FEDERAL COURT OF AUSTRALIA

SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77

THE COURT ORDERS THAT:

1.    The appellant have leave to rely on the notice of appeal dated 29 April 2015.

2.    The appeal be allowed.

3.    The orders dated 7 November 2014 of the Federal Circuit Court of Australia be set aside.

4.    A writ of certiorari be issued quashing the decision dated 28 October 2013 of the second respondent.

5.    The second respondent is directed to reconsider according to law the application for review dated 22 October 2012.

6.    The first respondent pay the appellant’s costs of and incidental to the appeal and of the proceedings in the Federal Circuit Court of Australia as agreed or assessed.

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision dated 7 November 2014 of the Federal Circuit Court of Australia (FCCA), which summarily dismissed the appellant’s application for judicial review concerning his unsuccessful application for a protection visa. Leave to appeal was granted by a single judge of this Court on 24 February 2015 pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

2    The primary issue is whether the FCCA erred in finding that there was no arguable case that the Refugee Review Tribunal (the Tribunal) fell into jurisdictional error in describing the test to be applied in respect of s 36(3) of the Migration Act 1958 (Cth) (the Act) as whether “as a matter of practical reality” the appellant as a Nepalese national has a right to enter and reside in India, of which he has not taken all possible steps to avail himself. In particular, a central question is whether that expression of the relevant legal test is consistent with the decision of the five member Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35 (SZRHU). For the reasons which follow, we consider that it is not.

Background matters

3    The appellant is a citizen of Nepal. He arrived in Australia on 27 February 2009 as the holder of a student visa. He later acknowledged that he had used a false marriage document to obtain that visa. The appellant applied for a protection visa on 23 May 2012. This was refused by a delegate of the Minister on 26 September 2012. The appellant applied to the Tribunal for review of this decision on 22 October 2012.

4    The appellant claimed to fear harm in Nepal from the Maoists on the basis of his membership of the Nepali Congress Party and his status as a businessman who had been subjected to extortion by the Maoists. He claimed that he had been assaulted by the Maoists and his wife and family were harassed. He claimed that he feared for his life should he return to Nepal and that the Nepalese Government provided ineffectual protection.

5    The Tribunal accepted that the appellant was the subject of extortion demands from local Maoists but did not accept that this would lead to him being targeted beyond his particular local area. Relying on country information, it also rejected the notion that the appellant enjoyed a sufficient political profile giving rise to the sort of persecution he claimed. Nor did the Tribunal accept that the Maoists had threatened or harassed the appellant’s family. Finally, the Tribunal concluded that the appellant’s concerns as to political instability and weak law enforcement in Nepal were difficulties “faced by the population generally”.

6    The Tribunal also considered and rejected the appellant’s claims to be entitled to protection by reason of complementary protection. It accepted that the appellant faced a real risk of significant harm in his local area when he was operating a business there previously and was subjected to extortion demands. However, the Tribunal concluded that it was not satisfied that there continued to be a real risk of significant harm now or in the reasonably foreseeable future, other than possibly in the appellant’s home area. Accepting as it did that there “may be some small risk of further demands and possible harm should the applicant return to his home area and again establish a business”, the Tribunal noted that this finding might give rise to protection obligations under complementary protection provisions.

7    However, the Tribunal found that s 36(3) applied. It reached this conclusion after having regard to the appellant’s circumstances and information before the Tribunal about the relationship between Nepal and India. It referred to Attachment B of its reasons, which summarised country information in relation to the rights of Nepalese nationals to enter and reside in India and to the circumstances of Nepalese nationals in India. The Tribunal’s ultimate conclusion on the application of s 36(3) is set out in [51] of its reasons for decision:

The Tribunal has had regard to the terms of the 1950 Treaty of Peace and Friendship between India and Nepal; the consequential administrative provisions as currently set out by the Bureau of Immigration, Ministry of Home Affairs, Government of India, on its website; and the recent advice of Australia’s Department of Foreign Affairs and Trade in relation to the practical situation. The Tribunal is satisfied that, as a matter of practical reality, the applicant as a Nepalese national has a right (of which he has not taken all possible steps to avail himself) to enter and reside in India.

