FEDERAL COURT OF AUSTRALIA

SZTBJ v Minister for Immigration and Border Protection [2015] FCA 1182

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to appeal be granted.

2.    The appeal be dismissed.

3.    The applicant is to pay the costs of the first respondent, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE DISPUTE

1    The applicant seeks an extension of time to appeal from final orders of the Federal Circuit Court of Australia given on 24 March 2015. He is a citizen of Nepal who arrived in Australia with his wife on 17 July 2012. He is married with three children. Two reside in India with their maternal grandparents. The third was born in Australia. The extension of time is unopposed and will be permitted.

2    The appeal is opposed and for the following reasons must be dismissed.

BACKGROUND

3    On 19 September 2012, the applicant applied for a protection visa. He claims protection on both refugee and complimentary protection grounds fearing serious or significant harm if he and his family were to be returned to Nepal. His fear is based on reasons of his membership of a particular social group (Khotany Sewa Samag) and his political opinion (as a supporter of the Democratic Political Party), actual or imputed. The applicant is a member of a wealthy family with large land holdings. The family was targeted by operatives of the ruling Maoist party as a result of their allegiances. The applicant also claims that he was targeted because he refused to store contraband sandalwood at his property when requested by Mr Lama – a man who has allegedly ‘joined hands’ with the Minister and is responsible for illegally smuggling sandalwood to China. The applicant claims that his family estate was threatened, his uncle’s property burnt down and that he was extorted and beaten by local authorities. He contends that he and his family were forced to leave Nepal and flee to the Nepal-India border. The applicant spoke to his father when there and his father said that the applicant’s ‘house had been taken over by the smugglers’. If he returns, he fears his family will be ‘tracked down and killed by the Minister and his group’ (by reference to the Minister, the applicant refers to the Nepalese Home Minister and his agents).

4    Having arrived with his family in Australia in July 2012, he applied in September 2012 to the Department of Immigration and Border Protection for a protection visa. On 6 December 2012, that visa application was refused. The applicant was invited to appear before the Refugee Review Tribunal on 18 March 2013. This did take place. On 19 June 2013 the Tribunal affirmed the decision of the delegate for the Minister for Immigration and Border Protection to refuse the grant of a protection visa to the applicant.

STATUTORY PROVISIONS

5    This appeal involves the correct approach to the construction of s 36(3) of Migration Act 1958 (Cth), particularly in relation to the ‘right’ referred to in that subsection.

6    Relevant to this appeal, s 36 provides (relevantly):

36    Protection visas-criteria provided for by this Act

…

(2)    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)    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; …

Protection obligations

(3)    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. (emphasis added)

(4)    However, subsection (3) does not apply in relation to a country in respect of which:

(a)    the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

(b)    the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

(5)    Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

(a)    the country will return the non-citizen to another country; and

(b)    the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

(5A)    Also, subsection (3) does not apply in relation to a country if:

(a)    the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

(b)    the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

BEFORE THE TRIBUNAL

7    The Tribunal, in considering the complimentary protection criterion noted that it was apparent that if the applicant were to return to Nepal he would again be targeted. The Tribunal noted that it was satisfied that, as the applicant was known to the Home Minister and also to his secretary and his associates, they would see him as someone they could again threaten and press for money. The Tribunal was reasonably satisfied that in doing so they would be aware that the applicant had run off from them in the past and not paid what was demanded (at [43]).

8    The Tribunal was reasonably satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal there was a real risk that he would suffer significant harm. The Tribunal accepted that the applicant, his wife and his children would be threatened and assaulted again and have money extorted from them.

9    The Tribunal also accepted that, in such circumstances, there was a real risk that the applicant would be killed.

10    However, the Tribunal went on, following that finding, to state (at [44]) that it was reasonably satisfied that the applicant had effective protection in India. In relation to that finding, the Tribunal recorded the following:

45.    As discussed with the applicant at hearing and if he has concerns about return [sic] to Nepal for any reason, relevant to this application is what rights he has in relation to India. Both the applicant and his wife have visited India and lived there for about 5 months prior to leaving India to find work in Singapore. The applicant’s children reside in India and are cared for by the applicant’s wife’s parents. The applicant’s wife’s parents have moved to India. They first came specifically to care for her and the children as she was ill. They remained to care for her and the children as she was ill. They remained to care for the children when the applicant and his wife left to seek work in Singapore.

