FEDERAL COURT OF AUSTRALIA

SZUNZ v Minister for Immigration and Border Protection [2015] FCAFC 32

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

BUCHANAN J:

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   He has lodged three applications for a protection visa, although the first (which was lodged on 2 February 2010) was withdrawn on 8 April 2010.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.

Findings by the Refugee Review Tribunal

7    The RRT, in the latest review, was constituted by the same Member who conducted the earlier review. In that earlier review the RRT accepted the appellant’s claim that he had joined a criminal gang in Europe around 2002 and genuinely feared harm from the criminal gang if returned to Norway, where the gang also operates. The RRT in that earlier review found that the fear of harm held by the appellant did not establish that the appellant had a well-founded fear of persecution within the meaning of the Refugees Convention (s 36(2)(a) of the Act).

8    For the purpose of dealing with the latest application, the RRT recorded a summary of key elements of the appellant’s account of his personal and family background which it accepted for the purpose of the decision. The summary was as follows:

20.    From June 2010, the applicant has provided a generally consistent account of his personal and family background, which also matches the information available from sources in Norway, Germany and other countries. The Tribunal records the key elements for ease of reference, and accepts them for the purpose of this decision.

•    The applicant was probably born in Spain of a North African mother. He believes she was Western Saharan, and went to Las Palmas (Canary Islands) for the birth because she had been ill. The applicant does not know his mother’s name, or whether she perhaps had Algerian or Spanish citizenship. He thinks his father’s name was [name].

•    The applicant returned to Western Sahara with his mother. He recalls living in a camp, and that there was lots of violence. She died when he was six years old.

•    A man took the applicant and other orphans from [place] (Western Sahara, currently Moroccan-controlled territory) to Las Palmas. He stayed in an orphanage there for three months, and then spent some years in an orphanage in Madrid.

•    Around 1998 (aged around nine) the applicant went to Paris, where he lived on the streets. He claimed that the police caught him, and that he applied for refugee status, but left before the application was determined.

•    He lived in Belgium from about 1998 to 2000. He stayed in a house where he performed domestic duties, and met [a person], the person whose passport and identity he used.

•    In 2000, the applicant went to the Netherlands, sometimes living in an open refugee camp and sometimes on the street. In 2002, he fell in with the criminal gang that he was associated with for many years.

•    The applicant’s subsequent travel and residence in Europe and North America is, in summary:

–    December 2002 – late 2003: The gang provided the applicant with a passport in the name of [name], a Palestinian [DOB]. The Netherlands authorities kept the applicant in prison for one year. The applicant thought they imprisoned him because he had been living on the streets, but states that he was not convicted of any crime. He did not mention this previously because he did not consider this a criminal matter. In prison, he got to know the gang much better.

–    December 2003: The applicant was released from ‘prison’ in the Netherlands.

–    Early 2004: The applicant visited Germany (Frankfurt and Hamburg) for two weeks, then went to Denmark. He was placed in a ‘jungle’ refugee camp, but left it before immigration officials interviewed him. In Denmark, the gang arranged for the applicant to obtain an Iraqi passport in the name of [name].

–    The applicant travelled to Sweden, and stayed there for one week. The gang provided him with another passport in the name [name].

–    In March 2004, the applicant entered Norway using the newly acquired passport.

–    In August 2004, the applicant was convicted of rape and spent some nine to ten months in prison.

•    The applicant presented this information for the first time in his current protection visa application. He explained that he did not reveal it earlier because he was ‘not guilty of this offence’, and the RRT, in the first instance, did not ask him specifically about any conviction for that offence.

•    By way of background, he explained that he had a Pakistani girlfriend whom he had sex with at the gang-owned home. Her parents discovered that she had been having sexual relations (the applicant told the Tribunal that they forced her to undergo a ‘virginity test’), and this resulted in rape charges. The applicant said that he was unable to reveal details of their relationship, as this would have involved disclosing the location of the gang’s property. As a result, he was unable to properly defend the charges.

–    The applicant trained as a mechanic in prison. After his release, he attended a school, worked occasionally as a mechanic, became involved in a sports club (where he ran and also coached children), and did volunteer work at an aged care home. However, he claims that he mainly worked for the gang, which continued to support him.

–    In 2006, the applicant went to Finland for two weeks, on gang-related travel.

–    Also in 2006, he attempted to travel to Canada, on a false Belgian passport. The applicant claimed, and [witnesses] confirmed, that he, like other North African young men, viewed Canada as a dream destination. The Canadian authorities deported him to Norway.

