SZRHU v Minister for Immigration & Anor
[2012] FMCA 1013
•16 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRHU v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1013 |
| MIGRATION – RRT decision – application of s.36(3) of Migration Act – refugee claims of citizen of Nepal – Tribunal found right to enter and reside in India – misconceived reliance on India-Nepal treaty of peace and friendship – no evidence supporting finding of existing legally enforceable right of entry and residence – jurisdictional error found – matter remitted. |
| Border Protection Legislation Amendment Act 1999 (Cth) Migration Act 1958 (Cth), ss.36, 36(2), 36(3), 36(4), 36(5), 36(6), 91N(3) Migration Amendment (Complementary Protection) Act 2011 (Cth) |
| Attorney‑General for Canada v Attorney‑General for Ontario [1937] AC 326 Treaty of Peace and Friendship between the Government of India and the Government of Nepal, signed 31 July 1950, 94 UNTS 3 (entered into force 31 July 1950) |
| Applicant: | SZRHU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 725 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 11 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
A writ of certiorari issue directed to the second respondent, to quash the decision of the second respondent made on 27 February 2012 in matter 1105646.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 20 May 2011.
The first respondent must pay the applicant’s costs set in the amount of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 725 of 2012
| SZRHU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
This Court has examined innumerable Tribunal decisions on the refugee claims of nationals of Nepal. Most decisions were made on assessments of the risks of persecution in that troubled country facing the particular claimant. However, a recurring issue has been whether, for the purposes of the visa criterion specified in s.36(2) of the Migration Act 1958 (Cth), Australia is to be taken to have no protection obligations to any Nepalese asylum seeker, by reason of a long standing practice by the government of India which has allowed many Nepalese to enter and reside in India if they wish to do so.
Subsection 36(2), as now qualified by s.36(3)‑(6), prevents the grant of a protection visa to a Nepalese refugee if the Indian immigration practice is founded upon “a right to enter and reside in” India. As I shall explain, under jurisprudence binding upon me, this phrase in the Australian Migration Act means, at least, an existing right of the person claiming refuge in Australia to enter and reside in India, which would be legally enforceable by the claimant personally against the government of India under its municipal laws.
In many decisions concerning Nepalese refugee claimants, decision‑makers and their sources of advice have stated that such a right is conferred by the 1950 Treaty of Peace and Friendship between India and Nepal, without providing a legal and factual analysis which supports that conclusion. I have explained over many years, without being overruled by higher judicial authority, that the language of the Treaty provides no evidence of such a right. In the present case, I must again consider whether a misreading of the Treaty has resulted in the invalidity of a Tribunal decision, which refused a protection visa to a national of Nepal without addressing his fears of persecution in Nepal.
Whatever the outcome of judicial review in the present case, it is regrettable that this issue has not been laid to rest by the Department or Tribunal obtaining a properly informed opinion from a recognised expert on Indian migration laws. It is unsatisfactory that decisions on this issue are still being made inconsistently by Tribunal members, and based upon obscurely worded generalisations of government officials. Most Nepalese asylum seekers in Australia appear to be obtaining decisions addressing the merits of their fears of persecution in Nepal, but others run the gauntlet of uncertain decision‑making under s.36(3) based upon inadequate evidence of India’s migration laws in their application to Nepalese citizens who are outside India.
The applicant’s protection visa application
The applicant arrived in Australia on a student visa in 2007, at the age of 19. He travelled back to Nepal for about one month in 2009. He lodged an application for a protection visa on the day that his visa expired, 4 March 2011.
In his protection visa application and a supporting statement, he claimed to fear persecution by members of the Maoist party, arising from his and his father’s connections with the CPN‑UML party. He said that he joined that party in 2006, following his father’s lead as the party chairman in his village. As a result of the applicant refusing to join the Maoists, he was abducted and threatened in April 2006. At a party conference in the village arranged by the applicant in February 2007, he was injured in a scuffle with Maoist cadres, as were his father and uncle. His uncle later died, but the police did not investigate the attack. The applicant then fled to Kathmandu, and left the country. Maoist cadres have appropriated some of his father’s land and attacked their home. When he returned home in 2009, he found that “the situation became so complex and difficult that I could no longer bear it and I had to flee”. He said:
I hold a deep fear about returning to Nepal and I am convinced that the Maoists and others who opposed me view will prosecute me. I will face life‑threatening harm by the Maoists and in particular their youth wing.
The visa application was addressed by a delegate of the Minister, and was refused on 20 May 2011. The delegate made a positive finding “that the applicant does not have effective protection in a third country under section 36(3) of the Migration Act”.However, based upon doubts about the applicant’s credibility and his delay in applying for protection after his arrival in Australia, the delegate was not satisfied that he had a well‑founded fear of persecution if he were to return to Nepal.
On appeal to the Tribunal, the applicant presented documents to corroborate that he had been involved in the CPN‑UML party, and had been “physically and mentally tortured by the rebel party Maoist”.He submitted a registration certificate for the death of his uncle, and some general information showing continuing political tensions in Nepal. He also attended a hearing of the Tribunal on 10 October 2011, where he was closely questioned about events in Nepal.
At the end of the hearing, the Tribunal suggested to the applicant that he could live safely in India, but the applicant said that he did not think he could be protected if he went there. The Tribunal then held a second hearing on 8 February 2012, “to discuss with him in more detail the operation of sections 36(3) to 36(5)”.The Tribunal put to the applicant that there was an open border between the two countries, and that he would not be denied entry to India. If he entered India, he would have the same rights as Indian citizens. The applicant claimed that there were no domestic Indian laws providing these rights, and said that the border would also be open for his enemies who were trying to kill him, and that the Indian government could not protect him. He maintained these points in a written submission after the hearing.
The Tribunal’s decision
The Tribunal made a decision on 27 February 2012, which affirmed the delegate’s decision not to grant a protection visa, but for different reasons. In short, the Tribunal made no findings about the applicant’s claims about his and his family’s situation in Nepal, and said that it was not necessary for the Tribunal to consider the applicant’s fear of persecution in Nepal. It said that this was the consequence of its conclusion:
141.The Tribunal finds that that the applicant has a presently existing, legally enforceable right to enter and reside in India and has not taken all possible steps to avail himself of that right. Furthermore, the Tribunal finds for the purposes of s.36(4) that the applicant does not have a well‑founded fear of being persecuted for a Convention reason in India, or of being returned from that country to a country where he does have a well‑founded fear of being persecuted for the purposes of s.36(5). Accordingly, s.36(3) of the Act applies to the applicant, and Australia does not owe protection obligations to him on that basis.
Before reaching this conclusion, the Tribunal referred to ‘country information’ concerning the situation of Nepalese citizens entering and residing in India. This part of its statement of reasons commenced with:
COUNTRY INFORMATION
…
123.RRT Research Response NPL31374, which is dated 23 February 2007, includes the following information about the rights of Nepalese citizens to enter and reside in India pursuant to the 1950 Indo‑Nepal Treaty of Peace and Friendship, and also refers to the activities and treatment of Nepalese Maoists in India:
1. Is there any information available about the application of the Treaty in India for example in relation to property rights. This is peripheral to the issue of right to enter and reside but is of interest.
India and Nepal are signatory to the 1950 Treaty of Peace and Friendship. Under the Economics and Commerce section of the Treaty:
The two governments 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 of trade and commerce, movement and other privileges of a similar nature’ (Subedi, S.P. 2005, Dynamics of Foreign Policy and Law: A Study of Indo‑Nepal Relations, Oxford University Press, New Delhi, pp. 4 – 5 1).
A Department of Foreign Affairs and Trade (DFAT) advice was sought on the clarification of the 1950 Treaty of Peace and Friendship between India and Nepal and if the treaty has been incorporated into India’s domestic law. The following was the response provided by DFAT on the 23 October 2006:
A. Please provide advice on the right of a citizen of Nepal to enter India and the basis of such a right.
2. Article 7 of the 1950 Treaty of Peace and Friendship between India and Nepal provides:
Start text
The Governments of India and Nepal agree to grant, on reciprocal basis, to the nationals of one country in the territories o [sic] the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature.
