SZUNZ v Minister for Immigration and Border Protection

Federal Court of Australia (Full Court)|2015-03-13|Before: Wigney JJ, Buchanan J

Background 80 The judgments of Buchanan and Flick JJ both set out the relevant background facts and procedural history at length. It is accordingly unnecessary for me to rehearse it in any detail. 81 The appellant is stateless. He has no country of nationality. His place of birth and origins are, to an extent, uncertain. He claims he was born in Las Palmas in the Canary Islands, a region of Spain. The nationality of his mother at the time of his birth is uncertain, though it appears she was originally from the Western Sahara region of North Africa. The appellant claims that when he was still young, he returned with his mother to the Western Sahara where he lived with her in a camp until he reached the age of six. 82 There was and is a dispute in respect of sovereignty over the territory covered by the Western Sahara. Morocco claims that it controls much of the territory and that it administers Moroccan law through Moroccan institutions in the territory it controls. Rival claims are made by the so-called Sahrawi Arab Democratic Republic and, possibly, Algeria. 83 Perhaps not surprisingly, the appellant has no documentary evidence of his birth or his residence, in his early years, in the Western Sahara. 84 Following the death of his mother when he was six years old, the appellant claims that he lived in orphanages in Las Palmas and Madrid for a few years. He then lived in Paris, Belgium and the Netherlands. He there fell in with a criminal gang and over the following years spent periods of time in the Netherlands, Germany, Denmark and Sweden. At various times he used false passports in different names. 85 In 2004, the appellant entered Norway using a passport in somebody else's name. There he obtained a temporary residence permit which was valid until 24 September 2010. It appears that the residency permit was in the name of the person whose passport (or false passport) the appellant used to enter Norway. The appellant resided in Norway between 2004 and 2010. On various occasions during that period he travelled, or he attempted to travel, to various countries using false passports. He was deported back to Norway on a number of occasions. He claims to have fathered a child to a Norwegian citizen in 2007. 86 In January 2010, the appellant arrived in Australia, apparently on a flight from Abu Dhabi, without any travel documentation. He has been in immigration detention in Australia since then. 87 In February 2010, the appellant applied for a protection visa. He later withdrew that application and lodged a second application relying on s 36(2)(a) of the Act. That application was refused. Following the insertion of s 36(2)(aa) into the Act in 2012, the appellant again applied for a protection visa under the criterion in that paragraph of s 36 of the Act. That application was also refused. The Tribunal affirmed that refusal decision on review. 88 The appellant then challenged the Tribunal's decision in judicial review proceedings in the Federal Circuit Court. He alleged that the Tribunal made jurisdictional errors in deciding his review application. On 17 October 2014, the Federal Circuit Court handed down a judgment dismissing his application. It is from that judgment that the appellant now appeals.

Relevant provisions of the Act 89 Section 36(2)(aa) of the Act provides that a criterion for a protection visa is, relevantly, that the applicant is "a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm." 90 It can be seen that this criterion requires the identification of a "receiving country". The identification of a relevant receiving country (or countries) for the purposes of s 36(2)(aa) of the Act lies at the heart of this appeal. 91 At the time of the Tribunal's decision, s 5 of the Act contained the following definition of "receiving country": receiving country, in relation to a non-citizen, means: (a) a country of which the non-citizen is a national; or (b) if the non-citizen has no country of nationality - the country of which the non-citizen is an habitual resident; to be determined solely by reference to the law of the relevant country. 92 This definition was amended in December 2014. It is common ground, however, that the amended definition is not relevant to the determination of this appeal. It does not assist in the construction of the definition in the form it was in at the time of the Tribunal's decision.

