Ded16 v Minister for Immigration
[2018] FCCA 3074
•24 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DED16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3074 |
| Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – protection visa – whether Tribunal erred in applying s.36(3) of the Migration Act 1958 (Cth) – consideration of test – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36(3) |
| Cases cited: Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35 |
| Applicant: | DED16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2313 of 2018 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 24 August 2018 |
| Date of Last Submission: | 24 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 24 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Peckham |
| Solicitors for the Applicant: | Asylym Seeker Resource Centre |
| Counsel for the First Respondent: | Ms Symons |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed 25 October 2016 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2313 of 2018
| DED16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore)
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 29 September 2016 affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is a citizen of Nepal. He arrived in Australia in 2009 on a student visa. During a subsequent visit to Nepal, various events took place, the result of which was that the applicant sought a protection visa. Before the Tribunal, the applicant’s claims that formed the basis for demonstrating that he was at real risk of serious harm if he were to return to Nepal, were accepted. The basis of those claims is not relevant to the issue before this Court today.
The Tribunal also had regard to s.36(3) of the Migration Act 1958 (Cth), which provides as follows:
(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.
In this case, the Tribunal turned to consider the 1950 Treaty of Peace and Friendship between India and Nepal, which provides for various rights of those citizens. The relevant part of the treaty was quoted by the Tribunal (at [58]) when the Tribunal said:
58. The Tribunal noted country information [FN: omitted] indicated the Treaty between Nepal and India was first signed in 1950 and that Article 7 of the Treaty states:
The Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement that privileges of a similar nature.
The issue that arises before me is whether or not it was open for the Tribunal to conclude that the applicant had a right to enter and reside in India under the Treaty. The Tribunal spent some considerable time discussing these circumstances. The Tribunal outlines the various documents and materials before it and notes the submissions that were made. The Tribunal sums up the law by saying:
96. In conclusion in relation to s.36(3) the representative submits that the Federal Court has recently indicated that the questions of whether an ability of Nepalese citizens to enter India was a “liberty, permission or privilege lawfully given” in terms of s.36(3) is not settled, referring to SZUSU. The representative submits that the applicant does not have a right to enter and reside in India (or any other country) under s.36(3). The right to enter in s.36(3) means more than a capacity or capability to enter and reside in a particular country or to bring about a permission· to enter and reside. The terms of the Treaty between Nepal in India do not give rights of entry. The submission notes the Indian Bureau of Immigration webpages did not support a finding that the applicant, as a Nepalese citizen, has a ‘right’ to enter India. Therefore s.36(3) does not apply to him. It is submitted that as a matter of law the administrative arrangements for rights of entry as advised by the Bureau of Immigration and DFAT do not give a right of entry according to the correct test for s.36(3) but merely a capability for Nepalese lawfully to enter in India or to bring about a permission for them to enter India .
The Tribunal then went on to consider whether or not the applicant had a right of entry. In doing so, the Tribunal traversed the decisions in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35, SZTOX vMinister for Immigration and Border Protection [2015] FCAFC 77, MZZXS v Minister for Immigration and Border Protection [2015] FCA 1384, and Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50. In a number of those cases, the Tribunal had fallen into error by adopting a practicality test which is not the law as set out in the cases. In this particular case, it is clear that the Tribunal had careful regard to the legal test to be applied, as discussed in the various cases, and did not fall into the error of simply applying a practicality test.
The relevant paragraphs of the Tribunal’s decision sets out information from a website by the Indian government with respect to the rights of entry of Nepalese into India and information from the Department of Foreign Affairs and Trade (‘DFAT’). It is in substantially the same terms as the information that was referred to by the Full Court in SZUSU. The Tribunal said:
106. The administrative arrangements discussed with the applicant during the hearing are set out in the Indian Bureau of Immigration website which indicate that a citizen of Nepal entering India by land or air (from Nepal) does not require a passport or visa for entry in India and sets out a number of identity documents which can be used to establish their identity as a Nepalese citizen when travelling between Nepal and India. If they are entering India from a place other than their own country, possession of their national passport is a must. The website also states a citizen of Nepal must be in possession of a passport when entering India from a place other than Nepal, and a citizen of Nepal must have a passport and visa for India if he/she is entering· India from China [FN: http:/lboi.gov.in/content/nepalese-passengers (accessed 15/4/16 and 29/9/16].
