SZTOX v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from an order of the Federal Circuit Court of Australia on 7 November 2014 dismissing the applicant's application for judicial review pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Rule 44.12(1)(a) provides that: (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; or … 2 Leave to appeal is required because rule 44.12(2) of the Federal Circuit Court Rules provides that: To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory. 3 By section 24(1A) of the Federal Court of Australia Act 1976 (Cth) an appeal may not be brought from an interlocutory judgment of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth, in this case the Migration Act 1958 (Cth) (the Act), other than with leave. 4 The principles relevant to the grant of leave are clear. To obtain a grant of leave the applicant must show both that there is sufficient doubt as to the correctness of the primary decision so as to warrant review on appeal and that, if the primary decision is wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. In the present case the first limb is critical because there is no doubt that, if the judgment below is wrong, the applicant would suffer substantial injustice if leave is refused. 5 The applicant was not represented before the Federal Circuit Court. The grounds of his application for review were described by the primary judge at [19] as being "in narrative form". Ground 2 of his application asserted bias on the part of the Refugee Review Tribunal (the Tribunal) but also referred to s 36(3) of the Migration Act. Section 36(3) provides as follows: 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. 6 The Tribunal made the following statement at [51] of its reasons: 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. 7 In his reasons for judgment (SZTOX v Minister for Immigration [2014] FCCA 2861), which were delivered ex tempore, Judge Nicholls considered this reasoning of the Tribunal as follows: [35] A bare disagreement with the Tribunal's conclusion, as the applicant has presented now, does not give rise to any arguable case. The Tribunal's analysis, and approach, in relation to s 36(3) and its references properly to ss 36(4), (5) and (5)(a) of the Act do not reveal legal error. Its approach was consistent with the understanding of the concept, or the term, of "right to enter and reside in" as it appears in s 36(3), and what was relevantly said by the Full Federal Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35 (see [30] - [35] and [72] - [79] per Buchanan J, with whom Tracey, Robertson and Griffiths JJ agreed). [36] I agree with the submissions made by the Minister today that the Tribunal's analysis (at [51]…) makes reference to the relevant, correct test that applies in relation to s 36(3) of the Act, and note in that regard, that the Tribunal's satisfaction was based on a matter of "practical reality". Ground two also does not raise any arguable case for the relief that the applicant seeks. 8 Ms Stone, the solicitor appearing for the respondent, noted that subsequent to the filing of the respondent's written submission she had become aware of two decisions of the Federal Circuit Court (Judge Manousaridis) which, by reference to reasoning of the Tribunal expressed in the same terms and by reference to the same material, had reached a contrary conclusion. 9 In SZTOG v Minister for Immigration [2015] FCCA 180 (SZTOG), a judgment published on 30 January 2015, the Tribunal had found that "as a matter of practical reality, the applicant as a Nepalese national has a right to enter and reside in India". Following an extensive examination of relevant authorities which culminated in the decision of the Full Court, Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91 (SZRHU), his Honour held that in reasoning by reference to the matter as one of "practical reality" the Tribunal had misapplied the decision in SZRHU. 10 In SZRHU Buchanan J, with whom Tracey, Robertson and Griffiths JJ agreed, held that the Tribunal had erred by construing s 36(3) of the Act as requiring a legally enforceable right to enter and reside in India and in concluding that the Treaty of Peace and Friendship Between India and Nepal 1950 (the Treaty), vested such a legally enforceable right in citizens of Nepal to enter and reside in India. In so concluding their Honours held that the reasoning of Allsop J (as he then was) in V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408; [2001] FCA 1018 should be adopted. Allsop J had said at [31] that: …I see no reason to restrict the meaning of the word "right" to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning a liberty or permission or privilege which does not give rise to any particular duty upon the state in question. Such a liberty, permission or privilege would obtain its effective substance from its grant and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise, rather than from the existence within the positive law of the state in question of a correlative duty, justiciable and enforceable in law, to recognise the right. 11 In SZRHU, at [90] Buchanan J said: The RRT in each of the present cases was in error to conclude that the terms of the Treaty represented or reflected a legally enforceable right to enter and reside in India. The RRT failed to apply the correct test to the evaluation of that question. In each case, the RRT should deal again with the applications before it using the correct test. It should pay regard to the actual terms of the Treaty and should also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test. 12 In the course of reaching these conclusions Buchanan J also considered cases dealing with the doctrine of effective protection which had developed before the enactment of s 36(3) of the Act. As Buchanan J put it at [31], insofar as the doctrine of effective protection was concerned, the "weight of authority soon was that a practical entitlement falling short of a legally enforceable right would suffice". As he further explained at [42]: The test which lay at the heart of the doctrine of effective protection, therefore, was one concerned with "practical reality and fact". 