SZUNZ v Minister for Immigration
[2014] FCCA 2256
•17 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUNZ v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2256 |
| Catchwords: WORDS AND PHRASES – Habitual residence. |
| Legislation: Border Protection Legislation Amendment Act 1999 (Cth) Migration Act 1958 (Cth), ss.5, 48A, 36, 65, 195A, 412, 591N Migration Amendment (Complementary Protection) Bill 2011 (Cth) |
| Al-Anezi v Minister for Immigration (1999) 92 FCR 283 SZSMQ v Minister for Immigration & Anor [2013] FCCA 1768 SZTXY v Minister for Immigration & Anor [2014] FCCA 841 Thje Kwet Koe v Minister for Immigration (1997) 78 FCR 289 |
| Applicant: | SZUNZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1701 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 30 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Lenehan with Ms R Mansted |
| Solicitors for the Applicant: | King & Wood Mallesons |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 23 June 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1701 of 2014
| SZUNZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 19 May 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant’s personal and migration history is highly unusual. The following statement of background facts is derived from the submissions of the parties.
The applicant is of Western Saharan descent, and is in his mid-twenties. The applicant has been in immigration detention since his arrival in Australia in 2010.[1]
[1] Because of that I have given this case priority
The applicant is a stateless person. He has no identity documents, birth documents or documents to prove citizenship or nationality. The applicant has no present right to enter or reside in any country.
To the best of the applicant’s knowledge, he was born in Las Palmas, Spain in 1992[2] when his mother travelled there from Western Sahara to receive medical treatment. The applicant’s father died before he was born and his mother died when he was about six years old.
[2] This was not accepted by the Tribunal, which found that he was probably born in 1989. Norwegian authorities gave the applicant a birthdate and he has sometimes adopted that as his birthdate
From the time of his mother’s death, the applicant lived in a Spanish orphanage, followed by several countries in Europe, illegally, for a number of years.
The applicant became associated with a gang of organised criminals from 2002 when the applicant was living in the Netherlands. The applicant maintained that association when he resided in Norway from March 2004 until January 2010. During this time, the applicant lived in an apartment belonging to the gang. The gang provided him with accommodation and money for clothes and food in return for the applicant working for them.
During the time he resided in Norway, the applicant did so on a temporary residence permit on “strong humanitarian grounds” under the identity of another person. The applicant had used that other person’s passport to enter Norway.
The applicant tried to leave the gang many times whilst living in Norway; however, he feared that they would go after him. In 2009, the applicant attempted to leave the gang by throwing his phone away. Subsequently, the applicant was accused by members of the gang of having stolen drugs and money. The applicant denied this, however members of the gang maintained that he would again have to work for them to pay off the “debt”. The culmination of these accusations was an incident in November 2009 where a gang member threatened him, holding a knife to his throat.
Ultimately, the applicant left Norway on 27 January 2010, travelling through Brussels and Abu Dhabi to Australia. The applicant arrived in Melbourne, Australia on 28 January 2010. He claimed asylum at the airport and was immediately detained under s.189 of the Migration Act 1958 (Cth) (Migration Act).
On 24 September 2010, while in detention in Australia, the applicant’s Norwegian temporary residence permit expired. In April 2011, the applicant contacted the Norwegian Embassy to renew or extend his temporary residence permit in Norway but was refused, primarily because he had only received the humanitarian visa because he was a transient minor at the time and he had now reached adulthood.
The applicant now fears significant harm from the gang were he to be returned to Norway or anywhere in Europe where the gang network extends. Despite the assurances of the Tribunal that the information he provided to the Tribunal would be kept confidential, the applicant remained unwilling, in the hearing, to reveal the identity of any members of the gang.
The applicant remains in immigration detention in Australia where he has been since January 2010. Save for the event in which the applicant is granted a visa, either through complementary protection or at the discretion of the Minister (which discretion has on numerous occasions been refused in relation to the applicant) he will remain detained indefinitely.
Procedural history
The applicant lodged a protection visa application on 2 February 2010, which was withdrawn on or around 11 June 2010.
On 11 June 2010, the applicant lodged a protection visa application, on the basis that he had joined a criminal gang around 2002 and they had threatened to seriously harm or kill him if he returned to Norway. The applicant’s second visa application was refused by the Minister’s delegate on 25 August 2010.
The Tribunal reviewed the Department’s decision. The Tribunal found, on 20 September 2010 that the applicant genuinely feared harm from the criminal gang, but this fear was not “Convention-related persecution” (First Application).
On 5 November 2013, the applicant lodged an application for a Protection (Class XA) visa (Second Application) and an application for a Bridging E (class WE) visa. The latter was rejected as invalid and the applicant has not sought to challenge that decision.