End text
3. The full text of the treaty is available at The Indian Bureau of Immigration (which is part of the Ministry of Home Affairs) notes in its Instructions for Foreigners Coming to India (available at immigrationindia.nic.in) that Nepalese citizens do not require a visa to enter India.
4. The Indian Ministry of Home Affairs website (mha.nic.in/fore.htm#vp) notes that for Indian and Nepalese citizens travelling by air, it is necessary to produce as an identity document one of the following:
·valid national passport;
·valid photo identity card issued by the Government of India/State Government or UT (Union Territory) Administration/Election Commission of India;
·emergency certificate issued by the Embassy of India, Kathmandu to Indians and by the Embassy of Nepal in Delhi in respect of Nepalese citizens.
B. Are there any circumstances under which India may decide not to admit a citizen of Nepal?
5. The FRRO representative said that, currently, Nepalese nationals were not denied entry into India unless they were on the look‑out list of security agencies, suspected of involvement in terrorist activity or under instruction from the intelligence agencies.
C. What rights within India are afforded to a citizen of Nepal under the 1950 Treaty of Peace and Friendship? How can these rights be exercised?
6. In addition to the rights mentioned in Article 7 of the Treaty (see para 2), Article 6 of the Treaty provides:
Start text
Each Government undertakes, in token of the neighbourly friendship between India and Nepal, to give to the nationals of the other, in its territory, national treatment with regard to participation in industrial and economic development of such territory and to the grant of concessions and contracts relating to such development.
End text
7. Dr VD Sharma (Legal Division, Ministry of External Affairs) told us (Jones) that the provisions of the Treaty were implemented as a matter of course.
D. Please provide advice on how, if at all, these aspects of the 1950 Treaty have been incorporated into India’s domestic law, or how it operates in this respect.
8. Dr VD Sharma said that treaties on a specific subject usually had their provisions brought into Indian domestic law through the passage of a bill with the same provisions as the treaty. Sharma said, however, that in the case of more general treaties, such as the 1950 Treaty of Peace and Friendship, the practice was for the conditions of the treaty to be met by India without the passage of the domestic legislation. Sharma characterised the operation of the 1950 Treaty as having been enacted for a long time (Department of Foreign Affairs and Trade 2006, DFAT Report 554 – RRT Information Request IND30728, 23 October; RRT Country Research 2007, Research Response NPL31235, 18 January).
RRT Research Response NPL17734 of 6 January 2006 stated that the DFAT Reports were perhaps at variance with reports from other sources of information including reports from 2004 and 2005 where New Delhi police “had started asking Nepalis for character certificates and identity papers” in order to stay in hotels or apply for jobs. Indian and Nepalese authorities are also enforcing a system of registration at the international border at the Nepalgunj-Rupaidiha transit point and have subjected Nepalis to a variety of labour and human rights abuses (RRT Country Research 2006, Research Response NPL177434, 6 January; ‘Indian police asks Nepalese to produce identity cards in New Delhi’ 2004, BBC Monitoring South Asia, sourced from Kantipur, 8 February; Timsina, Nitya Nanda & Bhattarai, Devendra 2004, ‘Migrant Nepali workers are marked in Delhi’, Kathmandu Post, 28 January – Accessed 8 March 2004 –; ‘India, Nepal begin enforcing border registration 1 November’ 2005, BBC Monitoring, sourced from Nepal News.Com, 1 November; Shukla, K. and Brown, M. 2005, ‘Refugee Voices: Nepalese in India’, Refugees International website, 8 July – Accessed 28 September 2005; For more information on the ability of Nepalis to exercise their rights in India under the terms of the Treaty of Peace and Friendship, see: RRT Country Research 2004, Research Response IND16523, 9 March; RRT Country Research 2005, Research Response NPL17223, 24 March).
There are also reports that Nepalis in India require documentation to open bank accounts even though no documentation is required to come into India. According to the Refugees International website:
Once in India, the Nepalis become vulnerable to labor and human rights abuses, much like poor Indians. According to the chowkidars, they have no legal rights. If they are abused at work and complain to law enforcement officials, their complaints are not taken seriously. In case of robbery, for example, even if they have worked in a neighborhood for many years, the police assume that they are accomplices and the Nepalis are increasingly finding themselves being blamed for crimes. While the Nepalis in the formal sector in India enjoy the same legal rights as Indians by joining labor unions, the formal sector only includes 8% of the workforce, and the majority of Nepalis fall outside this sector. The lack of membership in any organized labor group hits women the hardest, and those working as domestic servants remain particularly vulnerable.
The 1950 Peace and Friendship treaty allows Nepalis free access to Indian government schools, provided they have the correct documentation. However, for many migrants, it is difficult to obtain papers, especially since no documents are needed to cross into India. Without documentation, the Nepalis have no choice but to pay for their children’s education in private schools or keep their children out of school. Lack of documentation also hinders Nepalis from opening bank accounts in India, which would make the process of remitting money to Nepal much simpler. In the absence of access to bank accounts, the Nepalis have no choice but to send money via people travelling to and from Nepal. Many of these couriers become the victims of extortion at the hands of petty border officials and guards. Almost all the Nepalis interviewed by RI stressed the need for a registration system for them in India, which would bring with it legal identification (‘India: Nepali migrants in need of protection’ 2005, Refugees International website, 25 July – Accessed 15 February 2007).
On 10 January 2007, the Maoist Foreign Department Chief CP Gajurel stated that the 1950 Treaty of Friendship between India and Nepal had become irrelevant and there was a need to review this unequal and obsolete pact (Review past pacts with India: Nepal Maoists’ 2007, India Express website, 15 February source: Press Trust of India (10 January 2007) – Accessed 15 February 2007). The Government of India has announced plans to revise the bilateral relationship with Nepal, following moves by political parties in Nepal to renounce violence and agree to a road map to an elected government (‘India plans to reach out to Nepal, Bhutan’ 2007, Dawn website, 18 January – Accessed 16 February 2007; Jha, P. 2007, ‘Nepal’s perplexing moment of opportunity’ Himal Southasian website, February – Accessed 14 February 2007 –).
Despite indications from both Nepal and India on revising the Treaty of Friendship, none of the parties to the Treaty have introduced any bills or legislations in their parliaments, indicating that changes to the Treaty may take time to materialise.
The Tribunal extracted some further material concerning India’s practices in relation to suspected Nepalese Maoists within its borders. It’s ‘country information’ then continued:
125.The 2009 USSD report, which was published on 11 March 2010 and can be accessed from relevantly includes the following:
Protection of Refugees
The country is not a party to the 1951 Convention relating to the Status of Refugees or its 1967 Protocol. Due to the absence of clear guidelines, refugees are governed under the Foreigners Act 1946, which defines a foreigner as a person who is not a citizen of India and is thus eligible to be deported. The government has established a system for providing protection against the expulsion or return of refugees to countries where their lives or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion. This applied especially to Tibetans and Sri Lankans.
According to the Office of the UN High Commissioner for Refugees (UNHCR), during the year there were 11,321 refugees under UNHCR mandate in the country. Since 1960 the government has hosted approximately 110,000 de facto refugees from Tibet. Tibetan leaders in the country stated that the government treated them extremely well. The MHA has spent 180.7 million rupees (approximately $4.2 million) on Tibetan refugee resettlement.
According to the World Refugee Survey, 456,000 refugees were in the country, including the Dalai Lama, spiritual leader of Tibetan Buddhists. The survey noted that there were 100,000 refugees from Myanmar, 30,000 from Afghanistan, 25,000 from Bhutan, and 25,000 from Nepal residing in the country. According to the MHA’s 2008‑09 annual report, citing information of the Bureau of His Holiness the Dalai Lama, the population of Tibetan refugees in the country as of February 2008 was 110,095.
