AEE19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 137
•7 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AEE19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 137
File number(s): SYG 84 of 2019 Judgment of: JUDGE SKAROS Date of judgment: 7 February 2025 Catchwords: MIGRATION – Judicial Review – Where applicant was granted a refugee permit and permanent residence in third country prior to seeking protection in Australia – Where Administrative Appeals Tribunal (Tribunal) found that Australia did not have protection obligations by operation of s 36(3) – Where Tribunal considered incorrect test as to the meaning of s 36(3) – Error but not materiality conceded by Minister - Where possible that had Tribunal engaged with correct test outcome could have been different – Materiality established – writs issued Legislation: Migration Act 1958 ss 36, 438, 499 Cases cited: ABB19v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 715
AJN23 v Minister for Immigration [2024] FCAFC 103
DED16 v Minister for Home Affairs [2019] FCAFC 18
LPDT v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91
SZMWQ v Minister for Immigration and Citizenship (2010) [2010] FCAFC 97
V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of hearing: 5 December 2025 Place: Parramatta Counsel for the Applicant: Mr Jones Solicitor for the Applicant: Alkafaji Lawyers Counsel for the First Respondent: Ms Maddocks Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: Submitting appearance, save as to costs. ORDERS
SYG 84 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AEE19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
7 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to Minister for Immigration and Multicultural Affairs.
2.A writ of certiorari issue quashing the decision of the Second Respondent made on 20 December 2018.
3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS:
By application filed on 15 January 2019 and amended on 31 October 2024, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal)[1] dated 20 December 2018. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minster) in refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (the visa).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.
BACKGROUND
The applicant is a male citizen of Iraq. He first arrived in Australia on 21 January 2016 as the holder of a visitor visa.
On 25 February 2016 the applicant applied for the visa. In that application form, the applicant stated that he had been granted a refugee resident visa in France and that he had the right to enter or reside in France. The applicant stated that he was seeking protection in Australia so that he did not have to return to Iraq. The applicant also set out his claim for protection in the application form.
On 1 July 2016 the applicant attended an interview with a delegate of the Minister at which he made additional claims.
On 21 July 2016 a delegate of the Minister refused to grant the applicant the visa.
On 9 August 2016 the applicant applied to the Tribunal for review of the delegate’s decision.
On 16 August 2016, a delegate of the Minister, pursuant to s 438(1)(a) of the Migration Act 1958 (the Act), issued two certificates and notifications regarding the non-disclosure of certain information.
On 25 September 2018, the Tribunal requested from the applicant all formal and informal correspondence relating to his application for French citizenship, including the correspondence from the French government refusing his citizenship application. On 9 October 2018 the applicant responded to this request for information.
On 21 November 2018 the applicant’s representative provided to the Tribunal submissions and a statutory declaration in which the applicant made claims as to why he did not/could not return to France.
The applicant was invited to and attended a hearing before the Tribunal on 28 November 2018.
On 20 December 2018 the Tribunal affirmed the decision under review. As will be seen, the Tribunal was satisfied that s 36(3) of the Act was engaged, as it found the applicant had a right to enter and reside in France, such that Australia did not have protection obligations for him.
THE TRIBUNAL’S DECISION
The Tribunal first outlined the criteria for the visa in s 36 of the Act, setting out the refugee criterion and the complementary protection criterion.
The Tribunal identified that it had regard to Ministerial Direction No. 56 made under s 499 of the Act and policy guidelines prepared by the Department of Immigration, ‘PAM3 Refugee and humanitarian – Complementary Protection Guidelines’, ‘PAM3 Refugee and humanitarian – Refugee Law Guidelines’ and other relevant country information
The Tribunal summarised the applicant’s claims for protection. The applicant feared returning to Iraq because he had been subject to persecution as a result of his religion (Sunni Islam), political opinion and membership of a particular social group. The applicant’s father and brother had been officers in Sadam Hussein’s army and were targeted by Shi’a militias, including being placed on their ‘assassination list’. The military raided his family’s home looking for his father and brother and threatened to harm the family unless they ‘got’ his father and brother. The applicant’s father was detained in Baghdad and tortured but was able to convince the torturers he didn’t participate in the Iran-Iraq war and returned prior to the uprising. The applicant’s father was released and died in 2005. The applicant’s brother is a refugee in Australia and his other brother escaped after he was threatened.
