FEDERAL COURT OF AUSTRALIA

SZUDE v Minister for Immigration and Border Protection [2015] FCA 1202

THE COURT ORDERS THAT:

1.    The Minister has leave to file and rely upon the notice of contention dated 16 September 2015.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent's costs of the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1    The appellant appeals from orders of the Federal Circuit Court of Australia which dismissed his application pursuant to s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the second respondent, the Refugee Review Tribunal. The Tribunal had affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection to refuse to grant the appellant a Protection (Class XA) visa.

BACKGROUND

2    The appellant is a Nepalese national who arrived in Australia on a temporary business entry visa on 8 March 2013. Shortly after that, on 2 April 2013, he lodged an application for a protection visa. In support of that application, he provided a statement setting out claims for protection. In summary those claims were:

(a)    The appellant operated a food supply business. From about mid-2004, the appellant was forced to pay money to the Maoists to continue to operate that business.

(b)    The appellant’s brother was a monarchist and a member of the Rastriya Prajatantra Party (RPP), who was killed by Maoists in September 2005. The appellant became a member of the RRP in January 2008 and continued to pay the Maoists. From February 2008, however, the appellant could no longer afford to pay the Maoists and was, as a consequence, required to close the business.

(c)    In 2009, the appellant moved to Kathmandu and became a shareholder in a travel and tour business, but the Maoists continued to extort money from him from mid-2010 to September 2012.

(d)    On 7 December 2012, the appellant received a threatening telephone call from the Maoists. They demanded that the appellant pay to them Rs 1,550,000.

(e)    On 15 December 2012, the appellant was apprehended by three armed Maoists who took him to an unknown location, detained him and threatened to kill him if he did not pay the money demanded.

(f)    On the second day of his detention, the appellant was released. He only paid a portion of the sum demanded and promised that the rest of the money would be provided two months from the date of release. He reported the matter to the police but received no assistance. He then made arrangements to leave Nepal for Australia.

(g)    The appellant feared that, if he returned to Nepal, he would be seriously harmed or killed at the hands of Maoists and criminals.

3    The Delegate refused to grant a protection visa to the appellant by a decision on 24 September 2013. The Tribunal reviewed the Delegate’s decision after the appellant appealed on 21 October 2013. On 21 January 2014 the Tribunal invited the appellant, pursuant to s 425 of the Act, to appear at a hearing on 25 February 2014 to give evidence and to present arguments. The appellant did so. The appellant’s then representative sent the Tribunal a set of written submissions in support of the review application. The Tribunal made a decision to affirm the decision of the Delegate on 27 February 2014.

IN THE TRIBUNAL

4    The Tribunal had doubts about the credibility of the appellant. However, it found it unnecessary to express any conclusions with respect to the question under s 36(2) of the Act as to whether Australia owed protection obligations to the appellant under the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention) or under the complimentary protection regime based upon his claimed fear to returning to Nepal, as it considered that the appellant could avail himself of a right to enter and reside in India.

5    It was common ground that there were open borders between India and Nepal. The Tribunal identified the question of entry and residing in India as the primary issue and set out the matters to which it should have regard under s 36(3)-(5A) of the Act in determining whether ‘third country protection’ would be available to the appellant. The Tribunal had regard to whether the appellant had a right to enter and reside in India as understood in s 36(3) of the Act, taking into account the Full Federal Court judgment in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35, art 6 and art 7 of the Treaty of Peace and Friendship Between the Government of India and the Government of Nepal, 31 July 1950, Kathmandu, [1950] INTSer 12, and country information provided by the Australian Department of Foreign Affairs and Trade (DFAT) and contained on the website of India’s Bureau of Immigration. On the basis of this information, the Tribunal was satisfied the appellant had a right to enter and reside in India. This finding has not been materially challenged at any point.

