SZSWV v Minister for Immigration & Border Protection

[2013] FCCA 2146

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSWV & ORS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 2146

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the applicant denied procedural fairness – whether the RRT erred in its application of s.36(3) of the Act – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth) reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91
SZBYR v Minister for Immigration and Citizenship (2011) 81 ALJR 1190
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCA 408
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZSWV

Second Applicant: SZSWW

Third Applicant: SZSWX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1163 of 2013

Judgment of: Judge Emmett

Hearing date: 11 December 2013

Date of Last Submission: 11 December 2013

Delivered at: Sydney

Delivered on: 12 December 2013

REPRESENTATION

Solicitor for the Applicants: Mr Michael Jones
(Parish Patience Immigration Lawyers)

Counsel for the Respondents: Mr Justin Smith

Solicitors for the Respondents: Minter Ellison

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1163 of 2013

SZSWV

Applicant

SZSWW

Second Applicant

SZSWX

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated and handed down on 30 April 2013 (“the RRT”).

2. The primary applicant claims to be a citizen of the Democratic Republic of Nepal, of Hindu faith, and Newar caste. (“the Applicant”). The second applicant is the wife of the Applicant, claims to be a citizen of the Democratic Republic of Nepal, of Hindu faith, and of Newar caste. The third applicant is the daughter of the Applicant and second applicant. The claims of the second and third applicant have no independent claims and their claims are dependent upon those of the Applicant.

3. The issues in this case are whether the applicant denied procedural fairness and whether the RRT erred in its application of s.36(3) of the Act. These issues are considered below in the context of considering whether the RRT’s decision is affected by jurisdictional error.

4. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of the delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. The Applicant arrived in Australia on 18 October 2008 having departed legally from Nepal on a passport issued in his own name and a Student (Temporary) (Class TU) (Subclass 572) visa, issued on 24 September 2008.

2. On 20 December 2011, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act (“the Department”).

3. On 22 May 2012, the Delegate refused the applicant’s application for a protection visa, on the grounds that the Applicant’s claims of persecution should he be forced to return to Nepal, were not well founded.

4. On 21 June 2012, the Applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 30 April 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa. 

6. On 27 May 2013, the Applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to section 65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an Applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(3) of the Act states that Australia is not taken to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in any country apart from Australia, whether temporarily or permanently, and however that right arose or is expressed.

6. Section 36(4), (5) and (5A) identify circumstances in which s.36(3) of the Act does not apply.

7. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

8. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

9. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

10. Section 424AA of the Act permits the RRT to give orally to an Applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the Applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the Applicant to comment on or respond to the information and advise the Applicant that the Applicant may seek additional time to comment on or respond to the information.

11. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

12. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Applicant’s application for a protection visa

1. In his application for protection, the Applicant claimed to be a businessman in Palpa District from whom Maoists extorted money for protection. The Applicant suffered death threats when he failed to comply. The Applicant claimed to be a District level active member of the Rastriya Prajatantra Party Nepal (“RPPN”) and held pro-Monarchy meetings in his village during the elections. The applicant stated that the Maoists threatened to kill him “as their ultimatum”. The Applicant stated that he feared serious harm or death from the Maoists and the Maoist Young Communist League (“YCL”), and that he was unable to obtain protection from the authorities.

2. On 26 April 2012, the Applicant provided the Department with a further detailed statement of his claims, including the following:

   a)The Maoists had extorted money from the Applicant to protect his business since January 2006.

   b)The Applicant was pro-Monarchy and met with the leader of the RPPN.

   c)In September 2007, the Applicant was promoted to a District level active member of the RPPN.

   d)The Applicant argued with anti-Monarchists, including Maoists in defending his views about the Monarchy and the RPPN.

   e)The Applicant had fliers and pamphlets made for his party’s campaign in the Constituent Assembly elections held in April 2008. The Applicant also made telephone calls and organised matters during the elections.

   f)In June 2008, a group of Maoists killed the Applicant’s close business associate. The Applicant held a rally against the Maoists in protest against the murder and in response, he was detained and beaten by the Maoists for two days.

   g)The Applicant started investigating options to travel overseas to locations where the Maoists could not locate him. He then decided to join his wife, who had come to Australia, travelling on a dependant student visa on 16 February 2008.

   h)The Applicant returned to Nepal on 7 March 2010 to visit his sick father. On his visit to Nepal, his father told him that the Maoists had been demanding money from him. The Applicant returned to Australia on 1 April 2010.

   i)The Applicant he was unable to obtain protection from the authorities because of the a lack of resources and corruption. The Applicant stated that Courts also suffered from corruption and that access to justice is very limited.

   j)After the Applicant left his village, the Maoists visited his family, asking for his whereabouts and threatening his parents.

   k)The Applicant was unaware that he could seek a protection visa until told by a friend in November 2011.