(Emphasis added).

8    Accordingly, the Tribunal held that the appellant was not a person to whom Australia owed protection obligations.

Proceedings before the FCCA

9    The appellant sought judicial review of the Tribunal’s decision in the FCCA (SZTOX v Minister for Immigration & Anor [2014] FCCA 2861 (SZTOX)). He was unrepresented but was assisted by an interpreter.

10    The appellant’s judicial review application contained three grounds of review, each of which contained a heading and then a narrative. The three headings were as follows (errors in original):

1.    Unfairness in the Decision and non-consideration of the relevant law.

2.    BIAS DECISION made by the Tribunal which relied on only the media and not on personal circumstances.

3.    UNFAIR JUDGEMENT.

11    It is unnecessary to set out the narrative in respect of grounds 1 and 3. The narrative to ground 2 was as follows (errors in original):

The delegate of the Minister at the Department of Immigration and Border Protection during my interview on 26 September 2012, accepted Under the heading Statutory effective protection, saying the delegate is satisfied and has accepted my claims of not having the right to enter and reside in a third country.

The delegate also mentioned that I do not have effective protection in a third country including India under section 36(3) of the Migration Act.

However, the Tribunal did not consider the facts that Nepali people face discrimination and are not given state protection in India although it is true that no visas are required for a Nepali to enter India. There have been several cases in history where Refugee Review Tribunal, Federal Court of Australia, Federal Circuit Court of Australia, Federal Magistrates Court and Administrative Appeals Tribunal have accepted that India is not considered as a Safe Haven for a Nepali National. The Tribunal made its decision on speculation and not based on reality.

(Emphasis in original.)

12    The primary judge held that each of the three grounds of review was unarguable and the judicial review application was summarily dismissed under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules).

13    It is unnecessary to describe the basis for that conclusion in respect of grounds 1 and 3. As to ground 2 (the allegation of bias), the primary judge found that the appellant had provided no evidence to support this “serious allegation”. His Honour then stated at [35] and [36]:

A bare disagreement with the Tribunal's conclusion, as the applicant has presented now, does not give rise to any arguable case. The Tribunal's analysis, and approach, in relation to s.36(3) and its references properly to ss.36(4), (5) and (5)(a) of the Act do not reveal legal error. Its approach was consistent with the understanding of the concept, or the term, of “right to enter and reside in” as it appears in s.36(3), and what was relevantly said by the Full Federal Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35 (see [30] - [35] and [72] - [79] per Buchanan J, with whom Tracey, Robertson and Griffiths JJ agreed).

I agree with the submissions made by the Minister today that the Tribunal's analysis (at [51] at CB 122) makes reference to the relevant, correct test that applies in relation to s.36(3) of the Act, and note in that regard, that the Tribunal's satisfaction was based on a matter of “practical reality”. Ground two also does not raise any arguable case for the relief that the applicant seeks.

14    It is important to note that, although the FCCA concluded that none of the three grounds of judicial review raised an arguable case and the applicant at a “show cause” hearing was confined to the grounds in the judicial review application (see r 44.13(1)) of the FCC Rules), there was a residual discretion under r 1.06 of the FCC Rules to dispense with that particular rule. The primary judge turned his mind to the possible application of that dispensing rule in [39] of his Honour’s reasons for judgment, but concluded that there was no basis for dispensing with r 44.13(1). It is evident that in coming to this view in respect of ground 2 in particular, the primary judge relied on his earlier finding that the Tribunal’s analysis and approach in relation to s 36(3) did not reveal legal error and was consistent with SZRHU. As will shortly emerge, this is relevant to the Minister’s objection to the Court entertaining in the appeal the grounds raised in the notice of appeal.

Leave to appeal before the Federal Court

15    The appellant’s application for leave to appeal was allowed by a single judge of this Court on 24 February 2015. The Court noted the conflicting reasoning by the FCCA in SZTOX, on the one hand, and two other decisions of the FCCA, SZTOG v Minister for Immigration [2015] FCCA 180 (SZTOG) and SZTQN v Minister for Immigration [2015] FCCA 188 (SZTQN), on the other.

