FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The first respondent pay the appellant’s costs.

3.    The orders made in the Federal Circuit Court on 26 August 2015 be set aside and in lieu thereof the application in that court be dismissed with costs.

AND THE COURT:

4.    Grants to the first respondent a costs certificate in respect to the appeal pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), in the form annexed.

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

Certificate under Federal Proceedings (Costs) Act 1981

No: NSD1101/2015

Federal Court of Australia

District Registry: New South Wales

Division: General

On Appeal from the Federal «Enter Magistrates or Circuit »Circuit Court of Australia

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Appellant

SZUSU

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES GRANTING CERTIFICATE: JUSTICE TRACEY, JUSTICE FLICK and JUSTICE KATZMANN

DATE OF CERTIFICATE: 31 March 2016

WHERE MADE: Sydney

IN THE OPINION OF THE COURT, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 to the first respondent in respect of:

1.    the costs incurred by the first respondent in relation to the appeal; and

2.    any costs incurred by the appellant in relation to the appeal that have been, or are required to be, paid by the first respondent to the appellant in pursuance of an order of the Court.

Date: 31 March 2016

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The first respondent pay the appellant’s costs.

3.    The orders made in the Federal Circuit Court on 26 August 2015 be set aside and in lieu thereof the application in that court be dismissed with costs.

AND THE COURT:

4.    Grants to the first respondent a costs certificate in respect to the appeal pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), in the form annexed.

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

Certificate under Federal Proceedings (Costs) Act 1981

No: NSD1102/2015

Federal Court of Australia

District Registry: New South Wales

Division: General

On Appeal from the Federal «Enter Magistrates or Circuit »Circuit Court of Australia

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Appellant

SZUYA

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES GRANTING CERTIFICATE: JUSTICE TRACEY, JUSTICE FLICK and JUSTICE KATZMANN

DATE OF CERTIFICATE: 31 March 2016

WHERE MADE: Sydney

IN THE OPINION OF THE COURT, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 to the first respondent in respect of:

1.    the costs incurred by the first respondent in relation to the appeal; and

2.    any costs incurred by the appellant in relation to the appeal that have been, or are required to be, paid by the first respondent to the appellant in pursuance of an order of the Court.

Date: 31 March 2016

REASONS FOR JUDGMENT

THE COURT

1    The Migration Act 1958 (Cth) (the Act) requires the Minister to grant an applicant a visa to enter and remain in Australia if he is satisfied that certain criteria, set out in the Act or the regulations made under it, are made out. In the case of a Protection visa, those criteria include the criterion prescribed by s 36(2)(a) of the Act (commonly known as “the refugee criterion”) that the applicant is 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. They also include the criterion prescribed by s 36(2)(aa) (commonly known as “the complementary protection criterion”) 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 applicant’s removal from Australia, there is a real risk that the applicant will suffer “significant harm” (defined in s 36(2A)). But the Act also provides that protection obligations do not, or are taken not to, apply in certain cases. One such case, referred to in s 36(3), is where the applicant has not taken all possible steps to avail himself or herself of a right to enter and reside in a third country. These two appeals are concerned with such a case.

2    The two appeals, which were heard together, are from orders of the same Federal Circuit Court (the FCC) judge in applications for judicial review of Tribunal decisions (heard consecutively), made by the same Tribunal member. They raise the same question. The question is whether the FCC erred in holding that the Tribunal failed to apply the correct test under s 36(3).

Background

3    The first respondents in each appeal are both Nepalese nationals who claim to fear persecution in Nepal: SZUYA as a member of a particular social group by the Tribunal described as “victims of the rebel Maoists in Nepal”, and SZUSU by reason of his imputed political opinion as an opponent of the Maoists. In each case the Tribunal expressed doubts about the respondent’s credibility but considered it unnecessary to resolve those doubts because he had not taken all possible steps to avail himself of what the Tribunal found was his right to enter and reside in India. There is no dispute that it was open to the Tribunal to dispose of the applications in this way without first determining whether any of the criteria in s 36(2) had been satisfied: see SZUDE v Minister for Immigration and Border Protection [2015] FCA 1202 (McKerracher J).