46.    Of relevance on this issue is the India-Nepal Treaty of Peace and Friendship of 1950. (CX296177: Nepal/India: Open border and India’s security concerned; Telegraph Nepal, 27 September 2012. Indian Bureau of Immigration at immigrationindia.nic.in NPL31679: Nepal 1950 Treaty of Peace and Friendship; CX291955: Nepal/India: Identity of a Nepali in India, Darjeeling Times, 10 August 2011). This Treaty details special relations that exist between India and Nepal. The provisions of the Treaty allow Nepalese citizens the ability to live and work in India, and avail themselves of facilities and opportunities at par with Indian citizens. There are reportedly between 3 million and 13 million Nepalese citizens living in India. Over the years Nepalese governments have sought to review the Treaty. India has said it is willing to examine all such treaties with a view to strengthening relations. As to specifics:

•    Nepalese citizens are able to cross the land border without a passport though they are required to possess proof of their identity.

•    If they enter India from a place other than their country they must possess and enter with a passport.

•    Nepalese citizens do not require a visa to enter India.

•    Nepalese citizens are not denied entry into India unless they are on the lookout list of agencies, are suspected of involvement in terrorist activity or under instruction from the intelligence agencies.

•    There is reporting of targeting of small sections of the Nepalese communities living in Assam, Manipur and Meghalaya.

47.    I have carefully considered the above in the context of the applicant and his wife having lived in India for about 5 months and the applicant’s wife’s parents living there now with the applicant’s children in rented accommodation. The applicant is a Nepalese citizen and has a Nepalese passport. The above law is an international treaty. It is apparent it does allow Nepalese citizens the right to enter and reside in India, and that this is true is evident from the applicant’s and his family’s travel history to India and their having lived there, and the wife’s parents residing there now and having done so for over 16 months. No claim has been made that they have suffered any harm or have any concern about living in India. I am reasonably satisfied that as such the applicant does have a presently existing right to enter and reside in India as meant by section 36(3) of the Act.

48.    In relation to India, as detailed above the applicant has lived there, and the reason he left was to seek work in Singapore. He had not attempted in any meaningful manner to seek work in India, and given his education and work background and family situation it is reasonable to conclude he would be able to find work in India. In India the applicant claims that he and his family may be followed in India by the people who threatened them in Nepal. I do not accept that this is reasonable to believed as true. There is no evidence that the Nepalese Home Minister or his group has any influence in India or that they undertake any activities in India. Given that the applicant and his wife and family resided in India for 5 months without being of any adverse interest to any such group, and give [sic] that the wife’s parents reside there now and have done so for over 16 months without any concern indicates to me that the applicant would also be able to do so without fear of harm.

11    The Tribunal said (at [50]) having carefully considered the concerns the applicant had expressed relating to India, that the claims and concerns were not of the type of harm or of a seriousness that could be considered as persecution, as meant by the Refugees Convention, or as could be considered as significant harm within the meaning of s 36(2)(aa) of the Act and defined within s 91R(2) of the Act. The Tribunal concluded (at [50]) that the applicant’s fear of harm in India was not well-founded and for the same reason there was not a real risk he would suffer significant harm in India. There was no evidence to suggest that the authorities in India would return the applicant to another country where he may face persecution or significant harm. The provisions of ss 36(4), 36(5) and 36(5A) of the Act were not met by the evidence in this case (at [51]).

grounds BEFORE THE FEDERAL circuit COURT AND THIS COURT

12    Before the Federal Circuit Court the applicant advanced six grounds. Of those grounds, 1, 2 and 6 are in substance repeated before this Court. In essence they are:

Ground 1:    Jurisdictional Error of Law

1.    The [Tribunal/primary judge] misconstrued and misapplied section 36(3) of the Migration Act 1958 (Cth) in the following ways:

a)    The [Tribunal] held that the applicant had a presently existing right to enter and reside in India.

b)    The [Tribunal] erred in finding that the 1950 Treaty of Peace and Friendship between India and Nepal would, of itself and in the absence of incorporation into Indian Law, give the applicant a legally enforceable right to enter and reside in India.

c)    The [Tribunal] erred when it failed to consider whether a Nepalese citizen could seek to obtain a remedy or enforce a right in Indian Courts arising from the 1950 Treaty of Peace and Friendship between India and Nepal (when no such right existed).

Ground 2:    Error of Law – Incorrect Test

2.    The decision by the [Tribunal/primary judge] involved an error of law, in that the [Tribunal/primary judge] applied the incorrect test regarding s 36(3) of the Act

(The argument is that the Tribunal and the primary judge applied the incorrect test of ‘effective protection’ instead of the test of a ‘legally enforceable right’ with regard to s 36(3) of the Act.)