The Appellant's claims concerning habitual residence 93 It has always been common ground that the appellant has no country of nationality. In these circumstances, a key issue for the Tribunal in determining whether the appellant satisfied the relevant criterion in s 36(2)(aa) of the Act was what country was, or what countries were, receiving countries by reason of the fact that the appellant was an "habitual resident". It was that receiving country (or those receiving countries) that the appellant's claims concerning the risk of significant harm were to be assessed against. 94 The appellant initially claimed that he was an habitual resident of the Western Sahara. This was said to flow from the fact that the nature of the appellant's residence in Western Sahara at the time of his birth offered him some "security, status and entitlement to remain." He claimed that he was at risk of significant harm if returned to Western Sahara in the form of discrimination, harassment, torture or imprisonment by the Moroccan government. He also claimed that he would be placed in a refugee camp, where he would be afforded no protection from the criminal gang that he was involved with when he lived in Europe. 95 The appellant initially disclaimed that he was an habitual resident of Norway. He pointed out that he had no permanent residency and no present right to enter or reside in Norway. His temporary residence permit had expired. He also claimed that he never had any permanent presence in Norway in any event because he travelled extensively throughout Europe as part of his work for the criminal gang. 96 The appellant did, however, preserve his position in relation to Norway. He submitted that if it was found that Norway was his place of former habitual residence and he was returned to Norway, he was at risk of significant harm from the members of the criminal gang with which he was previously associated. 97 Not surprisingly, the issue of the place of the appellant's habitual residence was addressed at the hearing before the Tribunal. The appellant reiterated his contention that his claims should be assessed against Western Sahara as the receiving country or, if the Tribunal did not accept that, Norway. His contention that Western Sahara was the country of his habitual residence appeared again to be based largely on the fact that he spent his early years of life living in the Western Sahara with his mother. He did not claim that he had any other link or connection with the Western Sahara. 98 During the hearing the Tribunal raised with the appellant and his advisors questions concerning the immigration laws of the Western Sahara, Morocco, Algeria and Norway. It is tolerably clear, however, that the Tribunal was particularly concerned about the uncertainty regarding the appellant's origins and place of birth. Following an exchange concerning Moroccan and Algerian law, the Tribunal said to the appellant: "if you cannot ascertain who you are and where you were born and who your parents were then the reference to those countries laws will not help you (AB 185)." 99 Following the Tribunal hearing, the appellant, through his advisors, provided supplementary written submissions to the Tribunal. In relation to the receiving country, the appellant submitted that the only country which could be considered to be a receiving country in the appellant's case was Norway. This apparent change in position may or may not have been the product of the potential difficulties with the appellant's case concerning the Western Sahara which the Tribunal pointed out during the hearing.

The Tribunal's decision and reasons 100 The Tribunal accepted the appellant's supplementary (and final) submissions in relation to his receiving country. It found that Norway was the receiving country for the purposes of s 36(2)(aa) of the Act in the appellant's case. Unfortunately for the appellant, however, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed to Norway (as receiving country), there is a real risk that he will suffer significant harm. 101 It is unnecessary to consider the Tribunal's reasons for so finding. This aspect of the Tribunal's decision was not challenged below and is not challenged on appeal. 102 The focus of the appellant's challenge to the Tribunal's decision was and is the Tribunal's finding that Norway is the appellant's sole receiving country because he was not an habitual resident of any other country. The appellant claims, in particular, that the Tribunal erred jurisdictionally in concluding that the Western Sahara, Morocco or Algeria were not receiving countries. 103 The critical passages from the Tribunal's reasons relating to the Western Sahara as a possible receiving country are in [42] of the Tribunal's reasons: For the reasons that follow, the Tribunal is not satisfied that Western Sahara is a 'receiving country' for the purpose of this application. • The applicant has been unable to provide sufficient detail, documentary or other evidence to establish his identity or his connection with the territory of Western Sahara. According to his claims, it is possible that he lived there until about the age of six, but this is far from certain. It is also uncertain whether he had any legal status as a 'habitual resident' there. • The submission of 28 February 2014 contends that Western Sahara could be considered a country of former habitual residence (again, in relation to refugee protection) because his residence there 'offer[ed] him some security, status and entitlement to remain'. It is difficult to reconcile this with the applicant's other claims that he was there as an undocumented child, only up to the age of six or so, and that he has only fleeting memories of the desert, violence and an unsettled life. The Tribunal is not satisfied on the available material that the applicant ever had any 'status' and 'entitlement' (by implication, legal status) in that place. 104 Morocco and Algeria only really arose as possible receiving countries because of the rival claims of sovereignty over the territory in the Western Sahara. In relation to those countries, the Tribunal found (at [44]) that the appellant "has nothing to demonstrate any actual links with these places."