4    In the court below, the primary judge held that the Tribunal had fallen into jurisdictional error when it stated (at [47]) in SZUYA and [50] in SZUSU) that:

Taking into account the terms of the Treaty itself, the information from Indian and Australian authorities about the administrative arrangements concerning entry to India by Nepalese nationals and the country information and other commentary on the ability of Nepalese citizens to enter and reside in India, the Tribunal is satisfied that that [sic], as a matter of practical reality, the applicant has a right to enter and reside in India.

(Emphasis added.)

5    The reference to the Treaty is a reference to the Treaty of Peace and Friendship between India and Nepal, 31 July 1950, Kathmandu [1950] INTServ 12. The “information” consisted of information provided by the Australian Department of Foreign Affairs and Trade (DFAT) in a report dated 18 September 2013 and displayed on the website of the Indian Bureau of Immigration, which, according to the Tribunal’s reasons, is a publication of the Indian Ministry of Home Affairs of the Government of India. Its URL indicates that it appears on the national portal of India.

6    The reasons of the primary judge appear in the judgment in SZUYA. In SZUSU the primary judge merely adopted those reasons. The Tribunal’s reasons in the two cases, save for specific references to the first respondents’ claims, are relevantly identical. Consequently, for convenience, we will refer to passages in the Tribunal’s reasons by the paragraphs in the Tribunal’s reasons in SZUYA.

The proper construction of s 36(3)

7    Section 36(3) of the Act states that:

Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.

8    Section 36(3) does not apply in certain circumstances which, for present purposes, are not relevant. Those circumstances are set out in subsections (4), (5) and (5A).

9    Subsections (3), (4) and (5) were inserted into the Act by the Border Protection Legislation Amendment Act 1999 (Cth) and commenced on 18 December 1999. The policy considerations underlying these amendments were explained in V872/00A v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 57 at [21].

10    In Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35 a 5-member Full Court approved the interpretation of s 36(3) given by Allsop J (as his Honour then was) in V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408 at [31] that there was no reason to restrict the meaning of the word “right” to a legally enforceable right. His Honour’s statement, which was adopted as correct at [89] by Buchanan J (Tracey, Flick, Robertson and Griffiths JJ agreeing at [7], [93], [130] and [131] respectively) was in the following terms:

The phrase in s 36(3) “howsoever that right arose or is expressed” assists in the recognition that the source and incidents of the right can be diverse. It also assists in the recognition that “right” is intended to be a wide conception. Especially in the light of the above phrase, I see no reason to restrict the meaning of the word “right” to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning a liberty or permission or privilege which does not give rise to any particular duty upon the state in question. Such a liberty, permission or privilege would obtain its effective substance from its grant and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise, rather than from the existence within the positive law of the state in question of a correlative duty, justiciable and enforceable in law, to recognise the right.

(Emphasis added.)

11    In the course of his Honour’s reasons, however, he also referred to the position at the time s 36(3) was enacted (and before it came into force) when the determination of whether Australia owed protection obligations under the Refugees Convention to a person claiming to be a refugee might turn on whether the person had “effective protection” in a third country. As his Honour explained at [35], the development of the concept of effective protection was linked in several cases with the question of whether the person had a right to reside in, enter and re-enter a third country: see especially Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543. This approach was derived from a construction of Art 33(1) of the Convention which prohibits a Contracting State from expelling or returning a refugee to the frontiers of territories where his life or freedom would be threatened on a Convention ground (known as “non-refoulement”). In Thiyagarajah the Full Court considered that to amount to “effective protection” the right to enter and reside in a third country had to be legally enforceable, but later decisions of the Court countenanced a practical entitlement falling short of a legally enforceable right. In NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161, however, the High Court rejected this interpretation of the Convention and of s 36(2), making it clear that the reference in s 36(2) (now (2)(a)) to a non-citizen “to whom Australia has protection obligations under [the Convention]” does no more than pick up the definition of “refugee” in Art 1 of the Convention and there was “no superadded derogation from that criterion by reference to what was said to be the operation upon Australia’s international obligations of Art 33(1) of the Convention”: see NAGV at [42].

