SZVGQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Judicial review application to the FCCA 14 The further amended application to the FCCA set out a single ground of judicial review and relevantly provided as follows (as written): 1. The Tribunal erred in the manner in which it applied s36(3) of the Migration Act 1958. Particulars (a) The Tribunal considered evidence relating to the entry into Nepal of Indian citizens direct from India, It failed to appreciate that the Applicant would have to enter from a third country, and failed to consider whether in those circumstances s36(3) of the Act would apply to him. (b) The Tribunal erred by assuming that the term "deported" in the Immigration Manual of Nepal had the same restricted meaning as in the Migration Act 1958, and further confused the term with extradition. The Tribunal failed to consider whether the distinction between "removal" and "deportation" in Australian law may not be the same in the law of Nepal, and therefore whether the Applicant might be treated as having been deported from Australia. (c) … . 15 SZVGQ was represented by his solicitor in relation to his application for judicial review, including at the hearing of his application. Paragraph (c) of the particulars was not pressed at the hearing. Accordingly it has not been recorded in these reasons. 16 The FCCA Judge noted that there were two asserted errors in the way the Tribunal applied s 36(3) of the Migration Act. His Honour summarised the submissions made by SZVG and the Minister under the headings "Entry into Nepal from a third country" and "Meaning of deportation". In summary, SZVGQ's submissions were that: (1) In using the terminology of Buchanan J in SZRHU at [88], the Tribunal relied on information about administrative arrangements concerning entry into Nepal from India, either through border posts or by air. SZVGQ claimed the Tribunal gave no consideration to the "obvious fact" that, having a well-founded fear of persecution in India, he could not be sent first to that country in order to enter Nepal either by land or directly by air. Relying on North ACJ's decision in MZZXS v Minister for Immigration and Border Protection [2015] FCA 1384 (MZZXS) at [14], SZVGQ claimed that the Tribunal failed to consider whether there were administrative arrangements in place that would have protected him if, as he must do, he were to attempt to enter Nepal without first entering India. (2) The Tribunal adopted too narrow an approach at DR[89] to the issue raised by the Immigration Manual 2008 of the Government of Nepal (chapter 6 at 1.2) which stated that a person who was not a citizen of Nepal was not allowed entry if "deported from a foreign country". In considering the meaning of "deportation order" under current legal sources, the Tribunal failed to consider what deportation might mean in the administrative arrangements in place in Nepal and whether, under those arrangements, SZVGQ may have been treated as having been "deported". SZVGQ referred to a 1973 reprint of the Migration Act in which the term "deportation" means the removal from Australia of any "prohibited immigrant". 17 Relying on the judgments in NBLC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 272; 149 FCR 151, SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97; 187 FCR 109, Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50; 237 FCR 305 and SZRHU and MZZXS , the FCCA Judge at J[24] found that: The general principles concerning the application of the [s 36(3)] can now be taken to be settled. All that is necessary in this case is to deal with the applicant's assertions that the Tribunal erred in failing to grapple with: a) how the applicant would get to Nepal from Australia; and b) whether Nepal would permit the applicant to enter if he is removed from Australia. 18 The FCCA Judge then dealt with the two grounds at J[25] and J[26] as follows: 25. … The first point to note is that s.36(3) looks to the past rather than the future, albeit as at the time of decision. The provision is not to be confused with the relocation principle under the Refugees Convention. The question for the Tribunal was whether the applicant had not taken all possible steps to avail himself of a right to enter and reside in (relevantly) Nepal. The applicant might have gone to Nepal from India rather than come to Australia. The applicant might have returned from Australia to Nepal without passing through India. As the Minister notes in his submissions, the applicant did neither. 26. Secondly, whether removal from Australia under the Migration Act would be regarded as deportation under Nepalese law is not a question that presently needs to be decided. As the Minister points out, the applicant is not a citizen of Nepal. He is a citizen of India. If he is removed from Australia, it can be assumed that he would be removed to India rather than Nepal. Having regard to the Tribunal's finding that the applicant has a well-founded fear of being persecuted in India on account of his sexual orientation, there may well be an issue for the Minister to consider whether the applicant should be removed to India. That was not the question that the Tribunal had to address. The Tribunal's task was to review the delegate's decision on the application for a protection visa. Obviously, s.36(3) of the Migration Act operates on that consideration. It does not necessarily follow that the section operates on a subsequent decision by the Minister to remove the applicant, as it does not necessarily follow that the "protection obligations" that Australia is taken not to have to the applicant include Australia's obligation under the Refugees Convention not to refoul the applicant to a place where he faces a well-founded fear of persecution. That is a question potentially for another case and it does not need to be resolved for present purposes, because there was no error by the Tribunal in its application of s.36(3) to the review of the decision to withhold a protection visa.