The judgment of the Federal Circuit Court 105 In the Federal Circuit Court, the appellant relevantly claimed that the Tribunal erred jurisdictionally because it applied the wrong legal test in determining whether Western Sahara, Morocco or Algeria were receiving countries. In essence, the appellant claimed that the Tribunal erroneously approached the question of habitual residence by considering the appellant's legal rights and legal status as a resident of those countries. 106 The primary judge rejected that contention. 107 In relation to the definition of "receiving country" in s 5 of the Act, insofar as it relates to stateless persons, the primary judge said (at [57]): While it may be readily accepted that nationality can be determined by reference to the law of the relevant country, the question of habitual residence would seem to me to be principally a question of fact. That is not to say that habitual residence might not be established in part by reference to the law of the relevant country but the inquiry that a decision maker must make is different from the inquiry that a decision maker would make in relation to s 36(3) of the Migration Act. In my opinion, a person may be an habitual resident of a country even if they do not have a right (whether legal or otherwise) to enter and reside in that country. Residence may be habitual even if unlawful. On the other hand the law of a country may establish conclusively whether a person can be taken to be a resident of that country, whether habitual or otherwise. 108 In this Court, both the appellant and the respondent, the Minister for Immigration and Border Protection, embraced the primary judge's construction of the definition of receiving country. 109 The critical question for the primary judge was whether the Tribunal correctly applied this test. In relation to that question, the primary judge concluded as follows (at [60] - [61]): The applicant complains that the Tribunal erred in considering countries other than Norway because it focused on a lack of information about any legal rights of residence the applicant might have in those countries. I agree with the Minister that that complaint mischaracterises the Tribunal decision. Any reference to legal rights in a particular country is meaningless without a proper factual foundation. The applicant was unable to give the Tribunal (and the Tribunal had no basis for exploring the matter independently) a factual foundation for an assessment of his legal rights of entry into countries other than Norway. The applicant initially claimed before the Tribunal that he should be assessed against Western Sahara but later recognised that he could not establish a sufficient factual connection to Western Sahara to enable the Tribunal to make a proper assessment. The applicant finally contended that Norway should be considered as the appropriate country of reference. While that contention before the Tribunal does not give rise to any estoppel on judicial review, the Tribunal should not be found to have fallen into error by relying on the case put to it.

Appeal Grounds and Submissions 110 The appellant raises two grounds of appeal. 111 First, he contends that the primary judge was wrong to conclude that the Tribunal had applied the correct test in relation to habitual residence. In relation to this ground, the appellant submits, in essence, that whilst both the Tribunal and the primary judge accepted that habitual residence principally raised a question of fact, they both treated the appellant's legal rights or legal status as determinative. 112 Second, the appellant contends that the primary judge erred in concluding (at [61]) that the Tribunal should not be found to have fallen into error by relying on the case put to it. He submits that the primary judge erred by somehow restricting his consideration of jurisdictional error by reference to the appellant's final submission that Norway was the only receiving country.