12    In SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 at [31]–[38] Allsop CJ, Jagot and Griffiths JJ summarised “the salient points” made by Buchanan J in SZRHU 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 (sic). 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]).

The judgment of the primary judge

13    In SZUYA, relying on the judgment in SZTOX, the primary judge held at [15] that “[t]he language of ‘as a matter of practical reality’ is inconsistent with the nature of a right” and a test of satisfaction based on that standard is not the test imposed by s 36(3). Rather, it is a test which was developed “in relation to the discredited notion of effective protection rejected by the High Court in [NAGV and NAGW]”.

14    In SZTOX a similar question was raised about whether the Tribunal, in deciding that a Nepalese national had a right to enter and reside in India “as a matter of practical reality”, applied the wrong test under s 36(3). Paragraph 51 of the Tribunal’s decision in SZTOX referred to in the extract below was in virtually the same terms as [47] and [50] in the present cases.

15    The Full Court in SZTOX concluded that it had, stating at [39]–[40]:

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.

(Emphasis added.)

16    It is plain that the references in SZTOX to “SZHRU” are typographical errors and in each instance “SZHRU” should read “SZRHU”.

17    The essence of the primary judge’s reasoning in SZUYA, which he adopted in SZUSU, appears in [14] and [16] of his Honour’s reasons. In summary, his Honour considered that, apart from the reference in the Tribunal’s reasons to the Full Court’s decision in SZRHU, this case was relevantly indistinguishable from SZTOX and that the reference to SZRHU was of no moment. He appears to have been struck by the omission of any reference to SZTOX. At  [16] his Honour said:

I do not accept the Minister’s submission that this case can be distinguished from SZTOX. It is one thing for the Tribunal to refer to and discuss the decision in SZRHU. It is another thing for the Tribunal to understand it in all its detail. The issues are not simple. The decision in SZTOX was necessary because the decisions of this Court on the question [listed in the following paragraph of the reasons] were inconsistent.

The issue

18    The question in the present cases, then, is whether the Tribunal understood 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. An ancillary question is whether the primary judge was wrong to conclude that the cases are relevantly indistinguishable from SZTOX.

19    It became clear during oral argument that the appeals rested on the singular proposition that, despite anything said elsewhere in the Tribunal’s reasons to suggest otherwise, the use of the expression “as a matter of practical reality” in [47] necessarily meant that the Tribunal did not understand or apply the correct test. That proposition must be rejected.

The errors

20    The primary judge fell into error for two reasons. First, his Honour failed to recognise that there were significant differences between the instant cases and SZTOX. Secondly, his Honour took the reference to the offending expression at [47] out of context.

21    Contrary to the primary judge’s conclusions, the fact that the Tribunal referred to SZRHU is not an inconsequential matter. In SZTOX at [39] the Full Court described the omission of a reference to the judgment to be “notable” and “significant”.

22    Moreover, in other respects, SZTOX is not on all fours with the present cases. There were a number of distinctions.

23    First, the Tribunal did not merely mention SZRHU. In SZTOX there was apparently “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” (see [10] above). Here, on the other hand, not only did the Tribunal refer to SZRHU, it plainly appreciated what it stood for. At [37] the Tribunal said this:

The Full Federal Court in considering the appeal from the Federal Magistrates Court in relation to the applicant (MIMAC v SZRHU [2013] FCAFC 91) held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement, or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

24    In SZUYA the Tribunal then referred to a submission by the applicant to the effect that, because the Treaty does not expressly give him a right to (both) enter and reside in India, the requirements of s 36(3) are not met. But nothing said in SZRHU justifies that limited construction.

25    What follows is the Tribunal’s attempt to answer the question it posed for itself, namely, whether the applicant has a right in the sense in which the Full Court defined it in SZRHU to enter and remain in India. Contrary to the respondents’ submission, the Tribunal was not concerned with capacity absent any such right.

