The errors
20 The primary judge fell into error for two reasons. First, his Honour failed to recognise that there were significant differences between the instant cases and SZTOX. Secondly, his Honour took the reference to the offending expression at [47] out of context.
21 Contrary to the primary judge's conclusions, the fact that the Tribunal referred to SZRHU is not an inconsequential matter. In SZTOX at [39] the Full Court described the omission of a reference to the judgment to be "notable" and "significant".
22 Moreover, in other respects, SZTOX is not on all fours with the present cases. There were a number of distinctions.
23 First, the Tribunal did not merely mention SZRHU. In SZTOX there was apparently "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" (see [10] above). Here, on the other hand, not only did the Tribunal refer to SZRHU, it plainly appreciated what it stood for. At [37] the Tribunal said this:
The Full Federal Court in considering the appeal from the Federal Magistrates Court in relation to the applicant (MIMAC v SZRHU [2013] FCAFC 91) held that the term 'right' in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement, or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
24 In SZUYA the Tribunal then referred to a submission by the applicant to the effect that, because the Treaty does not expressly give him a right to (both) enter and reside in India, the requirements of s 36(3) are not met. But nothing said in SZRHU justifies that limited construction.
25 What follows is the Tribunal's attempt to answer the question it posed for itself, namely, whether the applicant has a right in the sense in which the Full Court defined it in SZRHU to enter and remain in India. Contrary to the respondents' submission, the Tribunal was not concerned with capacity absent any such right.
26 The Tribunal said at [39] that the starting point was a consideration of the terms of the Treaty. It noted that Art 7 grants to Nepalese nationals in India and Indian nationals in Nepal "the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature". Consistently with Buchanan J's remark in SZRHU at [88], however, the Tribunal went on to observe (at [40]) that the Treaty itself does not deal with the rights of Nepalese and Indian nationals to enter the territory of the neighbouring country. For this reason, the Tribunal said it was necessary to look to other sources to decide whether the applicant had a right to enter India. It then proceeded to examine those other sources. The Tribunal went on to engage with the analysis of the term "right" as set forth in SZRHU by inquiring into whether the applicant knew he had an ability to enter India and whether he had availed himself of that "right". This indicates that, in contrast to SZTOX, the Tribunal understood the principles in SZRHU and was applying them.
27 The primary judge made no mention of any of these passages in the Tribunal's reasons, although they supply the context to its conclusion in [47].
28 His Honour did say (at [14]) that "[i]t appears from the Tribunal's reasons that the Tribunal understood the difference between a strict legal right and a right more broadly expressed". But he ignored what followed.
29 Moreover, in two passages in the Full Court's reasons in SZTOX (at [41]-[42]), to which the primary judge did not refer, the Full Court emphasised that the right or entitlement under s 36(3) could arise under an executive or administrative act of the receiving country:
41 For completeness, lest there be any doubt, we should also state that the "right to enter and reside" for the purposes of s 36(3) is not confined to a right which is sourced in domestic law, such as a statute or regulation or other legislative instrument. The right might also be sourced in an executive act, such as a Treaty, executive policy or statement or other executive instrument. These examples are not intended to be exhaustive. The proper construction of s 36(3) must accommodate the potentially wide range of laws and executive acts which could create a right or entitlement in the relevant sense for a person to enter and reside in another country.
42 It necessarily follows from what we have said immediately above that we respectfully disagree with those parts of the decision of the FCCA in SZTOG at [34] and [37] and SZTQN at [25] and [26], which suggest that the right or entitlement under s 36(3) is confined to one which is provided by or allowed under the domestic law of the receiving country. The right or entitlement might be of that character, but it might also arise under an executive or administrative act involving that receiving country. The existence and source of the right will be a matter of evidence.
30 In the instant cases, the primary judge referred to the two decisions of the FCCA mentioned in this paragraph (SZTOG v Minister for Immigration [2015] FCCA 180 and SZTQN v Minister for Immigration [2015] FCCA 188) but he did not acknowledge the force in the present context of the Full Court's recognition of a right or entitlement arising under an executive or administrative act.
31 Here, at [41] the Tribunal said that the information provided by DFAT and published on the Indian Bureau of Immigration website was to the following effect:
A citizen of Nepal entering India by land or air does not require a passport or visa for entry in India.
A citizen of Nepal while travelling by air between Nepal and India is required to show any of the following valid identity documents to establish his/her identity as a Nepalese citizen:
• Nepalese Passport.
• Nepalese Citizenship Certificate.
• Voters Identification Card issued by the Election Commission of Nepal.
• Limited Validity photo-identity certificate issued by Nepalese Missions in India when deemed necessary.
A citizen of Nepal must be in possession of a Passport when entering India from a place other than Nepal.
A citizen of Nepal in possession of a valid Nepalese passport flying direct from Australia could gain entry to India.
32 The Tribunal also referred (at [45]) to DFAT advice (confirmed by reports of the Immigration and Refugee Board of Canada in 2008 and the UNHCR) 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.
33 In all these circumstances, it is difficult to see how - the reference to the expression "as a matter of practical reality" aside - there is any relevant similarity between the Tribunal's approach in the two instant cases and its approach in SZTOX.
