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YAU011 v Republic [2017] NRSC 102; Refugee Appeal 100 of 2015 (1 December 2017)

IN THE SUPREME COURT OF NAURU
AT YAREN

APPEAL NO. 100 of 2015

Being an appeal against a decision of the Nauru Refugee Status Review Tribunal brought pursuant to s43 of the Refugees Convention Act 2012

BETWEEN

YAU011 APPELLANT

AND

The Republic of Nauru RESPONDENT

Before: Khan ACJ
Date of Hearing: 11 April 2017
Date of Judgment: 1 December 2017

Case may be cited as: YAU011 v The Republic

CATCHWORDS:

Whether the Tribunal erred by taking into account an irrelevant consideration – whether the Tribunal erred in failing to assess the risk of India not being sufficiently satisfied of the appellant’s Indian nationality so as to allow him to enter India upon expulsion from Nauru - whether the expulsion of the appellant to the frontiers of India would be in breach of Nauru’s international obligations.

HELD: Appeal dismissed.

APPEARANCES:

Counsel for the Appellant: J Gormly
Counsel for the Respondent: A Aleksov

JUDGMENT

INTRODUCTION

1. The appellant filed an appeal against the decision of the Refugee Status Review Tribunal (“the Tribunal”) pursuant to s43(1) of the Refugees Convention Act 2012 (“the Act”) which states:
   

A person who, by a decision of the Tribunal, is not recognised as a refugee may appeal to the Supreme Court against that decision on a point of law.

2. The Tribunal delivered its decision on 12 August 201 5affirming the decision of the Secretary for the Department of Justice and Border Control (“the Secretary”) that the appellant is not recognised as a refugee and is not owed complementary protection under the Act.
   
3. The appellant filed an appeal in this Court on 28 April 2016 and the grounds of appeal were amended on 6 March 2017.
   

BACKGROUND

4. The appellant is a 25 year old man from Dehradun in Uttarakhand, India. He is of Punjabi ethnicity. His mother was Nepali and his father Punjabi.
   
5. He lived with his parents and attended primary school in Dehradun. When the appellant was ten years old, his parents moved to Nepal and left him in the care of a friend named Belkar Singh. He has had no contact with his parents since. Consequently, he cannot be certain where he was born.
   
6. Shortly afterwards, the appellant was sent to live with a restaurant owner in Delhi name Tarsem Singh, about 200km SSW from Dehradun. He lived and worked in the “Anmol” restaurant for ten years and Tarsem Singh became a father figure. He did not have much of a social life outside of the workplace.
   
7. As part of the Refugee Status Determination (“RSD”) application and interview, the appellant said that he attempted to obtain identification documents at the request of Tarsem Singh but was unable to do so because he was unable to prove his identity. Tarsesm Singh did not pursue his request. He did not feel like returning to school after such a long time to seek documents as he had only studied for three years and he had never really needed identification documents. The appellant told the Tribunal that Tarsem Singh tried to obtain the documents for him but was unable to. He agreed that he could have returned to his old school to seek documents. He was not sure if they would still have records of him.
   
8. On about 13 April 2013, the restaurant closed early for a Punjabi Sikh festival called Vaisakhi. The appellant was in the restaurant by himself as the staff were celebrating the festival. After midnight he saw a man being beaten and stabbed outside the restaurant by four men riding motorbikes. He witnessed this through the window but stopped looking when the attackers noticed him. He was frightened and called his boss, who attended and recognised the victim as being from a rich family. They called an ambulance and accompanied the victim to the hospital. The doctor called the police who, along with the victim’s family, applied pressure to the appellant to identify the attackers. He was only able to give small details of the attackers’ appearance because it had been dark and he was frightened. The police did not ask him for identification documents but asked where he was living and what his parents’ names were. The appellant was questioned by police in a robust manner.
   
9. On the following day, the attackers attended the restaurant and asked for the person who witnessed the attack. They wanted to know why he had identified them to police but the appellant was absent from the restaurant at the time because he was still being questioned by the police. They did not know who he was but asked for a boy with a fair complexion.
   
10. The appellant’s boss warned him about this, and also that he may get into trouble with the police as he had no identification. He was warned that this may come out during the investigation and that Delhi is a violent place and the police are corrupt. The appellant feared that his vulnerable position may be used to implicate him.
    
11. With Mr Singh’s assistance, he fled to Pabnawa in Haryana, 150km NNW of Delhi. He worked on a cattle farm for a man named Roshan Lal for about one month. He used the name Pali and made friends with two farmers called Vikram and Suryakant. Suryakant was from a scheduled caste and had a girlfriend from a higher caste.
    