The appeal 19 By notice of appeal dated 28 April 2018, SZVGQ relied on two grounds of appeal as follows (as written): Grounds of appeal 1. The Federal Circuit Court erred in its interpretation of the temporal operation of s 36(3) of the Migration Act 1958 as it applied to the circumstances of the Appellant. 2. The Federal Circuit Court erred in assuming that the Appellant, if removed from Australia, could only be sent to India. 20 The appellant was represented by his solicitor on the appeal; his solicitor filed written submissions and appeared at the hearing. 21 The Minister filed written submissions and was represented by counsel at the hearing.

First ground of appeal 22 It is notable that the submissions of both the appellant and the Minister in relation to this ground traversed consideration of both grounds of judicial review to a significant extent.

The appellant's submissions 23 The applicant submitted that: (1) The Tribunal found that the appellant has a well-founded fear of persecution in India and that Australia owed him protection obligations for that reason. It then found that those protection obligations were removed by s 36(3) of the Migration Act because he had a right of entry to Nepal. It also found that he did not have a well-founded fear of persecution in Nepal. (2) The task of the Tribunal, as explained by the Buchanan J in SZRHU, was to assess the administrative arrangements that may be in place to allow the appellant to enter and reside in Nepal. (3) In its consideration of whether the appellant had a right to enter into or reside in Nepal at DR[82]-[90], the Tribunal referred to "administrative arrangement" (using the terminology of Buchanan J in SZRHU) for the entry of Indian nationals into Nepal. At DR[87], the Tribunal relied on information concerning entry to Nepal either at border posts with India or directly by air from India. The Tribunal gave no consideration to the fact that the appellant, having a well-founded fear of persecution in India, could not be sent first to that country in order to enter Nepal either by land or directly by air and therefore failed to consider whether there were administrative arrangements in place that would have protected him if he were to attempt to enter Nepal without passing through India. Of itself, this amounts to jurisdictional error. (4) The FCCA Judge (at J[24]-[25]) appeared to take the view that, because at one time in the past the appellant could have entered Nepal through India, s 36(3) operates continuously from then on, even if it is no longer the case that he can enter Nepal through India. Section 36(3) has no operation unless the person claiming protection has failed to exercise a right that he or she still has. (5) Further, in NBLC at [66], Graham J supports the appellant's position when he said: If (say) a human variant of avian bird flu broke out in South Korea with the consequence that all possibilities of travelling to that country by sea or air were closed off one could well understand that inaction by a non-citizen in Australia may equate to having taken all possible steps to avail himself of a right to enter and reside in that country, but that is not the case here. Here there was no evidence of any steps being taken by either of the appellants to avail themselves of their respective rights to enter and reside in South Korea. (6) Section 36(3) of the Migration Act ought to be construed in the context of its following provisions, being, ss 36(5) and 36(5A) of the Migration Act (see [5] above). Notwithstanding the past tense used in s 36(3) of the Migration Act, the words in s 36(5) are cast prospectively. 24 The appellant's solicitor conceded that if the first ground of appeal was not made out, then the second ground would become otiose:

Minister's submissions 25 Oral and written submissions made by counsel for the Minister with respect to the first ground are summarised as follows: (1) The "temporal argument" is contrary to the plain wording of s 36(3) "has not taken all possible steps". In NBLC at [64], Graham J (with whom Wilcox and Bennett JJ agreed) said that "all possible steps" means what it says and it should not be read down in any way. The appellant does not appear to have taken any steps to enter into Nepal when he lived in India or after coming to Australia (including during the visits that he made to India during that time). It remains available to the appellant, as an Indian citizen, to fly to Nepal voluntarily and enter and reside there. It was therefore open to the Tribunal to find that s 36(3) applied: see SZMWQ at [33] and [47] (Rares J). (2) SZVGQ did not argue before the Tribunal that he had taken any steps to enter Nepal in the past. (3) The arguments now being put forward by the appellant's solicitor relies on the consequence of the Tribunal having found that the appellant has a well-founded fear of harm in India. The issue of whether SZVGQ had a right to enter and reside in Nepal if he arrived there on a plane from a country other than India was not raised before the Tribunal except in relation to the issue of where SZVGQ would be regarded as a deportee who was not a citizen of Nepal who would not be allowed to enter pursuant chapter 6 at 1.2 of the Immigration Manual. The information before the Tribunal (referred to at DR[84]-[88]) established that there was a right of an Indian citizen to enter and reside in Nepal, flowing both from a treaty and the administrative arrangements. SZVGQ was trying to create a prospect that there was no such right by arguing he would be regarded a "deportee" if he came from Australia. (4) If the appellant had voluntarily left the country and tried to enter Nepal but had been refused at the gate, then he might have an argument that s 36(3) of the Migration Act would not have triggered to alleviate Australia from complying with its protection obligations owed to him. (5) There is no specific country information on whether the administrative arrangements allowing the appellant as an Indian citizen to enter Nepal by way of air travel from India operates any differently than if the appellant travels to Nepal from a country other than India. (6) There is no reason to think that the appellant could ever be in a situation where he would be deported or removed from Australia to Nepal, because he is not a Nepalese citizen. If he was removed, he would be removed to India. However, as the FCCA Judge said at J[26], this issue does not need to be dealt with at this point. (7) Notwithstanding the Tribunal finding that the appellant has a well-founded fear of persecution in India and that Australia owed him protection obligations for that reason, due to the operation of ss 36(3) and 197C of the Migration Act, there is nothing to prevent the appellant from being sent to India.