USCRI also reported a number of cases of abuse of refugees and arbitrary detentions. USCRI noted that “even recognized refugees cannot work legally, although Nepalese and Bhutanese nationals could do so under friendship treaties… [but] the Government rarely punishes employers formally for hiring refugees illegally. Many refugees work in the informal sector or in highly visible occupations such as street vendors, where they are subject to police extortion, nonpayment, and exploitation.”
126.RRT country advice NPL37205 also includes the following information about relocation from Nepal to India:
Can Nepalese citizens safely relocate to India? What sort of problems might be faced by Nepalese who relocate to India? Do the Indian authorities respect the Friendship Treaty between India and Nepal?
Safe relocation to India is likely to be feasible for some Nepalese nationals. The large numbers of Nepalese living in India, estimated to be three to 10 million, together with the absence of reporting of widespread violence against this group in current human rights reports, suggest they are not targeted for ill‑harm in India. However, targeting of relatively small sections of the Nepalese population is reported for the north eastern states of Assam, Manipur and Meghalaya.
Sources differ on whether the Nepalese population in general face problems in India, the levels of discrimination, and whether Indian authorities respect the Friendship Treaty between India and Nepal. DFAT advice of April 2006 concluded that “conversations with interlocutors did not support the view that there was discrimination against Nepali residents in New Delhi such that they were not practically able to exercise their rights under the 1950 Treaty [1950 Treaty of Peace and Friendship]”. A study by Raju Bhattrai published in 2007 from the South Asia Study Centre in India titled Open Borders, Closed Citizenships: Nepali Labour Migrants in Delhi, concludes that recently arrived Nepalese are treated poorly in comparison to second generation Nepalese in India. Bhattrai highlights harassment and humiliation by police, higher authorities, local residents, social segregation, and poor economic and living conditions of newly arrived Nepalese in India. He concludes that they are denied basic legal rights and are vulnerable to labour violations and exploitation.
127.Advice has also been sought on this issue from the Nepalese Government. On 12 July 2011, a request for information was made to the Embassy of Nepal, Canberra. On 22 July 2011, RRT Country Advice received the following response:
1.Do Nepalese citizens have the legal right to enter and reside in India?
Yes, with the provisions enshrined in the Treaty of Peace and Friendship signed on 31 July 1950, the Nepalese citizen has the right to enter and reside in India. Recently, we have a provision to show any valid ID card to prove the identity so that they can enter into each other’s country without any hindrance.
2.Are there any circumstances in which a Nepalese citizen may be denied entry to India?
Generally no. As per the provisions of the treaty between Nepal and India, citizens of both countries can enter into each other’s country without visa.
3.Can Nepalese citizens residing in India be forcibly returned to Nepal? If so, under what circumstances?
Legally No. For those involved in crimes and other unwanted activities, Governments of either country can extradite each other’s nationals as per the provisions of a seperate (sic) Extradition Treaty.
(citations omitted)
Under the heading “Finding and Reasons”, the Tribunal gave the following reasons for finding under s.36(3) that the applicant “has a presently existing, legally enforceable right to enter and reside in India”. This reasoning attracts the focus of Ground 1 of the present application for review:
Safe Third Country
129.There is evidence before the Tribunal to suggest that the applicant may have the right to enter and reside in a safe third country for the purposes of s.36(3) of the Act or of Article IE of the Convention, namely India. When the Tribunal discussed this with the applicant at hearing he responded that even there the Maoists can get to him and he does not think he will be protected there. He also said that he would not enjoy basic human rights there and is not genuinely offered the rights the Indo‑Nepal Treaty of Peace and Friendship of 1950 states that he has because its terms have not been incorporated into Indian domestic law. The applicant, however, conceded that he could enter India, and also conceded that India would not remove him.
130.The country information indicates that there is an international bilateral agreement between India and Nepal known as the Indo‑Nepal Treaty of Peace and Friendship of 1950. As explained in RRT Research Response NPL31374, Article 7 of the Treaty provides in essence that under this treaty, the holder of a Nepalese passport holder such as the applicant can enter and reside in India, noting that:
[t]he two governments 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 of trade and commerce, movement and other privileges of a similar nature.
131.The same Research Response goes on to note that in the case of Nepalese citizens travelling by air, it is necessary to produce as an identity document one of a range of documents including a valid passport. As evidenced by the copy of the applicant’s passport submitted with the protection visa application, the applicant holds a Nepalese passport which is valid until 29 June 2015. The Tribunal therefore finds that the applicant has a presently existing, legally enforceable right to enter and reside in India, should he be fearful of persecution in Nepal.
132.The applicant states in his application form that he has not travelled to any other country outside Nepal before coming to Australia. Apart from India, there is no evidence to suggest the applicant has the right to enter and reside in any other country. Neither, however, is there any evidence to suggest that he has taken any steps to avail himself of what the Tribunal has found to be his presently existing and legally enforceable right to enter and reside in India. When questioned about this at hearing, he said he had considered going to India but decided not to because of things he had heard from people he knew who had been there.
The Tribunal then gave its reasons for rejecting the applicant’s concerns that he would not be protected if he were living in India, and for finding for the purposes of s.36(4) that the applicant did not have a well‑founded fear of persecution in relation to India. As I shall explain, it is unnecessary for me to examine this reasoning, and I shall therefore not extract it in this judgment.
The grounds of review
The grounds of review relied upon by counsel for the applicant were last formulated in an amended application filed on 8 June 2012:
1.The Tribunal erred in its interpretation and application of section 36(3) of the Migration Act:
Particulars
(a)Error in finding that the 1950 Treaty of Peace and Friendship between India and Nepal would of itself, in the absence of incorporation into Indian law, give the applicant a legally enforceable right (as opposed to a mere ‘legal right’) to enter and reside in India.
(b)Error in failing to consider whether a Nepalese citizen who was denied a right arising under the 1950 Treaty of Peace and Friendship between India and Nepal of entry and residence in India could seek and obtain a remedy in the Indian Courts to enforce such a right.
2.The Tribunal erred in its consideration of whether section 36(4) of the Migration Act applied to the applicant:
Particulars
(a)Failure to consider whether the applicant, if he were to relocate to India may, in his individual circumstances of being a newly arrived Nepali citizen in that country, have a well founded fear of labour and human rights abuses sufficient to amount to persecution.
As I shall explain, I consider that the applicant has established jurisdictional error of law affecting the Tribunal’s satisfaction in terms of s.36(3). I have concluded that it is not necessary for me to examine its consequential reasoning in relation to s.36(4), which proceeded upon its flawed finding under s.36(3).
The interpretation of s.36(3) of the Migration Act
Section 36 provided at the time of the Tribunal’s decision, and prior to the commencement of amendments made by the Migration Amendment (Complementary Protection) Act 2011 (Cth):
36 Protection visas
(1)There is a class of visas to be known as protection visas.
Note: See also Subdivision AL.
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa.
Protection obligations
(3)Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4)However, if the non‑citizen has a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
(5)Also, if the non‑citizen has a well‑founded fear that:
(a) a country will return the non‑citizen to another country; and
(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
subsection (3) does not apply in relation to the first‑mentioned country.
Determining nationality
(6)For the purposes of subsection (3), the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7)Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
The provisions of s.36(3)‑(7) were inserted by the Border Protection Legislation Amendment Act 1999 (Cth), which had the legislative background which I explained in SZOUY & Ors v Minister for Immigration & Anor (2011) 250 FLR 401, [2011] FMCA 347, when considering the simultaneous insertion of the provisions of ss.91M‑91Q. It is curious that subdivision AK did not receive judicial scrutiny until recently (see SZOAU v Minister for Immigration and Citizenship (2012) 199 FCR 448, [2012] FCAFC 33, special leave refused: SZOAU v Minister for Immigration and Citizenship & Anor [2012] HCATrans 190), whereas the amendments to s.36 were soon the subject of a diversity of judicial opinion.