–    In January 2007, the applicant travelled to New York in a further attempt to enter Canada. He travelled on a Swedish passport that the gang had obtained. Canadian authorities returned the applicant to New York, and from there he was deported to Iceland. He stayed there until June 2007, when he was deported to Norway.

–    The applicant visited Spain from June to September 2009, in an attempt to obtain identity documents.

–    In late 2009, the applicant travelled from Norway to Singapore, en route to New Zealand, but was deported and returned to Germany, where his flight to Singapore had commenced. He went back to Oslo, where he stayed for two weeks while looking for an alternative means of travelling to Australia.

…

9    The RRT concluded that the appellant’s true identity remains uncertain as does his place of birth, nationality and origins, although the RRT assessed on the material before it that the appellant was born in or around 1989.

10    In light of the previous valid protection visa application relying upon the refugee criterion in s 36(2)(a) of the Act, the RRT concluded that it was confined to consideration of claims based upon complementary protection criterion in s 36(2)(aa) or the family membership criteria in s 36(2)(b) or (c). This last possibility concerns a claim by a person who is a member of the same family unit as a non-citizen who holds a protection visa. Although the appellant claimed to be in a de facto relationship that person is an Australian citizen and not the holder of a protection visa. The RRT therefore did not accept that there was any claim to be assessed based on s 36(2)(b) or (c) of the Act. Consideration may therefore be confined to the complementary protection criterion in s 36(2)(aa).

11    Section 36(2)(aa) of the Act stipulates that a criterion for a protection visa is that the applicant for the visa is:

36    Protection visas

…

…

(aa)    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; …

12    At the time of the RRT decision, s 5 of the Act defined “receiving country” 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—the country of which the non-citizen is an habitual resident;

to be determined solely by reference to the law of the relevant country.

13    I shall return to say something about the elements of this definition a little later.

14    The RRT found that the appellant was a stateless person and that Norway was his sole receiving country for the purpose of assessing whether he was eligible for complementary protection. The RRT reached that conclusion having examined a number of possibilities including Western Sahara (assuming it to be a country), Spain, Algeria, Morocco and Mauritania. The RRT found that there was insufficient or no evidence that the appellant had status as an habitual resident in any of those places according to their laws. Accordingly, the matter for attention was whether there was a real risk that the appellant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Norway, even though such removal might be a practical impossibility if (as has been suggested) Norway would not accept him.

15    The RRT assessed the appellant’s involvement with the criminal gang to which he had referred in the following way:

53.    …

•    The applicant told the Tribunal about other aspects of his life in Norway – that he had been convicted of rape in August 2004 and imprisoned until May 2005 (although the Tribunal does not have precise details of the conviction and prison sentence); that he had been taught mechanics while in prison; that he had worked for a friend as a mechanic for a while; that he had also been involved in amateur sports and in voluntary work in an aged care facility. However, he claimed that he mainly worked for the gang.

54.    The Tribunal accepts on the available evidence that the applicant lived a transient life in Europe as a young North African man, and that he became involved in a criminal gang based in Amsterdam. He engaged in various criminal activities such as drug trafficking and money laundering. The Tribunal is satisfied that the applicant remained involved in the gang during the period that it was in Norway. However, the Tribunal finds on the available information that the applicant has given an inflated account of his role in the gang and its ongoing importance in his life. It takes into account that he undertook many other activities in Norway, such as schooling, at least some regular employment, sports and volunteer work. His attempted trips to Canada in 2006 and 2007, his stay in Iceland in the first half of 2007, his trip to Spain in 2009, his attempted travel to New Zealand, in late 2009, and his return to Oslo for two weeks in January 2010, were, according to the applicant’s evidence, all on personal travel rather than gang-related business.

55.    The Tribunal accepts that the applicant’s ambition was to settle in Canada or another distant place. Although he learned Norwegian, received vocational training, found work as a mechanic and engaged in sporting and other activities, he continued to have some association with the gang. The evidence suggests that there were multiple reasons for this – the applicant’s sense of loyalty to the gang, which formed a de facto family for many years; apprehension about the consequences if he left the gang (such as suspicions that he was informing the authorities); and the gang’s continued support of him, with access to their apartment, easy money and the like.