The Second Application was brought under the complementary protection provisions of the Migration Act, which came into effect on 24 March 2012.
Section 48A of the Migration Act prohibits a non-citizen who is in the migration zone from lodging a fresh application for a protection visa where that non-citizen has previously applied for a protection visa whilst in the migration zone and been refused. However, in accordance with the Full Federal Court decision in SZGIZ v Minister for Immigration,[3] s.48A of the Migration Act did not prevent an applicant who has previously made a valid protection visa application “from making an application based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa”.[4] In the applicant’s case, that criterion was grounded in the (previously non-existent) complementary protection provisions.
[3] (2013) 212 FCR 235
[4] at [47]
The Department acknowledged that the applicant’s protection visa application was valid and the Minister’s delegate held an interview with him regarding his application on 12 February 2014.
In the Second Application, the applicant claimed that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to a receiving country (Norway), there is a real risk that he will suffer significant harm, in accordance with the definition of s.36(aa).
On 28 February 2014, the applicant’s representative provided submissions to the Department to supplement the application, and on 26 March 2014, the Minister’s delegate rejected the application on the basis that it did not meet the relevant criteria for the grant of the visa under s.36(2)(aa).
On 3 April 2014, the applicant applied under s.412 of the Migration Act to the Tribunal for review of the Department’s decision to refuse him a protection visa. The hearing was held on 1 May 2014. On 8 May 2014, the applicant’s representative provided the Tribunal with supplementary submissions in support of the applicant’s case.
The Tribunal found that the applicant did not meet the requirements for complementary protection under s.36(2)(aa). This finding was premised on the following, in summary:
a)that Norway was the sole receiving country for the purpose of assessing whether the applicant was eligible for complementary protection because:
i)the Migration Act defines “receiving country” in s.5 as “the country of which the non-citizen is an habitual resident, to be determined solely by reference to the law of the relevant country”;[5]
[5] at [33]
ii)a “receiving country” so defined might be any place in which the applicant “is an habitual resident”, which includes any place where the non-citizen was usually residing before coming to Australia, regardless of whether that country will accept the person’s return;[6]
[6] at [34]-[35], [38]
iii)the applicant’s prior possession of a “legally issued” temporary residence permit establishes Norway as the “receiving country”;[7]
[7] at [36]
iv)Western Sahara was not a receiving country because of the lack of established facts as to the applicant’s ever having any legal status as an “habitual resident” there, and the difficulty of Western Sahara’s status as a “country” and the lack of laws relating to residence there;[8]
[8] at [40]-[42]
v)Spain was not a receiving country because the applicant does not have any documentation or other supporting evidence;[9]
[9] at [43]
vi)Morocco and Algeria were not receiving countries because the Department had liaised with Moroccan and Algerian officials and they were unable to make a positive finding as to the applicant’s nationality;[10] and
vii)the applicant did not claim to have any connection with Mauritania, which forms the southern and eastern border with Western Sahara and which had been mentioned in the applicant’s application for asylum in 2009 in Germany;[11]
b)that the applicant had “given an inflated account of his role in the gang and its ongoing importance in his life” because of the lifestyle that he maintained in Norway, for example the personal (as opposed to gang-related) travel he made to and from Norway,[12] and the absence of any evidence of police action against him;[13]
c)that the gang may represent only “some very small risk” (emphasis of the Tribunal)[14] that they will intentionally inflict significant harm on the applicant for the following reasons:
i)the applicant has been outside of Norway for over four years and assures the Tribunal that he has not maintained any contacts with gang members during his absence;[15]
ii)the Tribunal cannot identify or make findings about the gang because the applicant declined to provide further information about it;[16] and
iii)the Tribunal is not willing to accept at face value the applicant’s claims about the nature or severity of the threats to him from such a gang, including because he has declined to provide further information about the gang, continued to travel in Europe despite the gang’s alleged level of interest in him, has only given one example of where the gang threatened him, gave confused written and oral accounts of gang threats, and has provided false and misleading or inaccurate information to Australian authorities in the past;[17] and
iv)that the applicant could obtain protection from Norwegian authorities such that there would not be a real risk that the Applicant will suffer significant harm, despite his status as a (former) victim of human trafficking, his criminal convictions, links in Norway and other factors.[18]
[10] at [45]
[11] at [44]
[12] at [54]
[13] at [56]
[14] at [67]
[15] at [60]
[16] at [61]
[17] at [66]
[18] at [68]-[90]
The judicial review application
These proceedings began with an application filed on 23 June 2014 on which the applicant continues to rely. The grounds in that application are:
1. The Second Respondent erred in law by failing to take into account the relevant consideration of the public release of certain personal information regarding the Applicant by the First Respondent.
