MZZXS v Minister for Immigration and Border Protection

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: NORTH ACJ DATE: 4 DECEMBER 2015 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant seeks an extension of time within which to appeal from orders made by the Federal Circuit Court on 5 September 2014. The Federal Circuit Court dismissed his application for review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, made on 15 November 2013. The Tribunal affirmed the decision of the delegate of the first respondent, Minister for Immigration and Border Protection, to refuse to grant the applicant a protection visa. 2 The application for an extension of time was filed on 23 June 2015. The time limited for filing a notice of appeal expired on 26 September 2014. 3 The Minister opposed the application for an extension of time, but only on the ground that the appeal was bound to fail and, consequently, any extension of time would be futile. 4 The applicant is a citizen of Nepal. The Tribunal found that he has a well-founded fear of persecution for a Convention reason in Nepal. However, the Tribunal affirmed the decision of the delegate of the Minister to refuse the applicant a protection visa because it considered that the applicant had not taken all possible steps to avail himself of the right to enter and reside in India. As a result of the operation of s 36(3) of the Migration Act 1958 (Cth) (the Act) the Tribunal held that Australia does not have protection obligations to the applicant. 5 The reasoning of the Tribunal is found in the following passages in its decision: 39. Subsection 36(2) of the Act, is qualified by subsection 36(3), (4), (5) and (5A) of the Act which provide as follows: Protection obligations (3) 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. (4) However, subsection (3) does not apply in relation to a country in respect of which: (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country. (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that: (a) the country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion. (5A) Also, subsection (3) does not apply in relation to a country if: (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country. 40. Article 7 of the 1950 Treaty of Peace and Friendship between India and Nepal provides: The Governments of India and Nepal agree to grant, on reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature. 41. As advised by the Bureau of Immigration, Ministry of Home Affairs, Government of India (at http://www.boi.gov.in/content/nepalese-passengers, accessed 19 September 2013): 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 be in possession of any of the valid identity documents to establish his/her identity as a Nepalese citizen:- Nepalese Passport. Nepalese Citizenship Certificate. Voter's Identification Card issued by the Election Commission of Nepal. Limited Validity photo-identity certificate issued by Nepalese Missions in India when deemed necessary. For children between the age group of 10 - 18, photo ID issued by the principal of the school, if accompanied by parents having valid travel documents. No such document is required for children below the age group of 10 years. A citizen of Nepal must be in possession of a Passport when entering India from a place other than Nepal. 42. The Department of Foreign Affairs and Trade has advised (18 September 2013): A citizen of Nepal in possession of a valid Nepalese passport, flying direct from Australia could gain entry to India. Unlimited stay is granted to Nepalese nationals in India and there are no restrictions on their ability to remain, reside or work in India. Nepalese nationals may be excluded from entry to India if a "look out" notice is issued against the client by the Nepal government advising that the client must not be allowed entry to India. Nepalese nationals already in India can be forcibly removed if convicted of a crime in either Nepal or India. If a Nepalese national commits a crime in Nepal and travels to India, the Nepalese police can request the assistance of the local Indian Police to arrest the person. The Nepalese Police will then travel to India to escort the Nepalese national back to Nepal. This process would be similar to that between Indian states. However, there is no extradition treaty between Nepal and India. If a Nepalese national residing in India commits a crime in India, they can be tried and sentenced under the Indian legal system. There are provisions which allow for the deportation of convicted Nepalese nationals from India after the completion of their sentence in India. 6 The Tribunal concluded at [53]: 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 the applicant does have a right to enter and reside in India and that s36(3) of the Act applies to him. The tribunal accepts that the treaty does not confer citizenship but that is not required to meet the requirements of s36(3) of the Act. Further the tribunal does not accept that the applicant would lose his citizenship by going there. 7 The applicant filed a notice of appeal in the Federal Circuit Court from the decision of the Tribunal. The judgment of the Federal Circuit Court was delivered on 5 September 2014. The grounds relied on in this appeal were not raised in the Federal Circuit Court. However, the Minister does not oppose the grant of leave to the applicant to argue those grounds on this application or on the appeal should the application for extension of time be granted. 8 The central contention of the applicant is that the Tribunal failed to apply the correct approach to the application of s 36(3) of the Act. Counsel for the applicant relied on the judgment of Allsop J in V856/00A v MIMA (2001) 114 FCR 408; [2001] FCA 1018 (V856/00A) and the judgments of the Full Courts in MIMAC v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91 (SZRHU) and SZTOX v MIBP [2015] FCAFC 77 (SZTOX). 9 The relevant conclusion of the Tribunal to which the judgment in SZTOX referred, at [7], was as follows: 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 (of which he has not taken all possible steps to avail himself) to enter and reside in India. (Emphasis added). 10 In SZTOX the development and the state of the law was explained by reference to the Tribunal decision there in question 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. 41 For completeness, lest there be any doubt, we should also state that the "right to enter and reside" for the purpose 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 decisions 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. [Emphasis added.]