56.    The Tribunal finds on the limited available evidence that the applicant had some involvement with the criminal gang when he left Norway, and that he engaged in some drug-related and other criminal acts from time to time. It accepts for the purpose of this decision that he has not had further contacts with gang members since arriving in Australia. However, given the extent of the applicant’s other activities in Norway and the absence of any evidence of police action against him (despite his claim that they monitored him), the Tribunal finds that the applicant’s involvement with the gang was not his main activity, but rather an occasional one.

16    The RRT then moved to an assessment of claims by the appellant that he had a real fear of harm from the gang if returned to Norway. The RRT assessed those claims as follows:

59.    The applicant claims that there are various reasons for the gang to harm him in the future, if he returns to Norway. He left Norway (and their employment) without permission, and might be suspected of having divulged their activities to the authorities. He also left without having made good the loss of money and drugs from the gang house. And he will in the future continue his efforts to avoid future association with the gang.

60.    The applicant has been outside Norway for more than four years now, and the Tribunal accepts that he has not maintained any contacts with gang members during his absence. In response to the Tribunal’s queries about why the gang might be interested in him in future – as it might have seen changes in personalities, connections and activities – the applicant said that, in addition to the matter of the drugs and money that went missing, the gang would also see him as an asset because he knows languages (English, Norwegian and others), has connections and is familiar with their activities. Furthermore, they might suspect him of cooperating with the authorities.

61.    The applicant declined to give further information about the gang, his claimed persecutors. The Tribunal therefore cannot identify or make findings about any such Amsterdam-based gang, such as the scope of its operations in Europe, its modus operandi and the basis, if any, for the applicant’s view that he would be at risk in Europe, but not in Canada, Australia or a similar country. The applicant’s claims about the gang’s activities, its presence throughout Europe and its demands on members all seem plausible, but unsubstantiated.

17    The RRT also felt that there were serious doubts raised about the appellant’s claims because of false, misleading or inaccurate information which he had given to Australian authorities in the past. The RRT said, after some further discussion of this issue:

67.    Despite these doubts, the Tribunal cannot rule out entirely that the gang represents some very real risk, that they will intentionally inflict on him significant harm, as defined in s.36(2A) of the Act, for instance, the loss of life or ‘cruel or inhuman treatment or punishment’ as defined in s.5 of the Act, such as severe physical or mental pain. The Tribunal assesses immediately below whether the applicant faces a ‘real risk’ of such harm, by taking into account whether he could obtain State protection such that he faces not merely a ‘very small risk’, but less than a real risk.

(Emphasis in original.)

18    The RRT also considered whether the appellant could obtain protection from authorities in Norway, if he returned there. Section 36(2B)(b) of the Act provides:

36    Protection visas

…

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

…

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; …

19    The RRT said:

70.    Taking the country information as a whole, the Tribunal is satisfied that the Norwegian authorities have the resources and capacity, at least in principle, to protect the applicant such that he will not suffer significant harm. There is a wide range of information indicating that Norway has effective State institutions, including the police, that offer citizens and residents effective protection against crime.

…

72.    The applicant has never sought the protection of the Norwegian authorities, and appears to have no intention of doing so. In the Tribunal’s view, this distinguishes the applicant’s situation from those where state resources are clearly lacking, or where the state has received a request but cannot provide the required level of protection for a particular individual.

…

75.    The Tribunal accepts that the applicant is reluctant to approach the Norwegian authorities because of his criminal record. The Tribunal accepts that he was convicted of rape when about 15 years old, and that the police may have questioned him earlier about some drugs offences, although it appears that no charges were laid. However, the applicant’s conviction took place some years ago, when he was quite young. The Tribunal is not satisfied that the police have any ongoing adverse interest in the applicant, or would deny him protection, because of a criminal offence he committed in his teens.

(Footnote omitted.)

20    Then the RRT examined a claim by the appellant that he was a victim of human trafficking but was not satisfied that this would have any impact upon his capacity to obtain protection from Norwegian authorities. The RRT concluded on these issues:

90.    The Tribunal has found above that there is some very small risk that the criminal gang will inflict significant harm on the applicant in the future. The Tribunal has examined all the possible obstacles to the applicant being able to obtain protection from the Norwegian authorities – including his status as a (former) victim of human trafficking, his criminal conviction when aged 15, his criminal links in Norway and other factors, cumulatively, together with the Norwegian authorities’ motivation and capacity to provide such protection. The Tribunal is satisfied, that the applicant could obtain, from the Norwegian authorities, protection such that there would not be a real risk that the applicant will suffer significant harm: s.36(2B)(b).