As to the harm the applicant directly experienced, the Tribunal summarised that he was shot at, on the following day ‘they’ came looking for him at work and when they didn’t find him, they killed his boss, kidnapped all the Sunnis and killed them. He was issued a fake police warrant, received a threatening letter with a bullet, was at a mosque when it was bombed (he was wounded and psychologically affected) and he was harassed daily. When the applicant lived in France, it was under terrorist attack and because of a change in attitude towards immigrants, he was subject to serious discrimination and harassment which ultimately led to the refusal of his citizenship.
As to the applicant’s travel and family history, the Tribunal noted that the applicant had been granted a protection visa in France in 2009 and had lived there until coming to Australia in January 2016. The applicant’s family had been granted refugee status and moved to Australia. In France the applicant was isolated from his family. The applicant arrived in Australia in January 2016 on a visitor visa and lodged a protection visa the next month. The applicant stated he was unwilling to return to France due to the discrimination he faced there.
The Tribunal considered that the dispositive issue on review was whether the applicant had ‘taken all possible steps to exercise a legally enforceable right to enter and reside in a safe third country other than Australia’. In this case the safe third country was France. Pursuant to s 36(3) of the Act, the Tribunal stated ‘Australia is taken not to owe protection obligations to a person who has not taken all possible steps to exercise a legally enforceable right to enter and reside in a safe third country.’
The Tribunal had regard to the applicant’s evidence, including that which was provided prior to and at the hearing. The evidence indicated that the applicant had a residence permit to stay in France for 10 years and a refugee card that had expired. The applicant claimed that he did not know whether he had legal status to remain in France and said he had phoned and written a letter to the French authorities. As to the applicant’s contact with the French authorities, the applicant provided no evidence except a receipt for a registered letter, but there was no record of the content of the letter. The applicant claimed that other emails sent by him to the French authorities were either deleted or sent to junk.
The applicant had a card that identified that he was allowed to stay in France until October 2019 (almost a year after the Tribunal hearing). The Tribunal stated that the applicant ‘should be allowed to come and go until then’. The applicant’s evidence at the hearing was that he did not know whether there was any impediment to him returning to France. The applicant gave evidence that he believed his residence card had become invalid based on his own research. This research was a website that gave information for UK nationals living in France. The Tribunal put to the applicant that it was not applicable to his circumstances. The Tribunal was concerned the applicant had not taken all possible steps to clarify his status in France and put to him that the fact he had made no effort to clarify his status prior to January 2018 indicated that there was no problem with him returning to France, and it was likely the Tribunal would find he could return to France until October 2019.
The applicant gave evidence that he believed his French citizenship application had been refused on racial grounds but had previously told the Department that he did not know the reason for its rejection and that it had been delayed because of his incomplete employment history.
The Tribunal put to the applicant information that suggested that documents given to refugees in France were valid for two years and that his travel documents, whilst presently being expired, simply needed to be renewed. The Tribunal indicated it had accessed information that stated this and found that the applicant did not appear to have done much to clarify his residence situation in France.
As to the applicant’s claims of harm, the Tribunal put to the applicant that his claims did not reach the level of serious harm and otherwise had regard to the applicant’s evidence that he was rejected by the community and could not integrate.
Further, the Tribunal understood the applicant’s family were in Australia and that he wanted to join them and that his grant of a visitor visa before applying for the visa raised questions as to whether he was truthful in applying for the visitor visa and whether he always intended to file for protection in Australia. These issues, the Tribunal stated, could go to his credibility.
Ultimately, the Tribunal found that the applicant held a French refugee residency permit valid until 14 October 2019, that he could reside in France until at least that date, that his French travel documents could be renewed and that there was no ‘doubt as to his having a legally enforceable right to enter and reside in France’ and that he has an ‘ability to reside in France.’ The Tribunal also referenced country information found online by the member that the applicant’s residency permit could be renewed for an indefinite period. The Tribunal did not identify that this country information also stated that a refugee outside of France ‘should normally apply for a transfer of responsibility for protection to the state of their current residence.’ This issue will become relevant later in this judgment when considering the applicant’s grounds of review.