26    The Tribunal said at [39] that the starting point was a consideration of the terms of the Treaty. It noted that Art 7 grants to Nepalese nationals in India and Indian nationals in Nepal “the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature”. Consistently with Buchanan J’s remark in SZRHU at [88], however, the Tribunal went on to observe (at [40]) that the Treaty itself does not deal with the rights of Nepalese and Indian nationals to enter the territory of the neighbouring country. For this reason, the Tribunal said it was necessary to look to other sources to decide whether the applicant had a right to enter India. It then proceeded to examine those other sources. The Tribunal went on to engage with the analysis of the term “right” as set forth in SZRHU by inquiring into whether the applicant knew he had an ability to enter India and whether he had availed himself of that “right”. This indicates that, in contrast to SZTOX, the Tribunal understood the principles in SZRHU and was applying them.

27    The primary judge made no mention of any of these passages in the Tribunal’s reasons, although they supply the context to its conclusion in [47].

28    His Honour did say (at [14]) that “[i]t appears from the Tribunal’s reasons that the Tribunal understood the difference between a strict legal right and a right more broadly expressed”. But he ignored what followed.

29    Moreover, in two passages in the Full Court’s reasons in SZTOX (at [41]–[42]), to which the primary judge did not refer, the Full Court emphasised that the right or entitlement under s 36(3) could arise under an executive or administrative act of the receiving country:

41    For completeness, lest there be any doubt, we should also state that the “right to enter and reside” for the purposes 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 decision 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.

30    In the instant cases, the primary judge referred to the two decisions of the FCCA mentioned in this paragraph (SZTOG v Minister for Immigration [2015] FCCA 180 and SZTQN v Minister for Immigration [2015] FCCA 188) but he did not acknowledge the force in the present context of the Full Court’s recognition of a right or entitlement arising under an executive or administrative act.

31    Here, at [41] the Tribunal said that the information provided by DFAT and published on the Indian Bureau of Immigration website was to the following effect:

A citizen of Nepal entering India by land or air does not require a passport or visa for entry in India.

A citizen of Nepal while travelling by air between Nepal and India is required to show any of the following valid identity documents to establish his/her identity as a Nepalese citizen:

•    Nepalese Passport.

•    Nepalese Citizenship Certificate.

•    Voters Identification Card issued by the Election Commission of Nepal.

•    Limited Validity photo-identity certificate issued by Nepalese Missions in India when deemed necessary.

A citizen of Nepal must be in possession of a Passport when entering India from a place other than Nepal.

A citizen of Nepal in possession of a valid Nepalese passport flying direct from Australia could gain entry to India.

32    The Tribunal also referred (at [45]) to DFAT advice (confirmed by reports of the Immigration and Refugee Board of Canada in 2008 and the UNHCR) that unlimited stay is granted to Nepalese nationals in India and there are no restrictions on their ability to remain, reside or work in India.

33    In all these circumstances, it is difficult to see how — the reference to the expression “as a matter of practical reality” aside — there is any relevant similarity between the Tribunal’s approach in the two instant cases and its approach in SZTOX.

34    It was open to the Tribunal on the evidence before it to conclude that a Nepalese citizen (like the respondents) who was in possession of a valid Nepalese passport had a right in the sense of “a liberty or permission or privilege lawfully given” to enter and remain in India, albeit that such a right may have been capable of withdrawal and not capable of any particular enforcement. It was not suggested that there was any evidence of the withdrawal of that “liberty, permission or privilege” or of any law contrary to its exercise. Having enunciated the correct test earlier in its reasons, it should not lightly be inferred that the Tribunal had in mind some other test when it concluded that there was a relevant right.

35    The respondents submitted that this Court should nonetheless follow what North ACJ said in MZZXS v Minister for Immigration and Border Protection [2015] FCA 1384, which they submitted was on all fours with the present cases. There, at [15]–[16] his Honour said this:

15    In SZTOX the Court said that one indicator that the Tribunal had not understood the concept of right as developed in V856/00A and SZHRU (sic) was its reference to the right existing “as a matter of practical reality”. The Tribunal in SZTOX stated that it relied in part on the advice of the Australian Department of Foreign Affairs and Trade "in relation to the practical situation" for the conclusion that the right existed as a matter of practical reality.

