SZTOG v Minister for Immigration
[2015] FCCA 180
•30 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTOG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 180 |
| Catchwords: MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (RRT) – whether RRT correctly understood the scope of s.36(3) of the Migration Act 1958 (Cth) (Act) – meaning of “right” – whether “right to enter and reside in” a country is restricted to “rights” arising under the law of the country which is being considered as the country in which a visa applicant has a right to enter and reside in – whether when considering whether the visa applicant, as a citizen of Nepal, had a right to enter and reside in India the RRT understood s.36(3) of the Act to permit it to consider whether irrespective of what the law of India provided, the applicant had a right to enter and reside in India – whether when considering whether the visa applicant, as a citizen of Nepal, had a right to enter and reside in India the RRT applied the test that had been applied under the now discarded doctrine of effective protection instead of applying s.36(3) of the Act – jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s. 36(2), 36(3) |
| Al-Rahal v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 73 Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443 Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630 Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154 Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35 NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526 SZRBJ v Minister for Immigration & Anor [2012] FMCA 1240 SZRHU v Minister for Immigration & Anor [2012] FMCA 1013 Tharmalingam v Minister for Immigration and Multicultural Affairs [1999] FCA 1180 V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408 V872/00A v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 57 V872/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1019 W228v Minister for Immigration and Multicultural Affairs [2001] FCA 860 WAGH v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 269 |
| First Applicant: | SZTOG |
| Second Applicant: | SZTOH |
| Third Applicant: | SZTOI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2914 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 12 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2015 |
REPRESENTATION
| Counsel for the Applicants: | Mr J F Gormly |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The decision of the second respondent made on 29 October 2013 affirming the decision of the delegate of the first respondent made on 15 February 2013 not to grant the applicants protection visas is quashed.
The second respondent determine according to law the application made to it to review the decision of the delegate of the first respondent made on 15 February 2013 not to grant the applicants protection visas.
The first respondent pay the applicants’ costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2914 of 2013
| SZTOG |
First Applicant
SZTOH
Second Applicant
SZTOI
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review raises one issue, and that is whether the second respondent (Tribunal) misunderstood s.36(3) of the Migration Act 1958 (Cth) (Act) in affirming, on the basis of that subsection, the conclusion of a delegate of the first respondent (Minister) that Australia does not owe protection obligations in relation to the applicants.
Background
The first applicant (applicant) is a national of Nepal.[1] Before the Tribunal the applicant claimed he is a businessman,[2] he had been a member of the Nepali Congress Party since 1996,[3] and, commencing in 2008, he was threatened by political organisations, including the Maoist Young Communist League, with violence to induce him to donate money to those organisations.[4]
[1] CB200, [7]
[2] CB201, [15]
[3] CB201, [12]
[4] CB203, [27]-[28]
The Tribunal found that Maoist and other political groups demanded money from the applicant.[5] The Tribunal also found the applicant faced a risk of receiving further demands for money if he returned to Nepal, together with threats if those demands are not met; and that “[o]n the face of it this finding may give rise to protection obligations under complementary protection provisions”.[6]
[5] CB208, [53]
[6] CB209, [58]
The Tribunal concluded, however, that s.36(3) of the Act applied. That subsection provides that “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”. The Tribunal found that “as a matter of practical reality, the applicant as a Nepalese national has a right to enter and reside in India”.[7] The Tribunal based this finding on the terms of the “1950 Treaty of Peace and Friendship between India and Nepal”, on the “administrative provisions as currently set out by the Bureau of Immigration, Ministry of Home Affairs, Government of India, on its website”, and on “the recent advice of Australia’s Department of Foreign Affairs and Trade in relation to the practical situation”.[8]
[7] CB210, [60]
[8] CB210, [60]
Parties’ submissions
The applicant submits the Tribunal misunderstood s.36(3) of the Act as that subsection has been interpreted by the Full Federal Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU.[9] In particular, the applicant submits the Tribunal’s use of the words “as a matter of practical reality”, indicates that the Tribunal interpreted s.36(3) of the Act as requiring it to be satisfied of no more than that the applicant had “a capacity or capability lawfully to enter and reside” in India.