Given this finding, the Tribunal turned its mind to whether the applicant had a well-founded fear of being persecuted in France. The Tribunal was satisfied he did not and would not suffer persecution in France and that his claim to fear serious harm, suffer racial and religious discrimination and his claims about constant harassment were lacking credibility. The Tribunal noted that the applicant had travelled in Europe and to Malaysia, owned property and had been employed and that this indicated he had appropriate freedoms and was able to sustain himself economically. The Tribunal found the applicant did not have a well-founded fear of persecution in France or that he would satisfy the complementary protection criterion.
Therefore, the Tribunal affirmed the decision not to grant the applicant the visa.
APPLICATION TO THIS COURT
The amended application before this Court contains one ground of review, with 10 particulars, which has been further considered below.
The applicant also filed an affidavit of his legal representative, affirmed on 25 October 2024, which annexed a transcript of an audio recording of the Tribunal hearing as well as two country information reports relevant to the applicant’s grounds of review.
The Minister filed the Court Book on 12 April 2019 in accordance with the Order made by the Court on 15 March 2019.
The Applicant filed written submissions on 25 October 2024, the Minister filed written submissions on 28 November 2024 and the Applicant filed written submissions in reply on 2 December 2024.
The matter was heard on 6 December 2024 at the Parramatta Registry of the Court. The applicant was represented by Mr Jones of counsel and the Minister was represented by Ms Maddocks of counsel.
The Minister sought to rely on material in the Court Book. Accordingly, the Court Book, filed on 12 April 2019, was tendered into evidence and marked Exhibit CB.
GROUNDS OF REVIEW
The amended application for judicial review sets out one ground which is reproduced below without alteration:
1. The Second Respondent (Tribunal) made a jurisdictional error in concluding that the Applicant had a right to enter and remain in France for the purposes of s 36(3) of the Migration Act 1958 (Cth) (Act).
a. The Tribunal is required to have a correct understanding of the law, including applicable statutory provisions: AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103, [26]-[29], [30]-[33];
b. The Tribunal is required actively to engage with the applicable statutory test (SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403 at [69];
c. The Tribunal held at paragraph 38 of its decision that s 36(3) of the Act required a “legally enforceable right to enter and reside in a safe third country”;
d. The Tribunal thereby incorrectly identified the meaning of s 36(3), for which a test of legal enforceability had been rejected and there had instead been adopted a test of a liberty, permission or privilege lawfully given, without withdrawal or prohibition, meaning a real entitlement and practical opportunity to enter and remain: Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; 215 FCR 35 at [45], [79], [80], [85], [88];
e. The Tribunal thereby also did not engage with the test in s 36(3) of the Act, which required an evaluation of the evidence in order for the Tribunal to reach a state of satisfaction as to ether a right in the above sense arose: DED16 v Minister for Home Affairs [2019] FCAFC 18 at [11];
f. The Tribunal must not make findings of fact or engage in reasoning which is not reasonably open or without an evident and intelligible justification and doing so may give rise to legal unreasonableness: ARGI5 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47]; Minister for Immigration v SZRKT [2013] FCA 317; 212 FCR 99 at [148]; BQG21 v Minister for Immigration [2023] FCA 865 at [29], [39]-[44]):
g. The Tribunal must engage with the Applicant’s case, including matters arising from its own findings of fact, and must not overlook relevant evidence: Ngatoko v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1165 at [53], [60]; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [26]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [54]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99;
h. The Tribunal found that the Applicant has “a legally enforceable right to enter and reside in France” (para 39) or “has an ability to reside in France” (para 43). The basis for the Tribunal’s conclusion was that, in addition to a current right of residence in France (para 39), the Applicant could renew his travel document enabling him to return to France (para.s 39 and 41);
i. The purported basis for the Tribunal’s conclusion as to renewal was particular country information, which indicated that, while there was power to renew a travel document of a refugee outside France, the refugee “should normally apply for a transfer of responsibility for protection to the state of their current residence”,
j. The Tribunal, in finding a right to renewal of the travel document, made a finding that was not reasonably open or for which there was not a proper justification. It also did not engage with the evidence before it or overlooked the qualifications on the scope for renewal, adverse to the Applicant, identified in that evidence.