6    The Tribunal then went on to consider whether s 36(4) of the Act applied with respect to the appellant. That is, whether he had a well-founded fear of persecution in India, or whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his availing himself of a right to enter and reside in India, there would be a real risk that he would suffer significant harm. On the basis of all of the evidence before it, the Tribunal concluded (at [57]-[59] and [67]) that there was neither a real chance that the appellant would suffer persecution in India, nor that he would suffer significant harm. It concluded that the exception to s 36(3) of the Act in s 36(4) had no operation. The Tribunal said:

57    I note the [appellant’s] claims and the submissions made by his representative about the presence of Maoist groups in India and the relationship between those groups and Nepalese groups. As noted above I accept that historically there have been links between these groups. I give weight to the fact that no evidence has been found to indicate that Nepalese Maoists cross the border to pursue, identify and target persons as the [appellant] claims. I have been guided in considering this matter by the discussion of the “real chance” test in the Chan v MIEA (1989) 169 CLR 379 [sic]. I have considered whether the risk to the [appellant] in India from Maoist groups based in Nepal for reason of his imputed political opinion or for any other Convention ground is far-fetched, remote or insubstantial and I am satisfied, on the evidence presented above, that the risk if far-fetched, remote and insubstantial. On the basis of all of all [sic] the evidence before me, I find that there is a [sic] not a real chance that the [appellant] will be persecuted now or in the reasonably foreseeable future for reason of Convention ground [sic], and that his fear of persecution in India is not well-founded.

58    I am also not satisfied that there are substantial grounds for believing that, as a necessary or foreseeable consequence of him availing himself of his right to enter and reside in India, there would be a real risk that he will suffer significant harm in India at the hands of Maoist groups based in Nepal because he has failed to comply with their extortion demands in the past.

59    In summary, the Tribunal is not satisfied that the [appellant] has a well-founded fear of Convention-related persecution in India or that there are substantial grounds for believing that, as a necessary or foreseeable consequence of him availing of his right to enter and reside in India, there would be a real risk that he will suffer significant harm. The provisions of s.36(3) are therefore not excluded on this basis.

…

67    The Tribunal also finds that [sic] [appellant] does not have a well-founded fear of being persecuted for a Convention reason in India and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of availing himself of the right to enter and reside in India, there would be a real risk of him suffering significant harm in India…

7    The Tribunal went on (at [60]-[64]) to consider, as it was required to do by ss 36(5) - (5A) of the Act, whether the appellant had a well-founded fear that in the end he would return to Nepal or another country where he would either be persecuted or suffer significant harm. The Tribunal was not satisfied that the appellant either had a well-founded fear that India would return him to Nepal or to another country. Consequently, it followed that it was unnecessary for the Tribunal to determine whether the appellant would be persecuted or would face a real risk of significant harm in Nepal. It concluded (at [66]) that the right to enter and reside in India was available to the appellant and that he had not taken all possible steps at all to avail himself of his right to enter and reside in that country. It said (at [67]):

… The Tribunal further finds that the [appellant] does not have a well-founded fear of being returned from India to a country where he has a well-founded fear of being persecuted for a Convention reason. Nor does the [appellant] have a well-founded fear of being returned by India to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the availing himself of the right to enter and reside in India, there would be a risk of him suffering significant harm.

BEFORE THE FEDERAL CIRCUIT COURT

8    The appellant raised two grounds of judicial review, namely:

(1)    error of law on the issue of relocation to India by ‘ignoring [his] safety concern’; and

(2)    that he was a victim of the Tribunal’s ‘impulsive decision’ because it was ‘not legally fair’.

9    His Honour rejected the appellant’s two grounds of review (at [19]-[20] and [21]-[22]) in these terms:

Ground 1

19.    This ground raises no arguable case for the relief the [appellant] claims. Whilst the [appellant] uses the term “relocation”, it is apparent that the allegation made relates to the Tribunal’s conclusion that the [appellant] had a right to enter and reside in India, rather than being a reference to relocation in the context of s.36(2B)(a) of the Migration Act, given that the Tribunal found it unnecessary to consider the [appellant’s] protection claims.

20.    The allegation that the Tribunal ignored the [appellant’s] safety concerns about residing in India fails at the factual level in light of [44]-[59] of the Tribunal’s decision record where it expressly considered the [appellant’s] concerns. It is correct that the Tribunal did not address the [appellant’s] safety concerns about living in Nepal and that issue arises as the additional issue. The Tribunal’s findings that the [appellant] has a right to enter and reside in India and that he had not taken all possible steps to avail himself of that right, were (if ss.36(3)-(5A) were enlivened) open to the Tribunal on the material before it, being the [appellant’s] own evidence and independent country information. This complaint is an invitation for this Court to engage in impermissible merits review [Abebe v Commonwealth of Australia [1999] HCA 14; (1991) 197 CLR 510 at 53-54; Minister for Immigration v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ].