…

Ground 6: No evidence or reliance on facts which did not exist

6.    There was no evidence or other material to justify the making of the decision by the [Tribunal].

Particulars

a)    There was no evidence that the [Applicant] had legally enforceable right under the 1950 Treaty.

b)    There was no evidence that the [Applicant] had a presently existing right to enter and reside in India [sic]

c)    There was no evidence that the [Applicant] had effective protection in India.

d)    [Before the primary judge] [t]here was no evidence that the [Applicant] and his family would not be followed in India by the people who threatened them in Nepal.

BEFORE THE FEDERAL CIRCUIT COURT

13    The applicant’s primary attack in the Federal Circuit Court was upon the process of reasoning by the Tribunal in its reasons at [47]. The applicant contended (as he does now) that there was an error in finding that the applicant had a presently existing right to enter and reside in India under the Treaty of Peace and Friendship Between the Government of India and the Government of Nepal, 31 July 1950, Kathmandu, [1950] INTSer 12 (Peace Treaty), pursuant to s 36(3) of the Act and in finding (at [44]) that the applicant would have effective protection in India.

14    At the heart of the applicant’s argument was the contention that the right referred to in s 36(3) of the Act should be regarded as being ‘a legal right of entry, together with effective protection in practical reality’ (emphasis added).

15    Counsel for the applicant, who argued the application both passionately and comprehensively, acknowledges that this interpretation of the right in s 36(3) is not the interpretation which appears in a number of cases. He submitted (as he does before this Court) that the conclusion of this Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35 is clearly wrong.

16    The primary judge referred to SZRHU and the removal of the ‘effective protection’ test by the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 (at [29]). The primary judge examined SZRHU as well as SZRBJ v Minister for Immigration & Anor [2012] FMCA 1240 in the context of ground 1 in the following terms (at [30]-[31]):

30.    Section 36(3) of the [Act] does not refer to, or presuppose, a legally enforceable right under domestic law, but refers to an entitlement of entry of a quality referred to by his Honour Allsop J in V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018; (2001) 114 FCR 408 and Buchanan J in SZRHU FCAFC at [89] where he stated:

◦    89. In my respectful view, s 36(3) does not refer to, or presuppose, a legally enforceable right under domestic law. On the contrary, s 36(3) refers to an entitlement of the quality referred to by Allsop J in V856/00A. In my respectful view, the construction of s 36(3) offered by Allsop J should not have been rejected in Applicant C and in light of the history I have recounted it was an error to do so. Equally, in my respectful opinion, the majority judgment in WAGH perpetuated the same error. The construction of s 36(3) offered by Allsop J in V856/00A should now be endorsed.

31.    In each of the cases of SZRHU FCAFC and SZRBJ (supra) the Tribunal erred in concluding that the India-Nepal Treaty of Peace and Friendship of 1950 represented a legally enforceable right to enter and reside in India. Buchanan J, in SZRHU FCAFC at [90], stated:

◦    90. 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.

17    The primary judge concluded that he was bound by SZRHU and followed it, rejecting the application for judicial review in the Federal Circuit Court below.

18    In relation to ground 6, being the third ground of appeal in the present appeal, the primary judge rejected the applicant’s claims that there was no evidence to support a number of findings made by the Tribunal. The primary judge concluded that it was not relevant to the Tribunal’s function to consider whether there was any evidence to support a conclusion that the applicant had a ‘legally enforceable right’ to enter and reside in India.

CONSIDERATION

Ground 1 – incorrect approach to ‘right’

19    The applicant argues that the primary judge should have concluded that the Tribunal erred and misconstrued, misinterpreted or misapplied and failed to ask the correct question with regard to s 36(3) of the Act. Similarly, the applicant contends that the primary judge erred in concurring with the finding made by the Tribunal. First, by concluding the applicant had a ‘presently existing right to enter and reside in India’ when no such right existed and, secondly, by finding that the Peace Treaty would have itself, in the absence of incorporation into Indian law, given the applicant a presently existing right to enter and reside in India when no such right existed. Thirdly, it is contended that the primary judge erred by finding the applicant Nepalese citizen could seek to obtain a remedy or enforce a right in Indian courts arising from the Peace Treaty when no such right existed.