The Delegate’s decision

1. On 30 April 2012, the Applicant attended an interview with the Delegate.

2. On 22 May 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

3. The Delegate found that the Applicant had fabricated or substantially exaggerated his experiences in Nepal in order to remain in Australia. The Delegate found that being an RPPN supporter alone did not put the Applicant at risk of harm based on country information before it.

4. The Delegate found the Applicant’s claim that Maoists would be waiting for him three-and-a-half years later because of his “run of the mill” RPPN support to be “fanciful”.

5. The Delegate found any fear the Applicant claimed to have not to be well-founded.

The RRT’s review and decision

1. On 21 June 2012, the Applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 3 December 2012, the RRT wrote to the Applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 29 January 2013 to give oral evidence and present arguments.

3. On 29 January 2013, the Applicant attended the RRT hearing and gave evidence.

4. The RRT considered whether the Applicant had a well-founded fear of persecution for a Convention related reason, and also considered whether s.36(3) of the Act had the effect that the Applicant was not entitled to protection.

5. Section 36(3) states as follows:

   “(3)  Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.”

6. The RRT also considered whether ss.36(4), (5) or (5A) applied in relation to India. Those sections are as follows:

   “ (4)  However, subsection (3) does not apply in relation to a country in respect of which:

   (a)  the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

   (5)  Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

   (a)  the 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.

   (5A)  Also, subsection (3) does not apply in relation to a country if:

   (a)  the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.”

7. The RRT explored the Applicant’s claims with him at the hearing and put to him information in the Applicant’s student visa application that was inconsistent with the Applicant’s protection visa claims.

8. The RRT noted the Applicant’s responses, however, ultimately, was not persuaded by the explanations given by the Applicant. The RRT found the applicant not to be a credible witness and found that he had fabricated and exaggerated aspects of his claims to enhance his claims for a protection visa.

9. The RRT rejected the Applicant’s claims of past harm and incidences involving Maoists in Nepal for any reason.

10. The RRT accepted that the Applicant is a member and a supporter of the RPPN. However, the RRT did not accept that he has encountered any problem as a result, or that he would if returned to Nepal. The RRT noted that the RPPN is a mainstream political party and noted that the Applicant has not involved himself in any political activity in support of Nepalese issues whilst in Australia.

11. The RRT also explored with the applicants what rights they have in relation to entering India. The RRT concluded that the applicants have a presently existing right to enter and reside in India in terms of s.36(3) of the Act.

12. The RRT also considered whether the applicants met the alternative criterion under s.36(2)(aa) of the Act and concluded that they did not.

13. The RRT also found that there was no evidence to suggest that authorities in India would return the applicants to a country where they faced persecution or significant harm, and that, therefore, ss.36(4), (5) and (5A) of the Act were not met by the evidence before the RRT.

14. Accordingly, the RRT affirmed the decision under review.

The proceeding before this Court

1. The Applicant was represented before this Court by his solicitor, Mr Michael Jones.

2. On 17 September 2013, the Applicant filed a Further Amended Application. Those grounds are as follows:

   “1. the Tribunal member has failed to provide the applicant procedural fairness or natural justice

   2. There is a legal error on the part of the Tribunal Member’s purported decision.

   Particulars (grounds 1 and 2)

   The Tribunal failed to comply with s.424AA of the Act in the matter required by the legislation. The Tribunal put certain information to the applicant orally at the hearing and listened to his comments on that information. Having heard those comments, the Tribunal then informed the applicant of the matters set out in s.424AA(b), including that the applicant could seek additional time to comment on or respond to the invitation. The Tribunal effectively undermined the procedural fairness intent of s.424AA by allowing the applicant to comment before advising him of his right to seek additional time.

   3. The Tribunal erred in finding that the s.36(3) applied to the Applicant as a result of the Treaty of Peace and Friendship between India and Nepal because it failed to pay regard to the actual terms of the Treaty and also evaluate whether, in combination with the terms of the Treaty, the administrative arrangement for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfied the test.”

3. The Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Grounds 1 and 2

1. Mr Jones contended that Grounds 1 and 2 raise the same issue, namely, whether the RRT complied with the requirements of s.424AA in giving the Applicant information at the hearing that the RRT believed would be the reason, or part of the reason, for affirming a decision under review.

2. Mr Jones identified the information as various information provided by the Applicant in his student visa application that was inconsistent with his protection visa claims.

3. Mr Jones read the affidavit of Winnie David, affirmed 5 September 2013, annexing a transcript of the RRT hearing.

4. Mr Jones took the Court carefully through the relevant parts of the transcript relating to information that the RRT believed would be the reason or part of the reason for affirming the decision under review.

5. Mr Jones contended that the transcript disclosed that the RRT had allowed the Applicant to answer the RRT’s concerns before telling him that he may seek additional time to comment or respond, thereby denying him procedural fairness.

