SZTBJ v Minister for Immigration
[2015] FCCA 580
•24 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTBJ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 580 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – applicant found to have well-founded fear of significant harm in Nepal under complementary protection criterion – applicant found to have right to enter and reside in India under s.36(3) – definition of “right to enter and reside in” – whether Tribunal took into account irrelevant considerations – operation of India-Nepal Treaty of Peace and Friendship – no error in decision of Tribunal – application dismissed. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5(1)(f) Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(3), 36(4), 36(5), 36(5A), 476(2)(a) |
| Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 |
| Applicant: | SZTBJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1617 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 7 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Applicant: | Baker & McKenzie |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the First Respondent: | DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The Application filed on 16 July 2013, as amended on 20 April 2014, be dismissed.
The applicant pay the First Respondent’s costs and disbursements of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1617 of 2013
| SZTBJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application filed on 16 July 2013 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1313504, a decision of Tribunal Member C. Keher dated 25 February 2014, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.
The solicitors for the Minister filed on 12 August 2013 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and marked as Exhibit “A”.
The applicant was granted leave to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely. The applicant filed an amended application on 30 April 2014 (the “Amended Application”) which is set out below, together with written submissions and authorities.
It should be noted that at the time of the filing of the current application the applicant was represented by Baker & McKenzie, however, that representation was subsequently withdrawn on 31 October 2013. Mr J. Williams of counsel, appearing for the applicant on a direct access basis, prepared the Amended Application and written submissions the applicant sought to rely on, and appeared at the hearing.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant is a citizen of Nepal who arrived in Australia with his wife on 17 July 2012. On 19 September 2012 he and his wife applied for a protection visa on the basis that he feared persecution for various reasons in Nepal. The delegate rejected that application on 6 December 2012 and the applicant applied to the Tribunal for review of that decision.
While both the applicant and the wife made claims in their protection visa application to fear harm in Nepal, only the applicant applied to the Tribunal for review of the delegate’s decision (CB 154). That appears to have been because the delegate treated the applicant’s wife as only having made a claim for a protection visa on the basis that she was a member of the applicant’s family unit (see ss. 36(2)(b) and (c)). That misunderstanding was shared by the applicant, his wife and his adviser: (CB 233, 295 at [27]).
The Tribunal’s Decision
The Tribunal accepted that the applicant’s claims in respect of Nepal were true, but the harm he feared there was not for reasons of one of the five grounds stipulated in Article 1A(2) of the Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the “Convention”) (CB 298 at [42]). On the other hand, the Tribunal accepted that there was a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Nepal (CB 298 at [43]). These findings meant that, subject to the operation of s.36(3), the applicant satisfied the criterion in s.36(2)(aa), but not the criterion in s.36(2)(a).
The Tribunal found that the applicant had a presently existing right to enter and reside in India as meant by s.36(3) of the Migration Act (CB 298 [47]). The Tribunal then considered the questions posed by ss.36(4), (5) and (5A) of the Migration Act and concluded that the harm the applicant may face in India was neither persecution nor significant harm and that there was no evidence to suggest that the authorities of India would return the applicant to another country. For those reasons, it found that the provisions in ss.36(4), (5) and (5A) did not apply and so, pursuant to s.36(3), Australia was taken not to have protection obligations in respect of the applicant (CB 300 [52]).
For those reasons, the Tribunal affirmed the delegate’s decision.
Current Proceedings
The initial application currently before this Court was amended on 30 April 2014 and named the applicant as the sole applicant in the proceeding. The Amended Application, however, named a second applicant to the proceedings, being the substantive applicant’s wife. This joinder was opposed by the Minister.
Application to join second applicant
The applicant sought to join the proposed second applicant (the applicant’s wife) to the proceeding before this Court, noting that she had not been named in the application before the Tribunal. It was submitted that, in any case, the Tribunal made findings in respect of both applicants which was inappropriate and a breach of procedural fairness.
The Minister submits there are two reasons why the joinder of the second applicant should be refused. The first is that under s.478 of the Migration Act she has no standing. Second, she has no standing in any event because no rights of hers were affected. It is not a question about the Tribunal making findings about her, rather, those findings were made in respect of the first applicant. Accordingly, they have no impact on her legal rights whatsoever and are not binding on anyone else.
Consideration
It is clear that in the Protection visa application (Form 866B) made on 19 September 2012 included both the first applicant and proposed second applicant were included therein (CB 2), however, each applicant lodged their own Application for an applicant who wishes to submit their own claims for protection (Form 866C) (CB 15, 65). The delegate’s decision names both applicants therein, however, names the first applicant as the “Principal Applicant” and the proposed second applicant as the “Applicant who is a member of the family unit but not making specific claims”. It is unclear as to why this was the case, however, this Court has no jurisdiction in respect of the delegate’s decision, notwithstanding (see s.476(2)(a) of the Migration Act).
In the first applicant’s application for review of the delegate’s decision lodged with the Tribunal on 12 December 2012 it is clear the first applicant is the sole applicant for review (see CB 154-155). The review application was lodged with the assistance of a registered migration agent. The proposed second applicant, however, did appear at the Tribunal hearing on 18 March 2013 (CB 205).
The applicant’s then migration agent sent a letter to the Tribunal after the hearing.
Amended Application
The original application, filed on 16 July 2013 in these proceedings was prepared for the applicant by Baker & McKenzie. At the first court date directions hearing before Judge Manousaridis the parties filed draft consent orders as the basis for establishing a timetable for the further hearing of the matter. Leave was granted for the applicant to file an amended application giving complete particulars of each ground of review relied upon by the applicant by 24 September 2013. This order was not complied with and a notice of withdrawal as lawyer was filed on 31 October 2013.
Subsequent to the withdrawal of Baker and McKenzie, the applicant was represented by Mr J Williams of Counsel on a direct access basis.
The Court was approached by the parties on 28 April 2014 with consent orders seeking that:
1. The applicant have leave to rely upon the amended application and written submissions which were served on the first respondent in the Court on 22 April 2014.