Ground 2

21.    The allegation that the Tribunal’s decision was made impulsively is also not arguable given the level of detail in the Tribunal’s decision. The Tribunal’s decision record indicates that it carefully dealt with the [appellant’s] claims and there is nothing in the decision, nor is there any evidence before this Court, suggesting that the Tribunal made its decision hastily or impulsively.

22.    The secondary allegation of procedural unfairness by the Tribunal is also without merit given the Tribunal’s summary of the hearing […] where it is clear that the [appellant] understood and responded to the issue raised by the Tribunal, being his right to enter and reside in India. There is nothing in the Tribunal’s decision record suggesting that the [appellant] was denied procedural fairness in the conduct of its review.

10    His Honour, however, also took the step on 18 November 2014 of making orders requiring the Minister to show cause pursuant to r 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) as to why relief ought not be granted to the appellant in relation to the issue identified at [36] of the primary judge’s judgment in SZTPK v Minister for Immigration & Anor [2014] FCCA 2259 by reference to [33] of the Tribunal’s reasons in the present case.

11    At [33] the Tribunal in the present case said:

Overall, there are some issue which raise doubts about the credibility of the [appellant’s] claims about the demands for money and about the provenance of the documents he provided in support of his claims. However, for reasons concerning the availability to the [appellant] of safe third country protection I have not found it necessary to reach conclusions as to whether Australia has protection obligations towards the [appellant] under the ‘refugee’ criterion or on other ‘complementary protection’ grounds based upon his claimed fear of returning to Nepal.

12    In SZTPK the primary judge had said (at [36]):

I note in that connection that counsel for the applicant properly withdrew during the course of oral argument his criticism in his written submissions that the first of the two hearings conducted by the Tribunal as presently constituted was a “waste of time” because it dealt only with the issue of the exposure of the applicant to serious or significant harm in Nepal. In fact, as was made clear by the Full Federal Court in SZRTC v Minister for Immigration [[2014] FCAFC 43 at [25]] the Tribunal followed the correct approach of considering first whether the applicant satisfied one or more of the criteria for a protection visa in s.36(2). It was only because that question was answered in the affirmative that it was necessary for the Tribunal then to turn to s.36(3) and determine whether or not the applicant was a person to whom that subsection applied. This means, in my view, that the “protection obligations” which Australia is taken not to have by reference to s.36(3) are not hypothetical but, rather, are protection obligations that have been established.

IN THIS COURT

13    There are two grounds of appeal raised in this Court, namely:

1.    The Federal Circuit Court erred by failing to find that the Tribunal Member made a legal mistake on the issue of relocation that I have a right to enter and reside in India. It is contended that the Tribunal Member failed to properly and lawfully address the issue of relocation to India but it made a conclusion on this issue based on [sic] strong assumption rather than the facts and legal grounds.

2.    The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in making a conclusion that I have a legal right to enter and reside in India where I could live safely having regard to the material upon which it relied, that reliance being unreasonable.

CONSIDERATION

Ground 1

14    At [19] of the primary judgment, his Honour said:

This ground raises no arguable case for the relief the applicant claims. Whilst the [appellant] uses the term “relocation”, it is apparent that the allegation made relates to the Tribunal’s conclusion that the [appellant] had a right to enter and reside in India, rather than being a reference to relocation in the context of s.36(2B)(a) of the Migration Act, given that the Tribunal found it unnecessary to consider the [appellant’s] protection claims.

15    No appellable error has been identified on the part of the primary judge for failing to identify jurisdictional error in the Tribunal’s consideration of s 36(3) of the Act. The Tribunal applied the correct test as identified in this Court in SZRHU. It recognised the fact that the Treaty did not in terms deal specifically with the right of a Nepalese citizen to enter India, which is a point that had been made by Buchanan J in SZRHU. Consistently with the requirements of SZRHU, the Tribunal had regard to country information pertaining to the administrative arrangements at the Nepal-India border. See the discussion by the Tribunal (at [39] and [41]-[43]) (footnotes omitted):

39    Information provided by [DFAT] and contained on the website of India’s Bureau of Immigration is to the following relevant 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.

•    Voter’s 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.