16    The present decision of the Tribunal omits reference to the “matter of practical reality”, but includes the same reference to the advice of the Australian Department of Foreign Affairs and Trade “in relation to the practical situation”. In the same way as the Court in SZTOX held that the reference to “practical reality” cast doubt on whether the Tribunal properly understood the meaning of the term right as used in s 36(3) of the Act, so in this case the reference to the advice about the “practical situation” suggests that the Tribunal did not understand that a right under s 36(3) of the Act is not established if all that exists is a capacity to bring about a lawful entry.

36    Unlike the Tribunal in the present cases, however, in MZZXS, as in SZTOX, the Tribunal did not refer to the judgment in SZRHU. What is more, its consideration of the country information was in other respects not materially different to the consideration given to it in SZTOX. Unlike the Tribunal in the present cases, it did not demonstrate any understanding of the principles in SZRHU; indeed, it did not advert to them. Unlike the Tribunal in the present cases, its reasons do not disclose that it analysed the country information in the light of those principles. Rather, in MZZXS at [14], his Honour accepted the applicant’s argument that the Tribunal “did not undertake a process of evaluation of the evidence”; it merely listed the sources and stated its conclusion that those sources proved the existence of the right.

37    The cases are plainly distinguishable.

38    In MZZXS (at [14]) North ACJ dismissed the significance of the statement on the Indian Government website, which was the same statement referred to in the present cases. He noted that the Tribunal referred to it as setting out administrative provisions but added that “all the website says is that citizens of Nepal may enter India from outside Nepal if they have a passport”. In fact it says more than that. Be that as it may, his Honour’s subsequent remarks are, with respect, troubling. His Honour observed that the statement on the website “may be a consequence of some administrative provision” but that the conclusion of the Tribunal does not disclose whether there was any such provision and, if so, the nature of the provision. He said that, in order to determine “whether the entry is pursuant to a right to enter and reside under s 36(3) of the Act the Tribunal needs to know by what means the entry is permitted”, citing the last two sentences of [42] in SZTOX, emphasising the reference there to the source of the right. In our respectful opinion, where the Executive Government of the third country publishes a statement of this nature and no question arises as to the authenticity of the publication, there is no particular reason why the Tribunal needs to inquire further. In our respectful opinion, nothing said in SZTOX expressly or by implication requires the Tribunal to identify with the degree of precision his Honour apparently contemplated the source for the relevant right. Furthermore, having regard to the Full Court’s judgments in SZRHU and SZTOX, it was unnecessary for the Tribunal to distinguish between a right conferred or allowed under domestic law and a right arising under an executive or administrative act of the receiving country as, either way, there was a right within the meaning of s 36(3).

39    In any event, in the present cases, the means by which entry is permitted are tolerably clear from the Tribunal’s reasons. It was a liberty afforded to Nepalese citizens by the Executive Government of India upon proof of their identity by any of the means identified in the statement published on the Bureau of Immigration’s website. Before this Court it was not submitted that this ability of Nepalese citizens to enter India was not a “liberty, permission or privilege lawfully given”.

40    Here, in contrast to SZTOX and MZZXS, the Tribunal heeded the actual terms of the Treaty and considered whether those terms, together with any administrative or other arrangements established by the evidence concerning the entry by Nepalese citizens at the Indian border, satisfied the test established in V856/00A and approved in SZRHU (SZTOX at [38]). That it did not express itself in precisely this way in its concluding paragraph on this question is by no means determinative.

41    The use in the present cases of the expression “as a matter of practical reality” is unfortunate, but this was no more than an instance of “looseness in language” or “unhappy phrasing”, with which a court should not be concerned: Controller of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. It is trite that the reasons of an administrative tribunal must be read fairly and as a whole. It is well-established that its reasons “are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Liang at 272. When the Tribunal’s reasons are read in this way we are not persuaded that the Tribunal did not apply the test approved in SZRHU. As the Minister submitted, rather than signify a misunderstanding of the law, the expression reflected the Tribunal’s conclusion as to “the factual effect of the administrative arrangements to which it referred, considered in the light of the Treaty and the country information”.

Conclusion

42    It follows that the appeals should be allowed with costs, the orders made by the primary judge set aside, and in lieu thereof an order made dismissing the application in the court below with costs.

Associate:

Dated:    31 March 2016