2. The first respondent have leave to file and serve written submissions and a list of authorities by 2 May 2014.
The Amended Application contains seven grounds of review, each of which is particularised. Both parties have filed detailed written submissions in respect of each ground which were supported with lengthy oral submissions. I have formed the view that the appropriate manner in which to address this material to take each ground together with the respective argument, in turn.
Ground 1: Jurisdictional Error of Law
Ground 1 of the Amended Application pleads:
1. The Second Respondent misconstrued and misapplied section 36(3) of the Migration Act 1958 (Cth) in the following ways:
a) The Second Respondent held that the applicant had a presently existing right to enter and reside in India.
b) The Second Respondent erred in finding that the 1950 Treaty of Peace and Friendship between India and Nepal would, of itself and in the absence of incorporation into Indian Law, give the applicant a legally enforceable right to enter and reside in India.
c) The Second Respondent erred when it failed to consider whether a Nepalese citizen could seek to obtain a remedy or enforce a right in Indian Courts arising from the 1950 Treaty of Peace and Friendship between India and Nepal.
Applicant’s Submissions
The argument advanced on behalf of the applicant is that the Tribunal misconstrued and misapplied s.36(3) of the Migration Act in the following ways:
a)The Tribunal held that the applicant had a presently existing right to enter and reside in India;
b)The Tribunal erred in finding that the India-Nepal Treaty of Peace and Friendship 1950 would, of itself and in the absence of incorporation into Indian Law, give the applicant a legally enforceable right to enter and reside in India; and
c)The Tribunal failed to consider whether a Nepalese citizen could seek to obtain a remedy or enforce a right in Indian Courts arising from the India-Nepal Treaty of Peace and Friendship 1950.
The applicant’s case is that the issue is the correct interpretation of the statutory phrase “right to enter and reside” as employed in s.36(3) of the Migration Act which in its entirety states:
(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.
Subsection 36(3) operates subject to the effects of ss.36(4), (5) and (6), each of which apply additional considerations to be taken into account in particular circumstances.
The applicant contends that Australian courts have examined numerous Tribunal decisions on the refugee claims of nationals of Nepal. A recurring issue has been whether, for the purposes of the visa criteria specified in s.36(2) of the Migration Act, Australia is to be taken to have no protection obligations to any Nepalese asylum seeker, by reason of a longstanding practice by the government of India which has allowed many Nepalese to enter and reside in India if they wish to do so. In many decisions concerning Nepalese refugee claimants the decision-maker and their sources of advice have stated that such a right is conferred by the India-Nepal Treaty of Peace and Friendship 1950 without providing legal or factual analysis which supports that conclusion.
It is submitted that the development of the notion of effective protection was linked, in a number of cases, with the examination of whether a person had a right to reside in, enter and re-enter a third country. This necessarily involves consideration of whether a person who claims to have well-founded fear of persecution in one country, and to be a refugee, might nevertheless have “effective protection” in another country apart from Australia.
Mr Williams has provided the Court a detailed analysis of the development of the jurisprudence in respect to this issue. It is not my intention to recount that analysis in this decision except for the Full Federal Court decision which is binding on this Court.
The decision of the Full Federal Court in Minister for Immigration and Multicultural Affairs and Citizenship & Anor v SZRHU (2013) 215 FCR 35 (“SZRHU FCAFC”) was an appeal from two (of the then) Federal Magistrate Court’s decisions concerning the correct construction and application of s.36(3) of the Migration Act. In each case, an application for a Protection visa was refused by the delegate of the Minister and was affirmed by the Tribunal. In each decision the Tribunal had found that the visa applicant (each citizens of Nepal) had a presently existing and legally enforceable right to enter and reside in India. In SZRHU v Minister for Immigration & Anor [2012] FMCA 1013 (“SZRHU FMCA”) the application for judicial review was upheld and the decision of the Tribunal was set aside with orders made for the matter to be remitted to the Tribunal for redetermination according to law. In the other matter, SZRBJ v Minister for Immigration & Anor [2012] FMCA 1240, the application for judicial review was dismissed. Accordingly, there was a direct contradiction between the outcome of SZRHU FMCA and SZRBJ (supra).
In the Full Federal Court decision of SZRHU FCAFC his Honour Buchanan J (Tracey, Flick, Robertson and Griffith JJ agreeing) held that the Tribunal had no evidence before it to conclude that either visa application had a legally enforceable right under Indian democratic law to enter and reside in India. At [27] his Honour stated:
27. I agree with the view expressed by the FMCA in SZRHU that the RRT made an error in its assessment of the material before it concerning the legal effect and operation of the Treaty. In my view, it is clear that there was no foundation, from the terms of the material upon which it relied, for the RRT to conclude that either visa applicant had “a presently existing, legally enforceable right (i.e. under India’s domestic law) to enter and reside in India”. There was no evidence identified by the RRT capable of supporting such a conclusion and such evidence as was identified denied it.
The removal of “effective protection” by the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 did not directly affect the construction of s.36(3) of the Migration Act and offers no reason to prefer the stricter view of the term “right” over the other view. Buchanan J at [70] in SZRHU FCAFC states:
70. Removal of the notion of effective protection took away an important contextual element in the reasoning in Applicant C, which was followed in WAGH. It also removed the foundation for the judgment in Al-Rahal, which was important for the reasoning in V872/00A. However, removal of the doctrine of effective protection does not resolve the question of the proper construction of s 36(3). In particular, it does not offer a reason to prefer a strict view of the term “right” over any other view.
Section 36(3) of the Migration Act does not refer to, or presuppose, a legally enforceable right under domestic law, but refers to an entitlement of entry of a quality referred to by his Honour Allsop J in V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408 and Buchanan J in SZRHU FCAFC at [89] where he stated:
89. In my respectful view, s 36(3) does not refer to, or presuppose, a legally enforceable right under domestic law. On the contrary, s 36(3) refers to an entitlement of the quality referred to by Allsop J in V856/00A. In my respectful view, the construction of s 36(3) offered by Allsop J should not have been rejected in Applicant C and in light of the history I have recounted it was an error to do so. Equally, in my respectful opinion, the majority judgment in WAGH perpetuated the same error. The construction of s 36(3) offered by Allsop J in V856/00A should now be endorsed.