107. The Tribunal has taken into consideration the submissions that the applicant's particular circumstances have to be considered, and the administrative arrangements described on the Indian Bureau of Immigration's website are not expressed in terms of rights or amount to anything more than a practical capacity to bring about a lawful permission or a capacity or capability lawfully to enter and reside in a particular country or to bring a permission to enter and reside, and that the information before the Tribunal is not sufficient to establish that the applicant (as a failed Nepalese asylum seeker entering India from Australia on the basis that he seeks protection from return to Nepal) has been granted an existing right to enter and reside in India. The Tribunal has also considered the Guardian.com article referred to noting the article refers to the return of Tamils who had previously been living in India. The Tribunal notes the articles indicates India's policy is to accept return of Indian citizens and other persons whose return it is obligated to accept under applicable Indian domestic law.
108. The Tribunal notes that in SZQWP v MIAC [2012] FMCA 532 (Nicholls FM, 19 June 2012) at [21], following SZHYB v MIMIA [2007] FMCA 311 (Barnes FM, 22 March 2007) at [33], commented that the decision-maker is not required to refer to a specific provision in the domestic law of the relevant foreign country to find that a right exists for the purposes of s.36(3), so long as the existence of the right is supported by evidence. The Tribunal also notes that in Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50 (31 March 2016) the Court stated that where the Executive Government of the third country publishes a statement of this nature (referring to the Indian Bureau of Immigration website) and no question arises as to the authenticity of the publication, there is no particular reason why the Tribunal needs to inquire further. The Tribunal notes there has been no issues raised with the currency or authenticity of the Indian Bureau of Immigration website publication.
109. While the Tribunal has considered the representative's submission that the terms of the Treaty did not envisage circumstances where a person would enter and reside for the purposes of seeking protection, and that the applicant does not have a right to enter and reside in India simply by virtue of his being a Nepalese citizen passport holder, on the basis of the administrative arrangements for entry of a Nepalese national who holds a passport referred to in the Indian Bureau of Immigration website, read in light of the terms of the Treaty, the Tribunal finds that nationals of Nepal who hold a Nepalese passport have a liberty, permission or privilege lawfully given, to enter (otherwise than from China (without a visa) and reside in India, and therefore a right to enter and reside for the purposes of s.36(3).
Thereafter, the Tribunal recounts the DFAT country information that it had regard to, including the proposition that on the DFAT information, unlimited stay is granted to Nepalese nationals in India and there are no restrictions on their ability to remain, reside or work in India and there is no evidence to indicate Nepalese nationals who hold a passport are excluded from the rights to enter and reside. The only restriction is if there is a “look notice”, but there was no evidence of such notice in this case: see [110] of the Tribunal’s decision.
The applicant’s ground for judicial review is in the following terms:
The decision of the second respondent Tribunal was affected by jurisdictional error in that the Tribunal did not correctly apply the test for a “right of entry and residence”·in s 36(3) Migration Act 1958 because the Tribunal did not properly evaluation the means by which entry into India by Nepali citizens was permitted was a “right of entry”.
Particulars
a. The Tribunal did not properly evaluate what was a “right of entry” under s 36(3) because it did not identify the source or legal character of the administrative arrangements by which entry was permitted, including whether those arrangements were pursuant to regulations or orders made under the Passport (Entry into India) Rules 1950 or the Foreigners Act 1946.
b. The Tribunal's treatment of the issue at AAT [108] is contrary to the authority of MZZXS v Minister for Immigration and Border Protection [2015] FCA 1384 at [14]. The treatment of the issue in obiter dicta in Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50 at [38] does not disturb this authority.
