SZUYA v Minister for Immigration & Anor
[2015] FCCA 2315
•26 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUYA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2315 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – Tribunal decision based on s.36(3) of the Migration Act – Tribunal applied the wrong test for the application of that provision. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Abebe v Commonwealth (1999) 197 CLR 510 Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 |
| Applicant: | SZUYA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2314 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Solicitors for the Applicant: | Shamser Thampa & Associates |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
A writ of certiorari shall issue removing the record of the former Refugee Review Tribunal decision made on 23 July 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.
The first respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $5,750.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2314 of 2014
| SZUYA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
On 26 August 2015 I made orders in favour of the applicant quashing the decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 23 July 2014 and requiring the redetermination of the review application according to law by the Tribunal. I also made a costs order. The following are my reasons for those orders.
The decision of the Tribunal was to affirm a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Nepal and had made claims of persecution. The Tribunal made no finding pursuant to s.36(2) of the Migration Act 1958 (Cth) (Migration Act) on the basis that s.36(3) applied. The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Nepal who arrived in Australia on 3 May 2009[1]. He applied for the protection visa on 2 September 2013[2]. The delegate refused the visa on 6 February 2014[3]. The applicant applied to the Tribunal for review on 14 February 2014[4]. The Tribunal held a hearing on 9 July 2014[5].
[1] Court Book (CB) 128.9
[2] CB 1-37
[3] CB 124-135
[4] CB 136-137
[5] CB 150-151
The applicant claimed to fear persecution in Nepal because of a land dispute with another family. The Tribunal stated that there were doubts about the credibility of the applicant’s claims, but that it did not have to reach a conclusion as to whether Australia owed the applicant protection obligations[6]. That is because the Tribunal, like the delegate, found that s.36(3) of the Migration Act applied to the applicant as he had not taken all possible steps to avail himself of his right to enter and reside in India, and the qualifications in ss.36(4), (5) and (5A) did not apply[7].
[6] CB 166 [34]
[7] CB 166-172 [35]-[68]
The judicial review application
These proceedings began with a show cause application filed on 19 August 2014. The applicant now relies upon an amended application filed in court by leave on 26 August 2015. There are five grounds in that application:
1. The Second Respondent made jurisdictional error in relation to the construction and application of section 36(3) of the Migration Act 1958 (“The Act”).
Particulars
a)At [40] The Second Respondent noted that the Treaty between India and Nepal did not deal with the rights of Nepalese to enter India.
b)There was no evidence before The Second Respondent that Nepalese had a right to reside in India.
2.The Second Respondent made jurisdictional error by denying the Applicant procedural fairness at the hearing in relation to the issues under ss 36(3), 36(4), 36(5) and 36(5A) of the Act.
3.The Second Respondent made a decision which ignored the evidence of the Applicant as to whether there would be a real risk of significant harm if he resided in India.
4.The Second Respondent made jurisdictional error at [47] by adopting a legally erroneous test in relation to section 36(3) by considering whether, as a matter of practical reality, the Applicant had a right to enter and reside in India.
5.The Second Respondent assumed ([43]-[44]) prior to decision that the Applicant had the right to enter and reside in India without having so determined and provided the Applicant with this information thereby depriving him of the opportunity to deal with and present arguments in relation to that issue.
Grounds 2 and 3 were not pressed at all and Grounds 1 and 5 were only lightly dealt with in oral submissions. The focus of attention was on Ground 4.
The applicant reserves his rights in relation to [34] of the Tribunal’s decision[8] having regard to the outstanding appeal in the Federal Court against my decision in SZUDE v Minister for Immigration[9].
[8] CB 166
[9] [2015] FCCA 60
I have before me as evidence the court book filed on 16 September 2014.
The applicant and the Minister, through their counsel, both made written and oral submissions.
Consideration
In my opinion, in this case, jurisdictional error is established on the basis of the decision of the Full Federal Court in SZTOX v Minister for Immigration[10].
[10] [2015] FCAFC 77
In SZTOX, the Full Federal Court stated at [29]-[40] as follows:
29.We consider that the primary judge erred in holding that the Tribunal applied the “relevant, correct test” in relation to s.36(3) in the context of the Tribunal’s satisfaction that s.36(3) applied based “on a matter of ‘practical reality’”. With respect, his Honour also erred in finding that the Tribunal’s understanding of the phrase “right to enter and reside in” as it appears in s.36(3) was consistent with SZRHU.