Did the Tribunal apply the incorrect test? 113 The short answer to this question is "no". Despite some somewhat questionable reasoning on the part of the Tribunal, ultimately it cannot be concluded that the Tribunal erred jurisdictionally in the approach it took to the question of habitual residence. The primary judge was correct to so conclude. 114 The starting point is the proper construction of the definition of "receiving country" in s 5 of the Act insofar as it relates to persons who have no country of nationality. Both the Tribunal and the primary judge either expressly or implicitly construed the definitional provision as requiring the determination of the country of which the non-citizen is an habitual resident to be made "solely by reference to the law of the relevant country." That is understandable given that the provision is structured in a way which suggests that those qualifying words appear to apply to both paragraphs (a) and (b) of the definitional provision. Like Buchanan J, however, I doubt that this is the correct construction. 115 The qualifying words can readily be seen to apply to para (a) of the definition. Most, if not all, countries have laws dealing with citizenship and nationality. That cannot be said to be the case in relation to paragraph (b) and the question of habitual residence. Whilst it may be that many, if not most, countries have laws relating to residency, it cannot be assumed that countries have laws dealing with whether a person, who is not a national, is an "habitual resident". If the country has no law dealing with that topic, how can the question whether a person is an habitual resident of that country be determined "solely" by reference to the country's laws? There would be no relevant laws to refer to. What then would be the point of reference? 116 Plainly the definition of "receiving country" insofar as it relates to stateless persons should not be construed so as to produce absurd or unintended results: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 304, 320; Footscray City College v Ruzicka (2007) 16 VR 498 at [16]. Parliament could not have intended to require the question whether a person is an habitual resident of a country to be determined "solely by reference to the law of the relevant country" in circumstances where there may be nothing to refer to. The result would be to denude the definition of any sensible or practical application. The result would also likely be that many, if not most, stateless persons would be found to have no country in which they were habitually resident because the laws of no country recognised them as such. That would be both absurd and contrary to the objectives of the Act and, specifically, the provisions of the Act dealing with protection visas. Those provisions appear to be premised on there always being a receiving country against which the protection visa applicant's claims concerning the risk of harm can be assessed. 117 Both the Tribunal and the primary judge appeared to recognise the difficulties with the definition. The Tribunal concluded, for example, that a person can be an habitual resident of a country even if he or she has no current legal right to return there. The primary judge, in the passage extracted earlier, concluded that habitual residence was "principally" a question of fact and that, whilst the laws of a country might be a relevant consideration, and might in some cases be determinative, they equally might not be so. The person might be an habitual resident of a country even if his residence in that country had been unlawful. This appears to amount to an acceptance by the primary judge that habitual residence might be determined otherwise than solely by reference to the laws of the country. 118 The definition of "receiving country" in the form it took at the time relevant to this matter should be construed as if the qualifying words "to be determined solely by reference to the law of the relevant country" do not apply to paragraph (b) dealing with stateless persons. The question of habitual residence plainly calls for a broad factual inquiry, not an inquiry limited to the laws of the relevant country. Relevant factors in the factual inquiry would no doubt include the period of time the person had resided in the country, the basis and purpose of his or her residency and the strength of the person's ties with the country. This is consistent with the interpretation given to the expressions "usual residence" and "habitual residence" in other statutory (and international law) contexts: see Tahiri v Minister for Immigration and Citizenship (2012) 293 ALR 526 at [16]. 119 The question, then, is whether the Tribunal failed to conduct a broad factual inquiry and, instead limited itself to a consideration of the appellant's legal rights or status. Were the Tribunal's findings determined by the laws of the potential receiving countries, to the exclusion of factual considerations that might otherwise suggest habitual residence? 120 There is some considerable force in the appellant's contention that the Tribunal appeared to erroneously fix on whether the appellant had any legal status or any legal entitlement to reside in the Western Sahara, Morocco or Algeria. In [42] of its reasons (extracted earlier), the Tribunal appears to have focussed on legal rights or legal status. No doubt it did so in an attempt to give effect to the definition of "receiving country" which, on the Tribunal's construction, required it to determine the question solely on the basis of the laws of the relevant country. 121 Nevertheless, a fair reading of the impugned passages from the Tribunal's reasons reveals that the Tribunal's decision in fact turned on broader findings of fact concerning the appellant's connection with the Western Sahara, and the absence of any "actual links" with any part of that territory controlled or administered by Morocco or Algeria. Whilst the Tribunal did refer to a lack of satisfaction concerning the appellant's legal status and entitlement, and even (at [45]) nationality, these findings followed, or were a consequence of, the independent factual findings that the appellant had no relevant connection or link with these countries such as to support any claim of habitual residence. The appellant had no legal status or entitlement because he had, as a matter of fact, no relevant link or connection to these countries. It was the factual findings that were determinative, not the subsequent observations concerning the appellant's legal status. 122 Whilst it is not a matter for this Court to intrude on factual findings made by the Tribunal, two observations should be made. First, it is not hard to see how and why the Tribunal found, as a fact, that the appellant's residence in the Western Sahara shortly after birth and up to the age of six provided no basis for concluding that he was an habitual resident of the Western Sahara. That conclusion seems almost inescapable. Such a fleeting connection could not realistically provide a proper basis for a finding of habitual residence. 123 Second, in arriving at the factual finding of the absence of any link or connection with the Western Sahara, it is hard to see why the Tribunal gave any weight, let alone significant weight, to the fact that the appellant's birth and residence in the Western Sahara was undocumented. Having regard to the appellant's description of his birth and residence in a camp (presumably a refugee camp) in his early years, it is hardly surprising that these matters were not documented. Questions of weight are, however, matters entirely for the Tribunal. 124 It follows that the primary judge was correct to find that the Tribunal did not err jurisdictionally in considering or applying the test concerning habitual residence to the Western Sahara, Morocco or Algeria. It is true, as the appellant forcefully submits, that the primary judge's reasons (at [60]) also appear to give some primacy to the question whether the appellant had "legal rights of entry into countries other than Norway." Read fairly and in context, however, it is tolerably clear that in the impugned passages of the judgement, his Honour was not suggesting that the absence of any legal rights or entry was determinative. Rather, his Honour was emphasising, with respect correctly, that the appellant failed in the Tribunal because he was unable to demonstrate a sufficient factual connection with any country other than Norway. If, as was the case, the appellant was unable to establish any relevant factual connection with any other country, the laws of the other country or countries were unlikely to be relevant, let alone determinative. 125 Ultimately, whilst there may be some unhappy wording and reasoning in parts of the reasons of the Tribunal and judgment of the primary judge, there is no sound basis for concluding that the primary judge erred in finding that the Tribunal applied the incorrect test in determining whether the appellant was habitually resident in any country other than Norway.