(Emphasis in original.)

21    Finally, the RRT rejected a claim that the appellant might face a real risk of significant harm from the Norwegian authorities themselves.

Proceedings in the Federal Circuit Court of Australia

22    The grounds for the application for judicial review in the FCCA included matters which are not raised by the present appeal. The matter of substance raised in the FCCA which is reflected in the present appeal concerned whether the RRT was correct to conclude that only Norway should be regarded as a receiving country for the purpose of s 36(2)(aa) so that claims to fear harm should be assessed only in relation to claims of feared harm in that country. The FCCA recorded:

51.    The applicant submits that, in rejecting the applicant’s claims to be an habitual resident of any of Spain, Algeria, Morocco and Western Sahara, on the basis of the lack of any evidence of legal entitlement to reside at the relevant time, the Tribunal misapprehended the test which it was required to apply. In doing so, it is said to have fallen into jurisdictional error.

23    In a passage which was the subject of particular attention in the present appeal, the FCCA said:

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.

24    The FCCA went on:

59.    In my opinion, the Tribunal correctly concluded at [35] that it must consider as “receiving countries” any place in which the applicant is an “habitual resident” even if he has no current right to return there. It should be remembered, in this context, that the purpose in the Tribunal identifying a receiving country is not to determine the country to which the applicant should be removed41, but rather, to identify whether the applicant would be exposed to a real risk of significant harm thereby attracting Australia’s protection obligations.

60.    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.

61.    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.

…

64.    …The applicant ultimately asked the Tribunal to find that Norway alone is a receiving country. The Tribunal so found. Subject to what I say below, it is fruitless for the applicant now to challenge that decision on the basis that the Tribunal should have found otherwise, or wrongly approached that task.

41    Although it may have that consequence

25    The FCCA found that the RRT had not committed a jurisdictional error, and dismissed the application for judicial review.

The grounds of appeal

26    The grounds of appeal to this Court are as follows:

1.    The trial judge erred in finding that the Tribunal had applied the correct test to determine habitual residence under s 36(2)(aa) of the Migration Act, where:

a.    the trial judge found the correct test for a ‘receiving country’ was ‘principally one of fact’ independent of a legal right to enter and reside in the country [at 57]; and

b.    the Tribunal relied on the Appellant’s lack of legal status in particular countries when deciding whether those countries were ‘receiving countries’.

2.    The trial judge erred in finding that “the Tribunal should not be found to have fallen into error by relying on the case put to it” [at 61], in circumstances where:

a.    the relevant factual assertions made by the Appellant as to his former countries of residence were before the Tribunal;

b.    the Tribunal did not limit itself to considering Norway as a potential receiving country;

c.    the case put to the Tribunal by the Appellant included the submission that at least one other place was a receiving country, and the Appellant only modified the submission during the course of or subsequent to the hearing; and

d.    the Appellant’s ‘contention’ regarding Norway ([60],[61]) did not permit the Tribunal to avoid its duties under the statute.

Receiving country and habitual residence

27    Before I deal further with those two grounds of appeal I need to return to the meaning of the definition of “receiving country” in s 5 of the Act (as it applied at the relevant time), which I will set out again here for ease of reference:

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.

28    The RRT apparently took the view that it was obliged to proceed on the basis that whether the appellant was “an habitual resident” of a country for the purposes of s 36(2)(aa) was to be determined “solely” by reference to the law of that country as the definition, on a literal reading, might appear to suggest. If that was the approach that was taken then, in my respectful view, it was an error but (for reasons to be developed) was not one which was a jurisdictional error in the circumstances of the present case.

29    It may readily be accepted that a judgment about whether a person is a “national” of another country is to be determined solely by reference to the law of that country. Recognition of nationality and the grant of citizenship is a sovereign right. However, it may not be readily assumed that the laws of individual countries deal with “habitual” residency as a legal concept. The definition should not be construed so as to leave a referential void, but rather so as to provide a practical touchstone against which to assess the circumstances of persons who are not nationals of any country.

30    In Tahiri v Minister for Immigration and Citizenship (2012) 87 ALJR 225, the High Court (at [16]) referred to the terms “usually a resident” and “habitual residence” of a country as follows:

[16]    Whether a person is “usually a resident” of a country other than that of the person’s citizenship is a question of fact. “Usual residence” in this context, like “habitual residence” in the context of the Convention on the Civil Aspects of International Child Abduction, “fall[s] for decision in a very wide range of circumstances” and involves a “broad factual inquiry”, 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”.