20    Counsel for the applicant contends that notwithstanding different approaches having been taken by this five member Full Court recently assembled to deal with this issue, that a single judge sitting as a Full Court should be satisfied (taking into account Australia’s international non-refoulement obligations) that the conclusion that the five member bench reached is so unsatisfactory that it should be rejected as being plainly wrong.

21    Counsel for the applicant must acknowledge that, at least at this level, this is a particularly ambitious contention given that, the five member bench was expressly assembled in order to put to rest any debate and uncertainty in connection with this issue. Nonetheless counsel for the applicant fervently contends that the inadequate attention in these decisions to Australia’s international obligations should be rectified and that the right referred to in s 36(3) of the Act must give greater protection than that decision would suggest. He stresses that the present appeal is a very suitable vehicle to make this point, given that the Tribunal found that the applicant would be potentially at risk of death in India, albeit that such a finding was not reached in the context of Nepal where the applicant’s family had been living safely for up to 16 months.

22    The primary judge was correct to conclude that SZRHU was binding on him.

23    In addition, in my view, SZRHU was, with respect, correctly decided for the reasons explained by Buchanan J with whom the other members of the Court agreed. It follows that it was not necessary for the Tribunal to make a finding that the applicant had a legally enforceable right to enter and reside in India. The right in s 36(3) is not constrained to one which is legally enforceable within the domestic law of a third country, in this instance India. The analysis in SZHRU also happens to be precisely in the context of a Nepalese citizen and this particular Peace Treaty. Buchanan J examined the terms of the Peace Treaty itself (at [17]), and referred to advice from the Department of Foreign Affairs and Trade as to the effect which is common ground that Nepalese citizens do not in practice require a visa to enter India. A Nepalese citizen arriving by air would need to produce as an identity document a valid national passport, valid photo identity issued by the Indian authorities or an emergency certificate issued by the Embassy of Nepal in Delhi in respect of Nepalese citizens (at [18]). Flick J expressed his own reasons which were, relevantly to the present appeal, substantially in accordance with those of Buchanan J, save that had it been necessary, Flick J (at [128]) would also have concluded that the Peace Treaty itself was sufficient to satisfy the requirements of s 36(3)(c). Buchanan J, however, stated (at [27]) that it was clear that there was no foundation for the Tribunal to conclude that the visa applicant had a relevant right under India’s domestic law to enter and reside in India.

24    The primary judge was correct to conclude that the Tribunal’s consideration of these provisions revealed it was properly applying the amended statute, rather than the law as it stood prior to the High Court decision in NAGV and NAGW.

25    The applicant’s contention that the Tribunal referred to the expression ‘a presently existing right’ as meaning ‘a presently existing, legally enforceable, right’ is not correct. It is not a matter of semantics, as the applicant argues. There is no reference in the Tribunal’s decision to a ‘presently existing, legally enforceable, right’. Rather, what appears at [47] in the Tribunal’s decision makes clear that the precise language of the statute from s 36(3) of the Act is used, other than the addition of the words ‘presently existing’, which simply make clear that the right existed at the time the applicant’s claim was being considered, and is entirely consistent with the statute.

26    In SZRHU, Buchanan J, with whom Tracey, Flick, Robertson and Griffiths JJ relevantly agreed, held that the ‘right’ referred to in s 36(3) of the Act was not restricted to a ‘legally enforceable right’, but rather, as described by Allsop J (as the Chief Justice then was) in V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408 (at [13]):

Section 36(3) to (7) was inserted into the Act by Pt 6 of Sch 1 and s 3 of the Border Protection Legislation Amendment Act 1999 (Cth). Relevantly, s 36(3) to (5) is in the following terms:

"(3)    Australia is taken 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 and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

(4)    However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

(5)    Also, if the non-citizen has a well-founded fear that:

(a)    a country will return the non-citizen to another country; and

(b)    the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

subsection (3) does not apply in relation to the first-mentioned country."

27    It is true that the Tribunal referred to the Peace Treaty, but it did not find either that the applicant had any ‘legally enforceable right’ in connection with that Treaty or that the Peace Treaty would of itself and in the absence of adoption by Indian law give the applicant a presently existing right to enter and reside in India. The Tribunal did not fall into error in this respect.

28    Neither did the Tribunal examine the question of whether there was an enforceable right under the Peace Treaty. The Tribunal did not and was not required to do so, as explained in SZRHU.

