable to expect them to relocate elsewhere in India because of the hardships posed by an inability to access mental health care and their lack of family or community support, but were not entitled to protection from refoulement to Nepal, where the hardships acknowledged by the Tribunal would be even greater than those that were found to make their relocation within India unreasonable.

The Minister’s submissions

40    The Minister submits that the appellants misunderstand the protection that s 36(3) contemplates a third country will provide. In the Minister’s submission, the text of s 36(4), (5) and (5A), as well as the relevant extrinsic materials, make it clear that protection in the context of s 36(3) means protection from a well-founded fear of persecution or from significant harm in a third country or in a country to which the appellants might be returned by a third country.

41    The Minister submits further that there is no sound basis for the appellants’ characterisation of the right to enter and reside in a third country (here, Nepal) as requiring assessment of the nature and extent of services available to a person after entry. The Minister submits the case law on s 36 of the Act supports the Minister’s position (with my emphasis added):

(a)    NBLC, in which:

(i)    Graham J held that the “relevant right in respect of which a non-citizen must take all possible steps to avail himself is the bare right, if it exists, to enter and reside in a country, not a right to enter and reside comfortably in a country” (at [63]); and

(ii)    Wilcox J observed that it was “not possible to conclude that Parliament intended the words [of s 36(3)] to require decision-makers to take into account the consequences to the person of entering or residing in the relevant third country, except as specifically provided in subss (4) and (5) of s 36” (at [2]);

(b)    SZMWQ, in which:

(i)    Rares J rejected a submission that, for the purposes of s 36(3), a person could not meaningfully have a right to reside in a country if they had no ancillary rights, such as rights to work and to welfare, that would enable them to establish a residence, since it is irrelevant whether, by exercising a right to enter and reside in another country, “the person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle, that do not arise for a Convention reason (ie a well-founded fear of persecution)” (at [32]); and

(ii)    Flick J rejected the same submission, finding it to be contrary to the Full Court’s reasoning in NBLC (at [82], [103]-[104], Besanko J agreeing at [61]).

42    The Minister accepted that Flick J in SZMWQ and SZTRC left open for future resolution whether a “right to enter and reside” in another country of a person who may encounter economic and physical circumstances “so devoid of any acceptable standard may be found to not constitute a right of the kind being described”: see SZMWQ at [110]; SZTRC at [48]. However, his Honour nevertheless adhered to the accepted construction of s 36(3).

43    In the Minister’s submission, it follows that the inability of the appellants to obtain adequate healthcare in Nepal did not preclude the Tribunal applying s 36(3) on its terms.

44    Finally, the Minister submits that the Tribunal’s construction of s 36(3) did not result in a “perverse outcome” that is logically inconsistent with s 36(2). The Minister submits that the inquiry under s 36(2) (or (2B)) is not directed to the reasonableness of relocation at large, but requires the identification of a well-founded fear of persecution or a risk of significant harm in a part or region of the person’s country of nationality. If such a finding is made, the question then is whether it is reasonable to expect a person to relocate to another part of that person’s country of nationality, where no such fear or risk is found to exist. That, the Minister submits, is a different task to simply asking whether a person will be subject to unreasonable or even very harsh conditions on return to that non-citizen’s home country. That is not the exercise under s 36(2). Similarly, the existence of unreasonable or even very harsh conditions in a third country is not a basis to disengage s 36(3), unless the circumstances in subss (4), (5) or (5A) exist.

45    The Minister submits this meaning is confirmed by the extrinsic material concerning the introduction of s 36(3), particularly the Supplementary Explanatory Memorandum for the Border Protection Legislation Amendment Bill 1999 (Cth), which stated (at [5]):

The purpose of proposed subsections 36(3), (4) and (5) is to ensure that a protection visa applicant will not be considered to be lacking the protection of another country if without valid reason, based on a well-founded fear of persecution, he or she has not taken all possible steps to access that protection.

