9 The applicant claimed that he found he was unable to study in Colombo as he was questioned at checkpoints because he was a Tamil. He went to India to study but did not like it. After his return to Colombo and while arrangements were being made for him to travel to Britain, he was twice questioned at checkpoints and was released after producing identification documents that satisfied security officials.
10 The applicant went to the United Kingdom ("the UK") with a student visa. He apparently embarked on a course of study. He produced to the Tribunal evidence that he had left his college in April, he had not paid his fees for a new term and his registration had been cancelled. The applicant's adviser also provided to the Tribunal a summary of information from the UK High Commission relevant to the applicant's likely status in the UK. This information was apparently obtained without disclosing the applicant's identity. The information indicated that the applicant's student visa remained valid and could be used to return to the UK, although investigations on arrival may lead to its cancellation. The applicant invited the Tribunal to contact the UK authorities about his status there. The Tribunal declined to do so.
11 The Tribunal did not make any determination of the question whether the applicant had a well-founded fear of persecution in Sri Lanka for any of the reasons referred to in the Convention. Instead, it proceeded directly to the question whether the applicant had a right to enter and reside in the UK, within the meaning of s 36(3) of the Migration Act. In proceeding to deal with that issue without first determining whether the applicant had a well-founded fear of persecution for a Convention reason in Sri Lanka, the Tribunal relied on Minister for Immigration & Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543, Rajendran v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 526 and Minister for Immigration & Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1. Although it might be thought that there is no point in discussing the right of an applicant for a protection visa to enter and reside in a third country unless it is first ascertained that the applicant concerned has a well-founded fear of persecution for a Convention reason in his or her own country, I accept that it was open to the Tribunal to take this course.
12 To understand the manner in which the Tribunal approached the question of the applicant's right to enter and reside in the UK, it is necessary to set out a substantial passage from the Tribunal's decision:
"The Applicant claims that he has no right to enter and reside in the UK as his student course has been cancelled. He provided a letter from his college to that effect, although the letter is silent on whether or not the UK immigration authorities have been informed of that cancellation and have acted to cancel the visa that exists in the Applicant's passport. At face value, the Applicant has a valid passport and a valid visa to enter the UK. According to the information provided by the UK High Commission to the Applicant's adviser, the visa remains valid for re-entry to the UK until its expiry date. The Applicant did not wish to disclose his personal details to the High Commission as that may have resulted in the cancellation of his visa and a potential adverse finding that he had acted out of pure self-interest to pre-empt the possibility of being effectively protected in the UK and thereby create protection obligations for Australia. He did, however, support the notion that the Tribunal could make personal inquiries. However, the Tribunal does not feel bound to make such inquiries and is also mindful that, if it did so, it may jeopardise the opportunity for the Applicant to obtain effective protection in the UK.
There was discussion at the hearing as to the relevant time "the right to enter and reside in" a third country must exist for the purposes of section 36(3). It was submitted that it must be a presently existing right rather than a past right and that it must extend into the reasonably foreseeable future. In the Applicant's case, it was argued that even if his current UK visa is valid at the time of determination, there is a strong likelihood it would be cancelled on his return to the UK as questioning would reveal that his course registration has been cancelled. Thus his right to enter and reside in the UK would, foreseeably, cease to exist.
It is apparent that Parliament has the intention to curb "forum shopping" by declining to extend protection to applicants who have protection elsewhere. In the Applicant's case, he claimed he went to the UK to seek protection yet he did nothing to achieve his stated purpose. He said that he had protection because he had a student visa, yet he left while that visa was still valid and has failed to return to the UK during its ongoing period of validity. His failure to take all possible steps to avail himself the (sic) right to continue to reside in the UK or to enter and reside there after his departure for Australia would seem to attract the operation of section 36(3) even if his rights have now expired or, at least, such a failure would be contrary to the spirit of the section and the intention of Parliament.