34 It was open to the Tribunal on the evidence before it to conclude that a Nepalese citizen (like the respondents) who was in possession of a valid Nepalese passport had a right in the sense of "a liberty or permission or privilege lawfully given" to enter and remain in India, albeit that such a right may have been capable of withdrawal and not capable of any particular enforcement. It was not suggested that there was any evidence of the withdrawal of that "liberty, permission or privilege" or of any law contrary to its exercise. Having enunciated the correct test earlier in its reasons, it should not lightly be inferred that the Tribunal had in mind some other test when it concluded that there was a relevant right.
35 The respondents submitted that this Court should nonetheless follow what North ACJ said in MZZXS v Minister for Immigration and Border Protection [2015] FCA 1384, which they submitted was on all fours with the present cases. There, at [15]-[16] his Honour said this:
15 In SZTOX the Court said that one indicator that the Tribunal had not understood the concept of right as developed in V856/00A and SZHRU (sic) was its reference to the right existing "as a matter of practical reality". The Tribunal in SZTOX stated that it relied in part on the advice of the Australian Department of Foreign Affairs and Trade "in relation to the practical situation" for the conclusion that the right existed as a matter of practical reality.
16 The present decision of the Tribunal omits reference to the "matter of practical reality", but includes the same reference to the advice of the Australian Department of Foreign Affairs and Trade "in relation to the practical situation". In the same way as the Court in SZTOX held that the reference to "practical reality" cast doubt on whether the Tribunal properly understood the meaning of the term right as used in s 36(3) of the Act, so in this case the reference to the advice about the "practical situation" suggests that the Tribunal did not understand that a right under s 36(3) of the Act is not established if all that exists is a capacity to bring about a lawful entry.
36 Unlike the Tribunal in the present cases, however, in MZZXS, as in SZTOX, the Tribunal did not refer to the judgment in SZRHU. What is more, its consideration of the country information was in other respects not materially different to the consideration given to it in SZTOX. Unlike the Tribunal in the present cases, it did not demonstrate any understanding of the principles in SZRHU; indeed, it did not advert to them. Unlike the Tribunal in the present cases, its reasons do not disclose that it analysed the country information in the light of those principles. Rather, in MZZXS at [14], his Honour accepted the applicant's argument that the Tribunal "did not undertake a process of evaluation of the evidence"; it merely listed the sources and stated its conclusion that those sources proved the existence of the right.
37 The cases are plainly distinguishable.
38 In MZZXS (at [14]) North ACJ dismissed the significance of the statement on the Indian Government website, which was the same statement referred to in the present cases. He noted that the Tribunal referred to it as setting out administrative provisions but added that "all the website says is that citizens of Nepal may enter India from outside Nepal if they have a passport". In fact it says more than that. Be that as it may, his Honour's subsequent remarks are, with respect, troubling. His Honour observed that the statement on the website "may be a consequence of some administrative provision" but that the conclusion of the Tribunal does not disclose whether there was any such provision and, if so, the nature of the provision. He said that, in order to determine "whether the entry is pursuant to a right to enter and reside under s 36(3) of the Act the Tribunal needs to know by what means the entry is permitted", citing the last two sentences of [42] in SZTOX, emphasising the reference there to the source of the right. In our respectful opinion, where the Executive Government of the third country publishes a statement of this nature and no question arises as to the authenticity of the publication, there is no particular reason why the Tribunal needs to inquire further. In our respectful opinion, nothing said in SZTOX expressly or by implication requires the Tribunal to identify with the degree of precision his Honour apparently contemplated the source for the relevant right. Furthermore, having regard to the Full Court's judgments in SZRHU and SZTOX, it was unnecessary for the Tribunal to distinguish between a right conferred or allowed under domestic law and a right arising under an executive or administrative act of the receiving country as, either way, there was a right within the meaning of s 36(3).
39 In any event, in the present cases, the means by which entry is permitted are tolerably clear from the Tribunal's reasons. It was a liberty afforded to Nepalese citizens by the Executive Government of India upon proof of their identity by any of the means identified in the statement published on the Bureau of Immigration's website. Before this Court it was not submitted that this ability of Nepalese citizens to enter India was not a "liberty, permission or privilege lawfully given".
40 Here, in contrast to SZTOX and MZZXS, the Tribunal heeded the actual terms of the Treaty and considered whether those terms, together with any administrative or other arrangements established by the evidence concerning the entry by Nepalese citizens at the Indian border, satisfied the test established in V856/00A and approved in SZRHU (SZTOX at [38]). That it did not express itself in precisely this way in its concluding paragraph on this question is by no means determinative.
41 The use in the present cases of the expression "as a matter of practical reality" is unfortunate, but this was no more than an instance of "looseness in language" or "unhappy phrasing", with which a court should not be concerned: Controller of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. It is trite that the reasons of an administrative tribunal must be read fairly and as a whole. It is well-established that its reasons "are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": Liang at 272. When the Tribunal's reasons are read in this way we are not persuaded that the Tribunal did not apply the test approved in SZRHU. As the Minister submitted, rather than signify a misunderstanding of the law, the expression reflected the Tribunal's conclusion as to "the factual effect of the administrative arrangements to which it referred, considered in the light of the Treaty and the country information".