29    It is plain that the present law is that which is established in SZRHU. The approach taken by the Tribunal in [46]-[48] of its decision is entirely consistent with SZRHU and, in turn, consistent with V856/00A. In particular, the reference to evidence given by the applicant that he, his wife and family had previously resided in India for five months without incident was, consistently with the test set by the Full Court in SZRHU, entitled to be relied upon by the Tribunal as being supportive of the conclusion reached.

30    It follows that the approach taken by the primary judge in dealing with the Tribunal’s decision and this ground of appeal was correct and ground 1 must fail.

Ground 2 – error of law – incorrect test – effective protection v legally enforceable right

31    In relation to this ground, the applicant contends the primary judge erred (at [64]) of the judgment by applying the incorrect test of ‘effective protection’ instead of the ‘legally enforceable right’ test with regards to s 36(3) of the Act. I have already dealt with the question of the correct test. At [44] of the Tribunal’s record, the Tribunal said:

Having made this finding however I am reasonably satisfied that the applicant has effective protection in India.

32    At [64] of the primary judgment, his Honour said:

I agree with the submission made on behalf of the Minister that the consideration of these provisions reveal that the [Tribunal] was applying the amended statute rather than the law as it stood prior to the decision of the High Court in NAGV and NAGW of 2002 (supra).

33    The position on this topic is firmly decided by SZRHU. There is nothing in its reasoning, with respect, that I could fault. It is abundantly clear from the preliminary statement by Tracey J in SZRHU (at [2]-[3]) that the whole purpose of assembling the five person bench was to resolve the conflict to which the applicant alludes in his argument. The history of the debate and the analysis of the various decisions are addressed comprehensively by Buchanan J, with Tracey, Flick, Robertson and Griffiths JJ agreeing.

34    It would be quite redundant to reinvent the careful analysis of the history in relation to this section appearing in the judgment of Buchanan J, particularly from [37]-[71]. The applicant urges me to apply the approach taken in Applicant C v Minister for Immigration & Multicultural Affairs [2001] FCA 229 by Carr J. His Honour took the view that a literal construction of the word ‘right’ must be a legally enforceable right. That course is no longer realistically open. The Full Court has made it clear from the following passage, with which I agree, that the correct analysis is that by Allsop J, as the Chief Justice then was, in V856/00A. See the discussion in SZRHU set out below (at [72]-[79]):

The proper construction of s 36(3)

72    In my view, the question of the proper construction of s 36(3) has not yet been resolved. In particular, in my respectful opinion it is not accurate to describe Applicant C as the authoritative statement in this Court about the construction of s 36(3).

73    One important reason is that, although the disapproval of the doctrine of effective protection in NAGV did not directly affect the construction of s 36(3), the cases in this Court which considered that question (including Applicant C) were obviously influenced by the circumstance that the doctrine of effective protection was at work and, possibly, by the fact that it was controversial. In my respectful view, the disapproval of the doctrine of effective protection necessitates and justifies a fresh look at the question of the construction of s 36(3).

74    In any event, in my view there remains a clear division of opinion about the construction of s 36(3), which is exemplified by the differing approaches taken by Carr J initially and, shortly afterwards, by Allsop J. The conflicting approaches taken by Carr J at first instance in Applicant C and by Allsop J in V856/00A were not sufficiently (or with respect satisfactorily) resolved in Applicant C. Indeed, those two approaches cannot, in my view, be reconciled in the manner suggested in Applicant C. The essence of the two different approaches may be seen reflected in the continuing debate in V872/00A and WAGH.

75    Finally, if Applicant C should be understood as endorsing the construction given by Carr J and rejecting the construction suggested by Allsop J (as [65] in Applicant C appears to suggest) then, in my respectful view that constitutes an error of sufficient magnitude to justify further attention and correction. In my respectful view, the requirements of comity do not prevent that in the present case. I prefer not to use stronger language to explain why further attention to the issue is necessary.

76    As I suggested earlier, in V856/00A Allsop J exposed a critical error in the approach taken by Carr J in Applicant C at first instance, which was to construe s 36(3) as though it referred to a right consonant with nationality or citizenship.

77    It is clear from the terms of s 36(3) of the Act that the “right to enter and reside” in another country which a non-citizen of Australia may have is not necessarily a right associated with citizenship of that other country. Indeed, the commonplace scenario is that of a citizen fleeing his or her own country and seeking refuge in Australia. The question for consideration in such a case is whether there is a third country (ie other than Australia or the country of citizenship) where the visa applicant already has a right to enter and reside. If so, by reason of the operation of s 36(3) at least, Australia does not owe that visa applicant protection obligations. In those circumstances, the “right” to which s 36(3) refers cannot be equated to rights which accompany citizenship. Inevitably, the “right” is less certain or secure than that.