…

41    DFAT advises 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. Other reports confirm that Nepalese citizens may reside, work, attend school and access health services in India. A BBC report from 2008 states: “Over five million Nepalese people work and own property in India.” A policy paper in 2011 estimated that some 10-12 million ‘Nepalis’ live in India. This latter figure includes both migrants from Nepal living in India and Nepali speaking Indian citizens.

42    It seems that there is a shifting population between the two countries and ‘free border movement between Nepal and India has led to transnational social networks, by which people sustain contacts between families in Nepal and migrants in India.’ Various sources state that here [sic] are sizeable Nepalese communities particularly in India’s north eastern states. Urban centres such as Delhi, Mumbai and Bangalore are also popular destinations for Nepalese migrants.

43    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 [appellant] has a right to enter and reside in India.

16    The primary judge was correct to find that this analysis was without jurisdictional error. The Tribunal’s factual finding at [65] was entirely consistent with what the appellant himself said in evidence at the hearing. Namely, that ‘he had not in fact taken any steps to avail himself of the right to enter and reside in India.’

17    Ground 1 must be dismissed.

Ground 2

18    This ground appears to advance the same contention that the appellant advanced as ground 1 in the court below. The Tribunal considered the appellant’s evidence and available country evidence in determining on the merits whether the appellant would be persecuted or would suffer significant harm in India. This was also acknowledged by the primary judge (at [20]). See also [60]-[64] of the Tribunal Member’s decision (footnotes omitted):

60    The Tribunal must also consider whether the [appellant] has a well-founded fear that India will return him to Nepal or another country where he will be persecuted for a Convention reason or there is a real risk he will suffer significant harm.

61    Recent advice obtained from DFAT states that Nepalese nationals already in India can be forcibly removed if convicted of a crime in either Nepal or India. The advice also states that if a Nepalese national commits a crime in Nepal and travels to India, the Nepalese police can request the assistance of the local Indian Police to arrest the person. The Nepalese Police will then travel to India to escort the Nepalese national back to Nepal. There are also provisions which allow for the deportation of Nepalese nationals from India to Nepal after the completion of their sentence for a crime committed in India. At the hearing, I asked the [appellant] if he had ever been convicted of committing a crime in Nepal. He said that he had not. I asked the [appellant] if he thought, having gone to live in India, he would be returned to Nepal by the Indian authorities. The [appellant] said he could not go to India. The Indian government would not help him. The [appellant] has declared that he has not been convicted of any crime, and there is no suggestion before me that he would engage in criminal activity in the future.

62    The advice from DFAT identifies criminal activity as the sole reason that the authorities in India would return a Nepalese national resident there to Nepal. There is no other independent information before the Tribunal to suggest that the Indian authorities could or would return a national to Nepal for any other reason.

63    The Tribunal is not satisfied that the [appellant] has a well-founded fear that India will return him to Nepal, his country of nationality. Nor is there anything to suggest that the Indian authorities would send the [appellant] to a country other than Nepal, his country of nationality.

64    As the Tribunal is not satisfied that the [appellant] has a well-founded fear that the Indian authorities will return him to Nepal or any other country, it is unnecessary to assess whether he would be subject to a real risk of significant harm in Nepal.

19    It is clear that no appellable error is reflected in the primary judge’s consideration of this ground, which appears at [19]-[20] of his Honour’s reasons (set out above). The primary judge also considered the appellant’s allegation of procedural unfairness (at [22]), which the appellant raised in this Court by way of an allegation that the Tribunal’s reliance upon material to conclude that the appellant could enter and reside in India was unreasonable. This ground is an invitation for the Court to engage in impermissible merits review, as was found by the primary judge (at [20]).

20    Ground 2 must be dismissed.

‘The additional issue’

21    As indicated, the primary judge required written submissions on an additional issue. On this additional issue, his Honour concluded that there was an error (but not a jurisdictional error) in the approach taken by the Tribunal in not making a determination under s 36(2) of the Act before moving to consider the provisions which followed. While the Minister accepts that there was no jurisdictional error, the Minister contends that there was no error at all and relies upon authority of the Full Court of this Court which suggests that there is no requirement for a decision-maker to be satisfied as to whether or not Australia has ‘protection obligations’ pursuant to s 36(2) of the Act before considering the qualification in s 36(3).

22    As I have noted, the Tribunal observed that it was unnecessary to decide the question of whether the appellant was owed protection under the Refugees Convention or the complimentary protection regime if he returned to Nepal as he had a legal right to enter and reside in India.