Grounds of appeal

16    The appellant has had the assistance of counsel, acting pro bono, in his preparation for and conduct of the appeal. His proposed grounds of appeal are as follows (errors in original):

1.    The Court erred in failing to find that the Second Respondent made a jurisdictional error by failing to consider whether, under the law of India the Appellant has a legally enforceable right, or a privilege, liberty or permission to enter and reside in India.

Particulars

a.    The Second Respondent concluded that the Appellant, “as a matter of practical reality” had a right to enter and reside in India.

b.    The Second Respondent failed to consider whether the alleged right to enter and reside in India was:

i.    a legally enforceable right; or

ii.    a privilege, liberty or permission lawfully given, albeit capable of withdrawal and not capable of any particular enforcement; or

iii.    a privilege, liberty or permission which does not give rise to any particular duty upon the state in question.

2.    The Court erred in failing to find that the Second Respondent made a jurisdictional error by applying the incorrect legal test to the question of whether or not the requirements of s 36(3) of the Migration Act 1958 (Cth) applied to the Appellant.

Particulars

a.    The Second Respondent concluded that the Appellant, “as a matter of practical reality” had a right to enter and reside in India.

b.    The legal test that ought to have been applied by the Second Respondent was to ask whether the Appellant had:

i.    a legally enforceable right; or

ii.    a privilege, liberty or permission lawfully given, albeit capable of withdrawal and not capable of any particular enforcement; or

iii.    a privilege, liberty or permission which does not give rise to any particular duty upon the state in question;

to enter and reside in India.

3.    The Court erred in failing to find that the Second Respondent made a jurisdictional error by making a finding that the Appellant had a right to enter India, in circumstances where there was no evidence or other material to justify the finding.

a.    The evidence before the Second Respondent was that a citizen of Nepal “could gain entry to India” and did not require a passport or visa for entry in India, but was required to be in possession of “valid identity documents”.

b.    This evidence was capable of demonstrating the result of administrative arrangements for entry of Nepalese citizens into India, but was not evidence upon which a finding could be made that the Appellant had either:

i.    a legally enforceable right; or

ii.    a privilege, liberty or permission lawfully given, albeit capable of withdrawal and not capable of any particular enforcement; or

iii.    a privilege, liberty or permission which does not give rise to any particular duty upon the state in question;

to enter India.

c.    There was no evidence before the Second Respondent as to the nature of any legally enforceable right, or privilege, liberty or permission granted to the Appellant to enter India, only evidence that the Appellant could gain entry to India if he presented a valid identity document, which was incapable of satisfying the requirements of s 36(3) of the Migration Act 1958 (Cth).

The appellant’s submissions summarised

17    In broad terms, the appellant’s submissions are as follows. First, the FCCA erred in concluding that the Tribunal had applied the correct test under s 36(3) of the Act, as established in SZRHU. The reference to “practical reality” was inappropriate as that concept applies to the doctrine of “effective protection” and not s 36(3). The appellant submitted that the materials which were taken into account by the Tribunal in concluding that the appellant had a right to enter and reside in India were “substantially less detailed and instructive in comparison to the country information considered by the Tribunal in SZRHU”. He submitted that, as Buchanan J found in SZRHU, the Treaty itself was incapable of establishing the existence of a right of entry into India because it dealt with the position of a national of Nepal or India who was already in the other country. He submitted that the other materials cited by the Tribunal simply indicated that there was a prospect that the appellant could gain entry to India upon the presentation of correct documents, which fell short of establishing that there was a right to do so within the meaning of that term as stated by Allsop J in V856/OOA v Minister for Immigration and Multicultural Affairs [2001] FCA 1018; (2001) 114 FCR 408 (V856/OOA) which was subsequently approved and adopted in SZHRU.

18    Secondly, the FCCA erred in not finding that the Tribunal fell into jurisdictional error in concluding that the appellant had a right to enter and reside in India in circumstances where the country information before the Tribunal was incapable of providing a foundation for that finding.