[9] (2013) 215 FCR 35
The Minister, on the other hand, submits the Tribunal used the words “as a matter of practical reality” to modify the expression “the applicant, as a Nepalese national has a right to enter and reside in India” to mean “the applicant, as a Nepalese national has a right (in the sense of a “liberty, permission or privilege lawfully given”) to enter and reside in India”. The basis of the Minister’s submission is the information on which the Tribunal said it relied which, the Minister submits, clearly indicates that Nepalese citizens have the liberty, permission, or privilege, lawfully given by India, to enter and reside in India.
In my opinion, the determination of the application before me turns on whether, by asking itself whether “as a matter of practical reality” the applicant had a right to enter and reside in India, the Tribunal asked itself a question that in substance was different from that which, according to the decision in SZRHU, the Tribunal was required to ask itself. The determination of that question requires me first to consider the reasons for judgment of Buchanan J in SZRHU.
SZRHU
SZRHU concerned appeals from two decisions of this Court. In both cases the Tribunal found that the Treaty conferred on Nepalese citizens a legally enforceable right of entry into India. In one case this Court held the Tribunal erred in so concluding. [10] In the other case the Court did not hold the Tribunal made an error.[11] The Minister appealed in the first case, and the visa applicant appealed in the second case.
[10] SZRHU v Minister for Immigration & Anor [2012] FMCA 1013
[11] SZRBJ v Minister for Immigration & Anor [2012] FMCA 1240
The Full Federal Court held that in both cases the Tribunal made a jurisdictional error by holding that the visa applicant, as a Nepalese citizen, had an enforceable legal right to enter and reside in India. The question the Court considered, however, was whether that necessarily meant that s.36(3) of the Act could not apply to the visa applicants in those cases. That is, the Court considered whether s.36(3) of the Act could apply even where the third country conferred no enforceable legal right on the visa applicant to enter and reside in that country and, if so, in what circumstances.
There was some complexity attached to answering that question. Judges of the Federal Court had expressed conflicting opinions about the meaning of the expression “right to enter and reside in” found in s.36(3) of the Act. In addition, until 2 March 2005, when the Justices of the High Court delivered their reasons for judgment in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[12] a number of Judges of the Federal Court considered s.36(3) of the Act in the context of their considering the scope of the “principle of effective protection” in which conflicting opinions were also expressed. Buchanan J said that the principle of effective protection was “an important contextual element” in the reasoning in three cases that considered the meaning of s.36(3) of the Act.[13] These complexities led to the Full Federal Court being reconstituted as a Court of five Judges to consider the proper construction of s.36(3) of the Act.
[12] (2005) 222 CLR 161
[13] (2013) 215 FCR 35 at page 51 ([70])
Buchanan J (with whose reasons the other Judges agreed[14]) first reviewed a number of cases decided before the introduction of s.36(3) into the Act in December 1999[15] that considered the “principle of effective protection”. That expression refers to a principle that permits a State, without breaching Article 33(1) of the Refugees Convention,[16] “to return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status”.[17] That principle applies “where it is proposed to return the asylum seeker to a third country which has already recognised that person’s status as a refugee, and has accorded that person effective protection, including a right to reside, enter and re-enter that country”.[18] The principle was described by Allsop J (as his Honour then was) in V856/00A v Minister for Immigration and Multicultural Affairs, as follows:[19]
. . . if the refugee could be returned to another country in which he or she enjoyed “effective protection” from persecution for a Convention reason, including absence of risk of return to a country in respect of which the refugee had a relevant well-founded fear for the purposes of the Convention, then return to the country where the refugee had “effective protection” was permissible and Australia did not owe protection obligations to that person and the Minister was not obliged under the Act to grant a protection visa to that person . . . .
[14] That includes Flick J who wrote separate reasons for judgment, most of which were devoted to the meaning of “right to enter and reside in” and whether nationals of Nepal did have a right to enter and reside in India.
[15] By the Border Protection Legislation Amendment Act 1999 (Cth), Sch. 1 Part 6
[16] Being the Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees
[17] Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at page 562 (von Doussa J, Moore and Sackville JJ agreeing)
[18] Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at page 562 (von Doussa J, Moore and Sackville JJ agreeing)
[19] (2001) 114 FCR 408 at page 415 ([21])
Until the High Court’s decision in NAGV, a number of Judges of the Federal Court were of the opinion that the operation of that principle was relevant to determining whether a visa applicant was entitled to a protection visa under s.36(2) of the Act. The reasoning was that if, under the operation of the principle of effective protection, Australia would not owe a particular visa applicant protection obligations, the visa applicant would not be entitled to a protection visa under s.36(2) of the Act.