46    In oral submissions, senior counsel for the Minister put the matter in the following way:

It comes in as an effective protection-type provision, dealing with third countries, perhaps safe third countries, and it – as the extrinsic material shows, it’s dealing with countries to which somebody can go and access protection from persecution on convention grounds or significant harm. Now, through subsequent amendments, the significant harm for the purposes of complementary protection.

So, in other words, section 36(3) assumes the existence of a real chance of persecution or a real risk of significant harm in relation to the whole of the country of origin, but requires or expects the non-citizen to access the protection of any third country in which he or she has a right to enter and reside before seeking the protection of Australia. And it has really got nothing to do with that causal connection that’s the foundation of the internal relocation principle, so there’s really no reason to import directly that test of whether it’s reasonable in the sense of practicable in the particular applicant’s circumstances to move within the country to avoid persecution. It’s dealing with a completely different problem in a completely different context and background. So a starting point of my learned friend’s submissions, which seeks to leverage off the finding that the tribunal made at paragraph 139 to 40, I think, in relation to the unreasonableness of relocation, really has nothing to do at all in informing the application of section 36(3) and so, using that as a platform to then say, “Well, they had relied on this array of problems in Nepal and the difficulties which would be even higher than the difficulties that they would face in moving to Mumbai, for example.”

Ground 1: Resolution

47    As the Minister’s submissions recognised, the form of the Migration Act applicable for the purposes of the Tribunal’s review was a form prior to the enactment of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which repealed ss 91R to 91U and inserted ss 5H to 5M into the Act. These provisions only applied to protection visa applications made on or after 18 April 2015, which is not the appellants’ circumstances.

48    Relevantly, s 36 provided:

36    Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    the criterion in subsection (1B); and

(b)    at least one of the criteria in subsection (2).

(1B)    A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

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

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

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

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

(ii)    holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

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

(ii)    holds a protection visa of the same class as that applied for by the applicant.

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

Ineligibility for grant of a protection visa

(2C)    A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

(a)    the Minister has serious reasons for considering that:

(i)    the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(ii)    the non-citizen committed a serious non-political crime before entering Australia; or

(iii)    the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

(b)    the Minister considers, on reasonable grounds, that:

(i)    the non-citizen is a danger to Australia’s security; or

(ii)    the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

Protection obligations

(3)    Australia is taken not to have protection obligations in respect of 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, subsection (3) does not apply in relation to a country in respect of which:

(a)    the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

(b)    the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

(5)    Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

(a)    the 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.

(5A)    Also, subsection (3) does not apply in relation to a country if:

(a)    the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

(b)    the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

49    I accept the Minister’s submission about the construction and operation of the relevant parts of s 36 as I have described those submissions at [44] above. Acceptance of those submissions does not, however, preclude an interpretation of the phrase “right to enter and reside” which incorporates some limited form of qualitative assessment. However, as I explain, this is not an interpretation which assists the appellants on this appeal.

50    In SZMWQ at [110], Flick J first articulated what his Honour considered might be “left open for future resolution” about the content of s 36(3), especially perhaps in terms of how the verb “reside” should be construed. His Honour said:

Left open for future resolution is a question as to whether a person who has a “right to enter and reside” in another country may so confront economic or physical circumstances that he may not truly be said to have such a “right”. The right is a “right to enter and reside”; it is perhaps different to a “right to enter and subsist”. Regulation 5 to the Revised 1956 Regulations for Inmates for the United States Penitentiary for Alcatraz, California, it will be recalled provided:

PRIVILEGES. You are entitled to food, clothing, shelter and medical attention. Anything else that you get is a privilege. You earn your privileges by conducting yourself properly. “Good Standing” is a term applied to inmates who have a good conduct record and a good work record and who are not undergoing disciplinary restrictions.

It would be desirable to conclude that a “right to enter and reside” means a little more than the basic entitlements extended to inmates of Alcatraz over half a century ago. A right to enter a country and to have access to basic shelter and food may not be as desirable as a claimant may hope for, but it may perhaps remain a “right to enter and reside”. Examples are regrettably not infrequent where those fleeing persecution are housed by another country in tents or make-shift accommodation and have no ability to obtain employment and where their ability to move freely throughout a country may be seriously circumscribed. But their ability “to enter and reside” in the country to which they have fled may nevertheless still fall within the ambit of the qualification expressed in s 36(3).