When reading the Federal Court judgments on s.36(3), it is important to understand the preceding development in that Court of a separate principle of ‘effective protection’ in a third country, which was found within the language of s.36(2) and the terms of the Refugees Convention. That principle was overruled by the High Court in 2005 in NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161, [2005] HCA 6. As a consequence, the more demanding requirements found in the 1999 amendments became the sole basis upon which the primary criterion in s.36(2) could be avoided by decision‑makers on grounds of ‘safe third country’.
However, the Federal Court judgments on the 1999 amendments which preceded NAGV do, in my opinion, provide authority which remain binding upon me and the Tribunal, that the words in s.36(3) to “a right to enter and reside in … any country apart from Australia …” refer to more than a practical expectation of entry and residence in a safe third country, but require a finding of an existing and legally enforceable ‘right to enter and reside’ under the municipal laws of that country. That is, a right conferred on the person who is outside the third country and is currently seeking onshore protection in Australia, and which is currently recognised and enforceable by legal effect of the third country’s municipal laws and legal procedures.
The present Tribunal did not discuss the judicial authorities which interpreted s.36(3). The wording of its concluding paragraph 141 might suggest that it might have been aware of them. However, as I shall explain, its actual reasoning shows that it accepted evidence which was in law insufficient to support the application of the subsection in accordance with its established interpretation.
The Minister’s counsel supported the Tribunal’s conclusion that s.36(3) applied, by suggesting that the Federal Court authorities allow a less stringent test of ‘a right to enter and reside’. I was obliquely invited by the Minister’s counsel to prefer opinions in the Federal Court which appear to me to be minority opinions as to the interpretation of s.36(3), and not to apply majority Full Court opinions which I consider are binding on me. It is therefore necessary for me to explain why I reject this invitation.
The leading authority is the judgment of Stone J in Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154, [2001] FCA 1332 (hereafter “Applicant C”). Gray and Lee JJ agreed with her Honour, and the Full Court upheld an interpretation of s.36(3) taken at first instance by Carr J, that the reference to ‘right’ was to ‘a legally enforceable right’ (see Stone J at [35]‑[36] and [62]). All justices agreed that the Tribunal in that case had adopted an erroneous interpretation of s.36(3), by accepting the sufficiency for the purposes of s.36(3) of findings by the Tribunal that an Iraqi asylum seeker “would be able to arrange to re‑enter Syria through this Iraqi opposition group that previously sponsored him” and “would be able to reside there on an indefinite basis” (see Applicant C at [1], [12] and [88]). These findings had overlooked the necessity to find evidence of an existing legally enforceable right of entry to and residence in Syria.
The issues before the Full Court in Applicant C were complicated by the nuances of earlier judgments, and by a perceived need to explore the interplay between the 1999 amendments to s.36 and the previously developed interpretation of the reference in s.36(2) to “Australia has protection obligations under the Refugees Convention”. This interpretation was referred to in Applicant C at [21] and later cases as ‘the principle in Thiyagarajah’ or the principle of ‘effective protection’. Under this principle, Australia owed no protection obligations for the purposes of s.36(2), if a decision‑maker found that “as a matter of practical reality and fact, the applicant is likely to be given effective protection by being permitted to enter and to live in a third country where he will not be under any risk of being refouled to his original country” (see authorities cited by Stone J in Applicant C at [20]‑[23]). A finding to this effect could be based upon a prediction that the applicant could enter a third country and enjoy its protection, even if he did not have a current permission or right to enter the third country which had been granted or was currently enforceable under the laws of that country.
While the two sources of exclusion of Australia’s protection obligations for the purposes of s.36 were in operation, the position was summarised by Stone J in Applicant C at [65]:
65The combination of the amendments to s 36 and the doctrine of effective protection leads to this position. Australia does not owe protection obligations under the Convention to:
(a)a person who can, as a practical matter, obtain effective protection in a third country; or
(b)to a person who has not taken all possible steps to avail himself or herself of a legally enforceable right to enter and reside in a third country.
I consider that her Honour’s reasoning leading to these observations, understood in the light of the outcome of the case, shows clearly that her Honour saw circumstance (a) as arising from the doctrine of effective protection, and circumstance (b) as arising separately from s.36(3).
Relevant to the present case, it is important to note that the jurisdictional error found in the decision of the Tribunal in Applicant C was an error of law in the application of s.36(3), and not error in the application of the doctrine of effective protection. In this respect, it should be noted that Stone J pointed out that the decision could not be upheld on the basis that the Tribunal’s flawed findings were sufficient for the purposes of the principle in Thiyagarajah, because the Tribunal had not invoked that principle, but had rested its decision on a failure to take steps within the meaning of s.36(3) (see Stone J at [89]). In my opinion, the outcome in Applicant C and the reasoning which supported it, provides unanimous and binding authority of the Full Court for the proposition that a Tribunal errs in law if it accepts for the purposes of s.36(3) evidence showing ‘as a practical matter’ a prospect of entry to a third country, but falling short of establishing ‘a legally enforceable right’ to enter the third country and reside there.
It must be recognised that there remain nuances as to what might be described as ‘a legally enforceable right’. Stone J said:
57I do not regard the primary judge’s interpretation as inconsistent with the meaning of the phrase advanced by Allsop J in V856/00A (see [49] above). Allsop J relied on the phrase “however that right arose or is expressed” to expand the meaning from what his Honour describes as “right in the strict sense, having the Hohfeldian ‘jural correlative’ of duty” to include “the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement” and not imposing “any particular duty upon the state in question”. Allsop J also referred to the primary judge’s view that, properly construed, s 36(3) is “consonant with Article 1E of the Convention”. In relation to this view, Allsop J commented that (at 419 [31]):
“A right under Article 1E is one (arising from the 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.”
58To the extent that Allsop J suggests that the primary judge took a strict, Hohfeldian, view of “right” when the latter stated that “A literal construction of the word ‘right’ in a statute must ... be that it is a legally enforceable right”, I do not agree. A right may be “enforceable” even though it can be revoked without notice and even without reasons. For example, the Minister has extensive powers, listed in s 116 of the Act, to cancel visas. While that visa is extant, however, the non‑citizen has, in my opinion, an enforceable right, namely the right not to be prevented from entering Australia. The non‑citizen would be entitled to enforce his or her right of entry against, for example, an officious immigration officer who purported to deny entry despite the non‑citizen having a valid visa for entry.
59Undoubtedly the extent of the Minister’s power may, as a practical matter, make the enforceability of the right appear illusory. This reflects the vulnerability of the right but does not, in my view, cast doubt on its existence. The analysis may well be different if, at the time the application for a protection visa is under consideration, the circumstances which permitted the grant of the right no longer exist or the factors warranting its revocation are established. Whether or not there could be said to be a right to enter the relevant country in such a case would depend on all the circumstances of that case. However, as this is not an issue in this proceeding, it is unnecessary to consider the point further.
60It should also be recognised that a right of entry such as I have postulated may arise other than by grant of a visa. A country’s entry requirements may be met by proof of identity and citizenship of a nominated country being provided at the border, for example by production of a valid passport, without the necessity for a visa. This would explain the use in s 36(3) of the phrase, “however that right arose or is expressed”.
61Similarly I do not think that Carr J’s reference to s 36(3) being “consonant” with Article 1E indicates that his Honour was adopting the narrow Hohfeldian view of right. To say that the provisions are “consonant” does not mean that the rights referred to in those provisions are identical in nature. The provisions are consonant in that they are both directed to the same purpose, namely limiting the protection obligations of a participating nation so that they do not apply to someone who does not need that protection. Article 1E recognises that the purpose of the Convention does not require a participating nation to give asylum to a person who has the rights referred to in the Article. Section 36(3) takes the matter a step further by recognising that, in the words of the primary judge (at [28]):
“If it be established that a person has an enforceable right to enter and reside in another country in which he or she would have no well‑founded fear of being persecuted for Convention reasons or of being returned to another country in which he or she would have a well‑founded fear of persecution for a Convention reason, then there are obviously valid arguments that such a person does not need Australia’s protection as a refugee from persecution.”