By the time s.36(3) was introduced into the Act, it had been held in Rajendran v Minister for Immigration and Multicultural Affairs[20] that the principle of effective protection applied not only to visa applicants who had been granted refugee status by a third country, but also “at least to cases where the visa applicant is entitled to permanent residence, and, in time, to become a citizen”.[21] It had also been held that a visa applicant’s being “entitled to permanent residence” was not restricted to a legally enforceable right; it applied where “as a matter of practical reality and fact, the applicant is likely to be given effective protection by being permitted to enter and live in a third country where he will not be under any risk of being refouled to his original country”.[22] On the other hand, in Tharmalingam v Minister for Immigration and Multicultural Affairs the Full Federal Court interpreted Minister for Immigration and Multicultural Affairs v Thiyagarajah as requiring “a finding that the applicant has a right to re-enter the third country before the Tribunal is relieved of the necessity to consider the merits of the application”.[23]
[20] (1998) 86 FCR 526
[21] (1998) 86 FCR 526 at page 529
[22] Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443 at [26] (Emmett J) approved by the Full Federal Court in Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 at [42]
[23] [1999] FCA 1180 at [12] (emphasis in original)
Buchanan J then reviewed cases that had been decided after the introduction of s.36(3) into the Act, but before the High Court’s decision in NAGV. His Honour noted two matters about these cases, one briefly, and the other in some detail. [24] The first, and briefly noted matter, are the observations of Carr J in Applicant C v Minister for Immigration and Multicultural Affairs[25] that s.36(3) (and s.36(4)-(7)) of the Act did not effect a “codification of the common law” (that is, the principle of effective protection), and the observations of Mansfield J in Kola v Minister for Immigration and Multicultural Affairs that his Honour did not think that the “expression “effective protection” used and explained in the decisions of the Court concerning Art 33 of the Convention carries the same meaning as the term “a right to enter and reside in” a third country as used in s 36(3) of the Act”.[26] This opinion was also expressed by Allsop J in V856/00A v Minister for Immigration and Multicultural Affairs, where his Honour said:[27]
I . . . reject the submission that s 36(3) to (5) worked a codification of the pre-existing law concerning the existence of effective protection in a practical sense in a third country. . . . Also, I agree . . . that s 36(3) was and is not intended to detract from the operation, otherwise, of s 36(2) and, through it, of the Convention, and, in particular, Art 33.
[24] (2013) 215 FCR 35 at page 45 ([43])
[25] [2001] FCA 229 at [28]
[26] [2001] FCA 630 at [36]
[27] (2001) 114 FCR 408 at page 418 ([28] and [29])
The second matter Buchanan J noticed was differences of opinion about whether the principle of effective protection and s.36(3) required a legally enforceable right of entry into a third country. First, his Honour[28] referred to Carr J’s opinion that the right to enter and reside in a country referred to in s.36(3) of the Act must be “a legally enforceable right”.[29] Second, his Honour referred to the reasons for judgment of Allsop J in V856/00A, where Allsop J did not accept that “right” in s.36(3) of the Act meant “legally enforceable right”. Buchanan J also set out a passage from the reasons for judgment of Allsop J to which I will refer later in these reasons.[30]
[28] (2013) 215 FCR 35 at page 45 ([44])
[29] Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 at [30]
[30] (2013) 215 FCR 35 at page 46, [45]
Third, his Honour[31] referred to passages from the three reasons for judgment delivered in Al-Rahal v Minister for Immigration and Multicultural Affairs.[32] In one of those passages, Lee J said that the principle of effective protection, although it had to be applied by reference to “practical reality and fact” nevertheless required that the third country has accepted an obligation to protect the applicant for a protection visa and has granted the applicant rights to reside in, leave, and re-enter that country.[33] In another of the three passages, Tamberlin J said:[34]
Consistently with the authorities, the relevant question when determining whether refoulement would result in a breach of Art 33 by Australia is whether as a matter of practical reality there is a real chance that the third country will not accept a refugee and would refoule them to a country where their life or freedom would be at risk for a Convention reason. This is a question of fact and degree. It does not require proof of actual permission, or of a right, to enter that country.