23    In addition to the primary judge’s previous observations on this point in an earlier judgment in SZTPK, the question has been visited in SZRTC v Minister for Immigration and Border Protection (2014) 224 FCR 570 (at [24]-[25]) where the Court said:

24    Section 36 of the Act contains a cascading series of qualifications. Subsection (3) operates as a qualification on subs (2). Subsections (4) to (5A) then operate as qualifications on subs (3): see NBLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1051 at [38] (Emmett J), a construction endorsed on appeal by Bennett and Graham JJ; NBLC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 151 at 155, 166-167; and see also NBGM v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 522 at 529 (Black CJ).

25    The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s 36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s 36(3) and determine whether or not the applicant is a person to whom that section applies. If it does not, the “gateway”, created by s 36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s 36(3) applies. If s 36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in subss (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugee Convention are met, limit the operation of s 36(3) and keep the “gateway” open.

24    This passage was noted by the primary judge in SZTPK where he made the following points (at [35]-[36]) (footnotes omitted):

35.    Sub-section 36(3) deems a person not to be entitled to Australia’s protection obligations, which would otherwise be owed, if the person has not taken the steps set out in that provision. One does not get to s.36(3), however, unless the requirements in s.36(2) are satisfied.

36.    I note in that connection that counsel for the applicant properly withdrew during the course of oral argument his criticism in his written submissions that the first of the two hearings conducted by the Tribunal as presently constituted was a “waste of time” because it dealt only with the issue of the exposure of the applicant to serious or significant harm in Nepal. In fact, as was made clear by the Full Federal Court in SZRTC v Minister for Immigration the Tribunal followed the correct approach of considering first whether the applicant satisfied one or more of the criteria for a protection visa in s.36(2). It was only because that question was answered in the affirmative that it was necessary for the Tribunal then to turn to s.36(3) and determine whether or not the applicant was a person to whom that subsection applied. This means, in my view, that the “protection obligations” which Australia is taken not to have by reference to s.36(3) are not hypothetical but, rather, are protection obligations that have been established.

25    In the analysis below, the primary judge made a close assessment of the Minister’s position concerning, in particular, SZRTC (at [28]-[46]) (footnotes omitted):

The Minister’s position

28.    The Minister submits that the Tribunal’s approach in considering the matters raised by s.36(3) without first making findings as to whether the criteria in ss.36(2)(a) and/or (aa) were met does not amount to jurisdictional error.

The authorities

29.    In NBLC v Minister for Immigration, Wilcox J said, at 153 [5], that s.36(3) is a provision “that is concerned with people who have already satisfied art 1A(2), as notionally amended by s.91R”. While the Minister concedes that on one view his Honour may be thought to be saying that a decision-maker must actually have made a finding in relation to the criteria in s.36(2), the Minister submits that it is equally plausible that his Honour may have considered that the Tribunal could address s.36(3) on the assumption that s.36(2) had been satisfied.

30.    Justice Graham, on the other hand, having observed that s.36(2) is “significantly qualified” by s.36(3), said:

◦    Whether Australia has protection obligations to any particular non-citizen will depend firstly upon whether that non-citizen comes within the reach of s 36(3) of the Act and, if not, whether Australia has protection obligations to that non-citizen under the Convention as modified in its application to Australia by s 91R of the Act.

31.    Justice Bennett appeared to strike a middle ground between these two positions. At 155 [17], her Honour said that s.36(3) “is a qualification of s.36(2)”. These words had been used by Emmett J at first instance in the same case, NBLB v Minister for Immigration, where his Honour said:

◦    Sections 36(3), 36(4) and 36(5) have no independent effect or operation. They operate only as qualifications of s 36(2). That is to say, s 36(3) is a qualification of s 36(2) and s 36(4) and s 36(5) are qualifications on that qualification. While s 91R(1) refers only to Article 1A(2), it is clear enough that ss 36(3), 36(4) and 36(5) are intended to operate only within the context of s 36(2). It would be an anomalous construction to treat the concept of persecution in ss 36(4) and 36(5) as being different from the concept of persecution imported into s 36(2) by s 91R(1).