In any event, on the basis of the information that is currently before it, the Tribunal is satisfied that the Applicant still has a right to enter and reside in the UK, as evidenced by his possession of a valid passport and visa. That is a right that exists at the time of determination and, on the face of the Applicant's documents, continues until August 2001. As mentioned above, the Tribunal does not feel obliged to compromise that right by making inquiries to UK authorities that might result in the cancellation of his visa. In those circumstances, the Applicant can return to the UK as a temporary resident by the right granted by his student visa.
The Tribunal notes that the Court concluded in the case of MIMA v Gnanapiragasam & Ors that it would suffice for the purposes of effective protection if the applicants in that case could return to Germany, at least as temporary residents, and have their claims to refugee status considered in accordance with the Convention (at 18 - 19). That approach has been approved by Lehane J in Minister for Immigration and Multicultural Affairs v Ramalingam [1999] FCA 451 at para. 14 and Beaumont J in Minister for Immigration & Multicultural Affairs v Tas [2000] FCA 1657 at para. 28. The Tribunal is satisfied that section 36(3) refers, at least, to a right to enter and reside, even if temporarily, that exists at the time of determination. The Applicant presently has documentary evidence of such rights. If, as the Applicant in the present case foresees, his visa is cancelled on arrival when it is discovered his course registration has been cancelled, he has the additional right to seek protection under the Refugees Convention and Protocol. The UK, as a signatory to the Convention and Protocol would entertain his claim and permit him to enter and reside in the UK until his claim was resolved. In arriving at that conclusion, the Tribunal is satisfied that the UK conscientiously discharges its obligations under the Convention and would not refoule the applicant to any territory where he might be persecuted. The refusal or failure of the Applicant to utilise the existing rights granted by UK authorities and to take the step of returning to the UK would deprive him of Australia's protection obligations through the operation of section 36(3)."
13 The Tribunal then rejected a claim of the applicant that he would face persecution in the UK, having already been threatened by the LTTE while he was there. There is no complaint made to the Court about the Tribunal's rejection of that claim.
14 At the conclusion of its reasons for decision, the Tribunal said:
"In summary, the Applicant has effective protection in the UK as he has a right to enter and reside without a risk he will be refouled in breach of Article 33 of the Convention and without a real chance of being persecuted for Convention reasons in the UK. In those circumstances, the provisions of section 36(3) apply to the Applicant and Australia does not have protection obligations to him.
Having concluded that the Applicant has effective protection in the UK, it is unnecessary for the Tribunal to assess the Applicant's claim to be a refugee in Sri Lanka. To conclude, the Tribunal is satisfied that as a matter of practical reality and fact effective protection is available to the Applicant in the UK and, therefore, he does not engage Australia's protection obligations under the Refugees Convention and Protocol. Therefore, he does not meet that criterion for the purposes of granting a protection visa."
15 In fact, the Tribunal had not considered the question of effective protection in the UK, as distinct from the question whether the applicant had a right to enter and reside there of the kind referred to in s 36(3) of the Migration Act. It is now established clearly that the judge-made law that has developed with respect to effective protection in a third country has not been subsumed by the provisions of s 36(3) of the following subsections. See Applicant C at [62] - [65] per Stone J, with whom the other members of the Full Court agreed. I must therefore deal with the Tribunal's conclusion that the applicant had a right to enter and reside in the UK, within the meaning of s 36(3).
16 Neither the Tribunal nor counsel who appeared before me had the benefit of the judgment of the Full Court in Applicant C, delivered on 18 September 2001. In that case, Stone J delivered a judgment in which the other two members of the Court concurred (save that I differed from her Honour on one point not material to the present case). The Court took the view that a "right" for the purposes of s 36(3) of the Migration Act is an enforceable right. The existence of a valid, current visa, authorising its holder to enter a particular country, may give rise to such a right. It will not necessarily do so. At [58] - [59], Stone J said:
"A right may be "enforceable" even though it can be revoked without notice and even without reasons. For example, the Minister has extensive powers, listed in s 116 of the Act, to cancel visas. While that visa is extant, however, the non-citizen has, in my opinion, an enforceable right, namely the right not to be prevented from entering Australia. The non-citizen would be entitled to enforce his or her right of entry against, for example, an officious immigration officer who purported to deny entry despite the non-citizen having a valid visa for entry.