30.It is unnecessary to repeat the detailed analysis of the previous case law on both the doctrine of effective protection and s.36(3) having regard to the comprehensive analysis undertaken by Buchanan J in SZRHU (with whom Tracey, Robertson and Griffiths JJ agreed). The key salient points established in SZRHU may be summarised as follows.
31.First, the test which lay at the heart of the new discredited doctrine of effective protection (as opposed to s.36(3)) was one concerned with “practical reality and fact” ([41], [42] and [47]).
32.Secondly, the doctrine of “effective protection” which had been read into s.36(2) of the Act in various decisions of the Court was rejected by the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 at [27] and [42] ([68]-[70]).
33.Thirdly, the “right” referred to s.36(3) does not mean only a legally enforceable right under domestic law, but also includes a “liberty, permission or privilege lawfully given”, as Allsop J had held in V856/OOA ([56]).
34.Fourthly, the “right to enter and reside” as referred to in s.36(3) is not confined to a right which is consonant with nationality or citizenship. As noted above, it can include a “liberty, permission or privilege lawfully given”, which does not mean that the “right” under s.36(3) must be capable of being vindicated in the courts and under the domestic law of the receiving country ([76], [78] and [89]).
35.Fifthly, the phrase in s.36(3) referring to a right “however that right arose or is expressed” suggests a less stringent and broader test than a legally enforceable right arising under domestic law, as also does the notion in s.36(3) of temporary residence ([35]).
36.Sixthly, the Treaty itself does not appear to give Nepalese citizens a right of entry to India ([88]).
37.Seventhly, the evidence in SZRHU indicated that there were “administrative arrangements for entry” which may have been intended to facilitate the operation of the Treaty, but that was an issue which should not be determined in SZHRU. Rather, the evaluation should be made by the Tribunal which could, if it wished, seek further information which was relevant in applying the correct test ([88]).
38.Eighthly, the Tribunal was in error in SZRHU to consider that the terms of the Treaty established a legally enforceable right to enter and reside in India. The Tribunal should heed the actual terms of the Treaty and consider whether those terms, together with any administrative or other arrangements established by the evidence considering the entry by Nepalese citizens at the Indian border, and consider whether they satisfy the correct test as established in V856/OOA, and approved in SZRHU ([90]).
39.It is notable that the Tribunal in this proceeding made no reference at all in its reasons for decision to the Full Court’s decision in SZHRU. That omission may not have carried any significance if the Tribunal’s reasons otherwise revealed that it properly understood and applied the relevant principles established in SZHRU. But that is not the case. On the contrary, the Tribunal’s reference in [51] of its reasons for decision to it being satisfied, “as a matter of practical reality”, that the appellant had a right to enter and reside in India strongly suggests that the Tribunal was labouring under a misapprehension that the correct test under s.36(3) was that which applied under the now discredited doctrine of effective protection. That is inconsistent with SZRHU and involves jurisdictional error.
40.Furthermore, the Tribunal’s erroneous reference to the concept of “practical reality” casts serious doubt on whether it properly understood the significance of decisions such as V856/OOA and SZRHU on the meaning of the term “right” in s.36(3). The Tribunal made reference in [51] of its reasons for decision to “a right”, but otherwise failed to demonstrate that it properly comprehended the correct meaning of that term, as established again in V856/OOA and SZHRU. In particular, there is nothing to suggest that the Tribunal properly appreciated that a “right to enter and reside” for the purposes of s.36(3) is not confined to a legally enforceable right, but extends to include a “liberty, permission or privilege lawfully given” in accordance with the relevant authorities of this Court.
In this case, at [47][11] the Tribunal said:
Taking into account the terms of the Treaty itself, the information from Indian and Australian authorities about the administrative arrangements concerning entry to India by Nepalese nationals and the country information and other commentary on the ability of Nepalese citizens to enter and reside in India, the Tribunal is satisfied that that, as a matter of practical reality, the applicant has a right to enter and reside in India.
[11] CB 169
The only difference between this case and SZTOX is that the Tribunal did in its reasons[12] refer to the Full Federal Court decision in Minister for Immigration v SZRHU[13]. It appears from the Tribunal’s reasons that the Tribunal understood the difference between a strict legal right and a right more broadly expressed. However, as was made clear in SZTOX, the “right” as determined by the Full Federal Court in SZRHU is not consistent with the notion of whether a person can as a matter of practical reality enter and reside in another country[14]. I accept the submission of counsel for the applicant that that is a much wider test belonging to a different era.