Applicant’s Submissions
The applicant notes that the Tribunal described s 36(3) at [38] of its decision as excluding a person who has not taken all possible steps to exercise ‘a legally enforceable right’ to enter and reside in a safe third country other than Australia. The Tribunal later did ‘not accept that there is any doubt as to his having a legally enforceable right to enter and reside in France’ and that the applicant had ‘an ability to reside in France’.
The applicant submitted that the Tribunal misstated the statutory test under s 36(3) of the Act. The Tribunal referred to s 36(3) as requiring a ‘legally enforceable right’ to enter and reside in a third country however this approach, which was initially embraced in Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 was later rejected by the Full Court of the Federal Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91 (SZRHU). The Full Court at [45] also rejected the notion that s 36(3) required ‘a practical capacity to bring about a lawful entry.’
Instead, the Full Court embraced, the applicant submitted, that the ‘right’ in s 36(3) was concerned with whether there was a ‘liberty, permission or privilege lawfully given’ so long as there was a ‘lack of any withdrawal’ or ‘prohibition or law contrary to its exercise’: SZRHU at [45] and [79]. Notwithstanding, it had to be a ‘real entitlement’: SZRHU at [80] entailing a ‘practical opportunity’: SZRHU at [85]. It was also held to be necessary that there be an entitlement to enter the country so as to exercise the right of residence: SZRHU at [88].
The applicant refers to the Full Court having further discussed this test in DED16 v Minister for Home Affairs [2019] FCAFC 18 (DED16) where the Court stated at [11] that:
The relevant statutory task required of the Tribunal is to evaluate the evidence and determine whether a finding is available that the visa applicant “has not taken all possible steps to avail himself or herself of a right to enter and reside in” a country other than Australia. That task requires a finding of fact as to whether a right to enter an alternative country existed. The relevant statutory task does not require an evaluation of the source of any such right. It only requires an evaluation of whether the right itself existed. Evidence of the source of the right will be probative of the existence of the right … . Where evidence otherwise exists of the fact of the right, the absence of evidence of the source of the right is of no consequence irrespective of whether the right in question is statutory or is sourced in an administrative arrangement.
The applicant submitted that it is ‘immediately apparent’ that the Tribunal was not aware of and did not engage with this, correct, statutory test.
The applicant submitted that not only did the Tribunal fail to engage with the correct test as to the applicability of s 36(3) but that, flowing from this error, the Tribunal’s finding of fact that the applicant had a ‘legally enforceable right to enter and reside in France’ and had ‘an ability to reside in France’ was not well-founded and demonstrates that the Tribunal either did not engage with or overlooked the evidence cited by it.
SZRHU indicates at [88] that a right to enter and a right to reside are both needed to enliven the operation of s 36(3). The Tribunal did address the applicant’s re-entry to France and found that he could renew his travel documents to enter, based on country information. This finding was based on a misunderstanding of, or lack of engagement with, country information.
The applicant submitted that the relevant country information, a document titled Survey of Provisions on Travel Documents and Visas for Refugees in the European Union, states that:
8. Authorities’ power to renew or extend the validity of travel documents of refugees no longer resident in the French territory:
Yes, although they should normally apply for a transfer of responsibility for protection to the state of their current residence.
…
10. Maximum time a refugee can be absent from the French territory
For as long as his/her travel document is valid.
The applicant submitted that this country information shows the applicant had no real entitlement to the renewal of his travel documents and at best, it discloses a power to do so which is only exceptionally availably – ordinarily a refugee outside of France is required to seek protection in their present location which is what the applicant did. The applicant’s scope to seek the renewal of his travel documents was at least questionable and there was a live issue as to whether he was no longer resident in France. Therefore, the Tribunal’s finding that the applicant had an ability to return to and reside in France (because, at least in part, he could renew his travel documents) was not reasonably open to it and the tribunal did not engage with and even overlooked the qualifications upon renewal disclosed in the country information to which it referred.