Undoubtedly the extent of the Minister's power may, as a practical matter, make the enforceability of the right appear illusory. This reflects the vulnerability of the right but does not, in my view, cast doubt on its existence. The analysis may well be different if, at the time the application for a protection visa is under consideration, the circumstances which permitted the grant of the right no longer exist or the factors warranting its revocation are established. Whether or not there could be said to be a right to enter the relevant country in such a case would depend on all the circumstances of that case. However, as this is not an issue in this proceeding, it is unnecessary to consider the point further."
17 The reservation that her Honour expressed about visas as enforceable rights is important to the present case. In my view, before it is possible to be satisfied that a person has a right to enter and reside in another country, where the possession of a current visa is the right asserted, it is necessary to examine the nature of that visa, the circumstances in which it was granted and whether the factors warranting its revocation exist. A visa cannot be said to afford a right to enter and reside in a country if it is bound to be revoked as soon as its holder attempts to make use of it by entering the country.
18 In the present case, the applicant attempted to make the case that his student visa was liable to be cancelled as soon as he attempted to re-enter the UK, because he had abandoned his course of study and left the UK. The Tribunal did not make a finding as to whether such cancellation was likely to happen. It did not reject the proposition; rather, it seems to have assumed that the applicant's case had some strength. On the one hand, the Tribunal concentrated on the existence of the visa. It said that at "face value", the applicant had a valid passport and a valid visa to enter the UK. It repeated that the right to enter and reside in the UK existed at the time of determination and "on the face of the Applicant's documents" would continue until August 2001. On the other hand, it seems to have recognised that even attempts to obtain information about the attitude that the UK authorities would take to any attempt by the applicant to enter the UK relying on the visa "may jeopardise the opportunity for the Applicant to obtain effective protection in the UK", or would "compromise that right by making inquiries to UK authorities that might result in the cancellation of his visa." The Tribunal also expressed its view as to what might happen if the visa were to be cancelled on arrival. It said that the applicant had the additional right to seek protection under the Convention and that the UK, as a signatory to the Convention would entertain his claim and permit him to enter and reside in the UK until his claim was resolved.
19 The question whether the applicant's visa was liable to be cancelled on his arrival in the UK was crucial to the issue of whether he had a right to enter and reside in the UK. If, on arrival, his visa was bound to be cancelled, it could not be said that the visa constituted a right to enter and reside. Before it could come to the conclusion that the applicant had a right to enter and reside in the UK, the Tribunal was bound to resolve that question. In failing to deal with the applicant's case that his visa was likely to be cancelled on arrival, the Tribunal therefore made an error of law. The error of law could be characterised as an error involving an incorrect interpretation of the applicable law, or as an incorrect application of the law to the facts as found by the Tribunal. That is to say, either the Tribunal misunderstood the nature of the right that must exist before s 36(3) can be applicable, or it failed to make a finding on the issue whether the applicant's student visa gave rise to such a right.