12. In May 2013, there was an outbreak of a caste war in Pabnawa caused by Suryakant eloping with his girlfriend. The appellant was hit on the head with an axe and also hit on the eye, left arm and back. He hid in the fields and when it was light went to a bus stop and called Tarsem Singh, who summoned him back to Delhi. He received treatment for his eye over five to six days. He was given a place to stay.
    
13. The appellant was concerned that he would be targeted as a friend of Suryakant. Vikram moved to Malaysia and told him that other friends were beaten and that police were trying to stop the violence. A video of the conflict has been posted on the internet.He did not know what caste he was from but thought it might be the same as Suryakant.
    
14. With Mr Singh’s assistance, he fled to Thailand by ship when he felt better. He worked for a construction company and in a tattoo shop for about six months.
    
15. The appellant then travelled to Indonesia and Christmas Island by boat, arriving in December 2013. On 11 December 2013 he was transferred to Nauru.
    
16. The appellant fears persecution from the attackers in Delhi who want to stop him from talking to authorities, from the authorities because of his lack of identification and his perceived statelessness and from members of higher castes, in particular that of Suryakant’s girlfriend’s family, because of his lower caste status and his friendship with Suryakant.
    
17. The appellant also fears that if he is returned to India he will be at risk of being subjected to arbitrary deprivation of life, the infliction of the death penalty, torture, cruel, inhuman or degrading treatment or deprivation of liberty, particularly in the context of his claimed statelessness.
    
18. The appellant cannot seek State protection because the State is unable to protect people who have witnessed violent crimes or from inter-caste violence. Further, the appellant fears persecution from the authorities.
    
19. The appellant believes that wherever he goes in India, he may be recognised by the police and forced to be a witness against the attackers. Further, his lack of identification and his caste will put him in a vulnerable position anywhere in India. His former employer has now emigrated to the United States and so he has no support network.
    

APPLICATION TO THE SECRETARY

20. On 23 December 2013, the appellant attended a Transfer Interview.
    
21. On 5 March 2014, the appellant made an application to the Secretary for recognition as a refugee and for complementary protection under the Act.
    
22. On 26 January 2015, the Secretary made a determination that the appellant is not a refugee and is not owed complementary protection.
    

APPLICATION TO THE TRIBUNAL

23. The appellant made an application for review of the Secretary’s decision pursuant to s 31(1) of tt which provides:ides:
    

A person may apply to the Tribunal for merits review of any of the following:

1. a dete determination that the person is not recognised as a refugee;
   
2. a decision to decline to make a determination on the person’s application for recognition as a refugee;
   

100. a decision to cancel a person’s recognition as a refugee (unless the cancellation was at the request of the person).
     

4. a determination that the person is not owed complementary protection.
   

24. On 6 May 2015, the appellant made a statement and on 27 May 2015 his lawyers, Craddock Murray Neumann, made written submissions to the Tribunal.
    
25. On 5 June 2015, the appellant appeared before the Tribunal to give evidence and present his arguments with his representative and an interpreter in Punjabi and English languages.
    
26. The Tribunal handed down its decision on 12 August 2015affirming the decision of the Secretary that the appellant is not recognised as a refugee and is not owed complementary protection under the Act.
    

THIS APPEAL

27. The appellant filed two grounds of appeal which are:
    
    1. The Tribunal erred by taking into account an irrelevant consideration, namely the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness and commentary in respect of both.
       
    2. The Tribunal erred in failing to assess the risk of India not being sufficiently satisfied of the appellant’s Indian nationality so as to allow him to enter India upon expulsion from Nauru; and whether the expulsion of the appellant to the frontiers of India in these circumstances would be in breach of Nauru’s international obligations against refoulement.
       

SUBMISSIONS

28. In addition to the submissions filed by the appellant and the respondent, they also made oral submissions which were of great assistance to me and I am indeed very grateful to both counsel.
    

CONSIDERATION

Ground 1

29. The appellant submits that the Tribunal took into account the 1954 Convention relating to the status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness (the Statelessness Conventions); that Nauru is not a signatory to either Convention and therefore it was an irrelevant consideration made by the Tribunal.
    
30. The appellant submits^[1] that ss.3 and 4 of the Act defines the scope of the legal considerations that the Tribunal could take into account in determining the protection claims of the appellant and those sections are relevantly limited to Nauru “international obligations”. The appellant submits that since Nauru is not a signatory to either of the Conventions, neither of these instruments codify customary international law that Nauru would be bound by “and thus the Stateless Conventions are not part of the lawful consideration under the Act^[2]”.
    