In each of the cases of SZRHU FCAFC and SZRBJ (supra) the Tribunal erred in concluding that the India-Nepal Treaty of Peace and Friendship of 1950 represented a legally enforceable right to enter and reside in India. Buchanan J, in SZRHU FCAFC at [90], stated:
90. The RRT in each of the present cases was in error to conclude that the terms of the Treaty represented or reflected a legally enforceable right to enter and reside in India. The RRT failed to apply the correct test to the evaluation of that question. In each case, the RRT should deal again with the applications before it using the correct test. It 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 (or any other arrangements with respect to entry identified by it) satisfy the test.
In respect of Ground 1 in the matter before this Court, Mr Williams contends on behalf of the applicant that the Tribunal made an error in the way it assessed the application before it. The Tribunal found at [47]:
47. I have carefully considered the above in the context of the applicant and his wife having lived in India for about 5 months and the applicant’s wife’s parents living there now with the applicant’s children in rented accommodation. The applicant is a Nepalese citizen and has a Nepalese passport. The above law is an international treaty. It is apparent it does allow Nepalese citizens the right to enter in and reside in India, and that this is true is evident from applicant’s and his family’s travel history to India and their having lived there, and the wife’s parents residing there now and having done so for over 16 months. No claim has been made that they suffered any harm or have any concern about living in India I am reasonably satisfied that as such the applicant does have a presently existing right to enter and reside in India as meant by section 36(3) of the Act.
(CB 299)
Mr Williams contends the Tribunal was in error to conclude that the terms of the India-Nepal Treaty of Peace and Friendship 1950 represented or reflected a presently existing right to enter and reside in India for the following reasons:
a)The terms of the India-Nepal Treaty of Peace and Friendship 1950 have not been enacted into Indian domestic law in a way which gives rise to individual rights of enforcement of its terms;
b)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 India-Nepal Treaty of Peace and Friendship 1950;
c)There was no evidence before the Tribunal of an Indian law which had implemented the India-Nepal Treaty of Peace and Friendship 1950 for the purposes of Indian municipal law;
d)While the applicant had a practical opportunity to enter India subject to proof of identity, no right of entry appears to arise from the terms of the India-Nepal Treaty of Peace and Friendship 1950 itself. There is certainly no legally enforceable right arising from the terms of the India-Nepal Treaty of Peace and Friendship 1950;
e)The reciprocal arrangements and understanding between the sovereign states of India and Nepal are not otherwise matters in respect of which the applicant could normally claim an individual right of enforcement, or be regarded as having a legally enforceable right against the government or instrumentalities of India;
f)The arrangements at the border whereby entry from one country to another is permitted generally upon satisfactory proof of identity appears to be the result of the administrative arrangements, rather than arising directly from the terms of the India-Nepal Treaty of Peace and Friendship 1950;
g)Article 7 grants residence to the nationals of one country in the territory of the other. However, it assumes that a citizen of one country is already in the territory of the other; and
h)By giving the language of Article 7 of the India-Nepal Treaty of Peace and Friendship 1950 this implication, the Tribunal made a clear error of law and made a finding which is unsupportable on the language of the India-Nepal Treaty of Peace and Friendship 1950 which it cites.
Mr Williams makes the alternative submission that the Tribunal’s reasoning at [46]-[47] (CB 299) exhibits the jurisdictional error of making a finding that the applicant had existing rights “under” the India-Nepal Treaty of Peace and Friendship 1950 for which there was no evidence. Mr Williams refers the Court to the decision Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 per Mason CJ at 355-357 which was applied in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [19] and [28], VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77], and was recently acknowledged in Soliman v University of Technology, Sydney & Anor (2012) 207 FCR 277 at [23]. Such an error is jurisdictional error, if it had provided a material step in the Tribunal’s purported exercise of its jurisdiction.
It is argued that the Tribunal’s reasoning at [47] (CB 299) appears to build upon the foundation of its flawed reliance at [46] on the research advice about the India-Nepal Treaty of Peace and Friendship 1950. This advice finds that the Tribunal has misconstrued the relevant article of India-Nepal Treaty of Peace and Friendship 1950 to mean that the applicant “has an existing legal enforceable right to enter and reside in India” when the applicant is only entitled to “enter and reside” in India. In these circumstances the Tribunal made an error in the way it assessed the application before it, even if the alternative protection test in SZRHU FCAFC on appeal is accepted or if the test of a “legally enforceable right” according to Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 was the correct test to apply. It is submitted for the above reasons the Tribunal decision based solely upon its findings that s.36(3) applied to the applicant was vitiated by jurisdictional error.
Minister’s Submissions
Counsel for the Minister submits that in SZRHU FCAFC, Buchanan J at [79] held (with Tracy J at [7], Flick J at [93], Robertson J at [130] and Griffith J at [131] agreeing) that the “right” referred in s.36(3) of the Migration Act was not restricted to a “legally enforceable right”, but rather one described by Allsop J (as he was then) in V856/00A (supra) at [31] where his Honour stated:
31. … I see no reason to restrict the meaning of the word "right" to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning a liberty or permission or privilege which does not give rise to any particular duty upon the state in question. Such a liberty, permission or privilege would obtain its effective substance from its grant and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise, rather than from the existence within the positive law of the state in question of a correlative duty, justiciable and enforceable in law, to recognise the right. It may be that in many cases if the right is to survive outside, and divorced from residence in, the country in question it may well be a right in the strict sense, but I do not think that that conclusion follows as a matter of statutory construction.
Mr Smith submits that the decision in SZRHU FCAFC is a decision of Full Federal Court, on appeal from a decision of this Court. For that reason, contrary to the implications in the applicant’s submissions at [27]-[31] above, the Court has no option but to apply the law as stated in that decision.