19    Thirdly, the appellant contended that there was no evidence to support the Tribunal’s finding that the appellant had a right to enter India (the appellant accepted, however, that there was evidence to support the finding that, having entered India, a Nepalese had a right to reside there). In support of this contention, the appellant effectively repeated his earlier submissions regarding the deficiencies in the materials which were cited by the Tribunal in [51] of its reasons for decision and which were set out at greater length in Attachment B thereto.

The Minister’s submissions summarised

20    The Minister raised several procedural objections. The first was that the appellant should not be permitted to now raise grounds which were not set out in his judicial review application below. The Minister drew attention to the fact that in a “show cause” hearing under r 44.12 of the FCC Rules, an applicant is limited to the grounds set out in the application, as required by r 44.13. Accordingly, the relevant question before the FCCA was whether the appellant’s judicial review application, limited to the grounds stated therein, raised an arguable case for the relief claimed. The Minister added that the primary judge’s statements regarding s 36(3) of the Act were not responsive to anything raised in the judicial review application and were thus “unnecessary”.

21    Secondly, the Minister contended that the Court’s appellate jurisdiction is limited by the nature of the decision under appeal which, in this case, is whether the power under r 44.12 summarily to dismiss was properly exercised. In that context, the restraint imposed by r 44.13 is significant and, the Minister submitted, the Court should not find error in the judgment below on the basis of grounds which were not raised in the judicial review application.

22    Thirdly, and in the alternative, the Minister submitted that all of the appellant’s appeal grounds involved consideration of the state of material before the Tribunal and that material may well have been met by additional evidence if the grounds had been raised below. The Minister indicated that, were the Court to entertain the grounds set out in the notice of appeal, he would seek leave under s 27 of the Federal Court of Australia Act 1976 (Cth) to tender full copies of all the documents referred to by the Tribunal in connection with its finding that the appellant had a right to enter and reside in India. The appellant raised no objection to this course and the material was admitted into evidence.

23    The Minister’s submissions on the substance of the appeal may be summarised as follows:

(a)    although the Tribunal’s use of the phrase “as a matter of practical reality” was “a perplexing choice of language” it was not inconsistent with SZRHU and should be understood as relating to the existence of the necessary right or permission or liberty, not to its content;

(b)    the material before the Tribunal was capable of supporting a finding that the appellant had a right in the sense of a “liberty, permission or privilege lawfully given” to enter and reside in India, noting in particular:

(i)    it was not irrational of the Tribunal to conclude that the Treaty supported the existence of a right of entry and notwithstanding that Buchanan J in SZRHU expressed the tentative view that Articles 6 and 7 of the Treaty did not establish any such right;

(ii)    the advice from the Indian Bureau of Immigration was consistent with the existence of an existing liberty or permission;

(iii)    the Tribunal did not fully or accurately set out the terms of DFAT’s advice in that the Tribunal erroneously stated that that advice was that a Nepalese citizen flying directly from Australia “could gain entry to India”. Rather, the advice identified requirements for entry which was consistent with what was stated in the Indian Bureau of Immigration’s document; and

(iv)    to set aside a decision as illogical, irrational or unsupported by evidence, attention needs to be focused not only on the reasons of the decision-maker but also on the evidence or lack thereof which was before the decision-maker (citing SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 (SZOOR) at [15] per Rares J; at [84]-[85] per McKerracher J and at [113] per Reeves J).

Determination of the appeal

24    We will deal first with the Minister’s procedural objections before addressing the substance of the appeal.

(a) The Minister’s procedural objections

25    Rule 44.13 of the FCC Rules does not prevent the appellant from raising the proposed grounds in the notice of appeal. That is because, in considering whether or not to dispense with that rule under r 1.06, the primary judge erred in his conclusion that the Tribunal had applied the correct legal test in respect of s 36(3) of the Act. As will be developed below, the correct test is not one of “practical reality” and the Tribunal’s reasons do not disclose an adequate appreciation on its part of the correct meaning of the term “right” in s 36(3) as established in cases such as V856/OOA and SZHRU. That constitutes an appealable error by the FCCA within the relevant principles established in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. If the primary judge had appreciated these matters he may have exercised his discretion under r 1.06 and allowed the appellant to raise the grounds in the notice of appeal before us.