20 I am also of the view that the Tribunal was in error, as a matter of law, in holding that a right to enter and reside, for the purposes of s 36(3), exists when the country concerned is a signatory to the Convention. It would be possible to read s 36(3) as imposing on every applicant for a protection visa an obligation to approach every other country that has accepted obligations under the Convention before approaching Australia. For a number of reasons, that cannot be the proper construction of the subsection. Australia's obligations under the Convention are coextensive with those of other signatories. It would be a repudiation of Australia's obligations if Australia were to assert that it owed protection only to a person with a well-founded fear of persecution for a Convention reason in his or her own country who had failed to claim the protection of every other country which has undertaken obligations under the Convention. A statute should not readily be construed as repudiating Australia's international obligations. In the second place, the purpose of the legislation is apparent from its terms, from its context in the Migration Act, from its context in the judge-made law relating to protection in a third country, from the explanatory memorandum accompanying the bill that became the Border Protection Legislation Amendment Act 1999 (Cth), from the tabling speech of Senator Patterson when that bill was tabled and from the words of Senator Patterson in response to a question from Senator Bartlett in relation to that tabling speech. These matters are dealt with extensively in the judgment of Stone J in Applicant C and I do not need to repeat them in detail. What s 36(3) requires is an existing right to enter and reside. Such a right will only exist with respect to a country with which an applicant for a protection visa has some kind of connection, usually if not invariably by reason of having spent time in that country and the ability to resume residence there. If it were the case that the present applicant's student visa would be cancelled by the UK authorities as soon as he arrived in the UK, the fact that he might then be able to make his claim to protection to those authorities, who might admit him to the country while they deal with it, does not constitute a right to enter and reside for the purpose of s 36(3).
21 The applicant has therefore succeeded in establishing the ground for judicial review of the Tribunal's decision specified in s 476(1)(e) of the Migration Act. The applicant also sought to rely upon the ground specified in s 476(1)(g), that there was no evidence or other material to justify the making of the decision, on the basis referred to in s 476(4)(b), namely that the Tribunal based the decision on the existence of a particular fact and that fact did not exist. Two such non-existent facts were alleged. The first was that the UK, as a signatory to the Convention, would entertain the applicant's claim for protection and permit him to enter and reside there until his claim was resolved. The second was that the applicant had the right to re-enter and reside in the UK. Counsel for the applicant did not press this ground. In my view, it would not have been made out in any event. There was no evidence that either fact did not exist.
22 The amended application in this proceeding also contained a reference to the ground specified in s 476(1)(a), alleging that the Tribunal had failed to observe a procedure that was required to be observed in connection with the making of the decision, being a procedure required by s 430 of the Act. Counsel for the applicant abandoned this ground on the basis that authority now renders it impossible to establish. See Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1.
23 I should point out that, if it had been the case that the Tribunal considered the question of effective protection in the UK, as well as the question whether the applicant had a right to enter and reside there pursuant to s 36(3) of the Migration Act, I am also of the view that the Tribunal would have been bound to consider the case put by the applicant that his student visa was very likely to be cancelled on his arrival. The effective protection contemplated by the judge-made law to which I have referred has an element of practicality. Unless the person concerned can travel to and gain entry to the third country, as a practical matter, effective protection is not available for that person in that country. The Tribunal would have been bound as a matter of law to make a finding as to whether the student visa was likely to be cancelled on arrival.
24 The applicant having succeeded in establishing the ground of error of law, I should make an order pursuant to s 481(1)(a) of the Migration Act, setting aside the decision of the Tribunal. I should also make an order pursuant to s 481(1)(b). It appears to be accepted that that provision is broad enough to permit an order referring the matter the subject of the decision to the Tribunal, with a direction that the Tribunal be re-constituted for the purpose of its further consideration of the matter. Such a direction would be appropriate in the present case. The Minister should be ordered to pay the costs of the successful applicant of this proceeding.
25 The determination of the matter will now involve a consideration of the applicant's claim to have a well-founded fear of persecution for a Convention reason if he should return to Sri Lanka. This is because the period for which the applicant's student visa was valid ended, as the Tribunal found, in August 2001. The absence of a visa makes it unlikely that the Tribunal will even be able to consider whether s 36(3) of the Migration Act applies to the applicant, or whether the applicant has available to him effective protection in the UK. I am aware that the expiry of the period of the student visa has occurred while judgment has been reserved in this case. I should not want it to be thought that I have delayed the delivery of judgment in order to allow this event to occur. During the hearing on 17 July 2001, I raised the question whether it would be appropriate for me to await the delivery of the Full Court
judgment in Applicant C before giving judgment in this case. Counsel for the Minister accepted that it would be appropriate for me to await the Full Court's deliberations.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.