Consideration 26 The appellant's contention in the first ground of appeal, as argued, in essence relies on the same arguments put in support of the application for judicial review made to the FCCA. It relies on a contention that, the Tribunal only considered whether SZVGQ had a right of entry to Nepal if he went there from India, a course no longer available to him as a person with a well-founded fear of persecution in India, with the result that the FCCA Judge erred when his Honour said that s 36(3) looks to the past, albeit at the time of the decision. In saying this, the appellant relies on the decision of North J in MZZXS at [14] where his Honour said (emphasis added): I accept the applicant's argument that the way the Tribunal went about its task demonstrates that it did not undertake a process of evaluation of the evidence. In [53] the Tribunal does no more than list the three sources previously referred to in its decision, namely, the Treaty, the Indian government website, and the Australian government website, and conclude that these sources prove a right of the applicant to enter and reside in India. The Tribunal refers to the Indian government website as setting out administrative provisions. But all the website says is that citizens of Nepal may enter India from outside Nepal if they have a passport. That may be a consequence of some administrative provision. The conclusion of the Tribunal does not disclose whether there was an administrative provision and, if so, the nature of that provision. In order to assess whether the entry is pursuant to a right to enter and reside under s 36(3) of the Act the Tribunal needs to know by what means the entry is permitted. As was explained in SZTOX, at [42]: The right or entitlement might be of that character [a right provided by or allowed under domestic law], but it might also arise under an executive or administrative act involving that receiving country. The existence and source of the right will be a matter of evidence. 27 This case is clearly distinguishable from MZZXS, having regard to DR[82]-[88] (referred to at [5]-[10] above). Further, in DED16 v Minister for Home Affairs [2019] FCAFC 18 at [10] the Full Court (Bromberg, Kerr and Charlesworth JJ) found that the observations made in SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 do not support the proposition relied upon by North ACJ at [14] of MZZXS that "the Tribunal needs to know by what means the entry is permitted" or, in other words, the source of the right to enter. The Full Court said at [11]: The relevant statutory task required of the Tribunal is to evaluate the evidence and determine whether a finding is available that the visa applicant "has not taken all possible steps to avail himself or herself of a right to enter and reside in" a country other than Australia. That task requires a finding of fact as to whether a right to enter an alternative country existed. The relevant statutory task does not require an evaluation of the source of any such right. It only requires an evaluation of whether the right itself existed. Evidence of the source of the right will be probative of the existence of the right (and, in our view, that was all that the Full Court in SZTOX at [42] intended to covey). Where evidence otherwise exists of the fact of the right, the absence of evidence of the source of the right is of no consequence irrespective of whether the right in question is statutory or is sourced in an administrative arrangement. 28 At DR[82], the Tribunal correctly summarised the impact of ss 36(3)-(5A) relevantly to the decision it was called upon to make. At DR[83], the Tribunal expressly relied on SZRHU and the Full Court's endorsement in that case of the construction of s 36(3) of Allsop J (as the Chief Justice then was) in V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018; 114 FCR 408 at [31]. It therefore correctly informed itself of the interpretation of s 36(3) applied by the Full Court, by which the FCCA and this Court is bound. 29 The Tribunal relied on (a) 'Information for Indian Citizens', Nepal Immigration available on a website which would indicate that it is a Nepalese government publication; (b) a 2013 article published by a professor of the Centre for Economic and Technical Studies in Nepal, Hari Bansh Jha; and (c) relevant immigration laws in Nepal published on the Department of Immigration of Nepal's website as the 'Immigration Manual'. 