Minister’s Submissions
The Minister provided his own summary of the state of the law in 36(3) as laid out in SZRHU. The Minister submitted that SZRHU held, at [77] – [78] that the ‘right’ to which s 36(3) refers is not to be equated to rights accompanying citizenship and that it does not need to be a right capable of being ‘vindicated in the courts, and under the domestic law, of the third country’: Rather, it is to be interpreted as a ‘less strict but nevertheless real entitlement’: SZRHU at [80]. The Court in SZRHU endorsed the views of Allsop J in V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018 (V856/00A) at [31]:
I see no reason to restrict the meaning of the word "right" to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning a liberty or permission or privilege which does not give rise to any particular duty upon the state in question. Such a liberty, permission or privilege would obtain its effective substance from its grant and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise, rather than from the existence within the positive law of the state in question of a correlative duty, justiciable and enforceable in law, to recognise the right.
Ultimately, the Minister accepted that the Tribunal applied the wrong legal test insofar as it stated that s 36(3) required a ‘legally enforceable right’ to enter and reside in safe third country but submitted that this error was not material.
It cannot be material, the Minister submitted, because had the Tribunal referred to the correct statutory test, a less than legally enforceable right would have been sufficient. The Tribunal found that the applicant had a legally enforceable right to enter and reside in France, and he therefore invariably would have met the lower, correct, threshold. The Minister noted Buchanan J’s comment in SZRHU at [47] that ‘such a right would make the analysis easier.’ The Minister also directed the Court’s attention to Rares J’s comments in SZMWQ v Minister for Immigration and Citizenship (2010) [2010] FCAFC 97 at [34]:
…it is merely a right to enter and reside in the other country; it is not a right equivalent to recognition of the non-citizen as entitled to all the attributes of citizenship or even refugee status in the other country.
The Tribunal found that the applicant had refugee status in France, that this residency permit could be renewed for an indefinite period and that his travel documents could also be renewed so as to permit his re-entry. Therefore, the Tribunal did consider whether the applicant had both a right to enter and a right to reside in France as required by the statute: DED16 at [11].
With regard to whether the Tribunal made findings open to it as to the renewal of the applicant’s French travel documents, the Minister submitted that the Tribunal’s finding that the applicant’s travel document could be renewed was reasonably open to it on the evidence before it. The country information referred to by the Tribunal expressly stated that the travel documents of refugees no longer in France could be renewed, the relevant sentence begins with ‘Yes’. It cannot be said that this finding was not open to it or were legal unreasonable or illogical.
Applicant’s Reply Submissions
As to the question of materiality, the applicant submitted that the law was recently summarised in AJN23 v Minister for Immigration [2024] FCAFC 103 at [46]:
(1) The materiality inquiry is wholly backward-looking. It is to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. Those are facts in respect of which the applicant for judicial review bears the onus of proof on a balance of probabilities. Proof of these facts ought to be neither difficult nor contentious. (At [10].)
(2) The question is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Although the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous. (At [14].)
(3) What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. (At [15].)
(4) “In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion)”: at [16].
In light of this, the answer to the question of materiality in this case is a two-step process.
First, one must outline the s 36(3) test the Tribunal would have used if they had not made an error, which would be, as outlined in SZRHU, that the right in that section is a ‘liberty, permission or privilege lawfully given’, and a ‘real entitlement’ entailing a ‘practical opportunity’ to enter a territory so as to exercise a right of residence. This test would have required ‘a finding of fact as to whether a right to enter an alternative country existed.’
The second question is whether it is not fanciful or improbable to say that, applying the correct test, the Tribunal would have found s 36(3) not to be satisfied bearing in mind the threshold is undemanding and the Court must not engage in a level of detail akin to merits review.
The applicant submitted that the country information that answered the question of whether travel documents could be renewed was ‘yes, although they should normally apply for a transfer of responsibility for protection to the state of their current residence’; and that this means that there could not be renewal where the overseas location could assume responsibility for protection, which described Australia. Therefore, renewal so as to satisfy s 36(3) seems practically unlikely.