62In my opinion the primary judge was correct in his interpretation of s 36(3). His interpretation is consistent with the way the provisions are referred to in the parliamentary debates and with the language of the section. Whether or not Senator Patterson’s comments (see [50] above) are directly relevant to the section, it is true that it imposes a tough new hurdle that, since 16 December 1999, must be overcome by applicants who fall within the terms of the section. However, as French J has pointed out (see [44] above), the section only identifies a subset of the circumstances in which return of a putative refugee will not involve a breach of Australia’s obligations under Art 33 of the Convention.
I would understand this part of her Honour’s discussion as maintaining that it was necessary to the application of s.36(3), that the refugee claimant should be found to have a ‘right’ under the laws of the third country governing its immigration administration, policies and practices, which currently would require the country to allow the claimant to enter and reside in the country, even if this might be a temporary or defeasible right. On the Applicant C interpretation, it would be insufficient to find only that there was a predictive likelihood that a future entry could be obtained de facto, or permitted or tolerated under the immigration practices of the third country, without addressing whether this would occur by reason of a currently existing and legally enforceable right of entry and residence conferred by or under the laws of the third country.
I would not understand otherwise from her Honour’s suggestion at [60] that a right of entry under immigration laws might exist which could be exercised in the future by presentation of a passport without a visa. This possibility would still require evidence that an immigration law of the country had this effect, as distinct, for example, from a migration law which gave a migration officer a discretion or power exercisable at the border to allow entry to some persons without a previously issued visa or right of entry. In the latter situation, I do not consider that an ‘existing right of entry and residence’ could be found to be possessed by the asylum claimant in Australia, since the existence of the future right of entry would depend upon the future exercise of discretion or power when the claimant presented himself at the border of the third country.
That this was the effect of Applicant C, appears to me to have been confirmed by subsequent Full Courts, rather than otherwise. In particular, I consider that it received confirmation by at least a majority of justices in WAGH v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 269, [2003] FCAFC 194, and was not departed from in the most recent Full Court consideration of s.36(3) in SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109, [2010] FCAFC 97.
In WAGH all three justices held that the Tribunal in that case had erred in law when finding that s.36(3) was satisfied by the possession by a Columbian citizen of a USA visa allowing entry for up to six months for business and tourism. Their reasoning, however, differed.
Lee J construed s.36(3) as requiring not only an existing legally enforceable right of entry and residence in the USA, but also satisfaction that it included a right “to receive protection equivalent to that to be provided to that person by a Contracting State under the Convention” (see [34]‑[41]). Although such an implication was not supported by the other justices, I note that it might now find support by contemplating the provisions of s.91N(3) which were part of the scheme in which s.36(3)‑(6) were enacted, and in the light of the Malaysian Declaration Case (Plaintiff M70/2011 v Minister for Immigration & Citizenship; Plaintiff M106 of 2011 v Minister for Immigration & Citizenship (2011) 244 CLR 144, [2011] HCA 32). His Honour’s opinion might also find support in recent judgments of the High Court which have said that the Refugees Convention “informs the construction of the provisions of the Migration Act and the Regulations which respond to the international obligations which Australia has undertaken under it” (see Plaintiff M47/2012 v Director General of Security [2012] HCA 46 per French CJ at [12], also [43], [90], [222]). However, it is unnecessary for me to pursue the line of thought opened up by the opinion of Lee J.
Hill J held at [66] that the Tribunal’s error was “to ignore altogether the requirement in s 36 that an applicant have not merely a right of entry, but a right to reside” with the practical ability to access the refugee process in the third country.
Carr J held at [75] that the Tribunal had erred in its understanding of the right envisaged by s.36(3), which caused it to fail to appreciate that “the appellants would not be travelling to that country for the purpose of tourism or business and would obtain no entitlement to be admitted into the USA upon arrival”.
The reasoning of Lee and Carr JJ in WAGH expressly adopted the ratio decidendi of Applicant C in relation to s.36(3) which I have identified above. Lee J said:
32The “ratio decidendi” expressed in the reasons of Stone J in Applicant C as to the proper construction of s 36(3) reflected adoption of the reasoning of the learned primary judge in that matter, who had held, correctly, that the words “a right to enter and reside” meant no less than an existing legally enforceable right. (See also: V872/00A v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 57 per Hill J at 62 [22].) In my reasons in Applicant C I expressly concurred with the reasons of Stone J limited to that ratio. Insofar as Stone J added remarks as to the construction of s 36(2), in particular as to the accommodation within that subsection of a “doctrine of effective protection”, those comments were not within that part of the reasons with which I concurred.
Carr J said:
74In my view, Applicant C is authority for the proposition that the word “right” in s 36(3) means a legally enforceable right, albeit one that can be revoked - see Stone J at [57] and [58]. I do not see the subsequent Full Court decision of V872/00A v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 57 as being inconsistent with Applicant C. It would appear that Applicant C was not cited to the court in V872/00A.
Hill J did not agree with Lee and Carr JJ that this was the effect of Stone J’s judgment in Applicant C, and also felt free to depart from it. He said:
57It is true that the court affirmed the decision of the learned primary judge in that case. I am not sure that the reference to “effective protection” can, however, be ignored. In any event, after V872/00A the comments of Stone J should, in my view, be read so as to include (if not already comprehended by (a)), a category of persons of whom it can be said that while they have not, in a strict sense, a legally enforceable right, the factual situation is that they are likely to be afforded entry to the third country and as a matter of practical reality, have effective protection there. If there is any conflict between Applicant C and V872/00A I would follow the latter and later case.
58One reason why a strict construction can not be given to the word “right”, so that it is to be read as “legally enforceable right” is that all countries retain as a matter of sovereignty a right to exclude persons from the country. It would be unlikely in many cases that a visa would give a legally enforceable right, although as a matter of practical reality it would be virtually certain that the person in question would be permitted entry.
…
63In my view the question to be determined by the Tribunal is whether the appellant was a person who had what may be described as a right that was practically likely to be exercised, albeit not legally enforceable, to enter and reside even if only temporarily in the United States and in circumstances where it was practically likely that she would obtain effective protection there. It is not necessary that the Tribunal decide whether the “right” in that sense carries with it the right to receive protection in the third country.
64I agree with Lee J, naturally, that not any visa, no matter how restrictive, would activate s 36(3) and thus result in the person not being a person to whom Australia owed protection obligations. The right, to which s 36(3) refers, is not merely a right to enter. It must be a right to enter and reside. A transit visa, for example, would, or could, be a right to enter, but clearly is not a right to enter and reside.
In my opinion, I am bound to prefer the opinions of Lee and Carr JJ as to the ratio decidendi of Applicant C, and its continuing authority as to the construction of s.36(3). For what it is worth, on my own analysis of Applicant C, I also respectfully agree with their opinions as to the effect of that case.
The insistence in these judgments that s.36(3) should be given an interpretation according to the language and policy of the 1999 amendments, and not to accommodate the overlapping operation of the less demanding principle in Thiyagarajah, is unaffected by the overruling of that principle by the High Court in NAGV. In my opinion, a strict construction of the terms of s.36(3) remains consistent with the approach of the High Court to the construction of the provisions of the Migration Act concerning protection visas which was shown in NAGV and subsequent cases, including those of recent times.
