FEDERAL COURT OF AUSTRALIA

DED16 v Minister for Home Affairs [2019] FCAFC 18

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1    By his amended notice of appeal, the appellant appeals from a judgment of the Federal Circuit Court of Australia made on 24 August 2018 and published as DED16 v Minister for Immigration & Anor [2018] FCCA 3074. The primary judge dismissed the appellant’s application seeking judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister for Home Affairs (Minister) to refuse to grant to the appellant a Protection (Class XA) visa (visa).

2    The criteria for a protection visa in s 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (Act) require that the non-citizen applicant for the visa is a person “in respect of whom Australia has protection obligations”, either because the person is a refugee or on complementary protection grounds. Section 36(2)(a) and (aa) are both qualified by subss (3), (4), (5) and (5A) which identify circumstances in which Australia is taken not to have protection obligations.

3    Relevantly, s 36(3) provides:

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

4    The proper construction of s 36(3) was considered by a five judge Full Court of this Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35. The Full Court approved the construction of s 36(3) adopted by Allsop J (as his Honour then was) in V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408 that the “right” need not be legally enforceable. Rather, as Allsop J found in V856/00A (at [31]):

… 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.  …

5    The Tribunal’s decision involved the application of s 36(3) of the Act. The Tribunal held that the appellant, a citizen of Nepal, had not taken all possible steps to avail himself of his right to enter and reside in India. That finding (along with related findings on the application of ss 36(4), (5) and (5A) of the Act) was dispositive of the review application.

6    The appellant contended before the primary judge that in its application of s 36(3) of the Act the Tribunal had failed to correctly apply the test for a “right of entry and residence”. In particular, the appellant argued that the Tribunal did not identify the source or legal character of the right to enter, contrary to the authority of MZZXS v Minister for Immigration and Border Protection [2015] FCA 1384. That contention was put with greater specificity on the appeal. The appellant submitted that the Tribunal failed to identify and apply the requisite test and that this was demonstrated at paragraphs [105] and [108] of the Tribunal’s reasons. The appellant contended, again in reliance upon MZZXS, that in relation to a right to enter arising out of an administrative arrangement, the Tribunal was required to identify the source of the right to enter.

7    At [14] of MZZXS, North ACJ made observations concerning the Tribunal’s approach to the evaluation of evidence said to support its finding that s 36(3) was engaged. His Honour said (emphasis added):

…  the Tribunal does no more than list the three sources previously referred to in its decision, namely, the Treaty, the Indian government website, and the Australian government website, and conclude that these sources prove a right of the applicant to enter and reside in India. The Tribunal refers to the Indian government website as setting out administrative provisions. But all the website says is that citizens of Nepal may enter India from outside Nepal if they have a passport. That may be a consequence of some administrative provision. The conclusion of the Tribunal does not disclose whether there was an administrative provision and, if so, the nature of that provision. In order to assess whether the entry is pursuant to a right to enter and reside under s 36(3) of the Act the Tribunal needs to know by what means the entry is permitted.  …

8    For the proposition emphasised above, North ACJ cited SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 at [42] where the Full Court (Allsop CJ, Jagot and Griffiths JJ) said:

…  The right or entitlement might be of that character [a right provided by or allowed under domestic law], but it might also arise under an executive or administrative act involving that receiving country. The existence and source of the right will be a matter of evidence.

[emphasis as added by North ACJ in MZZXS]

9    The observations made by North ACJ in MZZXS at [14] were considered by the Full Court (Tracey, Flick and Katzmann JJ) in Minister for Immigration and Border Protection v SZUSU (2016) 237 FCR 305. At [38] their Honours referred to [14] of MZZXS as “troubling” and said (emphasis added):

...  In our respectful opinion, where the Executive Government of the third country publishes a statement of this nature [being a reference to the statement on the Website] 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).

10    Whether or not the observations made by North ACJ in MZZXS were obiter and whether the remarks made about those observations by the Full Court in SZUSU were also obiter, is of no great moment on this appeal. We respectfully agree with the observations of the Full Court in SZUSU that the observations made in SZTOX do not support the proposition relied upon by North ACJ at [14] of MZZXS that “the Tribunal needs to know by what means the entry is permitted” or, in other words, the source of the right to enter.

11    The relevant statutory task required of the Tribunal is to evaluate the evidence and determine whether a finding is available that the visa applicant “has not taken all possible steps to avail himself or herself of a right to enter and reside in” a country other than Australia. That task requires a finding of fact as to whether a right to enter an alternative country existed. The relevant statutory task does not require an evaluation of the source of any such right. It only requires an evaluation of whether the right itself existed. Evidence of the source of the right will be probative of the existence of the right (and, in our view, that was all that the Full Court in SZTOX at [42] intended to covey). Where evidence otherwise exists of the fact of the right, the absence of evidence of the source of the right is of no consequence irrespective of whether the right in question is statutory or is sourced in an administrative arrangement.

12    The Tribunal’s reasons as relevant to these proceedings were stated by it at [105] and [108]:

105    The Tribunal agrees with the Buchanan J in SZRHU that the terms of the Treaty appear to give rise to a right of residence, but not a right of entry. The Tribunal has therefore evaluated whether the administrative arrangements for entry, in combination with the terms of the Treaty, satisfy the test of a liberty, permission or privilege lawfully given, to enter and reside in the country.

…

108    The Tribunal notes that in SZQWP v MIAC [2012] FMCA 532 (Nicholls FM, 19 June 2012) at [21], following SZHYB v MIMIA [2007] FMCA 311 (Barnes FM, 22 March 2007) at [33], commented that the decision-maker is not required to refer to a specific provision in the domestic law of the relevant foreign country to find that a right exists for the purposes of s.36(3), so long as the existence of the right is supported by evidence. The Tribunal also notes that in Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50 (31 March 2016) the Court stated that where the Executive Government of the third country publishes a statement of this nature (referring to the Indian Bureau of Immigration website) and no question arises as to the authenticity of the publication, there is no particular reason why the Tribunal needs to inquire further. The Tribunal notes there has been no issues raised with the currency or authenticity of the Indian Bureau of Immigration website publication.

13    The Tribunal’s reasons reflected its appreciation of the principles established in SZRHU. The Tribunal applied those principles to the evidence before it. The Tribunal concluded “on the evidence before it” (at [112]), which included the “1950 Treaty Peace and Friendship” made between Nepal and India, the administrative arrangements described on the website of the Indian Bureau of Immigration and other relevant country information, that the appellant (as the holder of a Nepalese passport) had a current right to enter and reside in India within the meaning of s 36(3) of the Act.

14    In making its evaluation of whether the right to enter existed, the Tribunal performed the statutory task required of it free of jurisdictional error.

15    Save for the appellant’s contention that the Tribunal’s statement of the law at [105] and [108] misstated the relevant test by omitting reference to a requirement that there be specific identification of the source of any administrative power conferring a “liberty, permission or privilege lawfully given” to a person to enter India, counsel for the appellant expressly eschewed any claim that the Tribunal or the primary judge had erred in stating the legal test. Accordingly no question of whether there may be some outer limit inherent in the nature of a “right” for the purposes of s 36(3) which, in a particular factual context might exclude a merely tenuous or precarious liberty, permission or privilege lawfully given arises in these proceedings.

16    The primary judge did not err in failing to find that the decision of the Tribunal was affected by jurisdictional error as the appellant's sole ground of appeal contends. The appeal must be dismissed.

Associate:

Dated:    7 February 2019