PARTICULARS
(i) the Applicant was sent a letter dated 12 March 2014, in which it was admitted by the First Respondent that certain personal information relating to the Applicant was for a time publicly accessible on the First Respondent’s website (sensitive personal information);
(ii) the sensitive personal information included information regarding the Applicant’s name, date of birth, nationality, gender, details about his detention (when he was detained, the reason and where) and whether he had other family members in detention;
(iii) the First Respondent did not, and it can be inferred cannot and remains unable to, say who accessed the sensitive personal information, whether those who accessed such information might have copied or retained it, or whether and how the information might have been disseminated;
(iv) the release of the Applicant’s sensitive personal information had the potential to materially affect the consideration under s.36(2)(aa) of the Migration Act 1958 (Cth) as to whether the Applicant would suffer harm if returned to Norway;
(v) the fact of the release of the Applicant’s accessible personal information, was before the Second Respondent when it made the decision of 19 May 2014 (RRT Decision), because it can be inferred that the letter of 12 March 2014 was contained in the “Departmental and Tribunal files relating to the applicant’s…period in immigration detention from January 2010 to the present” which were before the Second Respondent (RRT Decision, Appendix A);
(vi) in any event, the Second Respondent had a duty to make an inquiry about the release of the sensitive personal information, because:
a. it was aware that the Applicant had been in detention at the time the release of the sensitive personal information had occurred;
b. it was a matter of general public knowledge, and in particular the knowledge of the Second Respondent, that there had been a data breach whereby sensitive personal information about immigration detainees had been released to the public; and
c. it was, or should have been aware, of the matters in subparagraph (d) above.
2. The Second Respondent erred in law in concluding that Spain and/or Algeria and/or Morocco and/or Western Sahara were not receiving countries.
PARTICULARS
(i) The Second Respondent correctly identified that the definition of “receiving country” in s.5(1) of the Migration Act 1958 (Cth) can refer to multiple countries in relation to one Applicant (RRT Decision [11], [34]);
(ii) The Second Respondent correctly purported to consider as ‘receiving countries’ any place of habitual residence even if there is no current right of the Applicant to return there; and
(iii)The Second Respondent acknowledged that the Applicant claimed to have been resident in each of Spain, Algeria and Morocco at certain times during his life; and
(iv) The Second Respondent failed to consider that an actual connection to, and a period of residence in, a certain place is sufficient where a person is stateless (and by the nature of their predicament, undocumented) to meet the test for habitual residence under s.5(1) of the Migration Act 1958 (Cth); or
(v) Despite the acknowledgement in (c) above, did not consider whether the Applicant’s claims met the test for residence, in circumstances where the Applicant is stateless and has no right of return to any country.
3. In the alternative to ground 2, the Second Respondent erred in law in finding that “the applicant’s prior possession of a legally issued temporary residence permit establishes Norway as the ‘receiving country’” [37], and that “Norway is his sole ‘receiving country’” [46].
PARTICULARS
(i) The definition of “receiving country”, in relation to a stateless person, must be determined by establishing that person’s country of “habitual residence”;
(ii) Section 5(1) of the Migration Act 1958 (Cth) provides that habitual [residence] shall be determined “solely” by the laws of the country in question;
(iii) The Second Respondent did not apply the laws of Norway;
(iv) The Second Respondent did not apply the laws of Western Sahara; and/or
(v) The Second Respondent did not apply the laws of Morocco; and/or
(vi) The Second Respondent did not apply the laws of Algeria; and/or
(vii) The Second Respondent did not apply the laws of Spain.
The applicant relies upon the affidavit of Leah Grolman made on 19 August 2014, to which is annexed a transcript of the hearing conducted by the Tribunal on 1 May 2014. The applicant also relies upon his affidavit made on 19 August 2014, to which is annexed a letter from the Minister’s Department dated 12 March 2014.
I also received as evidence the court book filed on 31 July 2014 and a letter from the Minister’s Department to the applicant dated 26 September 2014.[19]
[19] Exhibit R1
The applicant and the Minister both made written and oral submissions.
Consideration
Ground 1 – did the Tribunal err in law by failing to take into account the public release of the applicant’s personal information?