(Footnotes omitted.)

31    The broad factual inquiry there referred to, and the assessment of the factors identified as relevant to it, are not easily reconciled with any proposition that a finding that a person is an habitual resident of a country where he or she is a non-national is to be determined solely in accordance with the law of that country. Where the definition of “receiving country” is employed for the purposes of s 36(2)(aa) of the Act, the matter to be assessed is whether the person, if returned to that country, is at real risk of significant harm, but that assessment is not aided by an inquiry about whether the law of that country recognises a category of habitual residence. The inquiry is one which engages with the practical possibility of return to a place where a person has (habitually) lived, whether or not return to that country can be accomplished.

32    For those reasons, I would not accept as correct the meaning given to the definition by the RRT. However, that error in my view played no operative part ultimately in the RRT decision, and did not lead to any error on the part of the FCCA which found the question of habitual residence to be “principally a question of fact” ([57] set out earlier).

An amendment which need not be considered

33    At the hearing of the appeal it became apparent that the definition of “receiving country” has been amended with effect from 16 December 2014. It now reads:

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.

34    The amended definition is not relevant to the meaning to be assigned to the definition considered by the RRT and the FCCA. In a supplementary ‘joint note’ provided by the parties after the hearing of the appeal it was common ground that the amendment does not assist in interpreting the definition of receiving country as it applied at the relevant time.

The circumstances of the appellant

35    Although the RRT accepted (for the purpose of its decision) that the appellant lived in a camp in Western Sahara until about six years old, the RRT also accepted that he had lived (for varying periods of years) in Spain, Belgium, the Netherlands and Norway. Only Western Sahara was claimed initially by the appellant to be a country of habitual residence and later only Western Sahara or Norway. Apart from the fact that there was no conclusive basis to treat Western Sahara as a country, in my view the contention that the appellant was an habitual resident of Western Sahara was quite unrealistic, given the history which the RRT did accept, which was based on the appellant’s own account of his circumstances.

36    Identification of a country of “habitual” or “usual” residence (if indeed one could be identified at all in the case of a stateless person who moved frequently) would, in my view, not normally result in selection of a country in which a person (now adult) spent some few years with a parent, only to leave forever at six years of age. Whatever connections by birth or origins might be asserted, it is hard to conceive of that place as a country of habitual residence of that person as an adult, after a life spent moving through other countries. In the present case it was quite artificial to suggest Western Sahara as a country of habitual residence. So to observe is not to canvas the facts. It is merely to make an observation about the nature of the legal test, and its obvious limits.

37    Moreover, the RRT explicitly found that no factual case of habitual residence in Western Sahara had been established for the purpose of s 36(2)(aa), referring to:

40.    … the lack of established facts that could form the basis of such a determination …

42.    … 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 that is far from certain. …

44.    … he has nothing to demonstrate any actual links with these places [including Western Sahara]. …

46.    The Tribunal finds that the applicant is a stateless person, and that Norway is his sole ‘receiving country’ for the purpose of assessing whether [he] is eligible for complementary protection.

38    Those were findings of fact which were not dependent on any restrictive view of the definition of “receiving country”. The findings of fact are not reviewable in the present appeal. They establish that the sole receiving country was Norway. There was no jurisdictional error in that conclusion.

Consequences for the appeal

39    In my respectful view, for the reasons I have given, the grounds of appeal mis-characterise the way in which the RRT went about its task and do not identify either jurisdictional error on the part of the RRT or legal error on the part of the FCCA.

40    There is no present assertion that the detention of the appellant is unlawful. His detention is not at present indefinite or indeterminate because the process of considering his claim for a visa is not yet at an end (see Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322).

41    I would therefore dismiss the appeal with costs.

Associate:

Dated:    13 March 2015

REASONS FOR JUDGMENT

FLICK J:

42    The Appellant’s personal circumstances are not enviable.

43    In very summary form, he is a “stateless” person. He has no accepted nationality of any country and has no passport. He was born in Spain. Although he claimed to have been born in 1992, it is now accepted that he was born in 1989. His mother was North African and, after his birth, he returned to Western Sahara where he lived in a camp. His mother died when he was six years old. When he was about nine he went to Paris where he lived on the streets. He then went to Belgium and the Netherlands. In 2004 he entered Norway using a false passport. In August 2004 he was convicted of sexual assault and served some 10 months’ imprisonment in a Norwegian gaol. He thereafter went to Canada and the United States.