13 In SZTOG Judge Manousaridis summarised the relevant principles established by SZRHU at [32] as follows: (a) the word "right" used in s 36(3) of the Act means: (i) a right in the strict sense, being a right to claim against a person some performance, and a corresponding duty on the person against whom the claim lies to render that performance; or (ii) a privilege, liberty, or permission; (b) a "right to enter and reside in" a country means: (i) a right to claim against the appropriate state organ that represents or embodies the country entry and residence in that country, and a corresponding duty by the state organ to grant entry and residence; or (ii) a privilege, liberty, or permission to enter and reside in the country, whether or not such privilege, liberty, or permission is revocable; (c) the "right to enter and reside in" a country must be a right that is granted by or is provided for or otherwise arises under the law of the country; and (d) a "right to enter and reside in a country" may include an inchoate right in the sense of a "right" that, under the law of the third country, will arise on satisfaction of certain preconditions. 14 His Honour concluded in these terms in SZTOG: [33] I now consider whether in the case before me the Tribunal applied a correct understanding of s 36(3) of the Act. In my opinion, it did not. [34] The Tribunal's use of the words "as a matter of practical reality" to qualify the words "the applicant as a Nepalese national has a right to enter and reside in India" indicates the Tribunal considered that it was open to it, when considering the question whether the applicant had the right to enter and reside in India, to consider whether a matter of fact and practicality the applicant would be able to enter and reside in India. Stated another way, the use of the words "as a matter of practical reality" indicates the Tribunal was of the view that it could determine whether the applicant had a right to enter and reside in India without inquiring whether under the law of India the applicant had a strict right to enter and reside in India, or a privilege, liberty or permission to enter and reside in India, provided that, as a matter of fact and practical reality, the applicant could enter and reside in India. That, however, is not the enquiry required by s 36(3) of the Act. Subsection 36(3) requires the Tribunal to ask itself whether, under the law of India, the applicant has or, on the satisfaction of some conditions, the applicant would have, a right in the strict sense, or a privilege, liberty, or permission, to enter and reside in India. … [36] The necessary consequence of what I have said is that I do not accept the Minister's submission that the Tribunal used the words "as a matter of practical reality" to mean "the applicant, as a Nepalese national has a right (in the sense of a "liberty, permission or privilege lawfully given") to enter and reside in India". Nor do I accept the applicant's submission that the Tribunal interpreted s 36(3) of the Act as requiring it to be satisfied of no more than that the applicant had "a capacity or capability lawfully to enter and reside" in India. Nevertheless, for the reasons I have given, the Tribunal misunderstood s 36(3) of the Act. 15 In another judgment published on the same date, SZTQN v Minister for Immigration [2015] FCCA 188 (SZTQN), his Honour reached the same conclusion in respect of reasoning of the Tribunal to the same effect as that in SZTOG. 16 The reasons for judgment in SZTOG and SZTQN do not refer to the contrary decision in SZTOX. 17 It is apparent that the Tribunal in the present case reasoned in the same manner and on the basis of the same material concerning the Treaty and administrative arrangements between India and Nepal as the Tribunal did in both SZTOG and SZTQN. The Minister submitted that the conflicting decisions in the Federal Circuit Court did not give rise to sufficient doubt about the correctness of the decision in SZTOX, for the simple reason that SZTOG and SZTQN were wrongly decided, but I am not satisfied that this argument should be accepted. In contrast to the position of the applicant in SZTOG, the applicant was unrepresented in the Federal Circuit Court and this Court. He required the assistance of an interpreter. He was not in a position to make cogent arguments about the correctness or otherwise of the reasoning in SZTOG and SZTQN. For her part, Ms Stone also indicated that due to the fact that she had only recently become aware of SZTOG and SZTQN, the respondent had not had an adequate opportunity to give full consideration to those decisions. Accordingly, Ms Stone submitted that, while leave was opposed on the ground that SZTOG and SZTQN should be found to be wrong, the issue of leave and the appeal could not be determined together (the leave application only having been listed before me) because the respondent needed more time to consider its position and, if leave were granted, would make more detailed submissions in respect of the appeal than could be made on this leave application. 18 The reasoning in SZTOG and SZTQN is detailed and, on its face, appears cogent. In these circumstances the conflicting authority in the Federal Circuit Court raises a sufficient doubt about the correctness of the decision in SZTOX. As the applicant would suffer substantial injustice were leave to be refused assuming SZTOX to be wrong, it follows in my view that leave to appeal should be granted. 19 I should note two further matters. 20 First, my gratitude to Ms Stone, for being aware of and properly drawing my attention to the recent decisions in SZTOG and SZTQN, should be formally recorded. Ms Stone also informed me, again properly, that she was aware of other decisions of the Tribunal relating to the right of a citizen of Nepal to enter and reside in India which had used the same reasoning process. 21 Second, I consider it appropriate that on the hearing of the appeal the appellate court should have the benefit of a proper contradictor, which may mean that the referral of the applicant under rule 4.12 of the Federal Court Rules 2011 (Cth) is necessary. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.