32.    Justice Bennett also said:

◦    ... [F]or the purposes of determining whether Australia has protection obligations to each appellant, who has a third country right, he must establish a well-founded fear of persecution both in his country of nationality and the third country. Both are relevant for the determination of the application of the Convention to him. In both cases, the persecution must involve serious harm.

33.    The Minister submits that the proposition that a protection visa applicant must show that he or she has a well-founded fear of persecution or will face significant harm both in their country of nationality and in a third country in respect of which they have a right to enter and reside can be readily accepted. What her Honour did not express a view on, however, was whether the Tribunal must consider s.36(2) and make findings in an applicant’s favour before considering s.36(3).

34.    In NBGM v Minister for Immigration, Black CJ referred to NBLC at 528 [16] and observed that the language in ss.36(3)-(5), particularly the use of the words “however” and “also” at the commencement of each sub-section:

◦    ...affirms the relationship between the subsections, which was described by Bennett J in the same case: ‘s 36(3) is a qualification of s 36(2) and s 36(4) is a qualification to that qualification’ (at [17], see also Graham J at [47] describing the criterion in s 36(2) as ‘significantly qualified’ by s 36(3) and at [71]-[72]).

35.    His Honour also said, at 529 [18], that the criterion of Australia having protection obligations to a person, which is established by s.36(2), is “statutorily negated in the circumstances in which s.36(3) applies”. His Honour further said that when that statutory negation takes effect, it is only “undone” by the operation of ss.36(4) or 36(5) (or, for that matter, s.36(5A), which had not been enacted at that time). In the same paragraph, Black CJ said that this meant that “the applicant will only be able to make good the criterion in s.36(2) by making out the exception in s.36(4) or s.36(5)”. Then at 530 [20], his Honour made the following important observation:

◦    As a final matter of construction, I see no requirement for a decision-maker to be satisfied as to whether or not Australia has ‘protection obligations’ pursuant to s 36(2) before considering the qualification in s 36(3). In an appropriate case, it may indeed be proper for a decision-maker to consider first whether or not Australia is taken not to have protection obligations to the applicant by reason of the operation of s 36(3) (see NBLC at [48] (Graham J)). Such an approach finds a parallel in the permissible approach to Art 1 of the Convention: NAGV and NAGW of 2002 (High Court) at [47]. [Emphasis added.]

36.    In SZSMG v Minister for Immigration & Anor, the Tribunal addressed the matters in ss.36(3)-(5A) without first determining whether the applicant attracted Australia’s protection obligations under s.36(2). Having referred to [25] of the plurality’s judgment in SZRTC, Judge O’Dwyer held, at [17], that, although the Tribunal had made “an error”, that error “d[id] not go to jurisdiction”. That was because s.36(3) would not have been engaged had the Tribunal taken the first step identified in SZRTC and found that the applicant could not satisfy s.36(2).

37.    Judge O’Dwyer’s orders were set aside on appeal, by consent, but on the basis of an argument not put to the primary judge, namely, that the Tribunal failed to consider whether there was a real chance that the United Kingdom would return the applicant to the People’s Republic of China or Hong Kong, as required by ss.36(5) and (5A).

38.    At [16], Rangiah J said that the case highlighted the “inconvenience and difficulty that can arise when matters are assumed, rather than determined”, that matter being whether Australia owed protection obligations to the applicant (that is, met the requirements of s.36(2)), which the Tribunal assumed in his favour. His Honour said that, had the Tribunal determined that issue, “it is at least possible that the application to the Federal Circuit Court and the appeal to this Court might not have eventuated”. In this connection, the Minister notes that, while his Honour spoke encouragingly of the Tribunal first considering the matters raised by s.36(2) before turning its mind to s.36(3), albeit without referring to SZRTC, his Honour did not say that the failure to do so vitiates the Tribunal’s decision.

Reconciling the authorities

39.    None of the authorities referred to above establish whether it is a jurisdictional error for the Tribunal not to consider first the question whether a review applicant has a well-founded fear of persecution (s.36(2)(a)) or is likely to suffer significant harm (s.36(2)(aa)) in his or her country of origin before considering ss.36(3)-(5A).