[12] CB 167at [37]
[13] (2013) 215 FCR 35
[14] At [35]-[36]
The language of “as a matter of practical reality” is inconsistent with the nature of a right. As stated by the Full Court in SZTOX, a test of satisfaction based “on a matter of practical reality” is erroneous in relation to s.36(3). The test of practical reality (which has a wider operation than right in the SZRHU sense) was developed in relation to the discredited notion of effective protection rejected by the High Court in NAGV & NAGW v Minister for Immigration[15]. It is not a notion based on a concept of rights at all. It is simply whether as a factual matter a person could enter and reside in a third country.
[15] [2005] HCA 6
I do not accept the Minister’s submission that this case can be distinguished from SZTOX. It is one thing for the Tribunal to refer to and discuss the decision in SZRHU. It is another thing for the Tribunal to understand it in all its detail. The issues are not simple. The decision in SZTOX was necessary because the decisions of this Court on the question were inconsistent.
The decision in SZTOX resolved differences in this Court between SZTOX v Minister for Immigration & Anor[16] and contrary decisions in SZTOG v Minister for Immigration & Anor[17] and SZTQN v Minister for Immigration & Anor[18].
[16] [2014] FCCA 2861
[17] [2015] FCCA 180
[18] [2015] FCCA 188
In my opinion, were I to accept the Minister’s submissions on this ground, I would fall, at least in part, into the error identified by the Full Federal Court in SZTOX. The terminology used by the Tribunal at [47] of its decision record establishes to my satisfaction that the Tribunal applied the wrong legal test to its application of s.36(3) of the Migration Act. It follows that Ground 4 in the amended application has been made out.
I accept the Minister’s submissions in relation to the other grounds which were pressed.
Ground 1 of the amended application claims that the Tribunal erred in the construction and application of s.36(3) because there was “no evidence” before the Tribunal “that Nepalese had a right to reside in India”. The Tribunal found that the terms of the Treaty of Peace and Friendship between India and Nepal 1950 (the Treaty), information about administrative arrangements concerning entry to India by Nepalese nationals and other country information[19] satisfied the Tribunal that the applicant had, as a matter of practical reality, a right to enter and reside in India[20]. As there was some evidence for the Tribunal’s conclusion to this effect this is not a case of “no evidence” as pleaded by this ground. It is well established that the no evidence principle does not apply where there is some evidence for the conclusion complained of[21].
[19] set out at CB 176-178
[20] CB 169 [47]
[21] eg Repatriation Commission v Holden [2014] FCA 605 (Mortimer J) at [55]-[65]; Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 (FC) at [24] per Besanko J, [77]-[78] per Jessup J, [118], [125] per Bromberg J
The applicant’s submissions in support of this ground claim that the Tribunal did not find that the applicant had a right to enter India, but the Tribunal did so find at [47][22]. Otherwise the applicant’s submissions seem to argue with the Tribunal’s conclusion to this effect, but this is no more than an allegation that the Tribunal made a wrong finding of fact. There is no error of law in the Tribunal making a wrong finding of fact[23].
[22] CB 169
[23] Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; Abebe v Commonwealth (1999) 197 CLR 510 at [137]
The applicant’s submissions also allege that the Tribunal assumed that the Treaty provided a right of entry to Nepal, but the Tribunal explicitly states that the Treaty does not deal with the rights of Nepalese nationals to enter India[24]. The Tribunal correctly considered whether the terms of the Treaty, combined with relevant administrative arrangements, satisfied the test in s.36(3), in accordance with SZRHU at [88] and [90] per Buchanan J.
[24] CB 167 [40]
Accordingly, Ground 1 fails.
Ground 5 claims that the Tribunal assumed that the applicant had a right to enter and reside in India without having so determined, and provided the applicant with this information “thereby depriving him of the opportunity to deal with and present arguments in relation to that issue”. However as already pointed out the Tribunal’s reasons indicate that it made a finding based on evidence that the applicant had a right to enter and reside in India within s.36(3), not an assumption. The applicant was given an opportunity to contest that issue, and did so in his post-hearing submissions[25]. The applicant’s submissions claim that the Tribunal’s question at [43][26] indicate pre-judgement or a deprivation of any meaningful opportunity to contest the issue, but on a fair reading of the Tribunal’s decision that is not so. The Tribunal considered the evidence and the applicant’s submissions on the issue, and in those circumstances the question put is merely raising a factual situation for the applicant’s comment, not putting an unalterable legal conclusion as to the operation of s.36(3) as the ground suggests. Ground 5 also fails.
[25] CB 167 [38]
[26] CB 168
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 31 August 2015
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