CONSIDERATION
Whilst the amended application contains one ground of review, there are, two interrelated arguments falling under that ground; that the Tribunal had misstated the correct statutory test in respect of s 36(3) of the Act and, in misdirecting itself as to the correct test to be applied under s 36(3), it acted unreasonably and/or failed to properly consider the evidence before it when concluding that the applicant could renew his French travel document.
The Minister conceded that the Tribunal had applied the wrong test with respect to the proper construction of s 36(3) but argued that the error was not material.
In oral submissions, counsel for the applicant clarified that, notwithstanding that the issue before the Court was whether the misconstruction of s 36(3) by the Tribunal was material to the outcome of the review, the applicant did not abandon the additional grounds of legal unreasonableness and/or want of proper consideration. Counsel nevertheless acknowledged that if the Court found against the applicant on the issue of materiality, then the additional grounds, which were based on the same underlying evidence, would also fall with that finding.
Before turning to the issue of materiality, it is convenient to briefly say something about the approach taken by the Tribunal, some relevant facts and the proper construction of s 36(3) as set out in the relevant authorities.
In the present case, the Tribunal did not assess whether the applicant, who is a citizen of Iraq, was a person in respect of whom Australia has protection obligations either because he was a refugee, as provided for in s 36(2)(a), or because he satisfied the complementary protection criterion in s 36(2)(aa). It relied on the qualification in s 36(3) which, subject to exceptions in s 36(4) – (5A), operates to exclude a person from being owed protection by Australia in circumstances where they have the right to enter and reside in any other country.
Relevantly, s 36(3) of the Act provides that:
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.
As noted by the Minister in oral submissions, this provision was introduced as part of amendments to the Act in 1999 for the purposes of preventing asylum seekers from ‘forum shopping’: SZRHU, per Flick J at [92].
At the time he applied for the protection visa, on 25 February 2016, the applicant had a refugee residence permit which entitled him to reside in France until 14 October 2019 and a travel document (issued by the French authorities) that was valid until 12 May 2016. However, by the time the Tribunal made its decision, on 20 December 2018, the travel document had expired.
In the visa application, the applicant indicated that he had the right to enter and reside in France, that he understood he did not qualify for a protection visa and that he had lodged the application so he could seek Ministerial intervention under s 417 of the Act. While the applicant’s conduct of seeking to claim protection in Australia (despite being granted protection in France) is precisely the type of conduct that s 36(3) intended to prevent, there is no provision in the legislation that would disqualify an applicant from being granted protection in Australia in circumstances where that right (to enter and reside in another country) had lapsed.
This raises a question about whether an applicant, who fails to take steps to exercise that right when it was extant or lets that right lapse (deliberately or otherwise), is considered not to have taken all possible steps to avail themselves of that right. This question was posed to counsel for the applicant at the hearing. Counsel contended that this would only arise once the right, through the correct construction of that term in s 36(3), has been identified. On further consideration, the Court agrees that this is the correct approach. In ABB19v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 715 (ABB19) at [51] per Allsop CJ:
The operation of s 36(3) requires the decision-maker to do two things. First, the decision-maker must make a finding of fact on the materials before it that the visa applicant has a “right” in the relevant sense to enter and reside in another country. Secondly, only after making a finding that such a right is in existence, the decision-maker must be satisfied, after considering the materials and any claims before it, that the visa applicant has not taken “all possible steps to avail himself or herself of that right”.
In determining whether the applicant had a right to enter and reside in France, the Tribunal was required to apply the correct interpretation of the law. Relevantly, the ‘right’ in s 36(3) does not refer to, or presuppose, a legally enforceable right under domestic law: SZRHU at [89]. The correct interpretation of a ‘right’ (to enter and reside) is that which was advanced in V856/00A at [31] and endorsed in SZRHU at [79] and [89], that it suffices to have a ‘liberty, permission or privilege lawfully given’.
It was also held in SZRHU at [45], citing Allsop CJ in V856/00A, that such a liberty, permission or privilege, ‘would obtain its effective substance from its grant and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its existence’. In other words, the relevant right must be an existing right which has not been withdrawn, is not subject to a prohibition and there are no laws that prevent its exercise.