The factual basis for this claim is the letter to the applicant from the Minister’s Department dated 12 March 2014. As noted above, that letter is an attachment to the applicant’s affidavit. Letters in identical terms were the subject of proceedings before me earlier this year. I dealt with the letter and the implications of it in SZTXY v Minister for Immigration & Anor[20] (subject to appeal in the Federal Court). At [18] of the judgment I said relevantly:
Counsel for the applicants submitted that the Secretary’s letter amounted to a representation that some new process common to all of the detainees affected by the information disclosure would be applied to them separately from any other process that might be applicable to them should they make (or have made) a claim for protection in Australia. I cannot accept that submission in the light of the available evidence. That evidence establishes to my satisfaction that what the Secretary intended to convey was an undertaking that the circumstances of the release of information would be taken into account in relation to any assessment of protection claims by the affected detainees or any assessment that the Minister might undertake of his own volition, for example for the purposes of s.195A. …
[20] [2014] FCCA 841
Viewed in the light of those observations, it is surprising that the data breach apparently received no consideration by the Minister’s delegate in his decision made on 26 March 2014.[21] It is equally surprising that the issue received no consideration before the Tribunal, as it is not contested that the Department’s letter to the applicant was before the Tribunal. The Tribunal stands in the shoes of the Minister’s delegate for the purposes of its review and it was plainly open to it to deal with the implications of the data breach.
[21] Court Book (CB) 91-107
That said, I acknowledge that the issue was not raised by the applicant or his advisors before the Tribunal (and apparently not before the delegate). It cannot be said, therefore, that there was a claim, let alone a clearly articulated claim, raised by the applicant based upon the data breach.
Neither, in my view, can it be said in the circumstances of this case, that a claim clearly arose on the available material. Relevantly, the available material was the Department’s letter. The letter relevantly stated that the information made publicly available was the applicant’s name, date of birth, nationality, gender, details about his detention and if he had other family members in detention. Apart from the applicant’s gender in this case, it is unclear what information was disclosed. The applicant has no other family members in detention and the details of his detention would be meaningless without his name and date of birth and nationality. The applicant has no nationality. He has used over time numerous names and several dates of birth. At [26] of its reasons, the Tribunal details six names and dates of birth used by the applicant. I am not aware of which (if any) of those names and dates of birth were included in the data release. There is nothing to indicate that the Tribunal would have been so aware. There was therefore nothing to indicate that the data release would have some particular impact on the applicant’s fear of harm in Norway or elsewhere.
The applicant contends that the data release became an integer of his claim to fear harm at the hands of the criminal gang in Norway with which he was associated. However, there is before me, and it appears, before the Tribunal, nothing to indicate what in the data release might hypothetically have been of some interest to the criminal gang.
Even if the disclosure were somehow relevant as evidence, that would not be enough. As Robertson J noted in Minister for Immigration v SZRKT,[22] the proposition that it is always a jurisdictional error to ignore ‘relevant material’ is too widely expressed. The applicant must demonstrate that the evidence raised “considerations which bear upon the material elements which must be satisfied, or rejected, when dealing with an applicant’s claims” (emphasis added).[23] The mere existence of the data release, without more, falls far short of this requirement, having regard to the applicant’s claims.
[22] (2013) 212 FCR 99 at [122]
[23] SZRKT at [121]
Nor can it be said that the information squarely raised some other unarticulated claim that needed to be considered, in the way identified in NABE v Minister for Immigration (No.2).[24] It is telling that the applicant’s submissions speak of the possibility of a sur place claim, but do not articulate what it might be. That is hardly surprising. It is a matter of pure speculation why the disclosure of the applicant’s personal information might create a risk that he will be harmed in Norway.
[24] (2005) 144 FCR 1 at [58]
There is a further reason why Ground 1 should be rejected. The Tribunal found that the applicant would be protected by Norwegian authorities.[25] Contrary to the applicant’s submissions, the Tribunal’s finding was not based upon the magnitude of potential harm; it was rather based on likelihood.[26] Thus the applicant’s claims (and any sur place claim that may arise from the disclosure) are overcome by the finding that Norwegian authorities can provide protection.
[25] at CB 199 [90]
[26] see CB 194 [67]
Finally, I note from exhibit R1 that on 26 September 2014 the applicant was advised by the Minister’s Department that the implications of the data release would be considered in an International Treaties Obligation Assessment (ITOA). The letter recognises (somewhat belatedly) the obligation on the Minister’s Department to consider the implications of the data release in respect of Australia’s non-refoulement obligations under the Refugees Convention. The applicant has been invited to put before the Minister’s Department whatever he wishes in support of any claim he may wish to make arising out of the data release. I conclude, therefore, that the applicant has not suffered any detriment by reason of the apparent failure by the Minister’s delegate and the Tribunal to consider the issue previously.
Ground 2 – did the Tribunal err in concluding that Spain and/or Algeria, Morocco and/or Western Sahara were not receiving countries?