Did the primary judge err by regarding the appellant's case as limited to Norway? 126 The short answer to this question is again "no". Whatever the primary judge may have meant by paragraph [61] of the judgment, it cannot be concluded that either the Tribunal or the primary judge simply held the appellant to his case as finally articulated in his supplementary submissions. Despite the appellant's ultimate submission, which expressly limited his case to Norway, the Tribunal nonetheless considered and made findings about whether any country other than Norway was a receiving country. The primary judge considered those findings and concluded that the Tribunal made no jurisdictional error. The primary judge did not limit his consideration of potential jurisdictional error by the Tribunal in the manner suggested by the appellant.

Disposition 127 The appellant has failed to demonstrate any material error on the part of the Tribunal or the primary judge. His appeal must accordingly be dismissed with costs. 128 The end result of this for the appellant is uncertain. It has been found that he has no country of nationality and that the only country of which he is an habitual resident is Norway. Yet it has also been accepted that the appellant now has no legal right or entitlement to enter and reside in Norway. Having been refused a protection visa he remains in immigration detention. It is unlikely that he can or will be returned to Norway. In these circumstances the observation by Flick J that the appellant's personal circumstances are "not enviable" is, with respect, perhaps an understatement. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Introduction 1 This appeal concerns a stateless young man whose former country of residence (from 2004 to 2010) was Norway. He claims to be a person of "Western Saharan" origin and to have lived in a number of countries since his birth. 2 The appellant arrived in Australia on 28 January 2010 without a valid travel document and has been in immigration detention since that time. Considerable efforts appear to have been made (somewhat inconclusively) to establish the appellant's true identity. 3 He has lodged three applications for a protection visa, although the first (which was lodged on 2 February 2010) was withdrawn on 8 April 2010. On 11 June 2010, the appellant lodged a valid application for a protection visa which was refused by a delegate of the Minister on 25 August 2010. That decision was affirmed by the Refugee Review Tribunal ("the RRT") on 20 September 2010. 4 On 5 November 2013, the appellant lodged a further application for a protection visa relying upon additional protection criteria which had been introduced into the Migration Act 1958 (Cth) ("the Act"). That second valid application was refused by a delegate of the Minister on 26 March 2014. The RRT affirmed the delegate's decision on 19 May 2014. 5 The appellant applied to the Federal Circuit Court of Australia ("the FCCA") for judicial review of the most recent decision of the RRT. That application was dismissed on 17 October 2014 (SZUNZ v Minister for Immigration & Anor [2014] FCCA 2256). 6 The appellant has now appealed to this Court.

