SZSMG v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Circuit Court of Australia. That judgment dismissed an application for constitutional writs in respect of a decision of the Refugee Review Tribunal ("the Tribunal"), which affirmed a decision not to grant the appellant a Protection (Class XA) visa. The parties are agreed that the Tribunal's decision contained a jurisdictional error and that the Federal Circuit Court fell into error by dismissing the application made to that Court. 2 The parties identify the Tribunal's jurisdictional error as a failure to take into account a relevant consideration in that, for the purposes of ss 36(5) and (5A) of the Migration Act 1958 (Cth), the Tribunal failed to consider whether there was a real chance that the appellant might be returned to China or Hong Kong at the end of the period for which he had the right to enter and reside in the United Kingdom. 3 Notwithstanding the agreement of the parties, the Court must be satisfied that there was jurisdictional error on the part of the Tribunal before it grants relief. It is also appropriate to record the Court's reasons for any finding of jurisdictional error for the information of the Tribunal when it considers the application again. 4 The appellant is a citizen of China who arrived in Australia in 2006 as the holder of a student visa. He had been issued with a British National (Overseas) passport by the United Kingdom consulate in Hong Kong. 5 On 13 September 2012, the appellant applied for a protection visa. The first respondent's delegate refused the application on the basis that he was not satisfied that Australia owed protection obligations to the appellant within the meaning of ss 36(2)(a) or (aa) of the Migration Act. On 11 December 2012, the Tribunal affirmed the delegate's decision. 6 Despite the delegate's findings, the Tribunal assumed in the appellant's favour that the appellant faced a real chance of persecution for a Convention reason and a real risk of significant harm if he were returned to China or Hong Kong. The Tribunal found, however, for the purposes of s 36(3), that the appellant had not taken all possible steps to avail himself of an existing right to enter and reside in the United Kingdom. In relation to ss 36(5) and (5A), the Tribunal found that the appellant did not have a well-founded fear that the United Kingdom would return him to China or Hong Kong on the basis that "it would be an option for [the appellant] to apply for permanent residence/citizenship in the United Kingdom if he so wished." 7 The Tribunal had regard to information that a British National (Overseas) passport holder could apply for an extension of stay from the Home Office and could apply for permanent residence or citizenship after five years. 8 The appellant's application to the Federal Circuit Court challenged the Tribunal's findings with respect to s 36(3), but did not directly challenge the findings in relation to ss 36(5) and (5A). 9 Shortly before the Federal Circuit Court gave its judgment, the Full Court of the Federal Court handed down its decision in SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43. The Full Court did not consider that "a stay of any length" in a third country so long as it involves a "pause in the person's travels" necessarily constitutes temporary residence. It is a question of fact in each particular case whether a period of time during which a claimant can remain in a country constitutes temporary residence. If a right to enter and reside in a country is for a temporary period, the critical questions which arise for the decision maker are "what was likely to occur at the conclusion" of the period and whether or not ss 36(5) or (5A) are engaged. 10 In the present case it was necessary for the Tribunal to consider whether there was a real chance that the appellant might be returned to China or Hong Kong at the end of the six month period during which he had a right to enter and reside in the United Kingdom or at a subsequent time. While the Tribunal referred to the ability of the appellant to apply for an extension of time to remain in the United Kingdom beyond six months and to his ability to apply for permanent residence or citizenship, it did not consider whether there was a real chance that the United Kingdom would return the appellant to China or Hong Kong at the end of the six month period, or some time later. 11 In these circumstances, the Tribunal fell into jurisdictional error in the way identified by the parties. 12 The parties agreed that the order of the Federal Circuit Court dismissing the application and the decision of the Tribunal should be set aside. In fairness to the Tribunal and the Federal Circuit Court, it should be noted that the argument directed to this Court was not directly made to the Tribunal and was not made at all to the Federal Circuit Court. 13 The parties agreed that the first respondent should pay the costs of the appeal, although the first respondent argued that it should not pay the cost of the hearing. The appellant submitted that the order of the Federal Circuit Court that the appellant pay the first respondent's costs in the sum of $6,646 should be set aside and that there should be no order as to the costs of the application to that Court. 14 I have not found the question of where costs should lie an easy one to decide. The factors relevant to costs include: that the appellant has succeeded in the appeal, although not on a ground argued below; that the appellant has another reasonably arguable ground of appeal which has not been decided; that there was a degree of fault by both parties in not drawing the attention of the Federal Circuit Court judge to the relevant passages from SZRTC; and, that the costs of today have been contributed to by the inability of the parties to satisfy me that the error that they initially identified in their draft consent order was jurisdictional error. 15 In all of the circumstances, I consider that the just orders as to costs are that the first respondent should pay the appellant's costs of the appeal other than the costs of today, that the costs order made by the Federal Circuit Court be set aside and that there be no order as to the costs of the application to the Federal Circuit Court. 16 I add that the Tribunal's decision demonstrates the inconvenience and difficulty that can arise when matters are assumed, rather than determined. If the Tribunal had decided the question of whether Australia owes protection obligations to the appellant instead of assuming that matter in favour of the appellant, it is at least possible that the application to the Federal Circuit Court and the appeal to this Court might not have eventuated. Instead, the application is now no further advanced than when it was first before the Tribunal. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.