[31] (2013) 215 FCR 35 at pages 46-47 ([49]-[51])
[32] (2001) 110 FCR 73
[33] (2001) 110 FCR 73 at [55]
[34] (2001) 110 FCR 73 at [93]
Fourth, Buchanan J referred to the reasons for judgment of Stone J in Minister for Immigration and Multicultural Affairs v Applicant C[35] sitting in the Full Federal Court in an appeal from the decision of Carr J in Applicant C. Stone J reconciled the respective operations of the principle of effective protection and s.36(3) of the Act in the following passage[36] which Buchanan J set out in his Honour’s reasons for judgment:[37]
The combination of the amendments to s 36 and the doctrine of effective protection leads to this position. Australia does not owe protection obligations under the Convention to:
(a)a person who can, as a practical matter, obtain effective protection in a third country; or
(b)to a person who has not taken all possible steps to avail himself or herself of a legally enforceable right to enter and reside in a third country.
[35] (2001) 116 FCR 154
[36] (2001) 116 FCR 154 at [65]
[37] (2013) 215 FCR 35 at page 48, ([58])
Fifth, Buchanan J referred to the Full Federal Court’s decision[38] on appeal from the orders of Allsop J in V872/00A v Minister for Immigration and Multicultural Affairs.[39] Buchanan J noted that, although that case is not an authority directly relevant to the construction of s.36(3) of the Act, there was no criticism of Allsop J’s approach to s.36(3) of the Act, and one of the Judges, Tamberlin J, directly supported his Honour’s approach.[40]
[38] V872/00A v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 57
[39] [2001] FCA 1019
[40] (2013) 215 FCR 35 at page 49, ([62])
Finally, Buchanan J referred to the three reasons for judgment in WAGH v Minister for Immigration and Multicultural and Indigenous Affairs.[41] His Honour set out passages from each of the three reasons of judgment, one (that of Lee J) which construed s.36(3) of the Act as requiring an “existing enforceable right”[42], one (that of Carr J) which construed s.36(3) as requiring a “legally enforceable right”[43], and one (Hill J) which construed s.36(3) as applying not only where there is a legally enforceable right of entry but where “the person is likely to be allowed entry to the third country and is likely, as a matter of practical reality to have effective protection”.[44]
[41] (2003) 131 FCR 269
[42] (2013) 215 FCR 35 at page 50, ([63])
[43] (2013) 215 FCR 35 at page 50, ([65])
[44] (2013) 215 FCR 35 at page 50, ([64])
After reviewing these cases, Buchanan J said that “the construction of s 36(3) by this Court remained a matter of active debate” which “was complicated by the influence (both legally and factually) of the doctrine of effective protection and its consequence for the outcome of particular cases”.[45] His Honour further noted that the High Court’s rejection in NAGV of the notion of “effective protection” that had been read into s.36(2) of the Act “took away an important contextual element in the reasoning in Applicant C, which was followed in WAGH”, and that it “also removed the foundation for the judgment in Al-Rahal, which was important for the reasoning in V872/00A”.[46] His Honour noted however, that the removal of the principle of effective protection did not resolve the question of the proper construction of s.36(3) of the Act and, in particular, “it does not offer a reason to prefer a strict view of the term “right” over any other view”.[47]
[45] (2013) 215 FCR 35 at pages 50-51, ([67])
[46] (2013) 215 FCR 35 at page 51, ([70])
[47] (2013) 215 FCR 35 at page 51, ([70])
Buchanan J then turned to the question of the construction of s.36(3) of the Act. His Honour said that he found the analysis by Allsop J in V856/00A to be compelling and that the “construction of s 36(3) there proposed by his Honour should . . . now be endorsed”.[48]
[48] (2013) 215 FCR 35 at page 53, ([79])
The meaning of s.36(3) of the Act as construed in V856/00A
Now that it has been held by the Full Federal Court that s.36(3) of the Act is to be construed in the manner in which Allsop J construed that subsection in V856/00A, it is necessary to consider the construction his Honour gave to that subsection.