31. The appellant submits that despite this, the Tribunal made lengthy reference to the Statelessness Conventions; and in doing so the Tribunal acted beyond its jurisdiction by taking into account irrelevant considerations.
    
32. The appellant claimed that he could not return to India as he was stateless and was entitled to protection in Nauru^[3].
    
33. The appellant submits^[4] that the Tribunal found that the appellant was not ‘stateless’ and rejected his refugee and complementary protection claims. The appellant submits that in rejecting both the claims the reasons are found under the headings ‘Statelessness’^[5] and ‘country of reference’^[6] and that the reasons recite the Indian Citizenship Act 1955 at [38] which was followed by the Tribunal quoting at length the guidelines on application of the Refugee Convention at [39] where it is stated:
    

“41. The 1954 convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness establish a legal framework setting out the rights of stateless persons, the obligations of State Parties to avoid actions that would result in statelessness and the steps to be taken to remedy situations of statelessness. The 1954 Convention applies to anyone who is ‘not considered as a national of any State under the operation of its law’, that is, it applies for the benefit of those who are denied citizenship under the laws of any State. The 1961 Convention generally requires States to avoid actions that would result in statelessness and explicitly forbids the deprivation of nationality if this would result in Statelessness. This constitutes a prohibition on actions that would cause statelessness, as well as an obligation to avoid situations where Statelessness may arise by default or neglect. The only exception to this prohibition is when the nationality was acquired fraudulently.”

34. The appellant submits^[7] that the Tribunal quoted at length from UNCHR Stateless Persons Handbook which concerns the application of the Statelessness Convention and stated at [40] as follows:
    

“...there may be cases where an individual has never come into contact with a State competent authority, perhaps because acquisition was automatic at birth and the person has lived in a region without public services and has never applied for identity documents or a passport. In such cases, it is important to assess the State’s general attitude in terms of nationality status of persons who are similarly situated. If the State has a good record in terms of recognising, in a non-discriminatory fashion, the nationality status of all those who appear to come within the scope of the relevant law, for example, in the manner in which identity card applications are handled, this may indicate that the person concerned is considered as a national by the State. However, if the individual belongs to a group whose members are routinely denied identification documents issued only to nationals, this may indicate that he or she is not considered as a national by the State.”

35. The appellant reiterates^[8] that the Tribunal reached its conclusion on appellant’s statelessness carefully and methodically and relied heavily on the above quote and also the Tribunal carefully and methodically, as if the Handbook on international instruments to which Nauru is not a party was binding.
    
36. The appellant submits^[9] that at [49] the Tribunal stated that the applicant is not a person who never came into contact with State competent authorities and at [50] stated:
    

“Similarly, although the Tribunal is of the view that acquisition was automatic at birth, and accepts that he has never applied for identity documents or a passport, it is not the case that the applicant lived in the region without public services, for as noted above he attended school until he was 10 years of age. The Tribunal infers from the manner in which the Delhi police treated the applicant that they had no concerns about him, and takes this as evidence of the State’s general attitude in terms of [his] nationality.

37. The appellant submits that at [51] the Tribunal concluded that the appellant was a citizen of India.
    
38. The appellant submits^[10] that the Tribunal must ‘take into consideration only matters within their jurisdiction’^[11]. A ‘wrong view of the applicable law would presumably constitute an irrelevant consideration’^[12]. ‘Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it’^[13].
    
39. The appellant submits the Tribunal gave extensive consideration to the Statelessness Conventions and none of the instruments are relevant consideration for the purpose of the Act; and the fact that they were used to determine his status as a citizen of India amounts to an error of law.
    
40. The respondent concedes that Nauru is not a signatory to the Statelessness Conventions.
    
41. The respondent submits that the appellant’s argument that the Tribunal exceeded its jurisdiction by taking the wrong view of the law is misconceived, and further submits that on the issue of ‘irrelevant consideration’ there is a distinction between the system in Nauru and the Australian. The respondent submits that the judicial review ground of taking into account ‘irrelevant considerations’ is relevant in Australia because of the constitutional framework of the Migration Act 1956. The respondent submits that the Tribunal will only make an error of law in taking into account irrelevant considerations if that consideration was prohibited by the law^[14]. The respondent submits that the Tribunal did not base its decision on the idea that Nauru was a signatory to the Statelessness Conventions; nor did the Tribunal base any part of its decision on the possibility that Nauru might breach its international obligations by reference to the Statelessness Conventions.
    