44    He arrived in Australia in January 2010. He had no valid travel document. He was placed in immigration detention pursuant to s 189 of the Migration Act 1958 (Cth) (the “Migration Act”). There he remains.

45    Of present relevance is that a delegate of the Minister rejected his application for a protection visa. That application was lodged with the Department of Immigration and Border Protection in November 2013. The delegate refused the application in March 2014.

46    The Refugee Review Tribunal rejected an application for review of the delegate’s decision. By the time the matter had proceeded to the Federal Circuit Court, the only issue to be resolved was whether or not the Appellant could invoke s 36(2)(aa) of the Migration Act. Section 36(2)(a) and 36(3) were not in play. In October 2014 the Federal Circuit Court dismissed an application seeking judicial review of the Tribunal’s decision: SZUNZ v Minister for Immigration and Anor [2014] FCCA 2256.

47    He now appeals to this Court.

48    Underlying the Appellant’s challenge to the respective decisions of the Tribunal and the Federal Circuit Court is his fundamental submission that any consideration as to whether any particular country was a “receiving country” focussed erroneously upon “habitual residence” as determined exclusively by reference to the laws of that country. Contrary to that approach, the Appellant submitted that “habitual residence” is “principally a question of fact”. He further submitted that the Tribunal’s findings as to whether the Appellant was an “habitual resident” of any particular country were founded upon an erroneous confinement of its analysis to the laws of that country, rather than the Appellant’s factual connections to that country.

49    The appeal is to be dismissed with costs.

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.

CONCLUSIONS

70    Any error of either the Tribunal or the Federal Circuit Court could not impugn the Tribunal’s fundamental factual findings that the Appellant had not demonstrated any real connection with Western Sahara, Algeria or Morocco. Any error in the Tribunal’s focus upon the Appellant’s “legal status” in any of these countries mattered not, so long as the Appellant remained unable to demonstrate any “connection” with any of these countries or “any actual links with these places …”.

71    Any error in the Tribunal’s consideration of whether Norway was a “receiving country” equally matters not. The Tribunal accepted that Norway was a “receiving country”. That claim failed because the Appellant could not demonstrate any “significant harm” if he returned to Norway.

72    Any legal error the Tribunal may have committed in its construction and application of the definition of a “receiving country” was not jurisdictional error.

73    Albeit reached by a different process of reasoning, the Federal Circuit Court was correct to dismiss the challenge to the Tribunal’s reasons.

74    A consequence the appeal being dismissed, it was accepted by Counsel on behalf of the Minister, was that the Appellant would remain indefinitely in detention – subject only to the Minister’s exercise of a so-called “unreviewable” discretion. The Appellant, it was common ground, could not return to Norway. He has no-where to go. Such a position, it was correctly accepted by Counsel on behalf of the Minister, is “unpalatable”. In the absence of the Minister exercising his discretionary powers, and once the present proceeding reaches its conclusion, the only step potentially available to the Appellant would be to seek a writ of habeas corpus.

75    It was also common ground that costs should follow the event.

76    It is respectfully concluded that the appeal should be dismissed with costs.

Associate:    

Dated:    13 March 2015

REASONS FOR JUDGMENT

WIGNEY J

77    This is an unfortunate case. It reveals, amongst other things, difficulties that may be encountered in addressing the key criterion for a protection visa under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act) where the visa applicant has no country of nationality. It also shows how a stateless person is prone to end up in a potential immigration limbo when he (or she) has no right or entitlement to enter any other country and therefore may not be able to be “removed” from Australia to any other country.

78    Those difficulties arise, in particular, from the definition of “receiving country” in the Act insofar as it applies to stateless persons.

79    The appellant appeals from a judgment of the Federal Circuit Court which dismissed his application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) which refused his application for a protection visa. For the reasons that follow, I agree with Buchanan and Flick JJ, whose judgments I have seen in draft, that the appeal must be dismissed with costs. That is so despite the fact that both the reasons of the Tribunal and the judgment of the Federal Circuit Court include somewhat questionable reasoning which may, at least at first blush, suggest some error in the approach taken to determining the appellant’s place of habitual residence for the purposes of s 36(2)(aa) of the Act.

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.

Associate:

Dated:    13 March 2015