Section 36(2) - nationality & habitual residence 50 Section 36(2)(aa) of the Migration Act is commonly referred to as the "complementary protection" provision. 51 Section 36(2) relevantly provides as follows: A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; … The definition of the phrase "receiving country" - as it was in force prior to 16 December 2014 - was as follows: receiving country, in relation to a non-citizen, means: (a) a country of which the non-citizen is a national; or (b) if the non-citizen has no country of nationality - country of which the non-citizen is an habitual resident; to be determined solely by reference to the law of the relevant country. Thereafter the definition was amended as from December 2014 and now provides as follows: receiving country, in relation to a non-citizen, means: (a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or (b) if the non-citizen has no country of nationality-a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country. At issue was the manner in which the concluding phrase of the definition prior to its amendment, i.e. "to be determined solely by reference to the law of the relevant country", qualified both paragraphs (a) and (b). Notwithstanding the fact that that qualifying phrase applied more readily to a determination of nationality, it was accepted on behalf of the Appellant that the phrase also had some work to do in relation to paragraph (b). 52 That source of difficulty in construing the definition appears to have been removed by the 2014 amendment. 53 Paragraph (a) of the definition in s 5 directs attention to the "nationality" of a claimant; paragraph (b) directs attention to the "habitual residence" of a claimant. The object of these provisions is "to treat uniformly persons seeking refugee status and relevantly to equate nationality with country of habitual residence where a person has no nationality": Taiem v Minister for Immigration and Multicultural Affairs [2001] FCA 611 at [9], (2001) 186 ALR 361 at 366 per Carr J. But for any statutory modification of the phrase, "habitual residence" would normally involve a "broad factual inquiry": cf. Tahiri v Minister for Immigration and Citizenship [2012] HCA 61 at [16], (2012) 293 ALR 526 at 531. French CJ, Bell and Gageler JJ there went on to observe that "factors relevant to which include 'the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), [and] the degree of assimilation into the state'". 54 It is unnecessary, however, to express any concluded view as to the extent to which the concluding phrase qualified (if at all) paragraph (b) of the definition prior to its amendment. It is concluded that the reasons of the Tribunal, properly construed, make findings of fact as to the "habitual residence" of the Appellant. Such errors as the Tribunal may have made in separately making findings of fact as to the laws of any potential "receiving country" do not vitiate the separate findings founded exclusively upon the facts. 55 Counsel on behalf of the Minister denied any potential to permit the Appellant to make a fresh application and hence avail himself of any clarification which the 2014 amendment afforded.