26    The second procedural issue is whether the appellant requires leave to rely on the proposed grounds in the notice of appeal and, if so, whether leave should be granted. Although in the second ground raised in the appellant’s judicial review application there are references to s 36(3) of the Act (see [11] above), they appear to relate to the doctrine of effective protection rather than to the issue of the appellant’s right to enter and reside in India for the purposes of s 36(3) of the Act. The appellant expressly acknowledged in ground two of his judicial review application that no visa was required for him to enter India. In these circumstances, leave is required to raise the grounds in the notice of appeal as they were not raised below.

27    Leave should be granted. The case comfortably meets the various considerations which are among those which are relevant to the question whether such leave should be granted (see NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166] per Madgwick J). In particular:

(a)    the first two grounds in the notice of appeal have reasonable prospects of success as will become evident from our analysis below. It is unnecessary to determine whether ground 3 has reasonable prospects because, as will also emerge below, it is unnecessary to determine this ground;

(b)    it is understandable that the grounds were not raised below as the appellant was unrepresented in the FCCA;

(c)    permitting the grounds to be raised is in the interests of justice and does not impose an unacceptable burden on the Court’s resources;

(d)    the grounds raise issues which are undoubtedly of acute significance to the appellant and his entitlement to protection;

(e)    resolution of the issues has an importance beyond this case given the different views which have been expressed by the FCCA on the correct test to be applied concerning s 36(3) post SZHRU;

(f)    the Minister pointed to no real prejudice were leave to be granted. To the extent that Attachment B to the Tribunal’s reasons did not correctly set out all of the relevant parts of the documents cited by the Tribunal in [51] of its reasons, the Court has admitted into evidence in the appeal all of Ms Stone’s affidavit, which annexes full copies of all those documents. The principles in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7-8 have no application here because, having regard to Ms Stone’s evidence, even if that evidence had been led below it would not have prevented the relevant grounds from succeeding; and

(g)    the interests of justice plainly favour the appellant being granted leave to ensure that all relevant issues in dispute between the parties are determined.

28    For these reasons, we would grant the appellant leave to rely on the grounds in the notice of appeal.

(b) The grounds of appeal

29    We consider that the primary judge erred in holding that the Tribunal applied the “relevant, correct test” in relation to s 36(3) in the context of the Tribunal’s satisfaction that s 36(3) applied based “on a matter of ‘practical reality’”. With respect, his Honour also erred in finding that the Tribunal’s understanding of the phrase “right to enter and reside in” as it appears in s 36(3) was consistent with SZRHU.

30    It is unnecessary to repeat the detailed analysis of the previous case law on both the doctrine of effective protection and s 36(3) having regard to the comprehensive analysis undertaken by Buchanan J in SZRHU (with whom Tracey, Robertson and Griffiths JJ agreed). The key salient points established in SZRHU may be summarised as follows.

31    First, the test which lay at the heart of the new discredited doctrine of effective protection (as opposed to s 36(3)) was one concerned with “practical reality and fact” ([41], [42] and [47]).

32    Secondly, the doctrine of “effective protection” which had been read into s 36(2) of the Act in various decisions of the Court was rejected by the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 at [27] and [42] ([68]-[70]).

33    Thirdly, the “right” referred to s 36(3) does not mean only a legally enforceable right under domestic law, but also includes a “liberty, permission or privilege lawfully given”, as Allsop J had held in V856/OOA ([56]).

34    Fourthly, the “right to enter and reside” as referred to in s 36(3) is not confined to a right which is consonant with nationality or citizenship. As noted above, it can include a “liberty, permission or privilege lawfully given”, which does not mean that the “right” under s 36(3) must be capable of being vindicated in the courts and under the domestic law of the receiving country ([76], [78] and [89]).

35    Fifthly, the phrase in s 36(3) referring to a right “however that right arose or is expressed” suggests a less stringent and broader test than a legally enforceable right arising under domestic law, as also does the notion in s 36(3) of temporary residence ([35]).