Although the applicant’s submissions refer to the decision in SZRHU FCAFC the premises of Ground 1 are inconsistent with it and with the evidence. Leaving aside the reference to the Tribunal’s finding, the first premise is that the Tribunal erred in finding that the India-Nepal Treaty of Peace and Friendship 1950 would, of itself, and in the absence of the incorporation into Indian law, give the applicant a legally enforceable right to enter and reside in India. There are two problems with this premise:
a)The Tribunal did not find that there was any legally enforceable right; and
b)As Allsop J makes clear in V856/00A (supra), there may be a “right” within the meaning of s.36(3) even if it is neither incorporated into the law of the state in question, nor capable of particular enforcement.
The second premise is that the Tribunal failed to consider whether a Nepalese citizen could seek to obtain a remedy or enforce a right in India for the India-Nepal Treaty of Peace and Friendship 1950. However, as already noted, there is no requirement for the “right” in question to be capable of any particular enforcement.
Consideration – Ground 1
The Tribunal, in reviewing the delegate’s decision, was required to determine whether or not the applicant satisfied the criteria for a Protection visa. Principally among those criteria are ss.36(2)(a) and (aa), being whether Australia has certain Protection obligations under various international conventions. Subsection 36(3) of the Migration Act presents an exception to the Protection visa obligations found in s.36(2) and it is to that question that the Tribunal ultimately directed its attention, being whether the applicant had a right to enter and reside in India.
At [42] of the Decision Record (CB 298), the Tribunal dealt with the first of the protection obligation criteria, namely, the Refugees convention and finds that the criteria is not met, however, at [43] the Tribunal found that the second criteria, that is the complementary protection criteria, was satisfied. The Tribunal stated at [43]:
43. In considering the complimentary protection criterion it is apparent that if the applicant were to return to Nepal he would again be targeted. I am reasonably satisfied that as he is known to the Home Minister, to Ganesh and his associates that they would see him as someone they could again threaten and seek money from. I am reasonably satisfied that in doing so they would be aware that he has run off from them in the past and not paid what was demanded. I am reasonably satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm. I accept that he and his wife and children will be threatened, assaulted, and again have the money extorted from them. I also accept in such circumstances there is a real risk he will be killed.
(CB 298)
Then at [44] the Tribunal found:
44. Having made this fining however I am reasonably satisfied that the applicant has effective protection in India.
(CB 298)
The parties acknowledge that the words “effective protection” is not really apt in these circumstances; however, it is important to understand what is meant by those words by their context.
The immediate context is provided at [47] in the last sentence to explain what is meant at [44]. The Tribunal stated at [47]:
47. I have carefully considered the above in the context of the applicant and his wife having lived in India for about 5 months and the applicant’s wife’s parents living there now with the applicant’s children in rented accommodation. The applicant is a Nepalese citizen and has a Nepalese passport. The above law is an international treaty. It is apparent it does allow Nepalese citizens the right to enter in and reside in India and their having lived there, and the wife’s parents residing there now and having done so for over 16 months. No claim has been made that they have suffered any harm or have any concern about living in India. I am reasonably satisfied that as such the applicant does have a presently existing right to enter and reside in India as meant by section 36(3) of the Act.
(emphasis added) (CB 299)
Then at [51] of the Decision Record the Tribunal states:
51. There is no evidence to suggest that the authorities in India would return the applicant to another country where he may face persecution or significant harm. I find that the provisions of section 36(4), (5) and (5A) are not met by the evidence in this case.
(CB 300)
The remaining provisions in s.36 relevant to protection obligations are subsections (4), (5) and (5A). Those sections present an exception to the exception in subsection (3) so that if those provisions apply then s.36(3) does not apply. However, the Tribunal found that they did not apply in this case and therefore the exception in s.36(3) did apply.
The last sentence in [47] (emphasised above) of the Tribunal’s Decision Record contains the conclusion which is in the very terms of s.36(3), mainly “presently existing rights to enter and reside in India”. The Tribunal does not there, or elsewhere, use the term “legally enforceable”. It does not require in its consideration of s.36(3) whether or not that right has been incorporated into the domestic law of India.
In SZRHU FCAFC the Court found the right in s.36(3) is not constrained to be one that is legally enforceable nor is it constrained to be included into the domestic law of India.
Ground 1 claims that the Tribunal misconstrued and misapplied s.36(3) in three ways:
a)That the Tribunal held that the applicant had a presently existing right to enter and reside in India, but it is not clear how that can be a misconstruction or misapplication of s.36(3) because as noted at [48] of the Tribunal’s Decision Record, the precise term of that section was used;
b)It is claimed that the Tribunal erred in finding that the India-Nepal Treaty of Peace and Friendship 1950 would, of itself, in the absence of incorporation into Indian give the applicant a legally enforceable to enter and reside in India. However, the Tribunal did not make that finding so that error did not arise;
c)The Tribunal erred when it failed to consider whether a Nepalese citizen could seek and obtain a remedy or enforce a right in Indian Courts. However, the Tribunal did not have to do that because as explained in SZRHU FCAFC, the right in s.36(3) is not constrained to one which is legally enforceable within the domestic law of India.
For the above reasons Ground 1 as contained in the Amended Application cannot be sustained.
The Court’s attention is drawn to the issue that oral argument extended beyond Ground 1 as set out in the Amended Application. Initially, in respect of the finding by the Tribunal relating to the right of the applicant to enter and reside in India was not open on the material before it, raises two issues:
a)First, reliance by the applicant on the conclusions of both his Honour Smith FM in SZRHU FMCA at first instance and his Honour Buchanan J on appeal was limited insofar as they affect the decision to a legally enforceable right; and
b)Second, the Tribunal, in the matter before this Court, the Tribunal did not limit itself to a consideration of the terms of the India-Nepal Treaty of Peace and Friendship 1950 itself. As noted above at [43]-[44] in the decision by the Tribunal of whether there is a right within the meaning of s.36(3):
i)The Tribunal pointed out that the applicant and his wife have lived in India for five months prior to leaving to find work in Singapore;
ii)The applicant’s children, who are Nepalese, reside in India and are cared for by the applicant’s parents who are also Nepalese; and
iii)The applicant’s wife’s parents moved to India and they have stayed there to look after the children.