The receiving countries under potential consideration 56 Given the extent to which the Appellant moved from country to country, those countries which potentially fell for consideration as being a "receiving country" in the present appeal included: Western Sahara; Spain; Morocco; Mauritania; Algeria; and Norway. There was limited uncertainty as to the country which the Appellant claimed was a "receiving country" for the purposes of s 36(2)(aa). 57 A statutory declaration the Appellant filed in November 2013 identified both Western Sahara and Norway as countries which potentially fell within s 36(2)(aa). That statutory declaration stated (inter alia) that the Appellant returned with his mother to Western Sahara after being born in Spain. It also stated that he lived in Western Sahara "in an area that was like a camp". In a submission dated 28 February 2014 it was urged on behalf of the Appellant that his "claims should be assessed against Western Sahara" and that he would face "serious harm" if he returned to Western Sahara. A subsequent submission dated 8 May 2014 expressly relied upon this earlier submission but went on to state that "the only country to which [the Appellant] could be refouled is Norway". The latter submission thereafter exclusively addressed the difficulties he would confront if returned to Norway. 58 There was some argument on appeal as to whether the 8 May 2014 submission confined the claim being made to Norway and whether Western Sahara had been abandoned as a potential "receiving country". The argument on behalf of the Respondent Minister was that it was unnecessary for the Tribunal to consider any claim other than Norway. The task of the Tribunal, it was submitted, was to resolve the claim as made: Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 at [114], (2000) 106 FCR 157 at 180 per Merkel J; Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24 at [35], (2012) 126 ALD 48 at 56 per Flick and Jagot JJ; SZTAD v Minister for Immigration and Border Protection [2014] FCA 1256 at [15] to [16] per Bromberg J. There was also some argument as to whether Western Sahara also incorporated Algeria and Morocco as potential "receiving countries" by reason of the fact that Algeria and Morocco both administered parts of Western Sahara. Indeed, there was also some uncertainty as to whether Western Sahara was a "country". 59 But all such difficulties can be left to one side. 60 Irrespective of whether the 8 May 2014 submission confined the claim being made to Norway as the sole "receiving country", the Tribunal in fact made findings in respect to "other countries". 61 If attention is initially confined to Norway as the "receiving country", any error of the Tribunal as to the definition of "receiving country" matters not. The Tribunal assumed - in favour of the Appellant - that Norway was a "receiving country". Its reasons thus state in part as follows: Norway [36] The Tribunal is satisfied that Norway is a 'receiving country' for the purpose of s. 36(2)(aa), as the applicant held a temporary residence permit issued in accordance with Norwegian law, which was valid to 24 September 2010. The Tribunal went on to assess claims that if he returned to Norway, the Appellant would face "significant harm" at the hands of a criminal "gang" of which he had been a member, or at the hands of the Norwegian authorities themselves. But these claims were rejected. In respect to the Appellant's claims to fear harm at the hands of his former gang, the Tribunal concluded: [88] The Tribunal is satisfied, on the evidence as a whole, that the applicant could obtain protection from the Norwegian authorities from the criminal gang, notwithstanding his past involvement (more than four years ago) with the gang's own activities. The Tribunal is satisfied that the applicant could obtain this within the framework of a 'witness protection program' or if he sought protection outside that framework. [The Tribunal considers below the applicant's related claim that he fears that the police might, instead of or at the same time, prosecute him for his past criminal activities.] The Tribunal thereafter separately addressed the risks the Appellant faced at the hands of the "Norwegian authorities" and relevantly concluded: [93] The Tribunal is not satisfied that any future police monitoring of the applicant, or any prosecution of him for past or future criminal offences, gives rise to a real risk that the applicant will suffer significant harm. There is no challenge to these findings. 62 But such evidence as there was before the Court seemed to indicate that Norway would not permit the Appellant entry should Australia seek to return him to that country. Although in 2004 he was granted temporary residence in Norway, that permit expired in September 2010 while he was in immigration detention in Australia. An application to the Norwegian Directorate of Immigration to renew that permit was refused in October 2011. 63 That left for consideration the Tribunal's findings in relation to Western Sahara, Algeria and Morocco. 