The applicant’s contentions
The complementary protection criterion in s.36(2)(aa) must be applied with reference to a “receiving country”. In the case of a stateless non-citizen, the definition of “receiving country” contained in paragraph (b) of the definition of “receiving country” in s.5(1) applies, being the country of which the non-citizen is an habitual resident.
The Tribunal assessed whether any of Western Sahara, Spain, Algeria, Morocco and Mauritania constituted a receiving country at [41]-[46]. The Tribunal found that none of those countries met the requirements of the definition of “receiving country” under s.5(1). In reaching that conclusion, the Tribunal relied upon the applicant’s lack of documentary evidence or legal status in any of those countries. In particular, the Tribunal found,[27] in relation to Western Sahara, that “[i]t is also uncertain whether he had any legal status as a ‘habitual resident’ there” and referred to uncertainty as to whether Western Sahara “has in place laws that determined issues of residence”.
[27] at [42]
In relation to Spain, the Tribunal appears to have accepted as conclusive the applicant’s lack of any form of identity or documentation. Although the Tribunal’s finding[28] in relation to Morocco and Algeria is somewhat obscure, it appears that the Tribunal accepted that the inability of Moroccan and Algerian officials to make a positive finding as to the applicant’s nationality established that he could not meet the test for habitual residence in either country.
[28] at [45]
The applicant complains that, in effect, the Tribunal undertook the assessment of the applicant’s “receiving country” on the basis that he was required to demonstrate a legal right to reside in the relevant country. The approach taken by the Tribunal member involved the application of a test not contemplated by that section: although s.5(1) requires the receiving country “to be determined solely by reference to the law of the relevant country”, it does not require that the non-citizen have been legally resident in the country at the relevant time. Even more plainly, it does not require that the applicant provide documentary or other evidence of such legal residence.
The applicant submits that the approach taken by the Tribunal was at odds with the purpose of the complementary protection provisions of which the definition of “receiving country” forms part. Section 36(2)(aa) of the Migration Act requires the decision-maker to be forward-looking as to the possible harm that may befall the person, if he/she were to be removed from Australia. In Minister for Immigration v MZYYL,[29] the Federal Court made clear that s.36(2)(aa) is to be construed as a whole with its related definitional provisions. Although the Court in that case referred only to subsection (2B), the definition of “receiving country” in s.5(1) is equally a related definitional provision of s.36(2)(aa).
[29] (2012) 207 FCR 211, [18]
The Explanatory Memorandum states that the purpose of the definition of “receiving country” in s.5(1) of the Migration Act is to provide a “country of reference” for the decision-maker:[30]
33. The purpose of this item is to provide a country of reference for the Minister when considering whether Australia owes a non-refoulement obligation to a non-citizen who makes an application for a protection visa. The Minister is not required to assess a non-citizen’s claim against a country of which they are not a national nor a former habitual resident.
34. The intended effect of the amendment is to ensure that the Minister’s assessment of whether Australia owes a non-refoulement obligation to a non-citizen for the purposes of new paragraph 36(2)(aa) … will be undertaken in relation to the destination country to which the non-citizen would be removed from Australia. …
[30] Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth), page 7
Since a stateless person by definition lacks nationality, the only relevant limb of the definition for the purposes of a stateless person’s “receiving country” is paragraph (b) of the definition of that term. Equally, however, it is possible that a stateless person may have never been lawfully resident in any country. Alternatively, a stateless person’s only period of lawful presence in a country may have been for a short period of time (for example, a temporary visa) with no sense of permanence or no ability or prospect of return. As such, assessing a stateless person’s “country of habitual residence” by reference to their legal status, at the time of residence, in countries in which they formerly resided may lead to there being no “receiving country” for that person, or the “receiving country” being a country with which the stateless person has no real connection. The applicant submits that that consequence is at odds with the purpose of the definition of “receiving country”, and frustrates the forward-looking assessment which s.36(2)(aa) requires. It is also said to be inconsistent with the words “habitual residence” not being either a term denoting any legal status, or a term which is apt to have an equivalent in the law of a foreign country. I accept that there is force in that submission.
In relation to the Refugees Convention, statelessness does not preclude a finding that protection obligations are owed in relation to a person, by reference to a well-founded fear of persecution for a Convention reason (which may ultimately result in the exercise of power to grant a visa under s.65 and s.36(2)(a)).[31] The plain words of the Migration Act do not appear to evince a legislative intention to exclude stateless persons from the complementary protection regime. Since Australia’s treaty obligations giving rise to the complementary protection provisions do not discriminate between stateless and non-stateless persons, or those with a right of return to a particular state and those without, s.36(2)(aa) should not be read in a way that would preclude its operation in relation to stateless persons with no right of return to any place. It has been held in relation to a Refugees Convention protection claim made on behalf of a stateless person, where that stateless person has more than one country of habitual residence, that the claimant need satisfy the s.36(2)(a) test only in relation to one country of habitual residence.[32] I accept the applicant’s submission that an assessment of a stateless person’s claims for complementary protection under s.36(2)(aa) should be considered in the same way: that is, by assessing the claim in relation to each country of habitual residence and allowing the application if the claim is made out in relation to one such country.