CONSIDERATION 11 The authorities referred to define to some extent the concept of a right to enter and reside used in s 36(3) of the Act. They conclude that the right is not confined to a legally enforceable right under domestic law. They also conclude that the right encompasses a liberty, permission or privilege lawfully given. Importantly, in V856/00A Allsop J rejected the submission of the respondent as follows: 25 ... The respondent, on the other hand, submitted that the context and purpose of the provision as one dealing with "forum shopping", the width of the words of the subsection ("however that right arose or is expressed") and the intention (it was said), in effect, to codify the previous law on "effective protection", which previous law (it was said) eschewed any need for rights strictly so-called and emphasised "practical reality and fact", all assisted in the construction of the word "right" as meaning practical capacity to bring about a lawful entry; that is, it meant capability or capacity to bring about a permission or right to re-enter and reside in Syria. [Emphasis added.] 12 When the Tribunal is faced with the question of the application of s 36(3) of the Act it is required to evaluate the evidence of the existence of the right against the concept of a right as explained in the authorities referred to. That is the task referred to in [37] of SZTOX. 13 The usual practice of the Tribunal is to set out in the beginning of its decision the law applicable to the issues arising in the case. In the present matter the Tribunal commenced its decision with an explanation of the law concerning the Convention definition of a refugee. But the Tribunal did not refer to the authorities concerning the concept of a right to enter and reside in s 36(3) of the Act. At the time of the Tribunal decision, V856/00A and SZRHU had been decided. The omission of any reference to these cases or to the concept of a right under s 36(3) of the Act is an indicator in the circumstances that the Tribunal did not have regard to that learning. 14 I accept the applicant's argument that the way the Tribunal went about its task demonstrates that it did not undertake a process of evaluation of the evidence. In [53] the Tribunal does no more than list the three sources previously referred to in its decision, namely, the Treaty, the Indian government website, and the Australian government website, and conclude that these sources prove a right of the applicant to enter and reside in India. The Tribunal refers to the Indian government website as setting out administrative provisions. But all the website says is that citizens of Nepal may enter India from outside Nepal if they have a passport. That may be a consequence of some administrative provision. The conclusion of the Tribunal does not disclose whether there was an administrative provision and, if so, the nature of that provision. In order to assess 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. As was explained in SZTOX, at [42]: The right or entitlement might be of that character [a right provided by or allowed under domestic law], 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. [Emphasis added.] 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 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. 17 Counsel for the Minister drew attention to the final two sentences in [53] of the Tribunal's decision which recognised that it is not necessary for the Treaty to confer citizenship on the applicant in order for the applicant to establish that he has a right to enter and reside in India. Such a reference was absent in the Tribunal decision in SZTOX. Counsel for the Minister contended that the reference demonstrated that the Tribunal had an understanding derived from SZRHU of the nature of the right referred to in s 36(3) of the Act. However, on its own, this reference does not countervail the other indicators referred to which demonstrate that the Tribunal did not apprehend the nature of the right referred to in s 36(3) of the Act. 18 It follows that the Tribunal fell into jurisdictional error and its decision will be quashed so that the application may be reconsidered according to law. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice North.