I also consider that the effect of the Full Court judgments in Applicant C as maintained by Lee and Carr JJ in WAGH is consistent with the observations of Gummow J concerning s.36(3) in his dissenting judgment in Minister for Immigration & Multicultural & Indigenous Affairs v Al Khafaji (2004) 219 CLR 664, [2004] HCA 38:
18The chain of events narrated above indicates the odd, if not paradoxical, position in which both the respondent and the Minister found themselves. The application for a protection visa had failed because of the conclusion by the delegate and the Tribunal that the respondent still had “a right” within the meaning of s 36(3) to enter and reside in Syria but had not taken all possible steps to avail himself of that “right”. Yet it thereafter became apparent that, while the respondent wished to avail himself of that right, by triggering the requirement under s 198(1) of the Act that he must be removed as soon as reasonably practicable, there was, as Mansfield J found, no real prospect of that return to Syria coming to pass in the reasonably foreseeable future. The result, on the construction of the Act for which the Minister still contends in this Court, is the continued mandatory detention of the respondent.
19There must be a serious question as to whether there exists a “right” of the nature identified in s 36(3) where it is insusceptible of exercise within a reasonable time of its assertion. It has long been notorious that the term “right” has no definite or stable connotation and bears a variety of meanings according to the connection or context in which it is used. Here, as s 36(3) emphasises, the entry and residence may be merely temporary and the right may have arisen or be expressed in various ways. Nevertheless, remarks of Professor Hohfeld, nearly a century ago, are on point:
“[E]ven those who use the word and the conception ‘right’ in the broadest possible way are accustomed to thinking of ‘duty’ as the invariable correlative.”
20On the present facts, any correlative duty must be that of Syria. Presumably the duty is owed under its municipal law to the respondent personally and must be shown to exist by evidence in an acceptable form to the Australian decision‑maker dealing with the protection visa application. It may also be that there is a duty owed to him, or to Australia, as an international obligation. These questions of the intersection between municipal and international law have not been explored in submissions.
21It is enough for this appeal to note that the issues of construction that do arise respecting the application to this case of the duties to remove the respondent from Australia under s 198 should not be approached on the footing that, as a matter of international obligation to Australia, Syria is required to permit the respondent to re‑enter that country and to reside there.
(emphasis added) (citations omitted)
So far as I am aware, no subsequent Full Court or single justice exercising appellate jurisdiction has held, in a manner binding this Court to depart from Applicant C that the reference to ‘right’ in s.36(3) encompasses a mere expectation of the future grant of a right or permission to enter and reside, or an expectation of some other practical ability to enter and reside which is not founded on an existing right of entry under a provision of the third country’s migration laws or an administrative decision or instrument made or issued under its laws, whether specific to the claimant or covering a class of prospective entrants to which he or she belongs.
The bottom line of binding opinion in the superior courts, is, in my opinion, that it is necessary for a decision‑maker applying s.36(3) to address whether a prospect of entry and residence in a third country by the refugee claimant, whatever its practical degree of likelihood, has an existing foundation under the domestic laws of the third country or administrative action founded upon domestic law, such that the applicant can be said to have had at the time of determination of his Australian visa application a ‘legally enforceable right’ in relation to the third country.
The consequence of this interpretation is that a finding that a third country is allowing or assisting refugees to enter and reside within its borders, and is expected to continue this practice, even for very large numbers of people, cannot in itself be a sufficient basis to apply s.36(3), without the support of evidence probative of the legal foundation for that immigration practice, and showing that a right is currently in existence. In my opinion, the mere existence of such a practice cannot in itself be probative of the existence of a legal right of the type required to be found before s.36(3) takes effect, so as to exclude Australia’s ordinary protection obligations under the Refugees Convention from consideration in an onshore protection visa application.
The effect of the 1950 Indo-Nepali Treaty of Peace and Friendship
I have over several years explained my opinion that the language of this Treaty does not support a finding that it confers on every Nepali seeking protection in Australia an existing and enforceable right to entry and residence in India within the meaning of s.36(3) (see SZEAS v Minister for Immigration [2005] FMCA 1776 at [36]‑[40], SZFKD & Anor v Minister for Immigration & Anor [2006] FMCA 49 at [40]‑[45], and SZGXK v Minister for Immigration & Anor [2008] FMCA 822 at [16]‑[29]). My reasoning in the last of these cases was approved by Graham J in SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891 at [30], although his Honour differed from my doubts as to the probative effect of other evidence which appeared to be relied upon by the Tribunal in that case.
The present Tribunal gave no thought to my opinions, and at paragraph 130 of its statement of reasons gave as its principal reason for being satisfied as to the application of s.36(3), the acceptance of advice from its research unit that “Article 7 of the Treaty provides in essence that under this treaty, the holder of a Nepalese passport holder such as the applicant can enter and reside in India”. The Tribunal appears to have understood this advice to carry the implication that ‘can enter and reside in India’ means ‘has an existing legally enforceable right to enter and reside in India’.
By giving the language of Article 7 of the Treaty this implication, I consider that the Tribunal made a clear error of law, and made a finding which is unsupportable on the language of the Treaty which it cited. On any analysis of the language of the Treaty, it provided evidence only that the Treaty did not confer a right capable of description in terms of s.36(3). Moreover, the language of the Treaty provided no evidence whether India’s practice of allowing Nepalese asylum seekers to cross its border and reside in India was founded upon the prior conferral under Indian laws on all Nepalese citizens outside India of an enforceable legal right of entry and residence.
To explain this conclusion, I can only repeat my analysis in SZGXK, which commenced with the full text of the 10 operative articles of the Treaty, as published in the United Nations Treaty Series for 1951:
Article 1
There shall be everlasting peace and friendship between the Government of India and the Government of Nepal. The two Governments agree mutually to acknowledge and respect the complete sovereignty, territorial integrity and independence of each other.
Article 2
The two Governments hereby undertake to inform each other of any serious friction or misunderstanding with any neighbouring State likely to cause any breach in the friendly relations subsisting between the two Governments.
Article 3
In order to establish and maintain the relations referred to in Article I the two Governments agree to continue diplomatic relations with each other by means of representatives with such staff as is necessary for the due performance of their functions.
The representatives and such of their staff as may be agreed upon shall enjoy such diplomatic privileges and immunities as are customarily granted by international law on a reciprocal basis : Provided that in no case shall these be less than those granted to persons of a similar status of any other State having diplomatic relations with either Government.
Article 4
The two Governments agree to appoint Consuls-General, Consuls, Vice-Consuls and other consular agents, who shall reside in towns, ports and other places in each other’s territory as may be agreed to.
Consuls-General, Consuls, Vice-Consuls and consular agents shall be provided with exequaturs or other valid authorization of their appointment. Such exequatur or authorization is liable to be withdrawn by the country which issued it, if considered necessary. The reasons for the withdrawal shall be indicated wherever possible.
The persons mentioned above shall enjoy on a reciprocal basis all the rights, privileges, exemptions and immunities that are accorded to persons of corresponding status of any other State.
Article 5
The Government of Nepal shall be free to import, from or through the territory of India, arms, ammunition or warlike material and equipment necessary for the security of Nepal. The procedure for giving effect to this arrangement shall be worked out by the two Governments acting in consultation.
Article 6
Each Government undertakes, in token of the neighbourly friendship between India and Nepal, to give to the nationals of the other, in its territory, national treatment with regard to participation in industrial and economic development of such territory and to the grant of concessions and contracts, relating to such development.
Article 7
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 and other privileges of a similar nature.
Article 8
So far as matters dealt with herein are concerned, this Treaty cancels all previous Treaties, agreements, and engagements entered into on behalf of India between the British Government and the Government of Nepal.
Article 9
This Treaty shall come into force from the date of signature by both Governments.
Article 10
This Treaty shall remain in force until it is terminated by either party by giving one year’s notice.
I then said:
18.The Tribunal’s application of s.36(3) of the Migration Act in the present case requires the Court to consider whether it was open to the Tribunal to conclude that the treaty confers on Nepalese nationals such as the applicant “a right to enter and reside in [India], whether temporarily or permanently and however that right arose or is expressed”.
19.In SZLAN (supra), Graham J at [68] referred generally to my judgment in SZFKD & Anor v Minister for Immigration & Anor [2006] FMCA 49, and suggested that I had erroneously held that s.36(3) contemplated the existence of two separate rights, a right to ‘enter’ and a right to ‘reside’ in the safe third country. He pointed out in a Nepalese case that “the issue is simply whether there was a right to ‘enter and reside’ in India”.