In substance, the applicant accepts that the test is, as set out by Allsop J in V856/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 1018; (2001) 114 FCR 408, at [31], where his Honour says:
31. I say “of whatever kind” because by rejecting the respondent’s submissions that “right” means capability to bring about entry or capability to bring about a permission to enter and reside does not mean that I fully agree with the applicant’s submissions. For my part, I do not see the need to construe “right” in subs 36(3) as a “legally enforceable right” as Carr J did in Applicant C, supra. Although I agree that “right” means something more than a capacity or capability lawfully to enter and reside in a particular country or to bring about a permission to enter and reside, I do not think that it follows that the subsection is only referring to what might be described as a right in the strict sense, having the Hohfeldian “jural correlative” of duty: Stone, The Province and Function of Law (Harvard University Press, 1950) pp 115-122, or to rights that can be said to be legally enforceable. Carr J in Applicant C, supra, at para [28] construed subs 36(3) as “consonant with Article 1E of the Convention”. A right under Article 1E is one (arising from possession of nationality) that is embedded in the law of the country, with correlative obligations on the state in question. In my view, the text of subs 36(3) is more relevant and tends to the contrary. The phrase in subs 36(3) “howsoever that right arose or is expressed” assists in the recognition that the source and incidents of the right can be diverse. It also assists in the recognition that “right” is intended to be a wide conception. Especially in the light of the above phrase, 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. It may be that in many cases if the right is to survive outside, and divorced from residence in, the country in question it may well be a right in the strict sense, but I do not think that that conclusion follows as a matter of statutory construction.
This was affirmed by the Full Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91 at [79], where the Full Court went on to restate the test, saying at [88]:
88. However, on the facts found by the RRT no right of entry appears to arise from the terms of the Treaty itself. There is certainly no legally enforceable right arising from the terms of the Treaty, but neither does the Treaty refer in terms to any entitlement of entry which would satisfy the test expressed in V856/00A. The rights given by the Treaty which appear to satisfy that test are the rights arising from the mutual covenants in Article 6 and Article 7. Article 7 articulates a right of residence, but it assumes that a citizen of one country is in the territory of the other. The arrangements at the border, whereby entry from one country to another is permitted generally upon satisfactory proof of identity, appear to be the result of administrative arrangements, rather than arising directly from the terms of the Treaty. In other words, the Treaty itself does not appear to give rights of entry. If the administrative arrangements for entry (even though they appear intended to facilitate the operation of the Treaty) do not satisfy the test in V856/00A, then the composite test in s 36(3) will not be satisfied either. That is a question which should not be decided in the present appeals. The possibility adverted to by Stone J in Applicant C at [60] is one which requires evaluation applying the proper test. That evaluation should be made by the RRT which will, if it chooses to do so, be in a position to seek further information relevant to the correct test to be applied.
In a subsequent Full Court decision of SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77, the Full Court again overturned a Tribunal for using a practical reality test (at [39]), but went on to consider the nature of the material that would be required, saying:
41. For completeness, lest there be any doubt, we should also state that the “right to enter and reside” for the purpose of s 36(3) is not confined to a right which is sourced in domestic law, such as a statute or regulation or other legislative instrument. The right might also be sourced in an executive act, such as a Treaty, executive policy or statement or other executive instrument. These examples are not intended to be exhaustive. The proper construction of s 36(3) must accommodate the potentially wide range of laws and executive acts which could create a right or entitlement in the relevant sense for a person to enter and reside in another country.
42. It necessarily follows from what we have said immediately above that we respectfully disagree with those parts of the decisions of the FCCA in SZTOG at [34] and [37] and SZTQN at [25] and [26], which suggest that the right or entitlement under s 36(3) is confined to one which is provided by or allowed under the domestic law of the receiving country. The right or entitlement might be of that character, but it might also arise under an executive or administrative act involving that receiving country. The existence and source of the right will be a matter of evidence.