51    In SZTRC at [48], his Honour used the expression “a right to cross a border”, apparently in contradistinction to what his Honour considered might be the proper construction of the phrase “a right to enter and reside” in s 36(3), in context.

52    I respectfully agree with Flick J’s tentative views. Parliament’s use of the term “reside” in the cumulative phrase “enter and reside”, in a context of prescribing when a third country is sufficiently ‘safe’ for a putative asylum seeker so that Australia’s protection obligations are not engaged, is likely to imply at least some minimum physical and economic conditions. I accept that Parliament has expressly provided for the circumstances in which s 36(3) will not apply, by reference to a well-founded fear of persecution for a Convention reason and the risk of “significant harm”. However the latter has a narrow meaning by reason of s 36(2A). So too (now) does the narrow definition of “cruel or inhuman treatment or punishment” in s 5 of the Act, as the Tribunal recognised at [167]-[171] of its reasons.

53    In contrast to these kinds of expressions, the phrase “right to enter and reside” picks up ordinary concepts of migration between nation states. It is referable to the permission granted by a nation state to a non-national to first, enter, and second, remain for the purposes of residence, in that country. The concept of residence implies, at least, some form of reasonable access to the necessities of life, enough to sustain oneself so as to be described as “residing”. To find as much is not to read into s 36(3) any requirement of some kind of minimum “lifestyle” or need for social welfare as that benefit is understood in countries such as Australia (cf SZMWQ at [32]). Nor is it about ‘comfort’ (cf NBLC at [63]). Rather, as Flick J noted, it is to recognise that entry and residence is more than crossing a border, and that conditions which no person could reasonably be expected to tolerate on an ongoing basis, and which might be described as inhumane, would not be comprehended within the phrase “right to enter and reside” for the purpose of s 36(3). It is unhelpful to give any speculative examples – all will depend on the facts and the evidence.

54    However, as with the cases where Flick J made these observations, if such content is to be given to the phrase “enter and reside”, it is not content which can be found to have caused the Tribunal’s application of s 36(3) to miscarry in relation to the appellants. At [188] of its reasons, the Tribunal acknowledged the appellants might face “substantial hurdles” in settling in Nepal, but that access to welfare benefits or employment were not part of the assessment under s 36(3). That is correct, on the authorities. In any event, the Tribunal had found, as a fact, that DQD16 would be able to find a job (see [185]-[186]). The appellants were not entering a refugee camp, or a camp for displaced persons, where their freedom would be confined and they would be dependent (for example) on international aid. Rather, the Treaty permitted them, like all Indian nationals, to migrate to Nepal, to live there freely and to access at least some form of employment, accommodation and services available to other residents of Nepal. The Tribunal recognised the particular difficulties for the appellants in relation to access to health services: see [155]-[157]. It found, implicitly if not expressly, that what the appellants were fearful of was being exposed to a far lesser level of such services than they had enjoyed in Australia: see, e.g., [174]. Those were findings of fact open to the Tribunal on the evidence.

55    Ground 1 is not made out.

Ground 2: Failure to consider DFAT report

The appellants’ submissions

56    In the appellants’ submission, s 499(2A) of the Act requires the Tribunal to comply with directions made by the Minister under s 499(1). Ministerial Direction No 56 is a direction made under s 499(1) of the Act and was in force at the time of the Tribunal’s decision. It provides, relevantly:

Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision-maker, the decision-maker must take into account that assessment, where relevant, in making their decision. The decision-maker is not precluded from considering other relevant information about the country.

(Emphasis added.)

57    The appellants submit that the DFAT Report on Nepal was such a report. They submit the Tribunal failed to consider the report, thereby contravening s 499(2A) of the Act, and this was a jurisdictional error.