Of relevance at [46] in the Decision Record the Tribunal stated:
46. …
• Nepalese citizens are able to cross the land border without a passport though they are required to possess proof of their identity.
• If they enter India from a place other than their country they must possess and enter with a passport.
• Nepalese citizens do not require a visa to enter India.
• Nepalese citizens are not denied entry into India unless they are on the lookout list of agencies, are suspected of involvement in terrorist activity or under instruction from the intelligence agencies.
• There is reporting of targeting of small sections of the Nepalese communities living in Assam, Manipur and Meghalaya.
(CB 299)
The above material appearing in the Tribunal’s decision was entirely consistent with what the applicant himself had said in evidence to the delegate during an interview at Darwin Airport Lodge on 23 September 2012, namely:
Evidence and Reasons
The applicant claims to be a citizen of Nepal. He claims that he does not hold any other citizenship. The applicant was asked if a Nepalese person needed a visa to enter India. His reply was “No because anyone can go, no problem” he was asked if could go anywhere in India that he wished. “Any part of India. No problem”. Do you need to show any documentation? He replied “a photo Identity”. The applicant stated that he cannot not get work in India as the Nepalese are not trusted.
(CB 148-149)
Consequently the applicant’s evidence before the Department was consistent with the material found by the Tribunal and relied upon and in addition to the India-Nepal Treaty of Peace and Friendship 1950 to conclude that he did have a right to enter and to reside in India. It is on that basis that on the material before the Tribunal it was open to make that decision.
Consequently, Ground 1 of the Amended Application cannot be sustained and should be dismissed.
Ground 2: Error of Law – Incorrect Test
Ground 2 of the Amended Application pleads:
2. The decision by the Second Respondent involved an error of law, in that Second Respondent applied the incorrect test regarding s 36(3) of the Act.
Particulars
a) The Second Respondent applied the incorrect test of ‘effective protection’ instead of the test of a ‘legally enforceable right’ with regard to s 36(3) of the Act.
Applicant’s Submissions
On behalf of the applicant, it is submitted that the Tribunal failed to ask the correct question, being whether the applicant had effective protection in India. It is claimed that there was no evidence before the Tribunal that the applicant had effective protection in India. Alternatively, the Tribunal applied the incorrect test of “effective protection”, instead of the preferred test of a “legally enforceable right” with regard to s.36(3) of the Migration Act. Relevantly, the Tribunal found that:
44. Having made this finding however I am reasonably satisfied that the applicant has effective protection in India.
(CB 298)
The applicant submits that the doctrine of effective protection has been controversial in this Court. In NAGV andNAGW of 2002 (supra) the High Court re-considered the line of authority beginning with Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 and, while the interpretation of the revised s.36(3) did not arise, the High Court unanimously disapproved of the test of effective protection. It is further submitted that the Full Bench of the Federal Court of Australia in SZRHU FCAFC applied the incorrect test of “effective protection”.
The applicant submits that the preferred test to be applied is whether the applicant had at the time of the determination of his Australian visa application a “legally enforceable right” to enter and reside in a third country for the following reasons:
a)The principle of non-refoulement constitutes the cornerstone of international refugee protection. It follows that the principle of non-refoulement applies not only to recognise refugees, but also to those who have not have their status formally declared;
b)The prohibition of refoulement to a danger of persecution under international refugee law is applicable to any form of forcible removal, including deportation, expulsion, extradition, informal transfer or “rendition”, and the non-admission at the border in circumstances described below;
c)As a general rule, in order to give effect to the obligation under the 1951 Convention and/or the 1967 Protocol, states will be requires to grant individuals seeking international protection access to the territory and to fair and effective asylum procedures;
d)The UNHCR is of the view that the prohibition of refoulement of refugees, as enshrined in Article 33 of the 1951 Convention and complemented by non-refoulement obligations under the International Human Rights Law, satisfies these criteria and constitutes a rule of customary international law;
e)The UNHCR is of the view that the purpose, intent and meaning of Article 33(1) of the 1951 Convention are unambiguous and establish an obligation not to return a refugee or asylum seeker to a country where he or she would be at risk of persecution or other serious harm which applies whenever a state exercises jurisdiction, including at the frontier, on the High Seas or on the territory of another state.
f)A comprehensive review of the travaux perparatoires confirms the overriding humanitarian object and purpose of the Convention and provides significant evidence that the non-refoulement provisions of Article 33(1) were intended to prohibit any acts of omission by a contracting state which have the effect of returning a refugee to territories where he or she is likely to face persecution, or danger to life or freedom;
g)Limiting the territorial scope of Article 33(1) of the 1951 Convention to conduct of a state within its national territories would also be a variation with subsequent state practice and relevant rules of international law applicable between states party to the India-Nepal Treaty of Peace and Friendship 1950 in question;
h)The decisive criteria is not whether that person is on state national territory, or within a territory which is de jure under the sovereign control of the state, but rather whether or not he or she is subject to that state’s effective authority and control; and
i)In its general comments number 31 of the Nature of the General Legal Obligations Proposed on State Parties to the [ICCPR], the Human Rights Committee reaffirms consistent jurisprudence to the effect that the State can “be held accountable for violations of rights under the ICCPR which its agents comment on the territory of another State, whether with the acquiescence of the government of that State or in opposition to it and that in certain circumstances, “person may fall under the subject matter of the State party [to the ICCPR] even when outside the State’s territory”.
It is submitted on behalf of the applicant that it is for the above reasons that the test of “effective protection” should be rejected and the preferred test to be applied should be whether the applicant had at the time of the termination of his Australian visa application a “legally enforceable right” to enter and reside in the third country. As the applicant did not have a legally enforceable right to enter and reside in India the Tribunal erred.