The right to which s 36(3) refers ‘cannot be equated to rights which accompany citizenship’, it is less certain or secure than that, and it need not be a right capable of being vindicated in the courts under the domestic laws of that country: SZRHU at [77] – [78]. The liberty, permission or privilege (which is less strict than a ‘legally enforceable right’) must nevertheless be a real entitlement: SZRHU at [80].
The right, (that is the liberty, permission or privilege) lawfully given must be in respect of the right to enter and the right to reside in that third country: SZRHU at [90].
It is common ground that the Tribunal in the present case, in concluding that the applicant had a legally enforceable right to enter and reside in France, had applied the wrong test to s 36(3) of the Act.
The Minister’s submission is that the Tribunal having applied the stricter test (of a legally enforceable right), when something less than that would have been sufficient, concluded on the evidence that the applicant had a right to enter and reside in France. The Minister queried how the decision could have been any different if the correct test had been applied. While there is some appeal to this submission, the difficulty that arises in this case is that the Tribunal had not properly engaged with the correct test (as set out in SZRHU), nor did it properly evaluate the material before it as to whether the applicant could renew his travel documents (which had expired before the Tribunal made its decision) to enable him to re-enter France.
In determining whether the applicant had a ‘right’ to enter and reside in another country, the relevant statutory task required the Tribunal to ‘evaluate the evidence’ before it and make a finding of fact about whether a right to enter France existed: DED16 at [11].
At [42] of its reasons, the Tribunal referenced (in a footnote) the link to country information regarding the provisions on travel documents and refugees in the European Union. Relevantly, in relation to France, the country information stated that the maximum time a refugee can be absent from the French Territory is for as long as their travel document is valid. The country information also spoke of the power of the authorities to renew or extend the validity of travel documents of refugees who were no longer resident in the French Territory. It stated:
Yes, although they should normally apply for a transfer of responsibility for protection to the state of their current residence
The evidence before the Tribunal, which it acknowledged at [42] of its decision, is that the applicant’s travel document expired on 12 May 2016. The Tribunal observed at [42] that there was no indication the applicant made any attempt to renew his travel document. It nevertheless went on to conclude that the travel document can be renewed and that it did not accept ‘that there is any doubt as to [the applicant] having a legally enforceable right to enter and reside in France’. The Tribunal did not engage at all with the qualification in the country information about whether the applicant, who had been absent from the French Territory beyond the validity period of his travel document, would be able to renew his French travel document to enable him to re-enter France and resume residence.
As to the Minister’s contention that it was open for the Tribunal, on the information before it, to find that the applicant could renew the travel document and conclude that he had the right (even on the stricter test of ‘legally enforceable’) to enter and reside in France, the Court is not so persuaded. This was not an instance where the Tribunal could prefer one type of evidence over another, nor was it an instance where it could give greater weight to evidence that supported its finding.
While the country information relied upon by the Tribunal indicated that the authorities had the power to renew the validity of a refugee’s travel document, this came with the qualification that a refugee (who was no longer resident in the French territory) should normally apply for transfer of responsibility for protection to the state of their current residence. Country information also indicates that the maximum time a refugee could be absent from the France was for validity period of their travel document.
This qualification necessarily required the Tribunal (as part of applying the correct test) to evaluate the whole of the information before it (not just part of that information), to determine whether the applicant’s right (to enter France) still existed, including whether it was subject to any existing prohibition or law contrary to its existence: SZRHU at [45].
In ABB19, Allsop CJ at [67] stated that where a ‘right’ to enter and reside in a third country depends on a visa or permit which is before the Tribunal, the Tribunal necessarily must consider any factors apparent on the face of that visa or permit which speak to its defeasance or defeasibility.