58    The appellants contend the Tribunal made no reference to the DFAT Report on Nepal in its reasons for decision. In the appellants’ submission, given its centrality to the issues before the Tribunal, had the report been considered by the Tribunal, it is likely it would have been mentioned. The appellants relied on what was said by the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [49]:

The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf at [10], [44], [69].

59    The appellants submit that this inference is stronger on the present set of reasons because the Tribunal specifically cited every other piece of country information to which it referred and on which it relied.

60    Furthermore, the appellants submit that there is no indication that the DFAT Report on Nepal was before the Tribunal at all. They note that the report was not among the information that the appellants provided to the Tribunal. They also note that the same Tribunal Member who made the decision of the Tribunal had previously made a decision in relation to the present matter that referred to and extracted the relevant DFAT report on India, but did not mention the DFAT Report on Nepal.

61    The appellants submit that the failure of the Tribunal to consider the DFAT Report on Nepal was material to the Tribunal’s decision, because there was at least a realistic possibility that the Tribunal’s assessment of the appellants’ case might have been different if the report had been considered. They submit that the DFAT Report on Nepal contained information about the mistreatment of people in inter-caste marriages, anti-Indian sentiment, the accessibility of health services by non-citizens and persons of lower castes and the ease with which Indians can enter Nepal unchecked, which the appellants submit is relevant to their fear of being pursued by their relatives. The appellants submit that, because the information in the DFAT Report on Nepal could have possibly made a difference to the Tribunal’s decision if the Tribunal had complied with the Ministerial direction to have regard to the report, the Tribunal’s failure to consider the report was material and accordingly its error was jurisdictional in nature: citing BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 at [33]-[34]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [39].

62    At [84] of its reasons, the Federal Circuit Court concluded that the Tribunal did have regard to the DFAT Report on Nepal because the Tribunal had stated that it had had regard to all available country information before it and, specifically, that it had referred to country information provided by the appellants, “including country information about Nepal and India”. The appellants submit that the Federal Circuit Court had no basis for this conclusion.

The Minister’s submissions

63    The Minister submits that the proper inference to draw from a fair reading of the Tribunal’s decision is that the country information considered by the Tribunal included the DFAT Report on Nepal. The Tribunal expressly noted that s 499 and Ministerial Direction No 56 required it to take into account country information prepared by DFAT, and the Minister contends this is sufficient to conclude that the Tribunal considered the report. The Minister refers to a number of authorities for this proposition, namely: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272; SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309 at [14]; AJW15 v Minister for Immigration and Border Protection [2016] FCA 197 at [46]; AYI15 v Minister for Immigration and Border Protection [2016] FCA 1554 at [18]-[30]. The Minister further submits that the Tribunal’s statements at [165] and [191] of its reasons about having looked for applicable country information are further indications that this is the correct inference.

64    In the alternative, the Minister submits that a failure to consider the DFAT Report on Nepal was not material to the outcome of the review, and therefore any error was not jurisdictional. The Minister contended:

(a)    the Tribunal accepted (at [175]-[176] of its reasons) that “people in Nepal oppose inter-caste marriages” but found there was no evidence that “complete strangers or the authorities might inflict serious harm or significant harm” on the appellants – since there was also no such evidence in the DFAT Report on Nepal, consideration of the report would not have advanced the appellants’ submissions about the mistreatment in Nepal of people in inter-caste marriages;

(b)    the Tribunal observed (at [144], [152]-[153]) that it could find no practical barriers for Indian citizens being able to travel and enter Nepal, but it did not accept that DQD16’s relatives (or anyone else) would seek to find the appellants in Nepal and inflict harm – it follows that information in the DFAT Report on Nepal about the ease with which Indian citizens can enter the country would not have assisted the appellants;

(c)    the subject of anti-Indian sentiment in Nepal (including country information on that issue) was considered in detail in the RRT’s decision and reasons and the Tribunal specified (at [32]) that it considered the material before the RRT in relation to that decision – it follows that information in the DFAT Report on Nepal about anti-Indian sentiment in Nepal would not have assisted the appellants before the Tribunal; and

(d)    the Tribunal assumed (at [108]) that the appellants would have to pay for their healthcare in Nepal – the appellants would not have been assisted by the DFAT Report on Nepal because that report did not suggest that healthcare would be withheld (on a discriminatory basis or otherwise) if the appellants sought to pay for it; the report refers only to free essential health care for poor and vulnerable citizens in Nepal and makes no comment on the healthcare available to non-citizens.

