SZTQN v Minister for Immigration
[2015] FCCA 188
•30 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTQN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 188 |
| Catchwords: MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (RRT) – whether RRT applied a correct understanding of the scope of s.36(3) of the Migration Act 1958 (Cth) (Act) –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 – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(3), 36(4), 36(5), 36(5A) |
| 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 SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 SZTOG & Ors v Minister for Immigration & Anor [2015] FCCA 180 V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408 |
| Applicant: | SZTQN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3064 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 2 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2015 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The decision of the second respondent made on 7 November 2013 affirming the decision of the delegate of the first respondent made on 5 March 2013 not to grant the applicant a protection visa 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 5 March 2013 not to grant the applicant a protection visa.
The first respondent pay to the applicant such costs to which the applicant may be entitled to as an unrepresented party.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3064 of 2013
| SZTQN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Although not raised as a ground by the applicant, the principal issue that arises on this application for judicial review is whether the second respondent (Tribunal) correctly understood s.36(3) of the Migration Act 1958 (Cth) (Act) when relying on that subsection to affirm the decision of a delegate of the first respondent (Minister) not to grant a protection visa to the applicant.
To appreciate how the issue has arisen, it will be necessary to describe the claims for a protection visa the applicant made, the reasons for which the Tribunal affirmed the delegate’s decision not to grant a protection visa to the applicant, and the submissions that were made before me at the hearing of the application for review.
Background
The applicant is a national of Nepal. Before the delegate and the Tribunal, the applicant claimed he feared he would be harmed by the Maoist Party and by the Young Communist League (YCL), being the youth wing of that party. The applicant claimed his fear was based on, among other things, his having been an active member of the pro-monarchy Rastriya Prajatantra Party (RPP), his having been threatened by Maoists because of his activities as an RPP member, and his actually having been kidnapped by Maoists at the time the applicant was assisting in the preparations for welcoming the former king in the area in which the applicant lived.[1] The applicant also claimed he feared the Maoists would follow the applicant and harm him if he moved to India.
[1] CB104, [10]-[11]
The Tribunal accepted the applicant was a member of the RPP, although it rejected the applicant’s claim that he played an organising or supervisory role in relation to the former king’s visit to the applicant’s area. The Tribunal found the applicant was involved in such basic tasks as publicity and assisting to erect welcoming arches. The Tribunal, not without hesitation, also accepted that the applicant had been kidnapped as he claimed, that he had been by YCL or Maoist members and threatened in relation to his pro-monarchist activity, and that he had escaped from those who had held him.
Based on these findings, the Tribunal concluded that if the applicant came to the attention of the Maoists in the area in which the applicant had lived, he may run a risk of harm arising from his escape from the Maoists in 2012. Although the Tribunal was not satisfied that this eventuality is at all likely, it accepted that the risk met the “low bar” of the “real chance” test. The Tribunal, therefore, concluded there was a real chance the applicant may face persecution in the reasonably foreseeable future on his return to Nepal.
The Tribunal then considered whether s.36(3) of the Act applies. That subsection provides:
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 referred to information contained in a document titled “attachment B” that it attached to its reasons for decision, and which the Tribunal described as “[r]elevant country information, both in relation to the rights of Nepalese nationals to enter and reside in India and to the circumstances of the Nepalese nationals in India”. Attachment B contains the following information:
a)The text of Article 7 of the 1950 Treaty of Peace and Friendship under which India and Nepal agree to grant to each of the other’s citizens in their territory the same privileges in the matter of residence, ownership of property, and other matters.
b)Information accessed on 19 September 2013 from the website of the Bureau of Immigration, Ministry of Home Affairs, Government of India. The information is to the effect that a citizen of Nepal entering India by land or air does not require a passport or visa for entry in India although, if travelling by air, a citizen of Nepal requires to be in possession of a valid identity document that identifies the person as a citizen of Nepal.
c)Advice provided by the Department of Foreign Affairs and Trade on 18 September 2013 which states, among other things, that a citizen of Nepal in possession of a valid Nepalese passport flying direct from Australia could gain entry to India and that unlimited stay is granted to Nepalese nationals in India, and there are no restrictions on their ability to remain, reside or work in India.
The Tribunal then concluded:[2]
The Tribunal has had regard to the terms of the 1950 Treaty of Peace and Friendship between India and Nepal; the consequential administrative provisions as currently set out by the Bureau of Immigration, Ministry of Home Affairs, Government of India, on its website; and the recent advice of Australia’s Department of Foreign Affairs and Trade in relation to the practical situation. The Tribunal is satisfied that, as a matter of practical reality, the applicant as a Nepalese national has a right to enter and reside in India.