The applicant in ABB19, who was a national of the Democratic Republic of Congo, was the holder of a permanent residence permit issued by the Republic of South Africa (RSA). The Tribunal had information before it (from the overseas post) that the applicant’s permanent residence permit remained extant and found on that basis that the applicant had the right to enter and reside in the RSA. There was other information before the Tribunal, being the permanent residence permit document, which noted that permanent residents who are absent for three years or longer ‘may’ lose their right to permanent residence. By the time the Tribunal made its decision, the applicant had been away from the RSA for four years. Notwithstanding the information before the Tribunal indicating that the permanent residence permit was extant, the Federal Court held that the Tribunal had erred in failing to consider the qualified nature of the applicant’s right of entry and right of residence in the RSA given the notation on the permanent residence permit. His Honour found that it was not open, on the material before it, for the Tribunal to find that the appellant had an unqualified right to enter and reside in the RSA.
The error in ABB19 was said to be one of legal unreasonableness. His Honour said the Tribunal was required to make a positive finding of the current existence of a right to enter and reside in s 36(3), which it could not have done so, at least not in unqualified terms and without further investigation, given the express condition imposed by the notation on the permanent residence permit. His Honour at [79] found the error to be material in the relevant sense and thus a jurisdictional error: citing Minister for Immigration & Border Protection v SZMTA [2019] HCA 3 and MZAPC v Minister for Immigration & Border Protection [2021] HCA 17.
The facts of the present case raise similar considerations to those in ABB19. The error asserted in the present case is one of a failure to apply the correct legal test. This has been conceded by the Minister, though the concession appears to be limited to the Tribunal’s use of the expression ‘legally enforceable right’ instead of ‘liberty, permission or privilege lawfully given’. In applying the correct test, the Tribunal was also required to consider whether the ‘right’ (to enter and reside) in s 36(3) was an existing right: i.e., that it had not lapsed (given the applicant’s absence from the French Territory for a period exceeding the validity of his visa), that it was not subject to any existing prohibition or a law preventing its exercise, given the expiry of the applicant’s travel document and the qualification noted in the country information regarding the renewal of that document for a refugee who was no longer resident in the French Territory.
Notwithstanding that the Tribunal had applied the stricter test of ‘legally enforceable right’, it nevertheless failed to properly consider, by evaluating the evidence before it, whether the right, (particularly that which related to the applicant’s right to enter France) was extant at the time of its decision.
The Tribunal’s failure to apply the correct test when evaluating whether the applicant had a right to enter and reside in France was not immaterial.
The threshold for materiality is relatively undemanding. The question that arises is whether the decision that was in fact made (noting that the materiality inquiry is wholly backwards looking) could realistically have been different had the error not been made. A realistic possibility of a different outcome is one that is not fanciful or improbable: LPDT v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [10] and [14].
In the present case, the Tribunal had evidence before it (being the applicant’s expired travel document and country information) which cast some doubt over whether the applicant’s right to enter and reside in France remained extant. The country information upon which the Tribunal relied did not suggest that the only possible conclusion available on the evidence was, as found by the Tribunal, that the French authorities would certainly renew the applicant’s expired travel document to enable him to enter and reside in France.
The Court accepts the applicant’s submission that, given the qualified nature of the information that was before the Tribunal, it was possible (not fanciful or improbable) that if the Tribunal had applied the correct test, it could have concluded that there was not a real entitlement to the renewal of his French travel document. Other possible conclusions may have also be drawn, subject to further investigations by the Tribunal, about the status of refugees who were absent from the French Territory beyond the validity period of their travel document, and whether the French authorities would exercise their power to renew a refugee’s French travel document if there was some prohibition (or they were unsuccessful) in securing a protection in Australia. It is not for the Court to speculate (lest it cross the line into merits review) on all the possible conclusions that may have been drawn had the Tribunal properly evaluated the evidence by reference to the correct legal test. It suffices to say that it was possible that the Tribunal may not have been satisfied that the applicant had an existing right to enter France. The Tribunal’s failure to apply the correct legal test with respect to the right (to enter and reside) in s 36(3) was therefore material. It necessarily follows that the error was jurisdictional.
Given the above, it is unnecessary for the Court to address the other grounds advanced by the applicant which characterise the error as one of legal unreasonableness and/or want of proper consideration.
CONCLUSION
As the Tribunal’s decision was affected by jurisdictional error, it is appropriate for the Court to issue writs of certiorari and mandamus in this matter.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 7 February 2025
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