[31] Minister for Immigration v Savvin & Ors (2000) 98 FCR 168
[32] Al-Anezi v Minister for Immigration (1999) 92 FCR 283, Lehane J at [22]
The applicant submits with some force that “habitual residence” does not in terms imply a requirement of lawful residence. Assessment “by reference to the law of the relevant country” does not require that the residence (which is what is to be assessed) must be “lawful”. Residence is, as distinct from nationality, a factual enquiry. The question whether a person resides in a place is, in the applicant’s view, to be considered first by reference to the “habitual” nature of the residence. When reference is made to the law of the relevant country, the question becomes whether a person would have been regarded, by the laws of that country (assuming the facts relating to the alleged residence to be proved, which is a decision for the Tribunal) to have been residing in that country as a matter of habit. As such, if a stateless person has no legal residency status in any country, in order to avoid frustrating the purposes of the complementary protection provisions, a person may be assessed against countries where they were in substance an habitual resident, regardless of whether they had a lawful immigration status in that country.
The applicant contends that if it is not possible, by reason of paucity of information about a particular country’s law, to determine whether a reference to that country’s law may shed light on whether a person would be factually regarded as habitually residing there, then that country’s law must be considered to be the same as Australian law.[33] “Habitual residence” finds no analogue in an immigration status known to Australian law. As such, he contends that the question is simply whether factually, a person would have been acknowledged by the law of Australia as habitually residing in a place – whether legally or illegally.
[33] See Neilson v Overseas Projects Corporation of Victoria (2005) 223 CLR 331; [2005] HCA 54
Alternatively, given the purpose of s.5(1), the applicant posits that a rational interpretation of the requirement to consider the law of the relevant country is that legal status applies solely to nationality, rather than to habitual residence. The first limb of the test is thus to determine, according to the law of the relevant country (or countries), whether the non-citizen is a national of that country (or any country). If it appears to the decision maker, based on the law of a relevant country (or countries), that a non-citizen has no country of nationality, the non-citizen's receiving country will be the country of which they are an habitual resident, which is to be determined by reference to fact. This interpretation is said to be supported by the Minister’s Department’s “Complementary Protection Guidelines”,[34] which state:
Regardless of the fact that a non-citizen may be stateless or that their country of nationality or habitual residence will not accept their return, this country must still be considered the non-citizen's 'receiving country'. Otherwise, there would be no country of reference in respect of any stateless person who did not have a right to enter their country of former habitual residence and who was not able to be returned to that country. This would deprive s 36(2)(aa) of any operation in relation to those persons, and preclude them from obtaining a protection visa based on satisfaction of the complementary protection criteria, even if there were substantial grounds for believing that there was a real risk that the person would suffer significant harm in his or her country of former habitual residence.
[34] Department of Immigration, Procedures Advice Manual (PAM3) “Complementary Protection Guidelines”, s.10, as re-issued 1 January 2014, 85
The applicant submits that the words “to be determined solely by reference to the law of the relevant country” should be interpreted as preventing the decision-maker from “looking behind” the recognition of nationality accorded by a foreign country, in order to determine whether a person is provided with “effective” nationality in that place (i.e. practical recognition of rights attaching to nationality). This interpretation is consistent with the use of the same legislative language in s.91N(6) of the Migration Act, as construed in SZOAU v Minister for Immigration & Anor[35] and in SZOAU v Minister for Immigration.[36] As noted in the decision of the Full Federal Court,[37] a Supplementary Explanatory Memorandum to the Border Protection Legislation Amendment Act 1999 (Cth), which introduced s.91N(6), stated:
New subsection 36(6) … provides that the question of whether a non-citizen is a national or citizen of a particular country must be determined solely by reference to the law of that country. This will ensure that nationality is determined solely with reference to the domestic law of the country in question, and not in relation to assessments made in Australia as to the effectiveness of a nationality held by a protection visa applicant.
The same language in s 5(1) should be interpreted in the same manner as that in s 91N(6). Those words do not change the nature of the inquiry as to “habitual residence”, which remains one as to fact.