In V856/00A the Tribunal determined that s.36(3) of the Act applied to the visa applicant in that case because it found that the visa applicant, an Iraqi national, “would be able to arrange to re-enter Syria through the person or organisation that previously sponsored him” and that, if he re-entered Syria, the visa applicant “would be able to reside there on an indefinite basis”.[49] The visa applicant submitted that this disclosed error because s.36(3) of the Act required that there be a legally enforceable right to re-enter and reside in Syria.[50] The Minister, on the other hand, submitted that s.36(3) was intended to codify the previous law on effective protection which eschewed “any need for rights strictly so-called and emphasised “practical reality and fact”” all of which “assisted in the construction of the word “right” as meaning practical capacity to bring about a lawful entry”.[51] In other words, the Minister submitted that “right” meant “capability or capacity to bring about a permission or right to re-enter and reside in Syria”.[52]
[49] (2001) 114 FCR 408 at page 413, ([14])
[50] (2001) 114 FCR 408 at page 414, ([16]) and at page 418, ([25])
[51] (2001) 114 FCR 408 at page 418, ([25])
[52] (2001) 114 FCR 408 at page 418, ([25])
Allsop J rejected both submissions. As to the Minister’s submission, his Honour said:[53]
A practical capacity to bring about a lawful permission is in no sense a “right” to do what the permission allows to be done. It might be otherwise if it could be shown that a statute or piece of positive law of the country in question granted a permission on satisfaction of certain preconditions. It may be that in those circumstances, perhaps by reference to, and with the benefit of an understanding of, that country’s system of law, the person had a right, albeit inchoate.
[53] (2001) 114 FCR 408 at page 418, ([26])
His Honour also rejected the Minister’s submission that s.36(3)-(5) “worked a codification of the pre-existing law concerning the existence of effective protection in a practical sense in a third country”,[54] noting that “s 36(3) was and is not intended to detract from the operation, otherwise, of s 36(2) and, through it, of the Convention, and, in particular, Art 33”.[55] His Honour concluded the Tribunal had misconstrued s.36(3) of the Act because it proceeded on the basis that s.36(3) would apply simply if a visa applicant would be able to arrange to re-enter the third country.[56]
[54] (2001) 114 FCR 408 at page 418, ([28])
[55] (2001) 114 FCR 408 at page 418, ([29])
[56] (2001) 114 FCR 408 at page 419, ([32])
His Honour then turned to the visa applicant’s submissions. In a passage, most of which was quoted by Buchanan J in SZRHU,[57] his Honour said (emphasis added):[58]
Although I agree that “right” means something more than a capacity or capability lawfully to enter and reside in a particular country or to bring about a permission to enter and reside, I do not think that it follows that the subsection is only referring to what might be described as a right in the strict sense, having the Hohfeldian “jural correlative” of duty . . . or to rights that can be said to be legally enforceable. . . . The phrase in s 36(3) “howsoever that right arose or is expressed” assists in the recognition that the source and incidents of the right can be diverse. It also assists in the recognition that “right” is intended to be a wide conception. Especially in the light of the above phrase, I see no reason to restrict the meaning of the word “right” to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning 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.
[57] (2013) 215 FCR 35 at page 46, ([45])
[58] (2001) 114 FCR 408 at page 419, ([31])
Thus, according to his Honour, “right”:
a)means more than “a capacity or capability lawfully to enter and reside in a particular country or to bring about a permission to enter and reside”;
b)does not exclude a “liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement”; and
c)does not exclude “a liberty or permission or privilege which does not give rise to any particular duty upon the state in question”.