65    The Minister also submits that the analysis above likely explains why it was unnecessary for the Tribunal to refer specifically to the DFAT Report on Nepal in its reasons.

Ground 2: Resolution

66    There was no dispute that by reason of the terms of s 499(2A), and Ministerial Direction 56, the DFAT Report on Nepal was a mandatory relevant consideration for the Tribunal in the conduct of its review: BMP15 at [33]-[34]; see also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14] (footnote 13); PQSM v Minister for Home Affairs [2020] FCAFC 125; 279 FCR 175. Further, while maintaining the position that any error was not material, the Minister properly accepted that the DFAT Report on Nepal was capable of being relevant to the Tribunal’s consideration of the exceptions to s 36(3), in particular s 36(4).

67    At [22] of its reasons, the Tribunal disclosed its consciousness of the obligation in Ministerial Direction 56:

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration

68    Contrary to the reasons of the Federal Circuit Court and the Minister’s submissions, I do not consider this paragraph is sufficient to infer that the Tribunal considered the DFAT Report on Nepal. Nor do I consider that the Tribunal’s remarks at [165] and [191] strengthen any such inference. The content of the rest of its reasons, and the applicable chronology, suggest otherwise.

69    The DFAT Report on Nepal was published on 21 April 2016. The matter was remitted to the Tribunal on 1 March 2016. The Tribunal held hearings on 28 June 2016 and 12 October 2016. The Tribunal published its decision on 9 November 2016. There are no references in the Tribunal’s long and otherwise detailed decision to any country information from 2016. There is a reference in footnotes to a 2014 article which was accessed in October 2016 by the Tribunal; that is all. The Tribunal footnoted closely, or referred in the body of its reasons to, the sources for its propositions about the situation in India and Nepal. The DFAT Report on Nepal is conspicuous by its absence. I find this is because it is likely the Tribunal did not refresh the country information to which it had referred in its previous decision, aside from anything submitted by the appellants. For example, one of its footnotes referred to information being accessed on “6 January 2014”, which must refer to consideration during the Tribunal’s previous decision. Further, footnote 11 in the Tribunal’s reasons refers to “[s]earches conducted on CISNET, think tanks, academic journals, open source search engines, human rights organisations, non-government organisations, and international news outlets” as the method by which the Tribunal searched for information indicating whether there was any practical barrier for Indian citizens travelling to and entering Nepal. This is one obvious place that the DFAT Report on Nepal should have appeared if the Tribunal had consulted it.

70    By reason of all of the above matters, I find there is no basis to infer the Tribunal considered the DFAT Report on Nepal at all. I find it is likely the Tribunal entirely overlooked its existence.

71    That inference is strengthened by the content of the DFAT Report on Nepal, to which I turn in the context of the Minister’s materiality contention. However, the content of the report also confirms the likelihood the Tribunal would have referred to it, if it was conscious it existed.

72    The following is an extract of the key passages of the Report (with my emphasis):

[2.8]    The capital city of Kathmandu had a population of 1.183 million in 2015 and approximately 17 per cent of the population live in urban areas. Inequalities exist across geographic regions and ecological zones, and between urban and rural areas. Ethnic and caste distinctions remain influential in Nepali society following a rise in identity-based politics and increased polarisation during and following the conflict from 1996 to 2006.

…

[2.9]    Nepal’s economic growth has been adversely affected by political uncertainty and conflict. The focus on political transition and the attainment of peace has meant inadequate attention has been given to economic and other reforms that would improve the investment climate, stimulate growth and create more private sector jobs. The earthquake of April 2015 and the subsequent aftershocks had a negative impact on the economy. The 2015 political dispute in the Terai, which restricted trade and services across the Nepal/India border, also affected growth.

