SZSMG v Minister for Immigration & Anor

[2014] FCCA 776

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSMG v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 776

Catchwords:
MIGRATION – Construction of s.36(3) – question of a legally enforceable right to enter and reside – Full Federal Court construction of s.36(3) – application dismissed.

Legislation:  
Migration Act 1958 (Cth), ss.36(3), 36(4), 36(5), 36(5A)

Minister for Immigration, Multicultural Affairs & Citizenship v SZRHU [2013] FCAFC 91
SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109 [35]
SZRTC v Minister for Immigration & Border Protection [2014] FCAFC 43
V856/00A v Minister for Immigration & Multicultural Affairs (2001) FCR 408

Applicant: SZSMG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 29 of 2013

Judgment of: Judge O'Dwyer

Hearing date: 13 August 2013

Date of Last Submission: 13 August 2013

Delivered at: Melbourne

Delivered on: 17 April 2014

REPRESENTATION

Counsel for the Applicant: Mr Watters

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Knowles

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.

2. The application filed on 10 January 2013, as amended, is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

SYG 29 of 2013

SZSMG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 10 January 2013, the Applicant seeks to review a decision of the Second Respondent (“the Tribunal”) dated 11 December 2012; which decision affirmed an earlier decision of a Delegate of the First Respondent (“the Minister”) not to grant the Applicant a Protection (Class XA) visa.

Background

1. The Applicant is a citizen of the People’s Republic of China and a resident of Hong Kong. Significantly, for the purposes of this review, he also is a “British National Overseas” (“BNO”) and holds a passport in that capacity.

2. On 7 August 2012, the Applicant lodged an application for a Protection (Class XA) visa, claiming to fear persecution by Chinese organised crime and because of a physical disability which he claims, hinders him from obtaining meaningful employment in China. However, on 10 October 2012 the Minister notified the Applicant that he had refused his application for a Protection visa. On 19 October 2012, the Applicant lodged an application for review of the Minister’s decision with the Tribunal.

Tribunal’s decision

1. The Tribunal’s decision pivoted on a construction of section 36(3) of the Migration Act 1958 (“the Act”). The Tribunal found that the Applicant was caught by that sub-section and thereby was not a person to whom Australia owed protection.

2. Section 36(3) of the Act provides:

   (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.

3. Having regard to the BNO status of the Applicant, which entitled the Applicant to enter the United Kingdom for up to 6 months without a visa, the Tribunal made the following finding:

   51. The tribunal finds that the Applicant does have an existing right to enter and reside in the United Kingdom as per section 36(3) of the Act. In making this finding the tribunal has relied upon the country of origin information that a British National Overseas passport holder can enter the UK and reside for up to 6 months without a visa. The tribunal notes that this right to enter and reside for up to 6 months is a right currently held by the Applicant. The tribunal differentiates this from the right of the Applicant to apply for permanent residence/citizenship, which is not an existing right to permanent residence/citizenship, but something for which he may apply for in the future. The tribunal notes that the case law does not specify a minimum period of being sufficient, and that it required more than a mere transitory presence. The tribunal finds the present right to enter and reside for a period of 6 months was not a transitory right.

   52. In making this finding the tribunal acknowledges the submissions made on behalf of the agent, particularly those dated 5 December 2012, regarding the possible right to obtain United Kingdom citizenship, and restrictions on activities in the United Kingdom. However, the tribunal notes that section 36(3) of the Act is not qualified by these factors. Section 36(3) requires the applicant to have the right to enter and reside, whether temporarily or permanently and however that right arose or is expressed. Therefore, the tribunal has not taken the applicant’s ability to work and/or study or other related matters into account in its assessment. In relation to the submissions that the applicant is not guaranteed right of entry, the tribunal disagrees with this submission.

   54. The tribunal also found that the applicant has not taken all reasonable steps to avail himself of the right to enter and reside in the United Kingdom. This is based upon the applicant’s evidence that he has not attempted to enter the United Kingdom, and has not pursued such an option.

Grounds of review

1. The 3 grounds of review centred upon the construction of s.36(3).

2. The grounds are:

   (i)The Tribunal erred in concluding that the Applicant had a right to enter and reside in the UK;

   (ii)Alternatively, the Tribunal erred in assuming that the Applicant’s right to enter and reside in the UK was sufficient to engage s.36(3); and

   (iii)The Tribunal erred by failing to consider the Applicant’s ability to lawfully support himself in the UK in determining whether s.36(3) applied him

3. The first ground challenged the Tribunal’s conclusion that the Applicant had an existing legally enforceable right to enter and reside in the UK. In that regard the Tribunal stated:

   British National Overseas passport holders have the right to enter and reside in the UK for a six-month period without a visa (they only require a visa if they wish to pursue certain activities) and the fact that the applicant is required to satisfy the Border Force officer that he satisfies that presently existing right does not mean that he does not possess that right.