[35] (2011) 254 FLR 312 (at [23]-[25])
[36] (2012) 199 FCR 448
[37] at [74] per Robertson J
The applicant submits that, consequently, where a person is stateless, and by reason of their statelessness, has no documentation establishing their habitual residence of a country, evidence of an actual connection to, and a period of residence in, a country is adequate to establish “habitual residence”. Habitual residence is a matter of fact, which the Tribunal is required to decide. There is nothing in the definition of “receiving country” which requires documentary or more extensive evidence about lawfulness of immigration status.
The applicant submits that, in rejecting the applicant’s claims to be an habitual resident of any of Spain, Algeria, Morocco and Western Sahara, on the basis of the lack of any evidence of legal entitlement to reside at the relevant time, the Tribunal misapprehended the test which it was required to apply. In doing so, it is said to have fallen into jurisdictional error.
The Minister’s contentions
The Minister contends that this (and Ground 3) are misconceived because they mischaracterise the Tribunal’s decision. The Minister contends that, properly understood, the Tribunal held that there was insufficient evidence to satisfy it that any country other than Norway was a “receiving country”.[38]
[38] see CB 185 at [39]-[45]
Resolution
The issue of the applicant’s “receiving country” was relevant as it formed a component part of the complementary protection criterion in s.36(2)(aa), which is in the following terms:
a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
In order to meet the complementary protection criterion, it was necessary that the applicant satisfy the Tribunal (standing in the shoes of the Minister’s delegate) of the matters required to make out the criterion. Those matters included the identity of the “receiving country”. Section 5 provides that the definition of “receiving country” must be determined “solely” by reference to the laws of that country. Thus, if the applicant does not put forward evidence of foreign law, then the Tribunal may be unable to reach a state of satisfaction on the question. It is not the case that the Tribunal is obliged to seek out for itself and consider the content of the law of each and every state to which an applicant happens to mention a connection.
The presumption in private international law proceedings, that foreign law is to be presumed to be the same as Australian law in the absence of evidence, in my view has no relevance to the present proceedings. To apply that presumption would be to ignore the word “solely” in the definition of “receiving country”.
There is a difficulty in the definition of “receiving country” in s.5 of the Migration Act:
“receiving country”, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national; or
(b) if the non-citizen has no country of nationality--the country of which the non-citizen is an habitual resident;
to be determined solely by reference to the law of the relevant country.
While it may be readily accepted that nationality can be determined by reference to the law of the relevant country, the question of habitual residence would seem to me to be principally a question of fact. That is not to say that habitual residence might not be established in part by reference to the law of the relevant country but the inquiry that a decision maker must make is different from the inquiry that a decision maker would make in relation to s.36(3) of the Migration Act. In my opinion, a person may be an habitual resident of a country even if they do not have a right (whether legal or otherwise) to enter and reside in that country. Residence may be habitual even if unlawful. On the other hand the law of a country may establish conclusively whether a person can be taken to be a resident of that country, whether habitual or otherwise.
The Tribunal recognised the problem in stating at [34]:[39]
It is unclear whether or not this requires that a stateless person currently has a right to return to the relevant country or countries.
The Act does not define ‘habitual resident’. The ordinary meaning of the words ‘receiving country’ and ‘is an habitual resident’ [Tribunal italics] suggests that the person currently has a place to which they can return. The requirement that habitual residence be determined solely by reference to the country’s laws lends some weight to this view, as it suggests that the law of the country must provide the person with a legal basis on which to ‘receive’ the person.
The Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (the Explanatory Memorandum) also tends to support his approach. It indicates that the assessment for the purposes of s.36(2)(aa) would be undertaken in relation to the destination country to which the non-citizen would be removed from Australia.
By way of contrast, the Departmental Complementary Protection Guidelines state that whether a non-citizen is in fact able to return to a country is not a relevant consideration in determining the ‘receiving country’.[40] This posits that the country in which the non-citizen was usually residing before coming to Australia is the country in which the person is an habitual resident, regardless of whether that country will accept the person’s return.
[39] CB 184
[40] Department of Immigration, PAM3 “Complementary Protection Guidelines”, section 10, as re-issued 1 January 2014
In my opinion, the Tribunal correctly concluded at [35] that it must consider as “receiving countries” any place in which the applicant is an “habitual resident” even if he has no current right to return there. It should be remembered, in this context, that the purpose in the Tribunal identifying a receiving country is not to determine the country to which the applicant should be removed,[41] but rather, to identify whether the applicant would be exposed to a real risk of significant harm thereby attracting Australia’s protection obligations.