6. Section 424AA of the Act is as follows:

   “Information and invitation given orally by Tribunal while applicant appearing

   If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a)  the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  if the Tribunal does so--the Tribunal must:

   (i)  ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)  orally invite the applicant to comment on or respond to the information; and

   (iii)  advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)  if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”

1. Mr Jones submitted that the RRT erred by putting information to the Applicant and having listened to and discussed his responses, then told the Applicant that the legislation required him to put the information to him in a certain way and that it would now do so.

2. Mr Jones submitted that by its conduct, the RRT reduced the obligations in s.424AA(b) of the Act to a mere formality. Mr Jones submitted that there can be little value in telling a person that they can have time to think about their response if they have already made a response, and been urged to do so by the form of the questioning itself.

3. In support, Mr Jones tendered the Explanatory Memorandum in relation to the Migration Amendment (Review Provisions) Bill 2006, which was marked Exhibit 2A.

4. Mr Jones took the Court to various statements in Exhibit 2A reflecting that in carrying out the procedures and requirements in s.424AA of the Act, the RRT must do so in a way which is fair and just; and to do so in a way that an applicant will not be taken by surprise and will have a reasonable time to comment or respond.

5. A fair reading of the transcript of the exchange between the RRT and the Applicant in relation to information that caused the RRT some concern, does not disclose any unfairness. Nor does it suggest that the Applicant was taken by surprise or not given an opportunity to provide comment or responses.

6. The particular information contained in the Applicant’s student visa that the RRT found to be of concern was clearly given to the Applicant and the reasons for its relevance were made clear to him. Further, the RRT told the Applicant the consequences that may flow to the Applicant if the information was relied upon by the RRT in affirming the decision under review.

7. True it is that the RRT finished giving the Applicant the information before the RRT invited the Applicant to comment or respond, in circumstances where the Applicant had responded to the information as it was given to him by the RRT.

8. However, following discussion of the information with the Applicant, the RRT stated as follows:

   “Q. Now even though we’ve discussed it, the legislation actually requires that I put that information to you in a certain methodology and I’ll go through it now…

   Q. Even though we’ve discussed all of that, there’s a section of the legislation that requires that I have to put it to you in a certain way, and what I’m going to do now is, even though you will think that I’m repeating myself, and I will be, I have to put it to you in a certain way and well that’s what we’re going to do now.”

9. The RRT then gave the Applicant the information in his student visa and told him that it conflicted with the history of the Applicant’s claimed harm in Nepal and in relation to his decision not to come to Australia until the second week of August 2008. The Applicant’s student visa application was actually lodged on 11 July 2008. In support of the visa application, the Applicant had also provided a police certificate, issued on 8 June 2008, and a marriage certificate, dated 5 June 2008, both being dates that the Applicant claimed in his protection visa application were when he was held by kidnappers and beaten. The other information provided by the Applicant in support of his student visa application was that he had never had hospital treatment or been admitted to a hospital for any reason. In his protection visa application, the Applicant said he was admitted to Hospital for two weeks in Palpa.

10. The RRT told the Applicant that the consequence of it relying on the information was that the RRT may not accept that there is a real chance of persecution for a Convention reason if the Applicant returns to Nepal. The RRT stated that it may also lead the RRT to believe that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that the Applicant would suffer significant harm.

11. The Applicant acknowledged in terms to the RRT that it understood the relevance of the information and the consequences to him if the RRT relied on the information. The RRT then had the following exchange with the Applicant:

    “Q. Now if you wish to you may comment on or respond to this information. Now I know that you already have but I’m giving you another opportunity now if you wish to comment or respond. Do you wish to comment or respond further?

    A. INTERPRETER: Yes, I’d like to say something.

    Q. Yes. Now you may comment now or you may seek extra time if you wish to, and if you wish to seek extra time you need to tell me why you seek extra time and I can determine whether or not to grant that to you.

    A. INTERPRETER: I don’t want to take any extra time.”

12. In the circumstances, to suggest that the RRT has failed to comply with s.424AA of the Act would be to apply a very literal interpretation and highly technical application of the law in circumstances where little or no practical injustice can be found in the way in which the RRT dealt with the matter. That is the very mischief that Exhibit 2A makes clear was sought to be met by the introduction of s.424AA of the Act.

13. As stated above, the transcript of the RRT hearing makes clear that the RRT gave the Applicant information that the RRT considered would be the reason or part of the reason for affirming the decision under review, in accordance with s.424AA of the Act.

14. Further, I accept the first respondent’s submission that the information identified by the RRT, and which it gave to the Applicant in accordance with s.424AA of the Act was not in its terms a rejection, denial or undermining of the Applicant’s claims to be a person to whom Australia owed protection obligations. In such circumstances, it was not information that enlivened any obligation under s.424A of the Act (see SZBYR v Minister for Immigration and Citizenship (2011) 81 ALJR 1190 at [17]).