20.I did not intend to suggest the contrary in my reasoning in SZFKD at [40] to [45]. Rather, the point which I attempted to make was that the right which is in contemplation in s.36(3) must involve a right held by a person outside the safe third country to be permitted under that country’s immigration controls to enter the country and then to reside in it, “whether temporarily or permanently”. The word ‘enter’ in the description of the relevant right in s.36(3) must have this effect, particularly in a context addressing safe haven in a third country, where an applicant for an Australian protection visa is normally not present in that third country.
21.In SZFKD, and in SZEAS v Minister for Immigration [2005] FMCA 1776 at [35]‑[40], I expressed the opinion that it was not open to the Tribunal to find such a right being conferred on a Nepalese national (nor reciprocally to an Indian national) under Article 7 of the 1950 Indo‑Nepal Treaty of Peace and Friendship. This was because the article bound each of the respective governments only “to give to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property …etc” (emphasis added). Article 7 did not address the giving of any rights in relation to entry and residence in India to Nepalese who were not “in the territories” of India. Similarly, it did not address giving rights to Indians to enter and reside in Nepal. In its terms, it did not address the exercise of each country’s immigration controls at their borders. If Article 7 was a source of anything which could be identified as a ‘right’ conferred on nationals of Nepal in relation to their residence in India, it was only the right to be treated equally with Indians after they had been given a permission to enter.
22.I remain of this opinion, after considering the whole text of the treaty, even when addressing its effect in the context of the evidence which was before the present Tribunal, and when approaching the effect of the treaty in the context of a judicial review application. That context requires the Court to consider whether a contrary interpretation would be reasonably open to the present tribunal of fact on the evidence before it, when addressing the applicant’s rights to ‘enter and reside’ in India within the meaning of s.36(3) of the Migration Act.
23.In my opinion, the language of the treaty, and of Article 7 in particular, clearly does not purport to confer on citizens of either Nepal or India a ‘legally enforceable right to enter and reside’ in the other country. Nor does its language impose any obligation on either of the governments to confer such rights under their domestic immigration laws. Given the relative geographies, populations and histories of the two countries, it would appear surprising to have found such rights, at least, if given to the whole Indian population.
24.It would not be a proper construction of such a treaty to draw from its terms obligations in relation to the exercise of each country’s border controls going beyond the specific agreements. Rather, as an agreement between the governments of two independent and sovereign nations (see Article 1), it is to be understood in a context where it is inherent to sovereignty under international law that each country generally can control movement into its own territory, and that an alien has no right to compel it to admit him or her into its territory (see Musgrove v Chun Teeong Toy [1891] AC 272 at 282‑283, Attorney‑General for Canada v Cain [1906] AC 542 at 546, Nishimura Ekiu v US (1892) 142 US 651 at 659, and Gunaleela & Ors v Minister for Immigration & Ethnic Affairs (1987) 15 FCR 543 at 558).
25.Article 7, far from requiring either government to permit the entry and residence of the nationals of the other country, does not concern a right of entry and residence at all. It only requires equality of treatment ‘in the matter of residence, etc’ once permission to enter has been given. The groups of persons whose rights could be concerned in Article 7 are only the two groups of each country’s nationals who have been permitted to enter the other country. Some obligations in relation to movements for other purposes, such as trade, diplomacy, or defence, might be implied by the other articles. However, these would be far from an obligation on India or Nepal to allow a general right to all the nationals of each country freely to settle in the other country, whether temporarily or permanently. If, indeed, India has conferred such a right on Nepalese nationals, the right must be found in some source other than the 1950s treaty.
26.Moreover, in its terms the treaty does not purport to confer enforceable rights on the nationals of either country, and such an effect cannot be assumed. It would be inconsistent with the principle of Australian law, inherited from and shared with the British Empire, that governmental obligations under treaty are incapable themselves of giving rise to rights and obligations under domestic law without the intervention of the domestic legislature. As Lord Atkin said in Attorney‑General for Canada v Attorney‑General for Ontario [1937] AC 326 at 347:
Within the British Empire there is a well‑established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing law, requires legislative action. Unlike some other countries, the stipulations of treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes.
27.This principle has repeatedly been affirmed in the High Court. In Simsek v McPhee (1982) 148 CLR 636 at 641‑642 Stephen J said:
Accepted doctrine in this Court is that treaties have “no legal effect upon the rights and duties of the subjects of the Crown” – Chow Hung Ching v. The King(1948) 77 CLR 449 at 478; aliens are in no different position – Bradley v. The Commonwealth(1973) 128 CLR 557 at 582. The applicant wishes, however, to argue before a full bench that when what is in question is not an obligation imposed upon an individual by a treaty but, rather, a right conferred upon the individual by a treaty, the Commonwealth being subjected to a corresponding obligation towards the individual, the position is otherwise. This, it is said, is a quite different proposition from that for which Chow Hung Ching and Bradley, properly understood, are authority.
In my view those authorities are not confined to the case of treaties which seek to impose obligations upon individuals; they rest upon a broader proposition. The reason of the matter is to be found in the fact that in our constitutional system treaties are matters for the Executive, involving the exercise of prerogative power, whereas it is for Parliament, and not for the Executive to make or alter municipal law: Wade & Phillips, Constitutional Law, 8th ed. (1977), p. 277. Were it otherwise “the Crown would have the power of legislation”: Mann, Studies in International Law (1973), p. 328.
(see also Re East; Ex Parte Nguyen (1998) 196 CLR 354 at [68]; and Povey v Qantas Airways Limited (2005) 223 CLR 189 at [59]).
28.When forming factual opinions on the effects of the treaty under Indian Law, the Tribunal would have been required to assume that no different legal principle would apply in India unless it was satisfied otherwise (see Neilson v Overseas Project Corporation of Victoria Ltd (2005) 223 CLR 331 at [125]). However, the evidence before the Tribunal, to which I shall refer below, tended to confirm that this remains a principle of Indian law, and in the absence of any evidence to the contrary before the Tribunal it could not assume the contrary.
29.In any event, in my opinion, the language of the present treaty, and of Article 7 in particular, did not allow the Tribunal to conclude that it gave any locally enforceable rights to nationals of either country, since it was expressed purely in terms of the reciprocal obligations of governments, and did not purport to address private rights.
The present Tribunal’s application of s.36(3)
Counsel for the applicant supported Ground 1 of the amended application by adopting my above reasoning in SZGXK. He cited additional authority that judicial and administrative decisions on the effect of foreign law should, in the absence of expert evidence to the contrary, assume that the municipal laws of foreign countries apply the same principle as to the domestic effect of international treaties as does Australian law, which is that domestic legislation is required (citing Gummow J in Minister for Foreign Affairs & Trade v Magno (1992) 37 FCR 298 at 303, and Heydon JA in Damberg v Damberg (2001) 52 NSWLR 492 at [144]‑[147]). He submitted, and I accept, that there was no evidence before the present Tribunal that Indian municipal law operated any differently, so as to give municipal legal effect to the provisions of the 1950 Treaty. Nor was there any evidence before the Tribunal of an Indian law which had implemented the treaty for the purposes of Indian municipal law. Indeed, such advice as the Tribunal had about this from Dr Sharma (see paragraphs 123 and 135 of its reasons), was that there was no such municipal law.
I accept these submissions. However, my reasoning in SZGXK also went further than making points about the implementation into domestic law of international treaty obligations between States. It also made the more incontrovertible point that, even if Indian municipal laws existed which implemented India’s obligations under its 1950 Treaty with Nepal, India’s obligations within the expressed language of the Treaty did not include, whether under Article 7 or any other Article, an obligation to give rights of entry to every citizen of Nepal who was beyond its border. In short, the nature of the obligations accepted by the two countries under the Treaty did not, in their terms, deal with the topic of rights of entry of any type, nor composite rights of entry and residence in particular.