…

[2.17]    Nepal’s health sector is challenged by the country’s widespread poverty, limited government funding and its remote and mountainous geography which hinders the development of appropriate health infrastructure and access to health services outside of the densely populated southern plains region. Health care services are generally considered inadequate by international standards, and some facilities, particularly in Kathmandu, were damaged or destroyed by the 25 April 2015 earthquake. Hospitals in Nepal tend to be located in urban areas and provide a much wider range of medical services than rural health centres, although the quality of health care provided in large urban centres such as Kathmandu is still variable. The average Nepali spends just 5 per cent of their annual income on health-related needs.

…

[2.35]    In September 2015 protests began in the Terai and continued until early 2016. Led primarily by the Madhesi and Tharu groups, (see ‘Ethnicity’ below), these protests arose in part because of concerns about the demarcation of provincial boundaries under the 2015 Constitution and had a significant effect on Nepal’s industry and economy as they have blockaded the East-West highway at Birgunj, the largest crossing on the border with India. Some figures suggest that only 40-50 per cent of goods and fuel were crossing into Nepal, which further added to the already difficult humanitarian situation faced by Nepal as it recovered from the 2015 earthquake. Nepal’s security forces (mainly police) were heavily involved in responding to the Terai protests and police reportedly opened fire on civilians in some instances. Over 40 deaths, both civilians and police, have been reported. At the date of publication, the protests have stopped and all borders are open following an amendment to the Constitution in January 2016 to respond to the aforementioned concerns.

…

[3.3]    In modern Nepal, Hindu castes and Buddhist and animist ethnic groups form a single caste hierarchy. However, ethnic divisions remain sensitive in Nepal. Discussion of ethnic difference or inequality was an offence punishable by jail until 1991. Efforts to restore and defend cultures and practices in opposition to Pan-Nepali identity policies began in the early 1990s through the creation of the Nepal Federation of Nationalities. There is no clear legislation criminalising hate speech, although provisions related to social justice and inclusion, including of minority communities, exist in the 2015 Constitution, and recognition of the rights of ethnic minorities have improved since the end of the civil war.

…

[3.10]    India and Nepal have encouraged the free movement of people and goods and close cooperation on matters of defence and foreign affairs since a Treaty of Peace and Friendship was signed between the two countries in 1950. However, the overwhelming size of India comparative to Nepal can give rise to concerns about unchecked movement of Indians into Nepal, especially in the southern section of Nepal (the Terai) that is geographically contiguous with the Indian plains and where there are deep cultural links between Nepalis and Indians. Historical concerns about India’s political and economic interference in Nepal and instances of poor treatment of Nepalis in India have given rise to anti-Indian sentiment amongst some Nepalis. The Indian state of Bihar has long been used as a safe haven for criminal organisations, political parties and separatist groups from Nepal, adding to concerns about India’s interference in Nepal’s domestic affairs.

…

[3.30]    Nepal’s caste-based system of social organisation is guided by the Hindu Varna system - a hierarchical allocation of rights, duties and obligations based on a person’s inherited position (and associated ‘purity’ or ‘impurity’) in society. Caste has a direct and significant impact on a person’s life experiences, including access to education, employment, residence and similar life opportunities.

[3.31]    Members of the upper castes continue to dominate government and business in Nepal owing to historical practices that prioritised the rights and interests of upper-caste elites. Discrimination on the grounds of caste is still widespread despite being officially outlawed since 1962. This is particularly the case in rural areas although this may be reducing over time. Among the four major caste and ethnic clusters – the Brahmins/Chhetris, the Janajatis, the Dalits and the Muslims - Hill Brahmans have a low poverty incidence of 10.3 per cent, compared to 43.6 per cent for Hill Dalits and 38.2 per cent for Terai Dalits. The poverty incidence among Hill and Terai Janajatis is 28.3 per cent and 25.9 per cent, respectively.