42. The respondent submits that the Tribunal was dealing with the issue of statelessness at [38] where the Tribunal stated that it did not agree with the Secretary’s finding that the appellant was stateless and in the process of doing so the Tribunal referred to the Indian Citizenship Act 1955 and the UNHCR Refugee Handbook which is the most significant and respected document in this field.
    
43. The respondent submits that the Tribunal extracted Guideline 7 which is stated at [39] and as ‘assessing nationality in the absence of evidence of the position of competent authorities’; and having done so the Tribunal then applied the advice from the UNHCR Handbook at [49] where it reached important conclusions. The respondent submits that the Tribunal referred to the UNHCR Refugee Handbook at [49] but did not make any finding on the basis that Nauru is a signatory to the Statelessness Conventions.
    
44. The respondent submits that there is no basis to allege that the Tribunal made an error of law simply by mentioning that the Conventions exist and further submits that the appellant has not challenged that the Tribunal was precluded from looking at the UNHCR Handbook.
    
45. Having considered the submissions made by the parties, it is not in dispute that the Tribunal made reference to the UNHCR Refugee Handbook in determining the issues of statelessness. Although the Tribunal used the Handbook I am satisfied that it used the advice referred to therein and also accept that the Handbook is the most significant document in this area of law. I am satisfied that the Tribunal did not make its finding on the basis that Nauru was a signatory to the Statelessness Conventions.
    
46. In the circumstances, this ground of appeal has no merit and is dismissed.
    

Ground 2

47. The appellant submits^[15] that the Tribunal failed to carry out its review obligations that is to exercise its jurisdiction by failing to:
    
    1. Recognise or determine a substantive issue arising on the material before it of the risk that India might not be sufficiently satisfied of the appellant’s Indian nationality as to allow him to enter India upon expulsion from Nauru;
       
    2. To address whether the expulsion of the appellant to the frontiers of India in these circumstances would be in breach of Nauru’s international obligations against refoulment.
       
48. The appellant relies on s.4(2) of the Act where it is stated that Nauru must not ‘expel or return any person to the frontiers of territories in breach of its international obligations’. The notion of ‘expulsion to the frontiers of the territory’ is not contingent upon that territory accepting the return of the persons who are expelled^[16].
    
49. The appellant submits that he claimed that India would refuse to accept him for lack of documents in the Tribunal hearing and also in the statement made by him on 6 May 2015 where he stated ‘there is no way for me to prove to the Indian authorities that I have ever resided there’^[17]. The appellant submits that despite this information the Tribunal failed to carry out its review obligations in that it failed to exercise its jurisdiction by not considering whether Nauru’s international obligations would be breached by expelling the appellant to the frontiers of a country of which the Tribunal found the appellant was a citizen by birth, in circumstances where the country would not receive the appellant^[18].
    
50. The appellant concedes^[19] that the Tribunal addressed the issue of his fears of what might happen to him on return for lack of documents by finding that he had not experienced harm in the past for this at [69] but this finding did not address the issues arising from the likely refusal of the Indian Government to allow him to return to India if it was not satisfied he was a citizen of India.
    
51. The respondent submits^[20] as follows:
    

“Adapting what was said by the Chief Justice of the Australian High Court, Gleeson CJ, in Appellant S39/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473, 478-9 [1], the system of appeal on a point of law is the third level of decision-making. It may not be surprising that, at the third level, an appellant will look for a new way of putting a case that has already failed on two occasions. The case put to the Court may bear little relationship to what was previously advanced, considered, and rejected. There is a risk that the criticism of the reasoning of the Tribunal might overlook the context in which such reasoning was expressed; a context that may have changed or was beyond recognition on appeal. A decision of the Tribunal must be considered in light of the basis upon which the application was made, not upon an entirely different basis which occurs to an appellant at some later stage.”

52. The respondent submits^[21] that the appellant alleges that the Tribunal failed to consider a claim that he may not be allowed to be received in India because the government may not be satisfied of his Indian nationality because he does not have any documents. The respondent submits that the appellant did not expressly make this claim in the extensive written submissions made to the Tribunal.
    
53. The respondent submits^[22] that the Tribunal was aware that the appellant did not have any documents; and that having found that he was a citizen of India there was no material (country information) that appreciated the existence of a claim based on whether the Indian authorities would not be satisfied as to his citizenship; and that the country information before the Tribunal indicated that many persons are undocumented.
    