There are a number of observations that may be made about his Honour’s analysis. First, the distinction Allsop J drew between, on the one hand, a right in the strict sense and, on the other, a liberty, permission, or privilege, is not a distinction between legal and non-legal concepts; it is a distinction between legal concepts and their jural relations first illuminated by Wesley Hohfeld.[59] Hohfeld distinguished between the legal concepts of “rights”, “privilege”, “power” and “immunity”, and assigned to each of these concepts both a “jural opposite” and a “jural correlative”.[60] Given that Allsop J referred to “a right in the strict sense, having the Hohfeldian “jural correlative” of duty”, and that Hohfeld regarded “liberty” to be synonymous with “privilege”[61] and “permission” to belong to a group of operative facts required to create a particular privilege,[62] it is apparent that the distinctions his Honour drew between a right in the strict sense and a liberty, permission, or privilege are the distinctions between the legal concepts and jural relations Hohfeld identified and distinguished. At the very least, Allsop J intended to distinguish between different legal concepts and jural relations. [63]
[59] Hohfeld, W. N. Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays Yale University Press 1923 (Hohfeld)
[60] Hohfeld at page 36
[61] Hohfeld at page 42: “A “liberty” considered as a legal relation (or “right” in the loose and generic sense of the term) must mean, if it have any definite content at all, precisely the same thing as privilege . . . .” (emphasis in original)
[62] The generic name Hohfeld gave to this group of operative facts is “license”. Thus, Hohfeld stated at page 50: “Accurately used, “license” is a generic term to indicate a group of operative facts required to create a particular privilege” and then sets out a passage from a judgment which defines a license as “a permission to do an act which, without such permission, would amount to a trespass” (emphasis in original)
[63] Black’s Law Dictionary , 9th ed, defines “jural” as follows: “1. Of or relating to law or jurisprudence; legal <jural and equitable rules>. 2. Of or relating to rights and obligations <jural relations>.”
Second, if the distinctions Allsop J drew are those between different legal concepts and jural relations, it follows that those concepts and relations must arise under or be identifiable by reference to a system of law; and the system of law must be that of the country or countries in which it is being considered a visa applicant may have a right of entry and residence.
Third, although his Honour held that a practical capacity to bring about a lawful permission was in no sense a right, his Honour said it might be otherwise if “a statute or piece of positive law of the country in question granted a permission on satisfaction of certain preconditions”. This indicates that his Honour was of the view that “right”, as used in s.36(3) of the Act, must be something that arises under the law of the third country. It also indicates that his Honour was of the view that what prevents a visa applicant’s practical ability to obtain entry into a third country from being characterised as a “right to enter” that country is not, per se, that the visa applicant must take steps in order to gain entry into the country; it is the absence of any statute or positive law of the third country which will confer on the visa applicant a strict right, or a privilege, liberty or permission, to enter the country on the visa applicant’s taking those steps.
Fourth, Allsop J was of the view that the principle of effective protection had a broader operation than s.36(3) of the Act; and the respect in which the principle was broader is that it operated where “in point of fact”[64] the visa applicant could be returned, whereas s.36(3) applied only where there is a “right” to enter the country. That his Honour was of this view is apparent from the structure of his Honour’s reasons for judgment. Allsop J noted it was not in contest that if his Honour did not accept the Minister’s arguments about the meaning of the word “right” there was “no right (of whatever kind) possessed by the applicant to re-enter Syria”.[65] Having rejected the Minister’s submissions, and its not being in contest that the applicant possessed no right “of whatever kind” to re-enter Syria,[66] his Honour considered whether the Tribunal’s decision could be “supported by reference to the law on “effective protection” and Art 33”.[67] His Honour said the task of the Tribunal was “to assess and decide whether the claimant can be returned to Syria, in point of fact, and if returned, whether he will have effective protection there, and, thus, whether by returning him, Australia will be in breach of Art 33”.[68] His Honour concluded that “a right to enter Syria was not necessary to call into relevance an analysis under Art 33; but that it was sufficient, and indeed necessary, if there were no such right, for the Tribunal to assess whether the claimant could, as a factual matter, be returned to Syria to enjoy relevant protection”.[69]
[64] (2001) 114 FCR 408 at page 428, ([69]). See also at page 425 ([58]) where Allsop J agreed with what French J (as his Honour then was) said in W228v Minister for Immigration and Multicultural Affairs [2001] FCA 860: “that for an analysis based on Art 33 to deny protection obligations it is not necessary for there to be a right of entry into the safe third country”.