Minister’s Submissions
The Minister submits that the applicant relied on a statement by the Tribunal that the applicant “had effective protection” in India (CB 298 at [44]; extracted at [42] above). The applicant claims that this is the wrong test and that the correct test is whether the applicant had a “legally enforceable right” to enter and reside in India. The Minister submits that for the reasons set out in the Minister’s submissions for Ground 1 that is not the correct test. More to the point, the Tribunal did not apply any test other than that explained in SZRHUFCAFC. It considered evidence concerning the operation of the India-Nepal Treaty of Peace and Friendship 1950 as well as the facts concerning the ability of the applicant, his wife, her parents and the applicant’s children to enter and reside in India. From this evidence it concluded that the applicant’s had a “right” to enter and reside in India. That finding was not surprising given that, when asked by the delegate if a Nepalese person needed a visa to enter India, the applicant said “no, because anyone can go, no problem” and “any part of India, no problems” (CB 149.1). In this way the Tribunal’s reasons show that it directly understood and answered the question posed by s.36(3).
As noted in the submissions for Ground 1 the Tribunal went on to consider the question posed by ss.36(4), (5) and (5A). Those provisions created an exception to the provision in s.36(3). The fact that they were considered reveals that the Tribunal was properly focused on the issue raised by the statute rather than the law as it stood prior to the decision of the High Court in NAGV and NAGW of 2002 (supra).
It is submitted in that context the reference by the Tribunal to “effective protection” was no more than a short hand description of the effect of s.36(3).
Consideration – Ground 2
In this Ground the applicant has focused on the words “effective protection” which is based on the decision of Thiyagarajah (supra) which was handed down on 2 March 2000. The decision in NAGV andNAGW of 2002 (supra) was handed down on 2 March 2005. His Honour Smith FM in SZRHU FMCA, handed down on 16 November 2012, noted at [17] that at the time of the Tribunal decision s.36 of the Migration Act, as was applicable in that matter, was in the form prior to the commencement of the amendments made by the Migration Amendment (Complementary Protection) Act 2011 (Cth). That amending act was assented to on 14 October 2011 and the relevant sections in respect of this matter commenced the same day. It is noted that in respect of the current proceeding the delegate’s decision was dated 6 December 2012 and the decision of the Tribunal was dated 14 June 2013. Consequently, the relevant hearings in the matter before this Court fall within the Migration Act with the new amendments introduced by the above act.
The relevant subsections of s.36 of the Migration Act state:
Protection obligations
(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.
(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.
The above provisions create an exception to the provision in s.36(3). In the Tribunal’s decision, under the heading Consideration of Claims and Evidence at [51] it stated:
51. There is no evidence to suggest that the authorities in India would return the applicant to another country where he may face persecution to significant harm. I find that the provisions of section 36(4), (5) and (5A) are not met by the evidence in this case.
(CB 300)
I agree with the submission made on behalf of the Minister that the consideration of these provisions reveal that the Tribunal Member was applying the amended statute rather than the law as it stood prior to the decision of the High Court in NAGV andNAGW of 2002 (supra).
Consequently, Ground 2 of the Amended Application cannot be sustained and should be dismissed.
Ground 3: Error of Law
Ground 3 of the Amended Application pleads:
3. The decision by the Second Respondent involved an error of law, whether or not the error appears on the record of the decision.
Particulars
a. The Second Respondent found that no claim has been made that they have suffered any harm or have any concerns about living in India. However, the First and Second Applicant made various claims of harm regarding India.
Applicant’s Submissions
The applicant submits that the decision of the Tribunal involved an error of law, whether or not the error appears on the record of the decision. At [47] of the Decision Record, the Tribunal states that “no claim has been made that they have suffered any harm or have any concern about living in India”. This was incorrect as the applicant made various claims of harm regarding India. In particular:
a)At [22] of the Decision Record the applicant claimed to fear harm in Nepal and India as he could be “tracked down by the Minister and his group”;
b)At [23] of the Decision Record the applicant claimed he could not work in India as Nepalese are not trusted;
c)At [46] of the Decision Record the Tribunal found that there is a reporting of targeting of sections of the Nepalese community living in India;
d)At [49] of the Decision Record the applicant has said that he felt unsafe in India and has referred to his wife being sexually harassed by a doctor in Delhi; and
e)At [49] the Tribunal accepted that the applicant has a general concern about the way Nepalese women may be regarded in India and also about light coloured children being kidnapped.
Minister’s Submissions
The Minister submits that this ground appears to be framed by reference to s.5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and provides that a ground for relief under that Act is that the relevant decision “involved error of law whether or not the error appears on the face of the record”. However, as the jurisdiction of this Court is rooted in s.75(v) of the Constitution by virtue of s.476 of the Act, jurisdictional error is required to quash the Tribunal’s decision: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 at [7]. The error asserted by the applicant is that the Tribunal said that the applicant and his wife had no claim “that they had suffered any harm or have any concern about living in India” (CB 299 at [47]) whereas the applicant had claimed to have concern about living in India. It can be accepted that the applicant did make claims to have concerns about living in India. However, it is clear that the Tribunal considered all of those claims: the references are contained in the applicant’s own written submissions (see [67] above) (CB 299 at [48]-[49]). Thus, even if the second part of the Tribunal’s statement was inaccurate, that inaccuracy was not material because it did not contribute in any way to the decision.