78    There does not appear to me to be any other reason either to conclude that the “right” is one which the Parliament intended would be a legally enforceable one, in the sense that it could be vindicated in the courts, and under the domestic law, of the third country. On the contrary, in my view that is an unlikely intention to attribute to the Parliament at the time of the enactment of s 36(3).

79    I find the analysis by Allsop J in V856/00A to be compelling. The construction of s 36(3) there proposed by his Honour should, in my respectful view, now be endorsed.

35    The position is made clear in the conclusion in SZRHU as follows (at [89]-[90]):

89    In my respectful view, s 36(3) does not refer to, or presuppose, a legally enforceable right under domestic law. On the contrary, s 36(3) refers to an entitlement of the quality referred to by Allsop J in V856/00A. In my respectful view, the construction of s 36(3) offered by Allsop J should not have been rejected in Applicant C and in light of the history I have recounted it was an error to do so. Equally, in my respectful opinion, the majority judgment in WAGH perpetuated the same error. The construction of s 36(3) offered by Allsop J in V856/00A should now be endorsed.

90    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.

36    This issue cannot, or should not now, be reopened. It is clear that the decision in SZRHU is both binding and correct.

37    Ground 2 must be dismissed.

Ground 6 – no evidence or reliance on facts which did not exist

38    In relation to ground 6, the applicant contends that the primary judge erred by finding that this ground could not be sustained.

39    The applicant refers to the observations of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (at 355-356) and stresses that the law has always recognised that the existence or otherwise of evidence to support a factual conclusion is a question of law, so the making of findings and the drawing of inferences in the absence of evidence will constitute an error of law.

40    In referring to [46] of the Tribunal’s reasons, which have been set out above, the applicant argues that none of the dot points there appearing are directed to a ‘right’ in the way the applicant defines it. The claim is that the dot points refer to an ad hoc permission or a de facto permission or a quasi-permission to enter, but none of them establishes a right.

41    It may immediately be seen that this ground in turn depends upon the applicant’s definition of a ‘right’ for the purpose of s 36(3) of the Act.

42    It is clear that ‘right’ under s 36(3) is not confined to a legally enforceable right under the Peace Treaty. It was not necessary for the Tribunal to find any right of that nature under the Peace Treaty. Clearly there was abundant evidence to which the Tribunal referred as to the applicant’s right and exercised right to enter and reside in India as he and his family had done and as the independent evidence made clear occurred. In this regard, I accept the Minister’s submissions dated 3 August 2015 that (footnotes omitted):

28.    More to the point, the Tribunal did not apply any test other than that explained by the Full Court in SZHRU. The [Tribunal] considered evidence concerning the operation of the Treaty as well as the facts concerning the ability of the [applicant], his wife, her parents and the [applicant]’s children to enter and reside in India. That finding was not surprising given that, when asked by the delegate if a Nepalese person needed a visa to enter India, the [applicant] said, “no, because anyone can go, no problem” and “any part of India stop no problem”. In this way, the Tribunal’s reasons showed that it correctly understood and answered the question posed by s 36(3) of the Act.

29.    Further, the Tribunal went on to consider the questions posed by ss 36(4), (5) and (5A) of the Act. Those provisions create an exception to the provisions in s 36(3). The fact that they were considered reveals that the Tribunal was properly focused on the issues raised by the statute rather than the law as it stood prior to the decision of the High Court in NAGV and NAGW of 2002.

30.    It is in this context, it is submitted, that the reference by the Tribunal to “effective protection” (in [44] of the Tribunal’s reasons) was no more than a shorthand description given by the [Tribunal] of the effect of s 36(3). The primary judge at [64] agreed that the consideration of the provisions in [ss 36(4), 36(5) and 36(5A)] of the Act reveal that the [Tribunal] was applying the amended statute rather than the law as it stood prior to the decision of the High Court in NAGV and NAGW of 2002. The primary judge did not commit any appellable error in coming to this conclusion.

43    Ground 6 must also be dismissed.

44    It follows that the following orders are to be made:

1.    The application for an extension of time within which to appeal be granted.

2.    The appeal be dismissed.

3.    The applicant is to pay the costs of the first respondent, to be taxed if not agreed.

Associate:

Dated:    5 November 2015