[2] CB110, [54]
The Tribunal also considered the application of s.36(4), (5) and (5A) of the Act and was satisfied the applicant would not face a real chance of persecution or serious harm, or a real risk of significant harm in India.
Grounds of review
The applicant raises three grounds in his application for judicial review. The first is that, having found that the applicant satisfied s.36(2)(a) of the Act, the Tribunal was required to conclude the applicant was entitled to a protection visa.
This ground is not arguable. It ignores s.36(3) of the Act. The approach that a decision-maker should take when an issue arises under s.36(3) of the Act was stated by the Full Federal Court in SZRTC v Minister for Immigration and Border Protection:[3]
Section 36 of the Act contains a cascading series of qualifications. Sub-section (3) operates as a qualification on sub-section (2). Sub-sections (4)-(5A) then operate as qualifications on sub-section (3). . . .
The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s 36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s 36(3) and determine whether or not the applicant is a person to whom that sub-section applies. If it does not, the “gateway”, created by s 36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s 36(3) applies. If s 36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugee Convention are met, limit the operation of s 36(3) and keep the “gateway” open.
[3] [2014] FCAFC 43 at [24] and [25] (Tracey and Griffiths JJ)
The Tribunal followed this approach.
The applicant’s second ground of review claims, in effect, that the Tribunal concluded on the basis of no evidence that the applicant, as a citizen of Nepal, will face no real chance of persecution or serious harm, or a real risk of significant harm in India, and without taking into account cases that have accepted that India is not a safe haven for Nepali Nationals.
This claim is not made out. The Tribunal referred to country information about Nepalese in India, and to the absence of any information that suggests that Nepalese or Indian Maoists target Nepali migrants in India.
The third ground of review claims the Tribunal’s decision was biased and unfair. That ground, too, cannot be made out. Unfairness does not state a recognised ground of review; and the claim of bias appears to be supported by nothing more than the Tribunal’s having decided the application adversely to the applicant. There is nothing in the Tribunal’s reasons or in the material before the Court that could give rise to any arguable claim of bias or of a reasonable apprehension of bias.
If I were to stop there, the result would be that I would have to dismiss the application. At the hearing, however, counsel for the Minister quite properly addressed the Court about the correct test for applying s.36(3) of the Act. That raised for my consideration, therefore, the question of whether the Tribunal, in affirming the delegate’s decision, applied a correct understanding of s.36(3) of the Act.
Did the Tribunal correctly understand s.36(3)?
Counsel for the Minister referred me to the Full Federal Court decision in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU.[4] Counsel submitted the Court there disapproved earlier cases that had construed s.36(3) of the Act as requiring a legally enforceable right in the sense of a right that could be enforced through the domestic law of the country concerned. Counsel further submitted that the correct construction of s.36(3) of the Act is to be deduced from two passages from the reasons for judgment of Buchanan J. The first is the following passage:[5]
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.
[4] (2013) 215 FCR 35
[5] (2013) 215 FCR 35 at page 54, [89]
The reference in this passage to “an entitlement of the quality referred to by Allsop J in V856/00A” is a reference to the construction of s.36(3) of the Act favoured by Allsop J (as his Honour then was) in the passage from his Honour’s reasons for judgment in V856/00A v Minister for Immigration and Multicultural Affairs”:[6]
. . . Carr J in Applicant C, at [28] construed s 36(3) as “consonant with Art 1E of the Convention”. A right under Art 1E is one (arising from possession of nationality) that is embedded in the law of the country, with correlative obligations on the state in question. In my view, the text of s 36(3) is more relevant and tends to the contrary. The phrase in s 36(3) “howsoever that right arose or is expressed” assists in the recognition that the source and incidents of the right can be diverse. It also assists in the recognition that “right” is intended to be a wide conception. Especially in the light of the above phrase, I see no reason to restrict the meaning of the word “right” to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning 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.
[6] (2001) 114 FCR 408
The second of the two passages from Buchanan J’s reasons for judgment in SZRHU from which counsel for the Minister submits the correct construction of s.36(3) is to be deduced is as follows (emphasis added):[7]
Allsop J went on to observe in V856/00A that the reference by von Doussa J in Thiyagarajah to a “right to reside, enter and re-enter” had not been adopted by the Court as a necessary element of the doctrine of effective protection, even though it was a circumstance actually present in a number of cases which had applied the doctrine of effective protection (see at [33]-[66]). The burden of his Honour’s reasoning 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. As will appear from my earlier observations, that analysis accords with my own reading of the relevant cases about the operation of the doctrine of effective protection.