64 In seeking to challenge these findings - and to expose the Tribunal's erroneous focus upon the laws of each country to the exclusion of any real consideration of the Appellant's factual connections with those countries - the parties made repeated reference to paragraph [42] of the Tribunal's reasons. That paragraph provided as follows: For the reasons that follow, the Tribunal is not satisfied that Western Sahara is a 'receiving country' for the purpose of this application. • The applicant has been unable to provide sufficient detail, documentary or other evidence to establish his identity or his connection with the territory of Western Sahara. According to his claims, it is possible that he lived there until about the age of six, but this is far from certain. It is also uncertain whether he had any legal status as a 'habitual resident' there. • The submission of 28 February 2014 contends that Western Sahara could be considered a country of former habitual residence (again, in relation to refugee protection) because his residence there 'offer[ed] him some security, status and entitlement to remain'. It is difficult to reconcile this with the applicant's other claims that he was there as an undocumented child, only up to the age of six or so, and that he has only fleeting memories of the desert, violence and an unsettled life. The Tribunal is not satisfied on the available material that the applicant ever had any 'status' and 'entitlement' (by implication, legal status) in that place. • An added complication in the case of Western Sahara is whether, given its uncertain international status, it is a country which has in place laws that determined issues of residence. Country information indicates that the territory is disputed. Morocco claims the Western Sahara territory and administers Moroccan law through Moroccan institutions in the 85 per cent or so of the territory it controls. The Sahrawi Arab Democratic Republic (SADR), based on the national liberation movement Polisario Front, claims sovereignty over the entire Western Sahara but only administers part of that territory. Although the SADR Constitution empowers the Sahrawi National Council to make laws on nationality and related matters, the Tribunal has found no information to indicate that it exercises those powers. The applicant indicated that this was also his understanding. These questions, considered together with the applicant's uncertain links with Western Sahara, let alone with any part of the territory currently administered as part of the SADR, reinforce the Tribunal's view that Western Sahara is not a 'receiving country'. Reference should also be made to paragraphs [44] and [45] of the reasons of the Tribunal which provide as follows (without alteration): 44. The applicant's claims to be Western Sahara also raise questions about his possible links with Morocco, Algeria and Mauritania. Morocco administers a large portion of Western Saharan territory. Although the applicant has in the past referred to Laayoune, the historic capital or Western Sahara when it was a Spanish province, and currently the capital of a Moroccan province by the same name (which does not have international recognition), and also to Tindouf, the western Algerian headquarters of the Polisario Front, he has nothing to demonstrate any actual links with these places. Mauretania forms the southern and eastern border with Western Sahara, and was mentioned in the German documents that were completed as part of the applicant's asylum seeker processing in 2009. However, the applicant has not claimed to have any connection with that country. It appears that a German official may have recorded it simply as a possible place of origin. 45. The applicant told the Tribunal that the Department had liaised with Moroccan and Algerian officials, in order to see whether they could resolve questions about his origins and nationality. They were unable to make a positive finding as to his nationality. As a consequence, the applicant has no status in either country as a 'habitual resident', as determined by their laws. 65 These paragraphs clearly expose the Tribunal's approach to the definition of a "receiving country" prior to its amendment. If not evident elsewhere, paragraph [45] thus concludes that "the applicant has no status in either country as a 'habitual resident', as determined by their laws". 66 But these paragraphs, it is further respectfully concluded, expose discrete findings founded exclusively upon the facts present - and findings of fact separate from any consideration as to the operation of the "law of the relevant country". 67 Contrary to the careful submissions advanced by Counsel on behalf of the Appellant, it is thus concluded that paragraph [42] does not expose consideration of whether Western Sahara is a "receiving country" being confined to the "legal status" of the Appellant in Western Sahara. That paragraph, properly construed, addresses both the factual connections of the Appellant with Western Sahara and his "legal status". The factual finding of the Tribunal is simply that the six years the Appellant remained in Western Sahara with his mother as a child fell short of establishing any "identity or … connection with the territory of Western Sahara". Such a factual conclusion is far from surprising. It would be difficult for any factual conclusion to be reached that a person was an "habitual resident" of a country simply because he lived in that country with his mother as a child and for such a short period of time. After having left Western Sahara, the Appellant advanced no claim regarding any continuing connection. His links with Western Sahara - either by reason of his factual connection with that area or by reason of his legal rights - were properly characterised as "uncertain". 68 And, assuming that the Appellant had not confined his claims to Norway as the sole "receiving country" and submitted that attention should also be given to Algeria and Morocco, the Appellant meets with no greater success. Properly construed, paragraph [44] of the Tribunal's reasons records a finding of fact that the Appellant "has nothing to demonstrate any actual links with" Algeria and Morocco. 69 Nor was Counsel for the Appellant able to take the Court to any factual account given by the Appellant not recorded in the Tribunal's reasons which demonstrated a greater factual connection to any of these countries.

At a glance

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Judgment (9 paragraphs)

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Legislation Cited (1)

Cases Cited (13)

Cited By (1)