CONSIDERATION
24 Section 36 of the Act contains a cascading series of qualifications. Sub-section (3) operates as a qualification on sub-section (2). Sub-sections (4)-(5A) then operate as qualifications on sub-section (3): see NBLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1051 at [38] (Emmett J), a construction endorsed on appeal by Bennett and Graham JJ; NBLC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 151 at 155, 166-7; and see also NBGM v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 522 at 529 (Black CJ).
25 The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s 36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s 36(3) and determine whether or not the applicant is a person to whom that sub-section applies. If it does not, the "gateway", created by s 36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s 36(3) applies. If s 36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia's international obligations under the Refugee Convention are met, limit the operation of s 36(3) and keep the "gateway" open.
26 This is the context in which s 36(3) falls to be construed.
27 By s 36(3) Australia is deemed not to have protection obligations to 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" any third country. The relevant question posed by the sub-section is whether it can be said, having regard to all of the circumstances, that an applicant for a protection visa has a right (in the broad sense recognised by the Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91, (2013) 215 FCR 35) to "reside …. temporarily" in the third country. There is an obvious tension between the stability which is suggested by the word "reside" and the transience implied by the word "temporarily". That, however, is a tension which must be resolved on the facts in each case. It is not a warrant for extending the meaning of "temporarily" such that it covers the whole of the period (which may or may not be able to be ascertained at the time at which the relevant decision is made) during which the applicant remains subject to persecution in his or her country of origin.
28 In the context of s 36(3) the word "temporarily" does not introduce any temporal limitation. Such a limitation may be inherent in the word "reside" because residence in a place suggests something more than a short or passing visit. Any such inherent temporal limitation is not, however, linked with protection obligations owed to an applicant. Such protection is provided by the qualifications which are to be found in sub-sections (4), (5) and (5A) of s 36. These provisions may well be otiose or of marginal utility were the period of residence contemplated by s 36(3) to be held to be co-extensive with the period during which the applicant stood in need of protection under the Refugee Convention.
29 The Tribunal was led to adopt a different construction of s 36(3) by some observations of Lee J in WAGH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 194 at [34], (2003) 131 FCR 269 at 278. His Honour there said that:
"The words 'right to enter and reside in, whether temporarily or permanently… any country …. including countries of which the non-citizen is a national' mean an existing right which a person, who claims to be a person to whom the Convention applies, may exercise, being a right to enter, re-enter, and reside in a country other than Australia pursuant to a prior acceptance or acknowledgment by that country that it will accord that person protection from the risk of persecution that would exist if that person were returned to his or her country of nationality or habitual residence. The word 'temporarily' is inserted to acknowledge that the right to reside in another country may not be permanent but the right to reside and receive protection in the other country, at least, will be co-extensive with the period in which protection equivalent to that to be provided by Australia as a Contracting State would be required."
30 These observations were made before the High Court, in NAGV v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161, rejected the notion that a doctrine of "effective protection" should be read into s 36(2) of the Act and before a Full Court of this Court, in SZRHU, held that the "right" referred to in s 36(3) was not confined to legally enforceable rights but extended to a liberty, permission or privilege lawfully given. As the passage quoted from Lee J's reasons makes clear, his approach to the construction of the word "temporarily" was informed by both of these concepts. His Honour was also moved by what he saw as a perceived need to construe s 36(3) in a manner that was consistent with Australia's obligations to refugees under the Refugee Convention and international law: see at 277-278 [30]. The construction favoured by his Honour was not adopted by other members of the Full Court in WAGH; nor has it subsequently been adopted in other cases.
31 A finding that it was likely that the circumstances in the appellants' home country which gave rise to protection obligations would persist or be likely to persist for more than six months would not, in our opinion, compel the conclusion that the appellants did not have a right to reside temporarily in the third country. On the contrary, we consider that the appellants' right to enter other EAC countries and stay there for up to six months, constituted such a right.