[41] Although it may have that consequence
The applicant complains that the Tribunal erred in considering countries other than Norway because it focused on a lack of information about any legal rights of residence the applicant might have in those countries. I agree with the Minister that that complaint mischaracterises the Tribunal decision. Any reference to legal rights in a particular country is meaningless without a proper factual foundation. The applicant was unable to give the Tribunal (and the Tribunal had no basis for exploring the matter independently) a factual foundation for an assessment of his legal rights of entry into countries other than Norway. The applicant initially claimed before the Tribunal that he should be assessed against Western Sahara but later recognised that he could not establish a sufficient factual connection to Western Sahara to enable the Tribunal to make a proper assessment. The applicant finally contended that Norway should be considered as the appropriate country of reference.
While that contention before the Tribunal does not give rise to any estoppel on judicial review, the Tribunal should not be found to have fallen into error by relying on the case put to it.
As Merkel J held in Chen v Minister for Immigration:[42]
In arriving at its decision, an inquisitorial tribunal, such as the Tribunal, can be guided by the issues the parties choose to put before it and is to have regard to the case so put.
[42] (2000) 106 FCR 157 at [114]
Likewise, in Tuitaalili v Minister for Immigration,[43] Flick and Jagot JJ said at [36]:
the conduct of the parties is relevant to determining the “the case actually raised by the material or evidence”. Despite the inclusion of a document referring to some matter or other, a party may not actually put a case relating to that matter by reason of the party’s conduct. If so, there can be no obligation to accept or reject material relating to the case not actually raised.
[43] [2012] FCAFC 24
Those considerations apply here. The applicant ultimately asked the Tribunal to find that Norway alone is a receiving country. The Tribunal so found. Subject to what I say below, it is fruitless for the applicant now to challenge that decision on the basis that the Tribunal should have found otherwise, or wrongly approached that task.
Ground 3 – did the Tribunal err in assessing the applicant’s claims against Norway as the applicant’s “receiving country”?
The Tribunal found at [36]-[38]:
The Tribunal is satisfied that Norway is a ‘receiving country’ for the purposes of s.36(2)(aa), as the applicant held a temporary residence permit issued in accordance with Norwegian law,, which was valid to 24 September 2010.
The applicant’s representative, in a submission dated 24 February 2014, argued that Norway should not be considered as a ‘country of former habitual residence’, for the purpose of assessing the applicant’s refugee claims. There was no corresponding argument in relation to the applicant’s ‘receiving country’; the submission appears to have assumed that ‘country of former habitual residence’ and ‘receiving country’ are one and the same thing The submission contends that ‘Norway does not meet the threshold to be determined as [the applicant’s] country of former habitual residence’, having regard to the factors identified in Thje Kwet Koe v MIMA[44] as relevant to such an assessment. It argues that the ‘nature of the residence is of primary importance’, and that the applicant did not have a permanent presence in Norway because he travelled to and from throughout Europe. The Tribunal is required to determine the receiving country solely by reference to the law of the relevant country, and therefore considers factors such as a person’s travel and the nature of their residency to be irrelevant in such an assessment. In its view, the applicant’s prior possession of a legally issued temporary residence permit establishes Norway as the ‘receiving country’.
In the post-hearing submission, the representative expresses support for the view that Norway should be considered as the ‘receiving country’ for the purposes of assessing his claims for complementary protection. The submission refers to the Department Guidelines, and also draws a parallel with the assessment of protection visa applications for minors born in Australia, where the Courts have acknowledged that the preferred approach is ‘appropriate, sensible, practical and fair’.[45]
[44] Thje Kwet Koe v MIMA (1997) 78 FCR 289
[45] SZEOH & Anor v Minister for Immigration [2005] FMCA 1178
While the Tribunal’s conclusion that the applicant possessed a legally issued temporary residence permit for Norway may be questioned, given that the applicant informed the Tribunal that the permit had been issued to him using another person’s identity, the Tribunal was entitled to conclude that the permit was at least purportedly legally issued and that the available facts supported a conclusion that the applicant had been habitually resident in Norway prior to coming to Australia.
The applicant seeks to draw support for his challenge to this aspect of the Tribunal’s reasoning from the decision of this Court in SZSMQ v Minister for Immigration & Anor[46] and the Full Federal Court in SZOAU v Minister for Immigration.[47] In my opinion this case can be distinguished on its facts from those cases.
[46] [2013] FCCA 1768
[47] (2012) 199 FCR 448
In my opinion, the Tribunal was entitled to accept the case put to it by the applicant, namely that he had established habitual residence in Norway which was consequently the appropriate country of reference. The applicant asked the Tribunal to find that Norway alone was a “receiving country” and the Tribunal so found. The conclusion reached by the Tribunal was open to it on the material before it.
Conclusion
The applicant has failed to establish any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 October 2014
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