15. Moreover, the information was more in the nature of inconsistencies that the RRT found to exist in the applicant’s protection visa’s claims with information and documents provided by him in support of his student visa application.

16. It is well established that the RRT’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the RRT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

17. Accordingly, the RRT was not required to give the Applicant the information in any event.

18. The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

19. Accordingly, grounds 1 and 2 are not made out.

Ground 3

1. It is common ground that unless the Applicant succeeded on grounds 1 and 2, success in ground 3 alone would not be sufficient to entitle the Applicant to the relief sought. However, for the sake of completeness I have considered ground 3 below. I have concluded that the Applicant has not demonstrated jurisdictional error in its consideration of s.36(3) of the Act, as asserted in ground 3.

2. Ground 3 asserts that the RRT erred in finding that s.36(3) applied to the Applicant in light of the manner in which s.36(3) is to be construed as enunciated in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91 (“SZRHU”).

3. In SZRHU at [89]-[91], Buchanan J, with whom the Court agreed, concluded that s.36(3) does not refer to, or presuppose, a legally enforceable right under domestic law. Buchanan J held that the Refugee Review Tribunal decisions, the subject of that appeal, had erred in concluding that the terms of the relevant Treaty represented or reflected a legally enforceable right to enter and reside in India. Buchanan J stated that the Refugee Review Tribunal should pay regard to the actual terms of the Treaty and should also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border satisfied the test.

4. Buchanan J found that there is no legally enforceable right arising from the Treaty. Buchanan J at [88] stated as follows:

   “However, on the facts found by the RRT no right of entry appears to arise from the terms of the Treaty itself. There is certainly no legally enforceable right arising from the terms of the Treaty, but neither does the Treaty refer in terms to any entitlement of entry which would satisfy the test expressed in V856/00A. The rights given by the Treaty which appear to satisfy that test are the rights arising from the mutual covenants in Article 6 and Article 7. Article 7 articulates a right of residence, but it assumes that a citizen of one country is in the territory of the other. The arrangements at the border, whereby entry from one country to another is permitted generally upon satisfactory proof of identity, appear to be the result of administrative arrangements, rather than arising directly from the terms of the Treaty. In other words, the Treaty itself does not appear to give rights of entry. If the administrative arrangements for entry (even though they appear intended to facilitate the operation of the Treaty) do not satisfy the test in V856/00A, then the composite test in s 36(3) will not be satisfied either. That is a question which should not be decided in the present appeals. The possibility adverted to by Stone J in Applicant C at [60] is one which requires evaluation applying the proper test. That evaluation should be made by the RRT which will, if it chooses to do so, be in a position to seek further information relevant to the correct test to be applied.”

5. Buchanan J did acknowledge that the doctrine of effective protection has been controversial in the Federal Court of Australia and cited various authorities, including decisions of the High Court of Australia disapproving of certain of the decisions of the Federal Court of Australia (see SZRHU at [43]-[68]).

6. Ultimately, the Court in SZRHU found that whether an applicant had a presently existing, legally enforceable right to enter and reside in another country was not the correct test under s.36(3) of the Act. The Court found the correct test was as expressed by Allsop J in V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCA 408 at [31] as follows:

   “I see no reason to restrict the meaning of the word "right" to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning a liberty or permission or privilege which does not give rise to any particular duty upon the state in question.”

7. In the case before this Court, I accept the Applicant’s submission that the RRT appears to have had regard to the administrative arrangements between India and Nepal, however I also note that the RRT did state the relevant considerations if s.36(3) of the Act included, “whether the applicant has a legally enforceable right to enter and reside in a third country”. However, that statement by the RRT is provided at the outset of its decision record in what is commonly referred to as “boiler plating”.

8. A fair reading of the RRT’s reasons in its consideration of s.36(3) of the Act does not suggest that the RRT considered s.36(3) of the Act as including whether the Applicant has a legally enforceable right to enter and reside in India. The language used by the RRT in its findings and reasons speaks only of the Applicant’s right as a Nepalese citizen to enter and reside in India. As stated above, a fair reading of the RRT’s reasons makes clear that the RRT in this case did give consideration to the broader administrative arrangements between India and Nepal in concluding that the applicants do have a present and existing right to enter and reside in India as meant by s.36(3) of the Act.

9. In the circumstances, I am not persuaded that the RRT made an error similar to those made by the Refugee Review Tribunal decisions considered in SZRHU. To find otherwise in the case before this Court would be to construe the RRT’s reasons with an eye too keenly focused on error (see Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] per Allsop J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 and 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

10. Accordingly, ground 3 is not made out.

Conclusion

1. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

2. The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  12 December 2013