32 It would be open to a decision-maker, consistently with the provisions of s 36(3), to take the view that the appellants' right to enter and reside in another EAC country for up to six months constituted a right of temporary residence. If the decision-maker so decided a question would then arise as to what was likely to occur at the conclusion of the six month period. One possibility might be that the third country would extend protection to the applicant if there was a basis for apprehending persecution of the applicant in his or her country of origin. Another possibility might be that the applicant could move on to another EAC country for a further six month period. If, however, at the expiry of the first six months, there was reason to expect that the third country would return the applicant to his or her country of origin or send him or her somewhere else where the applicant might have reason to fear persecution, the decision-maker would be required to determine whether or not sub-sections 36(4), (5) or (5A) were engaged. In this way the legislative purposes of avoiding forum shopping and ensuring that Australia's protection obligations under the Refugee Convention were honoured would both be satisfied.
33 In our view the Tribunal, in each case, applied the wrong test when it held that the temporary period of residence, contemplated by s 36(3), must be co-extensive with the period during which protection obligations persisted in relation to an applicant by reason of the circumstances confronting the applicant in his or her country of origin. This was a material error.
34 In SZRHU Judge Cameron adopted a construction of s 36(3) which substantially accords with the meaning which we favour. Specifically, he found that the Tribunal erred by importing temporal considerations relating to protection obligations into s 36(3). We do not, however, consider that "a stay of any length" in a third country so long as it involves a "pause in a person's travel" necessarily constitutes temporary residence. Nor do we consider that to satisfy any "abode" element of temporary residence, the affected person "would have to be able to stay in the third country for a period which would ordinarily require him or her to obtain accommodation." The appeal from his decision should be dismissed.
35 In SZRTC and SZRTD Judge Driver held that the words "temporarily" and "residence" in s 36(3) "should be construed by reference to the qualifying provisions in ss.36(4), (5) and (5A)." His Honour would have gone further than the Tribunal, holding that it was necessary for it, in applying s 36(3), to consider whether the period during which an applicant had a right to stay in the third country would be sufficient to access more specific protection for a longer period, which would, almost inevitably, involve it in consideration of ss 36(4)-(5A), and in particular sub-sections (5) and (5A). In doing so, in our respectful opinion, he erred. Nonetheless, the orders which he made quashing the Tribunal's decision and remitting the two matters for hearing according to law were correct, albeit for the wrong reasons. The orders which he made were supportable because the Tribunal made the same error in these cases as it did in SZRUH. The appeals in SZRTC and SZRTD should, therefore, also be dismissed by upholding the Minister's notice of contention.
36 Each appeal should be remitted to the Tribunal to be heard and determined, consistently with these reasons, and on the basis of such relevant material as may be before it. It will be necessary for the Tribunal to consider, on that material, whether any of the provisions of sub-sections 36(4), (5) or (5A) operate to qualify the effect of s 36(3). There was evidence relating to a number of matters before the Tribunal on the hearing of each of the appeals from the delegate with which, because of the view it took of the meaning of s 36(3), it did not deal. There was, for example, evidence that each of the member countries of the EAC was a signatory to the Refugee Convention. This raised the possibility of protection applications being made in those countries while the appellant was present in them. Whether such protection could be regarded as effective, however, may have been called into question by the appellants. Each gave evidence to the Tribunal which raised the prospect that his or her persecutors in Burundi might pursue him or her into other EAC countries. It may also be observed that, although the Tribunal referred to Regulation 5 of the EAC Regulations on the Free Movement of Persons as the source of the right of citizens of Burundi to enter other EAC countries and receive a pass "to stay for up to six months", it did not, in its findings, refer to Regulation 5.4 and 5.5 which provides for a person holding such a pass to apply, prior to its expiry, for an extension and the obligation on the third country to "renew the pass where the applicant provides justification for a longer period of stay." These are all matters which are of potential relevance in determining whether the exclusionary provisions of s 36(3) are, in the circumstances, qualified by the succeeding sub-sections.