…

[3.35]    There are no legal barriers to inter-caste marriage in Nepal and the government has provided monetary incentives of 100,000 NRs (approximately AUD1, 300) to each inter-caste couple married since 2009. According to one study that examined 123 inter-caste marriages from Banke, Parbat and Shanusha districts between December 2011 and March 2012, 80 marriages were between a Dalit male marrying a non-Dalit female and 43 were between a non-Dalit male marrying a Dalit female. The former type of union was generally more successful. However, overall, success of an inter-caste marriage depends on a range of factors including economic, educational, social and political status. The practice of downgrading one’s caste as a result of inter-caste marriage still exists in remote and rural areas. Dalit families involved in such arrangements can risk even further social exclusion and non-Dalit families risk losing their status in society.

[3.36]    DFAT assesses that inter-caste couples can face disapproval by their families or society. Accusations of criminal activity such as theft, kidnapping, child marriage and rape can be used by the (relatively) higher-caste family to pressure the break-up of inter-caste marriages. Physical attacks and social exclusion by the families can also be imposed on couples in order to force a break-up of the relationship. Women (regardless of their Dalit or non-Dalit status) generally suffer more than men from such attacks, particularly social and familial humiliation (see section on ‘Women’ below).

…

[3.44]    Nepali women rarely receive the same educational and employment opportunities as men. Although there has been an increase in the proportion of economically active women, their earned income is about one-third that of men. Less than six per cent of women are employed in the formal sector (compared to 21 per cent of men).

…

[3.47]    Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and trafficking of. The Government is yet to investigate credible allegations of sexual violence allegedly committed during the 1996-2006 conflict but has acknowledged that women suffered rape during these years.

…

[3.50]    DFAT assesses as credible reports outlining women’s fear of, and related actual experiences of, sexual harassment and violence on the street (including rape and other forms of physical attack such as murder and mugging) and in the home. DFAT assesses that social stigma, cultural taboos about sexual violence and the fear of retaliation by the perpetrators prevent women from reporting criminal activity. Women’s fear of potential violence or attack can restrict their freedom of movement.

…

[5.21]    Relocation is a common experience for Nepalis. Millions travel each year to other countries seeking employment and other opportunities and to escape economic conditions at home. The open border arrangement with India, as per the 1950 India-Nepal Treaty of Peace and Friendship, allows large numbers of Nepalis to travel to and from India each year or reside in India on a long-term basis. In 2014, Nepal and India re-committed to this Treaty and agreed to review and update it. Large numbers of Nepalis also move within the country. The populations of major urban centres such as Kathmandu have increased substantially in recent decades, reflecting significant urbanisation and a desire to seek better employment opportunities and improved living standards.

…

[5.24]    The Nepal Ministry of Home Affairs Department of Immigration is responsible for conducting entry and exit checks. There are ten formal entry and exit points, of which Kathmandu airport is the only international airport. Non-Nepali citizens (not including Indians) are required to use one of these points and must present valid passports and required visas. Nepal and India have an open border that, apart from the aforementioned points, is largely unmanned, meaning Nepalis and Indians are able to cross it at any point and without a passport. The movement of Nepalis into and out of the country is thus largely undocumented. Movement through Kathmandu airport – for Nepalis and foreigners alike – is slow and cumbersome. Significant physical security checks occur, and passports are required for international flights.

[5.25]    Citizenship certificates are required by Nepalis to purchase or transfer land; register births, marriages, and deaths; open bank accounts, obtain micro credit loans, and register businesses; attend higher education institutions; acquire travel documents; receive state benefits for the disabled, widowed, or elderly; run for public office; and to enlist in the army, the armed police, and the civil police force. Certificates are also required in order to access formal sector employment opportunities, such as full-time permanent jobs that provide sick leave and pensions.