[7] (2013) 215 FCR 35 at page 46 ([47])
While acknowledging that the first of the two passages from Buchanan J’s reasons for judgment does not repeat the words “whether as a matter of practical reality and fact a person would be allowed to enter and remain in another country”, counsel for the Minister nevertheless submitted that these words state the test a decision-maker must apply when applying s.36(3) of the Act. That is, the Minister submits, when considering for the purposes of s.36(3) of the Act whether a visa-applicant has a “right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed” in another country, the decision-maker must ask whether “as a matter of practical reality and fact a person would be allowed to enter and remain” in that country. Counsel submits that the Tribunal applied that test by concluding that “as a practical reality, the applicant as a Nepalese national has a right to enter and reside in India”.
I do not accept that the words “as a matter of practical reality and fact a person would be allowed to enter and remain in another country” state the test a decision-maker must apply when applying s.36(3) of the Act. It is plain from the second of the two passages from Buchanan J’s reasons for judgment on which the Minister relies that his Honour was there referring to “the doctrine of effective protection”, not to s.36(3) of the Act, and that his Honour was of the view that it was the operation of “the doctrine of effective protection”, not the operation of s.36(3) of the Act, that turned on whether “as a matter of practical reality and fact a person would be allowed to enter and remain in another country”.
In SZTOG & Ors v Minister for Immigration & Anor[8], which should be read with these reasons, I noted that before the High Court decided NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[9] but after s.36(3) was introduced into the Act, Judges of the Federal Court applied what was described as the principle or doctrine of effective protection. Under that principle, if a visa applicant had available to him or her the “effective protection” of another country, Australia would have no protection obligations in relation to that visa applicant, and the Minister, therefore, would not be obliged to grant the visa applicant a protection visa under s.36(2)(a) of the Act. A difference of opinion, however, arose about whether the principle of effective protection was available only where the visa applicant had a legal right of entry into the country that it was claimed could afford the visa applicant effective protection. In the second of the two passages on which counsel for the Minister relies which I have reproduced in paragraph 19 of these reasons, Buchanan J read the cases as holding that the principle of effective protection applied even where the visa-applicant did not have a legal right of entry; it also applied where “as a matter of practical reality and fact a person would be allowed to enter and remain” in the country which could afford the visa applicant effective protection.
[8] SZTOG & Ors v Minister for Immigration & Anor [2015] FCCA 180
[9] (2005) 222 CLR 161
In SZTOG I concluded that the cases to which Buchanan J referred to in SZRHU, and Buchanan J, held that the principle of effective protection had a wider operation than s.36(3) of the Act. For the reasons I give in SZTOG, I am of the opinion that section 36(3) applies only where it could be said that the applicant has a “right to enter and reside in” a country within the meaning of s.36(3) of the Act, as that expression was construed by Allsop J in V856/00A v Minister for Immigration and Multicultural Affairs[10] in the passage I have reproduced in paragraph 18 of these reasons. The principle of effective protection, on the other hand, applied not only where the applicant had such right, but also where “in point of fact” [11] the applicant could enter and reside in another country or where “as a matter of practical reality and fact a person would be allowed to enter and remain in another country”. [12]
[10] (2001) 114 FCR 408 at page 419 ([31])
[11] V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408 at page 428, ([69]) (Allsop J)
[12] Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35 at page 46 ([47]) (Buchanan J)
In the case before, the Tribunal concluded that s.36(3) applied to the applicant because it was satisfied that, “as a matter of practical reality”, the applicant as a Nepalese national has a right to enter and reside in India. As counsel for the Minister submits, this passage indicates that the Tribunal applied the test which was described by Buchanan J in the passage I have reproduced in paragraph 19 of these reasons. As I have already held, however, that passage expresses the test that was applied when considering the operation of the principle of effective protection; it does not express the question that must be asked when considering whether s.36(3) applies. For that reason, the Tribunal applied s.36(3) on the basis of an incorrect understanding of the proper construction of s.36(3), and, therefore, made a jurisdictional error.
The question the Tribunal in the case before me was required to address, but did not address, is whether the applicant has a “right to enter and reside in” India. In addressing that question, the Tribunal was required to understand the expression “right to enter and reside in . . . any country” to mean that which Allsop J construed the expression to mean. As I have held in SZTOG (at [32]), Allsop J construed the expression to mean:
a)a right under the law of the country in question 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
b)a privilege, liberty, or permission provided by or allowed under the law of the relevant country to enter and reside in the country, whether or not such privilege, liberty, or permission is revocable.
The Tribunal, therefore, was required to consider, but did not consider, whether, under the law of India, the applicant has a legally enforceable right to enter and reside in India or whether, under the law of India, the applicant has a privilege, liberty, or permission to enter and reside in India. By not considering that question, the Tribunal made a jurisdictional error.
Disposition
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 applicant such costs to which the applicant as an unrepresented party may be entitled.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 30 January 2015
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