Consideration – Ground 3
The Administrative Decisions (Judicial Review) Act 1977 (the “ADJR Act”) at s.5(1)(f) relies on an “error of law”. It appears that the applicant contends that the application in its terms purports to arise under the ADJR Act. The jurisdiction to bring an application pursuant to that Act has been the subject of a number of decisions in the Federal Court. In SZQGA v Minister for Immigration and Citizenship & Anor (2012) 204 FCR 557, Barker J stated at [146]-[148]:
146. However, whether the demonstration of any error of law or any apparent denial of procedural fairness will automatically entitle a party to the relief of injunction or declaration, if sought, may be doubted. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (Bond), a decision of the Tribunal was challenged on a ground permitted by s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) on the basis that “the decision involved an error of law”. Chief Justice Mason at 353 said that a decision does not “involve” an error of law unless the error is material to the decision in the sense that it contributes to it, so that, but for the error, the decision would have been or might have been different. The Chief Justice said:
The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made.
147. In their joint judgment in Bond, Toohey and Gaudron JJ in a similar way emphasised that, for the purposes of this statutory ground of judicial review, for an error of law to be “involved in a decision” something more than the mere occurrence of error is necessary. Their Honours said, “The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute”. Their Honours added that conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred.
148. Justices Toohey and Gaudron added, however, that the approach just adumbrated may be compared with the operation of the rules of natural justice where an allegation is made to which a person has had no opportunity to respond. Their Honours referred to what was said in this regard in Kioa v West[1985] HCA 81; (1985) 159 CLR 550 at 603, where Wilson J said that a deportation order in respect of the appellants should be set aside for want of procedural fairness “with some reluctance” because at most it awarded a very slender technical victory to the appellants. His Honour noted that given the immigration policy it was difficult to see how even an emphatic reversal of the imputation in the successfully impugned reasons for decision could affect the result. However, his Honour considered that, having decided that decisions under the Migration Act must be attended with procedural fairness, “it would frustrate the purpose of the A.D.(J.R.) Act if a breach of the rules of natural justice were to be condoned, in the exercise of the discretionary powers of disposition conferred...merely because the breach was not shown to have affected the decision”.
Despite the suggestion that this ground is directed to an error of the law on the face of the record, it must also be jurisdictional to the effect that it must be an error that impacts somehow upon the exercise of the Tribunal’s power of review and specifically the Tribunal’s consideration of the criteria in s.36(2) and (3). This requirement is clearly articulated in the decision in SZMDS (supra), a judgment of Gummow ACJ and Kiefel J at [7] where their Honours stated:
7. As will appear, the only avenue of judicial review in the present case was that rooted in s 75(v) of the Constitution itself and that required jurisdictional error to quash the administrative decision in question. This is because the privative clause provision found in s 474 of the Act, as interpreted in PlaintiffS157/2002 v The Commonwealth, was ineffective to exclude judicial review by the Federal Magistrates Court and on appeal to the Federal Court on the ground of jurisdictional error.
(footnote omitted)
In the Decision Record, two distinct statements were made at CB 299, namely:
a)47. …It is apparent it does allow Nepalese citizens the right to enter in and reside in India, and that this is true is evident from applicant’s and his family’s travel history to India and their having lived there, and the wife’s parents residing there now and having done so for over 16 months…
b)47. …No claim has been made that they have suffered any harm or have any concern about living in India...
The second statement at [71(b)] above is the basis of the claim in Ground 3 and is contradicted at [48]-[49] (CB 299-300) of the Decision Record. The context is incorrect as has been identified in the applicant’s submissions at [67] above with five contradictory statements identified within the Decision Record itself.
Clearly claims were made by the applicant and these have been addressed at [48]-[49] of the Decision Record. If the Decision Record is read as a whole the Tribunal’s statement noted at [71(b)] above falls away.
It is acknowledged that Ground 3 identifies an error of law on the face of the record, however, it has been noted earlier in this decision that it is not sufficient that there be an error of law as it must also be jurisdictional. It must be an error that impacts somehow upon the exercise of the Tribunal’s power of review in its consideration of the criteria of ss.36(2) and 36(3). The meaning of what was said at [71(b)] above is not easily understood. However, what is clear is that the Tribunal went on to consider each of the matters which the applicant has claimed meant that he might suffer harm in India at [48] of the Decision Record, being the threat from the people who had threatened him in Nepal, the claim that he felt unsafe, the reference to his wife being sexually harassed, the question about the general concern about the way Nepalese women may be regarded, together with light coloured children being kidnapped. Those were the claims that were made and they were all expressly addressed. If it is accepted that the statement noted at [71(b)] above was wrong, it was not an error that led to a claim being ignored or a failure to exercise it jurisdiction in some way, consequently it must be immaterial. The assumption that arises is that the statement noted above at [71(b)] means something else, but it does not really matter because even if it is wrong, then it did not affect the decision. Adopting this approach I am satisfied that Ground 3 cannot be sustained.
Ground 4: Natural Justice and Procedural Fairness
Ground 4 of the Amended Application pleads:
1. The Second Respondent breached the rules of natural justice and procedural fairness when making the decision.
Particulars
a. The Applicant’s wife was not an applicant for review in the application.
b. The Applicant’s wife lodged a Form C with the Department and was included in the Delegate’s decision as a member of the family unit, however, she was not listed on the review application form.
c. The Second Respondent determined that it cannot remedy the situation and has no jurisdiction in relation to the applicant’s wife.
d. The agent for the First Applicant, Mr Ford advised the Second Respondent that the Applicant’s wife had no separate claims of her own and this was confirmed by the applicant and his wife at [27].
e. The Second Respondent considered the Applicant’s wife form C.
f. At multiple paragraphs in the decision, the Second Respondent treats in defacto the first applicant and his wife as a joint application and makes findings with regard to both the First Applicant and his wife, even though she was not an Applicant to the proceedings.
Applicant’s Submissions
It is argued on behalf of the applicant that the Tribunal breached the rules of natural justice and procedural fairness when making the decision on the following basis:
a)The applicant’s wife was not an applicant for review in the application before the Court;
b)The applicant’s wife lodged a Form C with the Department and was included in the delegate’s decision as a member of the family unit, however, she was not listed on the review application form;
c)The Tribunal determined that it could not remedy the situation and had no jurisdiction in relation to the applicant’s wife;
d)The agent for the first applicant, Mr Ford, advised the Tribunal that the applicant’s wife had no separate claim of her own and this was confirmed by applicant and his wife, and at [27] of the Decision Record; and
e)The Tribunal considered the applicant’s wife’s Form C.