73    These passages make it clear that, on many of the issues raised by the appellants before the Tribunal, the content of the DFAT Report on Nepal had credible and significant information. In particular, it was capable of being seen as supporting what the appellants were saying about the risk posed to them through their inter-caste marriage, the porous border with India and the possibility they would be found by relatives and those intent on harming them, bearing in mind the Tribunal’s finding they had a well-founded fear of persecution in the State of Punjab and it was not reasonable for them to relocate anywhere else in India (see [139]-[140]). The report was also capable of supporting much of what the appellants were saying to the Tribunal about the poor levels of health services and access in Nepal, and their access to the basics of life. The report was also capable of being relevant to the assessment to be undertaken by the Tribunal in respect of s 36(4)(a). To take a concrete example, the Tribunal made a finding at [175] of its reasons about the situation for those who married between castes in Nepal:

The [appellants] told the Tribunal at both hearings that people in Nepal oppose inter-caste marriage, as do people in India, and the applicants fear harm there as well. The Tribunal finds that the claim is not supported by the available evidence, including the evidence provided by the [appellants]. While “honour killings” may take place in Nepal, the perpetrators are relatives or neighbours of the victims; hence the name “honour killing”. There is no evidence before the Tribunal that complete strangers or the authorities might inflict serious or significant harm on the [appellants], because they entered into an inter-caste marriage.

74    As the appellants submitted, the DFAT Report on Nepal dealt quite specifically with inter-caste marriages. I accept that there was enough in that report to find that the appellants were deprived of the realistic possibility of a different outcome on their claim to fall within the exception in s 36(4) of the Migration Act, because of the Tribunal’s failure to consider the DFAT report as a whole, and these kinds of passages in particular.

75    Further, a matter I raised at the hearing with counsel was what the report said about the earthquake in Nepal on 25 April 2015, and its effect on basic matters such as access to accommodation and health services. The Tribunal does no more than refer to the earthquake in passing, but the DFAT Report on Nepal consistently refers to the effects of the earthquake in relation to deaths and casualties (at [2.5] of the Report), economic impacts (at [2.9]), the impact on healthcare (at [2.17]), the impact on the education sector (at [2.22]), and humanitarian and reconstruction efforts in response to the earthquake (including the extent to which these efforts were disrupted by political unrest) (at [2.27], [2.35], [3.37] and [5.9]).

76    The Tribunal’s obligation to consider the facts and circumstances in a country of reference at the time of its review is well-established: see, e.g., MZYTS at [73]-[77]; BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6; 268 FCR 114 at [61]-[64]. The impact of the earthquake on the availability of many basic necessities of life for people in Nepal may well have affected the qualitative assessment by the Tribunal of whether the exception in s 36(4)(b) was made out. If the Tribunal had engaged with the content of the DFAT Report on Nepal, then the need for it to consider the impact of the earthquake was likely to have become more obvious.

77    In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [174], Kerr J and I said (Allsop CJ agreeing – see [1]) said:

The weight to be given to the executive dimension of Australia’s non-refoulement obligations was of course a matter for the Tribunal to decide. This court cannot substitute itself in the undertaking of such an evaluative task. In undertaking an assessment on materiality, where there are reasonable and rational choices to be made in fact finding, it is not appropriate for the supervising Court to attempt to place itself in the mind of the Tribunal, and speculate about what would or could have changed a particular Tribunal’s mind. To do so brings the Court into the merits of the decision. Rather, the supervising Court must assume a Tribunal acting fairly and reasonably, with a mind open to persuasion, would give active and genuine consideration to all matters relevant to its review, including the matter which was erroneously omitted, or misconceived, and which caused it to exceed its jurisdiction. See generally Martincevic v Commonwealth [2007] FCAFC 164; 164 FCR 45 at [67]-[68], Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 at [70]; PQSM v Minister for Home Affairs [2020] FCAFC 125; 279 FCR 175 at [69]-[73].

78    While the identified error was quite different, the approach in principle is one to which I adhere in this case, and indeed I am obliged to. The DFAT Report on Nepal was central to the subject matter of the appellants’ claims. How the Tribunal, acting conformably with what was said in FAK19 at [174], would deal with that report in its decision-making, would have been a matter for it, and will remain a matter for the Tribunal on remitter. It is not a matter to be pre-empted or assumed by any findings in this Court.

79    Ground 2 should be upheld and the appeal should be allowed. Costs should follow the event, and the Minister did not submit to the contrary.

Associate:

Dated:    15 December 2021