30 The quote from the Immigration Procedures 2008 at [8.4] set out at DR[86] indicates that Indian citizens can "make travel" on the basis of, among other things, a passport. This evidence does not suggest that it was necessary for an Indian national to pass from India to Nepal under those administrative arrangements. That is a sufficient basis for the Tribunal's finding at DR[90] as follows: … in the Tribunal's view, the combination of the terms of the Indo-Nepal Treaty of Peace and Friendship of 1950 and the administrative arrangements for entry by Indian citizens at the Nepalese border satisfy the test of 'liberty, permission or privilege lawfully given' to enter and reside in Nepal consistent with that described in MIAC v SZRHU. Accordingly, having regard to the evidence before it, including the terms of the treaty and the administrative arrangements for entry as summarised above, the Tribunal considers that, for the purpose of this decision, as an Indian citizen who currently holds a valid passport, the applicant has the right to enter and reside in Nepal for the purposes of s 36(3). 31 Insofar as the Tribunal referred to information at DR[87], it is notable that the information is published on a website of the Nepalese Embassy in India. It is therefore unsurprising that it makes reference to travel between India and Nepal and not some other place and Nepal. The article referred to at DR[86] also appears to deal primarily with movement across the Nepal/India boarder. That is also unsurprising since that it likely the most common form of entry for nationals of those countries. That was enough to establish that the appellant could have gone to Nepal from India while he resided in India or on any of his visits to India. 32 Having said that, it is plain from DR[83] that the Tribunal made its decision on the express understanding that the right referred to in s 36(3) "must be an existing right, and not a past or lapsed right, or a potential right or expectancy" which is consistent with its finding at DR[90]. To read the findings at DR[88] and [90] as relying only a right of entry to Nepal through India and having overlooked consideration of any other way is not correct in light of the finding in DR[86]. The reading contended for by the appellant is not a fair reading of the Tribunal's reasons. 33 The FCCA Judge's finding at J[25] is correct in saying that s 36(3) looks to the past up to the time of the Tribunal's decision, it does not look to what might happen "in the future". The Court takes the words "in the future" to relate to the situation which might apply if SZVGQ were to be removed from Australia to Nepal, having regard to the way SZVGQ's argument was put. It is true that ss 36(4)-(5A) require the Tribunal to look at whether or not SZVGQ would be persecuted in Nepal or returned to India by Nepal (and the Tribunal's findings in that regard are not challenged) if he were to avail himself of his right of entry and residence in Nepal, but that fact does not raise any proper inference concerning how s 36(3) should be read. 34 Section 36(3) is addressed to what steps were open to the appellant to take to avail himself of a right to enter and reside in another country up to the time the Tribunal makes its decision. As submitted by the Minister and noted by the FCCA Judge, the appellant does not appear to have taken any steps to enter into Nepal when he lived in or visited India or after coming to Australia to go directly to Nepal and he made no submission to the Tribunal that he had taken any steps of that kind. 35 Full Courts of this Court have found that "all possible steps" means what it says and it should not be read down in any way: NBLC at [64], Graham J, with Wilcox and Bennett JJ agreeing, SZMWQ at [33] and [47] (Rares J). It was therefore arguably open to the Tribunal to make its decision under s 36(3) by reference to an avenue that the appellant did not take but could have taken when he lived in or visited India even though it was not available to him at the time the Tribunal made it decision because of his status as a refugee from India. However the Tribunal did not make its decision solely on that basis. The Tribunal found that, based on the evidence of the treaty and the administrative arrangements in place at the time it made its decision, the appellant had a right, as an Indian citizen, to enter Nepal and reside there upon production of, among other things, a current passport. On that basis, the Tribunal's finding that s 36(3) applied to the appellant's application was clearly open to it and therefore there was no appealable error was made by the FCCA Judge in his findings at J[25] and J[26]. 36 The first ground of appeal therefore fails.

Second ground of appeal 37 The appellant's legal representative properly conceded that if the appellant did not make out the first ground, the second was otiose. For completeness, it is the Court's view that there was no error in the FCCA Judge's finding at J[26] that whether removal from Australia under the Migration Act would be regarded as deportation under Nepalese law did not need to be decided by the Tribunal by reference to s 36(3). Accordingly, even if the FCCA Judge were in error in his assumption that the appellant would be removed from Australia to India, that would not amount to appealable error.

Conclusion 38 The appeal should be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.