In my opinion, on a fair reading of the present Tribunal’s reasoning, it sourced the application of s.36(3) on evidence as to the effect of the Treaty which was incapable of supporting the application of s.36(3). In particular, the Tribunal relied principally upon incorrect advice that the applicant had held a ‘right’ falling within s.36(3) by legal effect of the 1950 Treaty between India and Nepal. In fact, the research advice revealed no more than that there was an immigration practice on the part of India in relation to the entry of Nepalese presenting themselves at the Indian border. The evidence tended more to suggest that this was not based on the prior conferral by or under Indian domestic law of legal rights of entry to Nepalese citizens who were outside India, than the converse.
In my opinion, by accepting that advice, and following its suggested path of reasoning, the Tribunal failed to address a legally necessary issue. This was to decide whether the applicant’s prospect of entry to India under its recorded practice was based upon an existing ‘right’ sourced in Indian law. In short, the Tribunal failed to appreciate the distinction between a prediction that a claimant would in the future be granted entry under immigration discretions conferred by domestic immigration laws or under non‑legally formalised and authorised immigration practices and policies, and the identification of a currently enforceable right of entry under Indian immigration laws. In my opinion, its reliance on the research advice therefore evidenced a failure to address an issue necessarily arising under s.36(3). I am not persuaded otherwise, because the Tribunal described its conclusion as a finding of “his presently existing and legally enforceable right to enter and reside in India”.
Alternatively, in my opinion, the Tribunal’s reasoning at paragraphs 129 to 132 exhibits the jurisdictional error of making a finding that the applicant had existing rights ‘under’ the 1950 Treaty, for which there was no evidence in the sense described by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, [1990] HCA 33 at 355‑357, which was applied in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402, [2003] FCAFC 231 at [19] and [28], and VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77], and was recently very acknowledged in Soliman v University of Technology, Sydney [2012] FCAFC 146 at [23]. Such an error is jurisdictional error, if it provided a material step in the Tribunal’s purported exercise of its jurisdiction.
The Minister’s counsel sought to maintain the validity of the Tribunal’s decision and reasoning, by submitting that its application of s.36(3) was independently supported by the Tribunal’s reliance upon other evidence which left open a possibility that relevant rights were conferred under Indian municipal law on Nepalese citizens outside India. He submitted that this was shown in the Tribunal’s additional reliance in paragraph 131 on a statement in “the same Research Response” that “in the case of Nepalese citizens travelling by air, it is necessary to produce as an identity document one of a range of documents including a valid passport”.
However, I do not accept that the Tribunal did rely upon this statement independently of its misconceived reliance on advice about Article 7 of the 1950 Treaty. Rather, its reasoning in paragraph 131 appears to me to build upon the foundation of its flawed reliance in paragraph 130 on the research advice about the Treaty.
Moreover, the stated fact would not, in the absence of evidence of a relevant Indian municipal law or administrative action taken under law which had conferred on the applicant, while in Australia and outside India, a right to gain entry to India upon presentation of his passport, allow a finding under s.36(3). In the absence of such evidence, it could only be speculative whether or not the Indian immigration practice of allowing entry upon production of a passport was based upon the conferral of rights coming within s.36(3). At best, it would establish only that the applicant might in the future be granted a right of entry upon presentation of his passport at the Indian border.
I therefore do not accept the Minister’s submissions that the Tribunal’s application of s.36(3) is independently supportable by its other reasoning.
I also do not accept a submission, in effect, that I should refuse relief arising from the Tribunal’s reliance on misconceived advice as to the effect of the 1950 Treaty, because other decision‑makers might have reached a valid application of s.36(3) based upon other evidence which was before the Tribunal, and without giving weight to a misconception as to the effect of the Treaty. In my opinion, to accept this submission would involve the Court itself embarking upon an exercise of fact‑finding which is not its province (cf. Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343, and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, [2000] HCA 57 at [51]‑[56]).
Moreover, in my opinion, the other evidence from the 2006 DFAT advice cited in the Research Response, when considered in the light of the other information extracted by the present Tribunal, would not allow or require a conclusion that Nepalese citizens in the situation of the present applicant have a right to enter India of the type required under s.36(3). Indeed, in my opinion, it suggests at best that the ‘open border’ immigration policies of India towards Nepalese and other asylum seekers from neighbouring countries is probably not based upon pre‑existing rights of entry, but upon the ad‑hoc exercise of administrative discretions or practices. In particular, I do not accept that the contrary is shown by the mere information that “Nepalese citizens do not require a visa to enter India”. This, and similar statements, do not convey the added information, necessary to support a finding under s.36(3), that these citizens have a pre‑existing right of entry without a visa under Indian municipal law, giving rise to a duty on India to admit them without production of a visa.
It appears to me that none of the information which was before the present decision‑maker as to the immigration practices of India provided sufficient evidence to support the application of s.36(3). The information showed that India has long been performing a humanitarian function, by providing refuge for very large numbers of citizens from its neighbouring countries, including Tibet, Nepal, Bhutan, and Sri Lanka. It showed, in relation to Nepalese citizens, that Indian authorities in practice usually respected an inter‑governmental obligation to give equal treatment to its nationals after they had entered the country, whether for refuge or otherwise. However, in my opinion, it did not provide evidence which was capable of permitting the Tribunal to discern that the entry of Nepalese nationals to India was currently occurring by the exercise of pre‑existing legal rights of entry and residence under India’s domestic migration laws, nor that India’s migration laws, or any administrative directive or instrument issued under them, had in the past conferred a right on the applicant to enter and reside in India.
I accept that Graham J might appear to have expressed an observation to the contrary in his judgment in SZGXK (supra) at [32]. However, although I respect and have given anxious consideration to his opinions, I do not consider that I am bound by his observation not to give effect to my own opinions about the effect of the ‘country information’ which was before the present Tribunal. This is for several reasons.
First, the reasoning of the Tribunal in SZGXK when applying ‘country information’ was significantly different to that of the present Tribunal. It is also my impression that the ‘country information’ recited in each of the Tribunal decisions was not identical, and that the present decision recites additional information which casts doubt on the implication drawn by Graham J.
Secondly, Graham J’s opinion as to the probative effect of the evidence which was cited by the Tribunal in SZGXK was influenced by his preference for the minority, and less demanding, opinion of Hill J in WAGH as to the question posed by s.36(3) (see [25] and [27] of Graham J’s judgment). As I have explained above, I consider that I am bound by the majority opinion in WAGH as to the ratio decidendi in Applicant C, rather than the opinion of Hill J.
Thirdly, in SZGXK the Tribunal’s application of s.36(3) was not determinative of the outcome of the judicial review proceeding at first instance before myself or on appeal before Graham J. At both levels, the Tribunal’s decision was upheld upon its principal finding, that the refugee claimant did not have a well‑founded fear of persecution in Nepal. The differences between myself and Graham J as to the probative effects of the evidence before the Tribunal concerning the entry of Nepalese citizens into India, as with the differences of opinion of Graham and Hill JJ with other justices of the Federal Court as to the construction of s.36(3), did not form part of the ratio decidendi of either judgment. Such also appears to have been the opinion of Hayne and Crennan JJ when refusing special leave to appeal (see SZGXK v Minister for Immigration & Citizenship & Anor [2009] HCASL 170).
For all the above reasons, I consider that the present Tribunal’s decision, based solely upon its finding that s.36(3) applied to the applicant, was vitiated by jurisdictional errors. I consider that he is entitled to the grant of appropriate relief by way of judicial review.
It is agreed that scale costs should follow the event.
I certify that the preceding sixty‑six (66) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 16 November 2012
CORRECTIONS
Paragraph 26 line 3 – delete “s.36(2)” insert “s.36(3)”.
Paragraph 56 line 4 – insert “, allow a finding under s.36(3).” after the word “his passport”.
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