36    Sixthly, the Treaty itself does not appear to give Nepalese citizens a right of entry to India ([88]).

37    Seventhly, the evidence in SZRHU indicated that there were “administrative arrangements for entry” which may have been intended to facilitate the operation of the Treaty, but that was an issue which should not be determined in SZHRU. Rather, the evaluation should be made by the Tribunal which could, if it wished, seek further information which was relevant in applying the correct test ([88]).

38    Eighthly, the Tribunal was in error in SZRHU to consider that the terms of the Treaty established a legally enforceable right to enter and reside in India. The Tribunal should heed the actual terms of the Treaty and consider whether those terms, together with any administrative or other arrangements established by the evidence considering the entry by Nepalese citizens at the Indian border, and consider whether they satisfy the correct test as established in V856/OOA, and approved in SZRHU ([90]).

39    It is notable that the Tribunal in this proceeding made no reference at all in its reasons for decision to the Full Court’s decision in SZHRU. That omission may not have carried any significance if the Tribunal’s reasons otherwise revealed that it properly understood and applied the relevant principles established in SZHRU. But that is not the case. On the contrary, the Tribunal’s reference in [51] of its reasons for decision to it being satisfied, “as a matter of practical reality”, that the appellant had a right to enter and reside in India strongly suggests that the Tribunal was labouring under a misapprehension that the correct test under s 36(3) was that which applied under the now discredited doctrine of effective protection. That is inconsistent with SZRHU and involves jurisdictional error.

40    Furthermore, the Tribunal’s erroneous reference to the concept of “practical reality” casts serious doubt on whether it properly understood the significance of decisions such as V856/OOA and SZRHU on the meaning of the term “right” in s 36(3). The Tribunal made reference in [51] of its reasons for decision to “a right”, but otherwise failed to demonstrate that it properly comprehended the correct meaning of that term, as established again in V856/OOA and SZHRU. In particular, there is nothing to suggest that the Tribunal properly appreciated that a “right to enter and reside” for the purposes of s 36(3) is not confined to a legally enforceable right, but extends to include a “liberty, permission or privilege lawfully given” in accordance with the relevant authorities of this Court.

41    For completeness, lest there be any doubt, we should also state that the “right to enter and reside” for the purpose of s 36(3) is not confined to a right which is sourced in domestic law, such as a statute or regulation or other legislative instrument. The right might also be sourced in an executive act, such as a Treaty, executive policy or statement or other executive instrument. These examples are not intended to be exhaustive. The proper construction of s 36(3) must accommodate the potentially wide range of laws and executive acts which could create a right or entitlement in the relevant sense for a person to enter and reside in another country.

42    It necessarily follows from what we have said immediately above that we respectfully disagree with those parts of the decisions of the FCCA in SZTOG at [34] and [37] and SZTQN at [25] and [26], which suggest that the right or entitlement under s 36(3) is confined to one which is provided by or allowed under the domestic law of the receiving country. The right or entitlement might be of that character, but it might also arise under an executive or administrative act involving that receiving country. The existence and source of the right will be a matter of evidence.

Conclusion

43    The appeal should be allowed. The orders of the FCCA should be set aside and the matter remitted to the Tribunal for consideration according to law. As was the case in SZHRU, it will be a matter for the Tribunal to consider whether it should seek additional information to evaluate whether, applying the correct test, the appellant has a right to enter India (it not being in dispute that he has a right to reside there upon entry). That is a matter which the Tribunal should decide in the light of all the relevant material. It is inappropriate that the Court determine that issue because further relevant information may become available. It is also unnecessary in these circumstances for the Court to determine ground 3 of the notice of appeal. The Minister should pay the respondent’s costs of the appeal and the proceeding below. Orders will be made accordingly.

44    Finally, the Court expresses its gratitude to counsel for their assistance and, in particular, without any reflection on Mr Kennett’s customary helpfulness, to Ms Wong, who accepted a pro bono referral to act for the appellant in the appeal and provided valuable assistance to the Court.

Associate:

Dated:    4 June 2015