At this point in the development of the law, it seems that the test is relatively settled, although the reference to a Hohfeldian right in comparison to a ‘capacity or capability’ to enter a country in the V856/00A (supra) decision is somewhat difficult to apply, if it is read as indicating a strict analysis on the basis of Hohfeld’s theory of jural opposites and jural correlatives: see Hohfeld ‘Fundamental legal concepts as applied in judicial reasoning’ [1913] 23, Yale Law Journal 16 at p.30, where the 16 jural opposites and correlatives are set out. However, one must be wary of being too distracted by an abstract analysis of jurisdictional theories or categories beyond the practical insights such theories may offer.
For the purpose of this judgment, it is appropriate to proceed simply on the basis that what is required was not a right-duty correlative, but that something more than a mere capacity or capability (on the facts and circumstances) was intended by the word ‘right’ as it appears in the statue. This has, effectively, been the test as developed in the Full Court decisions.
The focus then turns to precisely what evidence should be before a Tribunal or from which a Tribunal could conclude that they were satisfied that an applicant held such a right to enter India under the treaty. This issue was referred to by North J in MZZXS, where his Honour made comment as to not only the inappropriateness of the practical reality test but also the level of detail or evidence that may be required in order to satisfy the relevant test. His Honour said:
14. I accept the applicant's argument that the way the Tribunal went about its task demonstrates that it did not undertake a process of evaluation of the evidence. In [53] the Tribunal does no more than list the three sources previously referred to in its decision, namely, the Treaty, the Indian government website, and the Australian government website, and conclude that these sources prove a right of the applicant to enter and reside in India. The Tribunal refers to the Indian government website as setting out administrative provisions. But all the website says is that citizens of Nepal may enter India from outside Nepal if they have a passport. That may be a consequence of some administrative provision. The conclusion of the Tribunal does not disclose whether there was an administrative provision and, if so, the nature of that provision. In order to assess whether the entry is pursuant to a right to enter and reside under s 36(3) of the Act the Tribunal needs to know by what means the entry is permitted. As was explained in SZTOX, at [42]:
The right or entitlement might be of that character [a right provided by or allowed under domestic law], but it might also arise under an executive or administrative act involving that receiving country. The existence and source of the right will be a matter of evidence.
[Emphasis added.]
15. In SZTOX the Court said that one indicator that the Tribunal had not understood the concept of right as developed in V856/00A and SZHRU was its reference to the right existing “as a matter of practical reality”. The Tribunal in SZTOX stated that it relied in part on the advice of the Australian Department of Foreign Affairs and Trade “in relation to the practical situation” for the conclusion that the right existed as a matter of practical reality.
16. The present decision of the Tribunal omits reference to the “matter of practical reality”, but includes the same reference to the advice of the Australian Department of Foreign Affairs and Trade “in relation to the practical situation”. In the same way as the Court in SZTOX held that the reference to “practical reality” cast doubt on whether the Tribunal properly understood the meaning of the term right as used in s 36(3) of the Act, so in this case the reference to the advice about the “practical situation” suggests that the Tribunal did not understand that a right under s 36(3) of the Act is not established if all that exists is a capacity to bring about a lawful entry.
It was argued before me that the ratio of MZZXS included his Honour’s comments with respect to the type of evidence and findings that would be necessary to establish such a right. It appears to me that the ratio was that ‘practical capacity’ was not the appropriate test, being the words used by the Tribunal in that case, and that the remainder of the judgment is more properly characterised as obiter rather than ratio. This is important when one comes to the decision of SZUSU, where the issue was again discussed by the Full Court, saying at [31] to [34] as follows:
Here, at [41] the Tribunal said that the information provided by DFAT and published on the Indian Bureau of Immigration website was to the following effect:
A citizen of Nepal entering India by land or air does not require a passport or visa for entry in India.
A citizen of Nepal while travelling by air between Nepal and India is required to show any of the following valid identity documents to establish his/her identity as a Nepalese citizen:
· Nepalese Passport.
· Nepalese Citizenship Certificate.
· Voters Identification Card issued by the Election Commission of Nepal.
· Limited Validity photo-identity certificate issued by Nepalese Missions in India when deemed necessary.
A citizen of Nepal must be in possession of a Passport when entering India from a place other than Nepal.
