NAFB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 484

FEDERAL COURT OF AUSTRALIA

NAFB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 484 MIGRATION – protection visa – judicial review – Minister's delegate refused to issue protection visa – decision affirmed by Refugee Review Tribunal – whether misstatement of the material submitted by applicant – no jurisdictional error. Judiciary Act 1903 (Cth) – s 39B Migration Act 1958 (Cth)– s 36, s 474, s 475A

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 – considered Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 – considered Craig v State of South Australia (1995) 184 CLR 163 – considered NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 – considered NAFB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1291 of 2002 HILL J 23 MAY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1291 OF 2002

BETWEEN: NAFB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 23 MAY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent Minister's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1291 OF 2002

BETWEEN: NAFB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE: 23 MAY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, a citizen of Nepal, seeks judicial review of the decision of the Refugee Review Tribunal ("the Tribunal") affirming the decision of a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refusing to grant to him a protection visa. 2 The applicant was not represented. Although the Tribunal noted that the applicant was fluent in English, the Court, in accordance with its ordinary practice, arranged for an interpreter to be present. It became clear that the interpreter was not competent. The applicant sought and was granted an adjournment so that a friend might interpret for him. 3 On the adjournment, the applicant was, however, not accompanied by the friend, who was apparently ill. However, the applicant indicated that he was happy to proceed without the benefit of an interpreter and did not seek an adjournment. He had prepared a short written submission which he read. Although I would not describe the applicant as being fluent in English, I am satisfied that he was able to put to the Court the matters he wished to present. 4 It is a criterion for the grant of a protection visa that an applicant be a person of whom the Minister, or in the case of a review to the Tribunal, the Tribunal is satisfied is a person to whom Australia has protection obligations. Australia will, generally speaking, have protection obligations to a person who satisfies the definition of "refugee" in Article 1A(2) of the Convention relating to the Status of Refugees, done at Geneva on 28 July 1951, as affected by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 which together are compendiously referred to as "the Convention". This is, however, subject to the provisions of ss 36(3), (4) and (5) of the Migration Act 1958 (Cth) ("the Act") which provides as follows: "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 applicant's claim to have a well-founded fear of being persecuted in Nepal for a reason set out in Article 1A(2) of the Convention was accepted by the Tribunal. Briefly, the applicant claimed to have been targeted by Maoists in Nepal for reason of his political opinion. He had been a successful businessman in Nepal until around the end of March or April 1999 when two of his employees were identified as being Maoists by the police and arrested. It seems that other Maoists believed that he had cooperated with the authorities in this arrest and as a result he was harassed and assaulted and an attempt was made to extort five million rupiahs from him. He reported this to the local police and was assured that he would be given help. However, immediately after he reported the matter to the police his shop was destroyed and money and machines in it were stolen. The Maoists continued to seek the applicant out and as a result he fled to the house of his uncle. The uncle was subsequently killed for harbouring the applicant. The applicant then fled to Australia. 6 The Tribunal rejected the applicant's claim, however, on the basis that he had the right to enter and reside in India, that being a country in which he had effective protection and not being a country in respect of which he likewise had a well-founded fear of persecution for a Convention reason. 7 The Tribunal discussed a number of the leading cases concerning the interpretation of s 36(3) of the Act. It can be said that the Tribunal made no legal error in considering the correct interpretation of s 36(3). 8 There was evidence before the Tribunal that as a result of a treaty between India and Nepal, ratified in 1950, nationals of Nepal could migrate freely to India and were granted generally the same privileges in matters of residence, ownership of property and the like as residents of India. Indeed there was evidence before the Tribunal that there were millions of Nepalese people in India. 9 The applicant accepted that as a citizen of Nepal he was entitled to live in India. His case however was that he would not be safe in India because Nepalese Maoists would find him there and kill him. In support of his case the applicant had submitted a written submission accompanied by articles and reports and a supplementary submission, dated 8 October 2002 to which were attached eight reports or articles which had been extracted from the Internet. He claimed that Maoist groups in India had a direct link to Maoists in Nepal. The applicant claimed that he would not be safe in India and that the government of India was unable to protect its own citizens let alone give protection to a person such as himself who came from Nepal. 10 The Tribunal summarised, so far as I can see, all or substantially all of the various documents or reports which the applicant submitted, as well as other country material which it listed. It concluded from this material that it was not satisfied that citizens of Nepal living in India were targeted either by Nepalese Maoists or their counterparts in India. The Tribunal said: "The Tribunal is 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 had monitored, controlled, and more recently detained Nepalese Maoists living in India and expelled them from the country. It is the Tribunal's view that the government of India has demonstrated through action that it will intervene and prevent Maoist activity in its territory. In that context, the Tribunal is satisfied that the government of India is willing and able to protect the applicant from Maoist [sic] in India and it does not accept the applicant's claim that he is at risk of harm by Maoists in India." 