54. The respondent’s counsel in his oral submissions submits that:
    
    1. At [47] of the decision the Tribunal states the Secretary’s decision refers to country information and indicating that a lack of documentation is not uncommon in India, that only 58% of the children born in India are registered at birth, and those without a birth certificate may be considered for registration if they have attended school, and many Indians use their school certificates as a form of ID, while many people can obtain ID as long as they can provide witnesses to vouch for them.
       
    2. At [48] of the decision the Tribunal stated that the appellant never experienced any problem in the past on account of his lack of documents or his statelessness.
       
    100. At [49] the Tribunal states that the police were satisfied that he was a citizen or they would have released him with a warning to get his documents in order;
         
    4. At [51] the Tribunal made a finding that the appellant was born in Dehradun, India on 23 May 1992 to an Indian father and a Nepali mother;
       
    5. At [57] the Tribunal dealt with the appellant’s claim and it stated:
       

“The Tribunal has nevertheless considered whether there is a real possibility that the applicant would be imputed with his statelessness and harmed for that reason.”

The Tribunal concluded at [57] by saying:

“Consequently, the Tribunal is not satisfied on the evidence before it that the applicant faces any real possibility of persecution for this reason if returned to India in the reasonably foreseeable future and his fear of persecution is not well-founded.”

6. At [69] the Tribunal dealt with the issue of his statelessness or lack of documentation in the past and in the future and the Tribunal states:
   

“......The Tribunal is of the view that this lack of documentation can readily be remedied, if not by the Indian authorities themselves in the process of repatriating the applicant (and the Tribunal does not consider that those authorities would accept the applicant back into the country unless satisfied as to his nationality in the first place) then upon his return to India where, like others described in the country information who had no birth certificates, it would obtain school certificates and establish his identity on that basis.”

55. The respondent further submits that the Tribunal in the performance of its duties under the Act is required to make an assessment whether the appellant was a refugee and if not then whether he was owed complementary protection and the Tribunal performed those duties. The respondent submits that the Tribunal is not required to deal with the issues of ‘re-entry processes’. The respondent submits that although the Tribunal was not required to deal with the ‘re-entry processes’ it made findings in that regard at [69] where it stated:
    

“... he could obtain a school certificate and establish his identity ...”

56. Mr Gormly still maintained that the Tribunal did not deal with the issue of the appellant being mistreated by the Indian authorities on return.
    
57. I accept that the Tribunal’s role was to determine whether the appellant was a refugee and it carried out that assessment in accordance with the Act and found that he was not a refugee. Thereafter the Tribunal was required to determine whether the appellant was owed complementary protection and again the Tribunal complied with the Act and found that the appellant was not owed complementary protection. I also accept that it is not the Tribunal’s job to consider whether the appellant would be allowed re-entry, however, the Tribunal considered that and made a positive finding that ‘... this lack of documents can be remedied... then upon return to India where, like others described in the country information who have no birth certificates, he could obtain school certificates and establish his identity on that basis. It is not in dispute that the appellant spent the first 10 years of his life in Dehradun where he attended primary school.’
    
58. The other point that the Tribunal stated [69] is that ‘... the Tribunal does not consider that those authorities would accept the applicant back into the country unless satisfied as to his nationality in the first place’ and by stating this the Tribunal is in my respectful view has considered the potential mistreatment that the appellant complains about.
    
59. In the circumstances this ground of appeal has no merit and is dismissed.
    

CONCLUSION

60. Under s44(1) of the Act, I make an order affirming the decision of the Tribunal.
    

DATED this 1 day of December 2017

Mohammed Shafiullah Khan
Judge

^[1] Appellant’s written submissions [32].
^[2] Appellant’s written submissions [33].
^[3] Appellant’s written submissions [35].
^[4] Appellant’s written submissions [36].
^[5] Tribunal’s decision [38].
^[6] Tribunal’s decision [45].
^[7] Appellant’s written submissions [36].
^[8] Appellant’s written submissions [37].
^[9] Appellant’s written submissions [38].
^[10] Appellant’s written submissions [39].
^[11] Seereelall Jhuggroo v Central Arbitration and Control Board [1953] AC 151 at p 163.

^[12] Public Service Association of South Australia v Federated Clerk’s Union of Australia and Anor [1991] HCA 33; (1991) 173 CLR 132 at 151.
^[13] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 [14].
^[14] See Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 39-42.
^[15] Appellant’s written submissions [41].
^[16] Appellant’s written submissions [42].
^[17] BOD page 91 [21].
^[18] Appellant’s written submissions [51]
^[19] Appellant’s written submissions [52]
^[20] Respondent’s written submissions [21]
^[21] Respondent’s written submissions [22]
^[22] Respondent’s written submissions [27]