At multiple paragraphs in the Decision Record the Tribunal treats in de facto the first applicant and his wife as a joint application and makes findings in respect of both the applicant and his wife, even though she was not an applicant to the review application.
Minister’s Submissions
The Minister submits that the basis of this ground is that, even though the applicant’s wife was not an applicant on the review, the Tribunal had regard to information concerning her and made findings in regards to her. The precise jurisdictional basis of this Ground is not explained by the applicant; however, whether that basis is a common law principle of procedural fairness or the statutory obligation under s.424A or s.425 of the Migration Act, the Ground has no substance. This is because the applicant sent the Tribunal his wife’s claim, her Form C and her written statement (CB 233). Not only does that show that the applicant was aware of the contents of those documents, but implicitly asked the Tribunal to have regard to them. Further, there is nothing in the documents that was adverse to the applicant. Finally, the applicant’s wife attended the hearing held by the Tribunal (CB 205). If the complaint is that she did not have the opportunity to address the possibility of the decision that might affect her interests, it too is baseless.
Consideration – Ground 4
In this Ground, the complaint raised is that the Tribunal made findings in respect of the applicant’s wife even though she was not a party to the proceedings. This argument was not been advanced on any jurisdictional basis or breach of any provisions of the Migration Act. No authority has been identified holding that the Tribunal cannot make findings where a person is not a party to the proceedings.
Significantly, there was no right affected by any of the findings made by the Tribunal. All of the matters that the Tribunal considered were those that were a part of the claim by the applicant, since he made the claims that he was travelling with his wife, he lived in India with his wife and that she had been harassed by a medical practitioner in Delhi. Consequently, these formed part of the overall claim made by the applicant. The Tribunal Member was required to make findings of fact about them as part of its review process in considering whether the criteria were met. Significantly, the applicant’s wife attended the hearing, so if she wanted to say something about any of those matters she had an opportunity to do so.
The argument being advanced on behalf of the applicant is that since the decision in Li (supra) the concept of legal unreasonableness has now been given the proper credence and credibility that it deserves, proportionality and legal unreasonableness lie at the heart of our system of justice. The contention is that it should be given the full credence and when it is plainly obvious that the Tribunal reasoned illogically, irrationally and makes a finding that these threats are real and credible against the first applicant and his family, but if he moves next door they will cease to exist, which is a finding that is flawed. In support of that argument counsel for the applicant had identified eight issues which are set out in his submissions above at [111]. Significantly, none of these are particularised and in effect address the decision and the decision-making process as a whole and the inference that the decision maker made a choice that is arbitrary, capricious and without common sense. This described reasoning may be an emphatic way of expressing disagreement with it which is addressed in SZMDS (supra).
The difficulties inherent in this field of jurisdictional error were addressed by the High Court in SZMDS (supra) per Crennan and Bell JJ at [113]-[131]. At [124] their Honours said:
124. More recently it has been suggested that statutory tribunals must not only act reasonably as intended by the legislature, they must also act rationally. If rationality is a separate freestanding common law standard for good administrative decision-making it seems at least related to the implied standard of reasonableness following the articulation by Lord Greene MR of what has come to be known as “Wednesbury unreasonableness”. It appears closely allied also to the requirement in Avon Downs that extraneous reasons should not be taken into consideration but relevant considerations must be. It appears to be allied as well to the principle that fact finding must be based on probative material, one correlative of which is that a decision based on no evidence displays jurisdictional error. Accepting rationality, as a freestanding common law requirement in decision-making, with the consequence that irrationality may attract judicial review, is complicated by three considerations. First, describing reasoning as "illogical or unreasonable, or irrational" may merely be an emphatic way of expressing disagreement with it, and to describe a conclusion that a decision maker is not satisfied as "irrational" might mean no more than that, on the material before the decision maker, the court would have reached the required sate of satisfaction.
(footnotes omitted)
Their Honours continued in SZMDS (supra) at [129]-[130]:
129. It can be acknowledged that the contemporary invocation of “illogicality” or “irrationality” as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in S20, as a reaction to the ouster of the review ground of “Wednesbury unreasonableness" in immigration law. Equally it may be that the development of "irrationality" as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of "illogicality" or "irrationality" must mean something other than emphatic disagreement as explained above by reference to Eshetu and S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do "illogicality" and "irrationality" fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is "clearly unjust", “arbitrary,” “capricious” or “Wednesbury unreasonable”?
130. In the context of the Tribunal's decision here, "illogicality" or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
To place this Ground in the proper perspective I return to the issue of what the Tribunal was required to do. That was to determine whether or not the applicant satisfied the criteria for a Protection visa. Those criteria are found in ss.36(2)(a) and (aa), namely, whether Australia has certain protection obligations under various international conventions. Subsection 36(3) provides an exception to the protection obligations found in s.36(2) and it is to that question that the Tribunal ultimately directed its attention. The key question is whether the applicant had a right to enter and reside in India. The above Grounds have addressed specific issues in relation to the interpretation of the provision and whether that provision has been correctly applied. This current ground ventilates various aspects of that decision which in effect disagree with the outcome. As reflected in the authorities referred to above, the appropriate time for the Court to make that assessment is usually when all of the Grounds of review have been addressed and the overall question of reasonableness can be assessed.
In my view, the applicant has failed to satisfy the Court that the Tribunal’s decision was affected by unreasonableness for the reasons stated immediately above and for the reasons stated in relation to the Court’s consideration of the other grounds of review. Accordingly, this ground cannot be sustained and should be dismissed.
Conclusion
None of the pleaded grounds in the Amended Application can be sustained for the reasons stated above. Further, on a fair reading of the Court Book and, particularly, the Decision Record, no error on the part of the Tribunal is apparent. The application should be dismissed with costs awarded to the Minister.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 24 March 2015
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