11 The applicant applied to the Court under s 39B of the Judiciary Act 1903 (Cth) applicable to applications for judicial review of decisions of the Tribunal by s 475A of the Act. The application was made on the ground that the Tribunal had not read the supporting documents which the applicant had submitted to it. It argued also that India was not a signatory to the Convention and was thus not a safe place for protection. The latter argument has no substance. 12 Not surprisingly, the applicant did not understand the distinction between judicial review on the one hand and merits review on the other. It is clear from the written submission made by the applicant that he wished to persuade the Court that the Tribunal was wrong in finding that he would be able to secure effective protection should he be deported to India. 13 Putting to one side the effect of s 474 of the Migration Act 1958 (Cth), the privative clause which, on its face, purports to exclude jurisdiction of the Court to grant relief of the kind referred to in s 39B of the Judiciary Act 1903 (Cth) when reviewing decisions of the Refugee Review Tribunal, it can be said that the applicant would be entitled to succeed in obtaining prohibition if the Tribunal had made a jurisdictional error. What constitutes a jurisdictional error such as to ground prohibition is far from clear in at least some cases. It would include a denial of natural justice: Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, failure to exercise jurisdiction, and certain kinds of legal error such as ignoring relevant material or relying on irrelevant material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, Craig v State of South Australia (1995) 184 CLR 163. One thing, however, is clear. It would not be a jurisdictional error for the Tribunal to reach a conclusion, which on the material is open to it, but with which conclusion others may disagree. 14 The applicant's complaint is, as I have indicated, that the Tribunal did not take into account the written material which the applicant presented to the Tribunal. The applicant also sought to persuade me that the Tribunal's decision was wrong. To this end he sought to tender a number of documents which he had not put before the Tribunal, either because the documents themselves postdated the Tribunal's decision or in some cases perhaps because the applicant did not have them in time. I indicated that I would not read any material that was not presented to the Tribunal for such material was not relevant to judicial review. 15 In the course of its reasons the Tribunal made the following comments concerning the material which the applicant had provided: "The applicant highlighted sections of several articles to essentially indicate that Maoists exist in India. The articles indicate that Indian Maoists have been implicated in terrorist activities, particularly in the state of Bihar. None of the articles state that citizens of Nepal, living in India, are targeted by Maoists in India or that the Maoist insurgency in Nepal extends into India." 16 These comments are not inaccurate. None of the reports before the Tribunal state that the Maoist insurgency in Nepal has extended into India. The Tribunal also did not find any reports to suggest that Nepalese citizens living in India had been pursued by Nepalese Maoists after fleeing to India. There is also no evidence before the Tribunal, either from its own sources or in the information provided by the applicant to indicate that Maoists in India are targeting citizens of Nepal. The Tribunal said: "The applicant argued that Maoists will target him in India. However, after considering all the information from external sources regarding the activities of Maoists in India, including the information provided by the applicant after the hearing, the Tribunal is not satisfied that citizens of Nepal living in India are targeted either by Nepalese Maoists or their counterparts in India." 17 I have read the material that was before the Tribunal including the material provided by the applicant with the letter of 2 October 2002. The majority of the material that the applicant put before the Tribunal or to which otherwise the Tribunal had recourse, concerned the activities of Maoist insurgents in Nepal itself. The material which concerned incidents in India, particularly the north of India, reports particular incidents in which Maoists had been involved in India. There is some suggestion that the Nepalese Maoists had links to organisations in India such as the local Naxalite organisation, the Communist Party of India, the Peoples' War Group and the Maoist Communist Centre. It seems there is concern in India about the Maoist insurgency in Nepal spilling over the border. A document entitled "India Hounds Nepal Maoists" from the Revolutionary Worker, August 25, 2002 which is closest to supporting the applicant's case says: "India also faces insurgencies being waged by Maoists. And there are fraternal relations between the CPN (Maoist) and Maoist parties in India". A document entitled "Nepal's insurgents balance politics and violence" from Jane's Information Group Ltd points out that the Maoists benefit from instability in India and receive encouragement from related organisations. It seems that some parts of northern India are used as safe havens for meeting of Maoists and training to supply networks in Nepal. India, for its part, as BBC News notes in an article entitled "India deports Nepalese Maoist" will deport Nepalese nationals supporting the Maoist insurgency in Nepal and its Prime Minister pledged aid to the king of Nepal in the struggle against the Maoist rebels. 18 With the exception of the one comment, to which I have already referred, it is clear that the Tribunal could not be said to have misstated the material submitted to it in the various passages I have quoted. That one document does not, however, lead to the conclusion that Maoists in India chase down Nepalese who have fled Nepal such that the applicant's life would be endangered in Nepal or that he would have a well-founded fear of persecution from them. From this it follows also that it could not be said that the Tribunal had in any way made a jurisdictional error. 19 Because the applicant has not been able to demonstrate any jurisdictional error, it follows that there is no need for me to consider whether the provisions of s 474 preclude me from exercising jurisdiction, having regard to the decision of the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 and the subsequent decision of the High Court in Plaintiff S157/2002. 20 The application must be dismissed and the applicant will be ordered to pay the respondent's costs of it. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.