4. The Applicant went on to develop this ground centring his contentions around the concept of “an existing legally enforceable right” to enter and reside in the UK. The Applicant contended that there was a need to show that the Applicant had a legally enforceable right, principally under the domestic law of the UK. He developed this argument by reference to the Immigration Act 1971 (UK) and the Immigration Rules made under s.3(2) of that Act. The Applicant under those Rules sought to establish that even if the Applicant had a right to enter the UK, the apparent discretionary function of the Immigration Officer at the point of entry, evaporates, so to speak, as it must be exercised to preclude entry because under the above domestic law, it was contended, the proper description of the Applicant would be that of a “visitor” to the UK. Under the domestic law, for a visitor to be successful in gaining entry, there were 13 criteria that had to be met. On the face of it, the Applicant did not meet a number of those criteria.

5. In support of the ground that the Tribunal misconstrued s.36(3) by finding that any non-transitory right to enter and reside in the UK was sufficient to engage the subsection, the Applicant contended that not every right to enter and reside in a third country would engage that section. The Applicant referred to various authorities in support of this contention.[1]  For reasons set out below I need not consider this contention.

   [1] SZMWQ v Minister for Immigration and Citizenship (2010) 187 FCR 109, [35].

6. All of the above contentions centred on a construction of s.36(3) requiring a legally enforceable right to enter and reside. The proper construction to be given to that sub-section was considered in the Full Federal Court decision of Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU[2]. In that decision, Buchanan J set out the history of how the Courts over time have applied, on the face of it, conflicting constructions of the subsection, covering the doctrine of effective protection and the more restricted interpretation of the need for there to be a legally enforceable right. His Honour Justice Buchanan (with whom the other 4 members of the Court agreed[3]) set out with approval what Allsop J said in V856/00A v Minister for Immigration and Multicultural Affairs[4]. He said:

   … Carr. J. in Applicant C, at [28] construed s.36(3) as “consonant with Art 1 E of the Convention”. A right under Art 1 E 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 s.36(3) is more relevant and tends to the contrary. The phrase in s.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 of 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 and 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 existence, rather than from the existence within the positive law of the state in question of correlative duty, justiciable and enforceable in law, to recognise the right.[5]

   [2] [2013] FCAFC 91

   [3] Tracy, Flick, Robertson  and Griffiths JJ

   [4] (2001) 114 FCR 408

   [5] ibid at [31]

7. Buchanan J went on to say:

   77.It is clear from the terms of s.36(3) of the Act that the “right to enter and reside” in another country which a non-citizen of Australia may have is not necessarily a right associated with citizenship of that other country. Indeed, the commonplace scenario is that of a citizen fleeing his or her own country and seeking refuge in Australia. The question for consideration in such a case is whether there is a third country (i.e. other than Australia or the country of citizenship) where the visa applicant already has a right to enter and reside. If so, by reason of the operation of s.36(3), at least, Australia does not owe that visa applicant protection obligations. In those circumstances, the “right” to which s.36(3) refers cannot be equated to rights which accompany citizenship. Inevitably, the “right” is no less certain or more secure than that.

   78.There does not appear to me to be any other reason either to conclude that the “right” is one which the Parliament intended would be a legally enforceable one, in the sense that it could be vindicated in the Courts, and under the domestic law, of the third country. On the contrary, in my view, that is an unlikely intention to attribute to Parliament at the time of the enactment of s.36(3).

8. It follows, therefore that the contentions of the Applicant predicated on the need for there to be a legally enforceable right to enter and reside, are without merit. The Tribunal’s finding of fact that the holders of BNO passports have a right to enter and reside in the UK is a finding of fact which satisfies the engagement of s.36(3). The right to enter and reside is not dependent upon domestic laws in the UK, whether those laws domestically require an endorsement of the right of entry or the possibility of the cancellation of that right.

9. Again, the alleged failure of the Tribunal to consider the Applicant’s capacity to subsist in the UK, is not an error on the part of the Tribunal. Once s.36(3) is engaged, as it is in this case, then there is no need to consider, as the law presently stands whether the Applicant would be able to subsist in the UK. There is nothing in the Act that requires a decision maker to look beyond s.36(3) if it is found to be engaged, save for the exceptions provided for in s.36(4)-(5A). These exceptions do not apply in this case.

10. In SZRTC v Minister for Immigration and Border Protection[6]  a Full Federal Court decision by three of the five judges in SZRUH, the joint decision of Tracey and Griffiths JJ at [25] set out the approach to be taken in matters engaging s.36(3). First, the decision maker is to determine the Applicant satisfies one or more of the criteria for a protection visa prescribed by s.36(2). If so satisfied, the next step is to determine whether s.36(3) is engaged and again, if it is, then the decision maker must determine whether the sub-section s.36(4), (5) or (5a) apply.

    [6] [2014] FCAFC 43

11. In this case, the Tribunal did not strictly follow the steps set out in SZRTC; namely, first determine whether the Applicant qualified under s.36(2) for protection. Although this is an error on the Tribunal’s part, it does not go to jurisdiction. Should that first step have been taken by the Tribunal and it found that the Applicant did not qualify for refugee status, then s.36(3) would not have been engaged. No utility is served by sending this matter back to the Tribunal, as such error is not jurisdictional.

12. The Tribunal did consider at [53] of its decision whether s.36(4)-(5A) had application, as required, but determined the Applicant was not otherwise caught by those sub-sections.

Conclusion

1. For the above reasons, none of the 3 grounds have been made out and, accordingly, the application filed on 10 January 2013, as amended, should be dismissed. 

I the date certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer

Associate: 

Date: 17 April 2014