[65] (2001) 114 FCR 408 at page 418, ([30])
[66] (2001) 114 FCR 408 at page 418, ([30])
[67] (2001) 114 FCR 408 at page 419, ([33])
[68] (2001) 114 FCR 408 at page 428, ([69]) (emphasis added)
[69] (2001) 114 FCR 408 at page 428, ([72]) (emphasis added)
From this discussion, the following principles emerge:
a)the word “right” used in s.36(3) of the Act means:
i)a right in the strict sense, being a right to claim against a person some performance, and a corresponding duty on the person against whom the claim lies to render that performance; or
ii)a privilege, liberty, or permission;
b)a “right to enter and reside in” a country means:
i)a right to claim against the appropriate state organ that represents or embodies the country entry and residence in that country, and a corresponding duty by the state organ to grant entry and residence; or
ii)a privilege, liberty, or permission to enter and reside in the country, whether or not such privilege, liberty, or permission is revocable;
c)the “right to enter and reside in” a country must be a right that is granted by or is provided for or otherwise arises under the law of the country; and
d)a “right to enter and reside in a country” may include an inchoate right in the sense of a “right” that, under the law of the third country, will arise on satisfaction of certain preconditions.
Did the Tribunal properly apply s.36(3) of the Act?
I now consider whether in the case before me the Tribunal applied a correct understanding of s.36(3) of the Act. In my opinion, it did not.
The Tribunal’s use of the words “as a matter of practical reality” to qualify the words “the applicant as a Nepalese national has a right to enter and reside in India” indicates the Tribunal considered that it was open to it, when considering the question whether the applicant had the right to enter and reside in India, to consider whether as a matter of fact and practicality the applicant would be able to enter and reside in India. Stated another way, the use of the words “as a matter of practical reality” indicates the Tribunal was of the view that it could determine whether the applicant had a right to enter and reside in India without inquiring whether under the law of India the applicant had a strict right to enter and reside in India, or a privilege, liberty or permission to enter and reside in India, provided that, as a matter of fact and practical reality, the applicant could enter and reside in India. That, however, is not the enquiry required by s.36(3) of the Act. Subsection 36(3) requires the Tribunal to ask itself whether, under the law of India, the applicant has or, on the satisfaction of some conditions, the applicant would have, a right in the strict sense, or a privilege, liberty, or permission, to enter and reside in India.
There is another reason why, in my opinion, the Tribunal’s use of the expression “as a matter of practical reality” manifests an incorrect understanding of s.36(3) of the Act. As is evident in some of the passages I have set out earlier in my reasons, the expression has been used, in whole or in part, in the formulation of the principle of effective protection. Thus, for example, Emmett J said that the principle of effective protection applied where “as a matter of practical reality and fact, the applicant is likely to be given effective protection by being permitted to enter and live in a third country where he will not be under any risk of being refouled to his original country”, and Tamberlin J said that whether or not the principle applied depended on whether “the applicant is likely to be given effective protection by being permitted to enter and live in a third country”; and Buchanan J himself said that the burden of Allsop J’s discussion of the operation of the principle of effective protection “was to suggest that the doctrine of effective protection did not turn on the necessary existence of a right of entry or residence (although such a right would make the analysis easier), but upon whether as a matter of practical reality and fact a person would be allowed to enter and remain in another country”, being an analysis that “accords with my own reading of the relevant cases about the operation of the doctrine of effective protection”.[70] If, as found by Allsop J, the scope of the principle of effective protection had a broader operation than s.36(3) of the Act, the Tribunal’s use in the application of s.36(3) of an expression that formed an element of a principle that has a broader operation than s.36(3) manifests error.
[70] Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35 at page 46 ([47])
The necessary consequence of what I have said is that I do not accept the Minister’s submission that the Tribunal used the words “as a matter of practical reality” to mean “the applicant, as a Nepalese national has a right (in the sense of a “liberty, permission or privilege lawfully given”) to enter and reside in India”. Nor do I accept the applicant’s submission that the Tribunal interpreted s.36(3) of the Act as requiring it to be satisfied of no more than that the applicant had “a capacity or capability lawfully to enter and reside” in India. Nevertheless, for the reasons I have given, the Tribunal misunderstood s.36(3) of the Act.
Conclusion and disposition
The Tribunal made a jurisdictional error by failing to consider whether, under the law of India the applicant has a right in the strict sense, or a privilege, liberty, or permission, to enter and reside in India. The Tribunal also made a jurisdictional error by applying to the question of whether s.36(3) of the Act applied to the applicant an element of the now discarded principle of effective protection which had an overlapping but broader operation than s.36(3) of the Act.
I propose, therefore, to order that the Tribunal’s decision be quashed, and that the Tribunal hear the application for review according to law. I also propose to order that the Minister pay the applicants’ costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 30 January 2015
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