A citizen of Nepal in possession of a valid Nepalese passport flying direct from Australia could gain entry to India.
32. The Tribunal also referred (at [45]) to DFAT advice (confirmed by reports of the Immigration and Refugee Board of Canada in 2008 and the UNHCR) that unlimited stay is granted to Nepalese nationals in India and there are no restrictions on their ability to remain, reside or work in India.
33. In all these circumstances, it is difficult to see how — the reference to the expression “as a matter of practical reality” aside — there is any relevant similarity between the Tribunal’s approach in the two instant cases and its approach in SZTOX.
34. It was open to the Tribunal on the evidence before it to conclude that a Nepalese citizen (like the respondents) who was in possession of a valid Nepalese passport had a right in the sense of “a liberty or permission or privilege lawfully given” to enter and remain in India, albeit that such a right may have been capable of withdrawal and not capable of any particular enforcement. It was not suggested that there was any evidence of the withdrawal of that “liberty, permission or privilege” or of any law contrary to its exercise. Having enunciated the correct test earlier in its reasons, it should not lightly be inferred that the Tribunal had in mind some other test when it concluded that there was a relevant right.
In that case, the Full Court distinguished the comments of North J with respect to the types of materials and detail of findings that may be necessary to satisfy the appropriate test, saying:
38. In MZZXS (at [14]) North ACJ dismissed the significance of the statement on the Indian Government website, which was the same statement referred to in the present cases. He noted that the Tribunal referred to it as setting out administrative provisions but added that “all the website says is that citizens of Nepal may enter India from outside Nepal if they have a passport”. In fact it says more than that. Be that as it may, his Honour’s subsequent remarks are, with respect, troubling. His Honour observed that the statement on the website “may be a consequence of some administrative provision” but that the conclusion of the Tribunal does not disclose whether there was any such provision and, if so, the nature of the provision. He said that, in order to determine “whether the entry is pursuant to a right to enter and reside under s 36(3) of the Act the Tribunal needs to know by what means the entry is permitted”, citing the last two sentences of [42] in SZTOX, emphasising the reference there to the source of the right. In our respectful opinion, where the Executive Government of the third country publishes a statement of this nature and no question arises as to the authenticity of the publication, there is no particular reason why the Tribunal needs to inquire further. In our respectful opinion, nothing said in SZTOX expressly or by implication requires the Tribunal to identify with the degree of precision his Honour apparently contemplated the source for the relevant right. Furthermore, having regard to the Full Court’s judgments in SZRHU and SZTOX, it was unnecessary for the Tribunal to distinguish between a right conferred or allowed under domestic law and a right arising under an executive or administrative act of the receiving country as, either way, there was a right within the meaning of s 36(3).
39. In any event, in the present cases, the means by which entry is permitted are tolerably clear from the Tribunal’s reasons. It was a liberty afforded to Nepalese citizens by the Executive Government of India upon proof of their identity by any of the means identified in the statement published on the Bureau of Immigration’s website. Before this Court it was not submitted that this ability of Nepalese citizens to enter India was not a “liberty, permission or privilege lawfully given”.
In SZUSU, not only was the test affirmed again but also the nature of the material before the Tribunal in that case was found to be sufficient to satisfy that test and that therefore that forms part of the ratio in SZUSU. The result is that the relevant passages in SZUSU are binding on this court, rather than the passages in MZZXS.
Turning to the case at hand, the material is in substantially the same terms as that in SZUSU. From that material or evidentiary basis, the Tribunal member applied the correct test, having regard to the authorities and the extensive discussion by the Tribunal member of the various authorities. The Tribunal member was then satisfied that the applicant had a right to enter India and therefore was excluded from obtaining a protection visa as a result of the section.
I therefore find that in this matter, the applicant is not able to establish a jurisdictional error and that I should refuse the application.
I note that the applicant clearly argued that the position described by North J in MZZXS was the appropriate disposition of the law and ought to be followed so that there is no question that this question remains open to the applicant, should he lodge an appeal.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 29 October 2018
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