40.    Both NBLC and NBGM were cited at [24] of the plurality’s reasons in SZRTC in support of the proposition that s.36(3) operates as a qualification on s.36(2) and that ss.36(4)-(5A) operate as qualifications on s.36(3). The Chief Justice’s statements in NBGM as to whether a decision-maker must first consider s.36(2) before addressing s.36(3) were made at 530 [20]. The Minister submits that this Court ought to infer that Tracey and Griffiths JJ were cognisant of Black CJ’s observations when their Honours said, at [25], that “[t]he correct approach” is for the decision-maker to consider each of ss.36(2)-(5A) sequentially.

41.    The Minister’s submissions centre upon the following propositions. First, the fact that a certain approach to ss.36(2)-(5A) may be “correct” does not necessarily mean that an approach that does not comply strictly with it gives rise to jurisdictional error. Secondly, in the present case, the Tribunal did not “excee[d] its authority or powe[r]” or “mak[e] a decision outside the limits of the functions and powers conferred on [it]” in deciding that the [appellant] was a person to whom Australia did not owe protection obligations. Its findings as to the matters set out in ss.36(3)-(5A) are not affected by any error and do not affect the Tribunal’s exercise of jurisdiction. That is because, had the Tribunal made a finding in the [appellant’s] favour in respect of his fear of persecution or significant harm in Nepal under s.36(2), its findings on the matters set out in ss.36(5)(a) and (5A)(a) at [63]-[64] would have foreclosed the possibility that the outcome of his review application would have been different. Had those findings gone the other way, the Tribunal would have been required to inquire as to whether the applicant had a well-founded fear of persecution or would face significant harm in Nepal, as required by ss.36(5)(b) and (5A)(b). If either or both of those questions were answered in the affirmative, the [appellant] would have satisfied the criteria for a protection visa in ss.36(2)(a) and/or (aa).

42.    The Minister submits that consequently, by proceeding in the manner in which it did, the Tribunal, at worst, made an error within jurisdiction. To adopt the words of Hayne J in Re Refugee Review Tribunal; Ex parte Aala at 141 [163], the Tribunal “incorrectly decid[ed] something which [it] [wa]s authorised to decide”.

43.    That is the approach that was taken by Judge O’Dwyer in SZSMG at [17]. The Minister notes that on appeal, no criticism was made of this part of his Honour’s reasons (or, for that matter, any part, given that the appeal turned on an issue not raised in this Court). That being so, and there being nothing to suggest that the approach in SZSMG is plainly wrong, this Court ought to follow it as a matter of judicial comity.

44.    The Minister further submits that an analogy can be drawn with those cases that say that there is no requirement in Australian law that Article 1A of the Refugees Convention be considered before exclusion under Article 1F or that, in the context of particular social group claims, decision-makers must first consider whether a particular social group exists and whether the applicant is a member of that group before considering whether he or she fears persecution by reason of his or her membership of that group. The Minister submits that there is nothing in the text or context of s.36 that would require, as a matter of jurisdiction, decision-makers to consider ss.36(2) and (3) sequentially. That, of course, is a different point from saying that it is ideal, desirable or even “correct” to consider s.36(2) before s.36(3).

45.    In SZTPK, I adopted the plurality’s statements at [25] of SZRTC. However, the issue the subject of these proceedings did not arise in that case, given that the Tribunal had considered, and made findings in relation to, the criteria in s.36(2) before addressing s.36(3). The Minister submits that, in the light of Black CJ’s observations in NBGM at 530 [20] and those of Judge O’Dwyer in SZSMG at [17], the reasons of this Court at [35]-[36] of SZTPK should not be taken as suggesting that a decision-maker is jurisdictionally precluded from considering s.36(3) on the hypothesis that s.36(2) is met in an applicant’s favour.

46.    The Minister’s submissions venture the suggestion that there may be some scope to argue that the Tribunal did not even make an error of law within jurisdiction. However, the Minister concedes that that would not be consistent with Judge O’Dwyer’s observations in SZSMG at [17]. The Minister submits that, even assuming that an error had been made, it could not be characterised as jurisdictional. Accordingly, relief could not be granted to the [appellant].

26    The Minister continues to adopt the same position, but departs from the conclusion reached by the primary judge (at [48]) where his Honour said that there is:

… a strong argument that the power to determine whether a protection visa applicant can find safety in a third country is not enlivened in the absence of a determination that the person has a well-founded fear of harm in their country of reference.

27    At [49] the primary judge noted that a failure to follow ‘the correct procedure established in [SZRTC]’ amounts to an error, but not one that goes to jurisdiction. The primary judge reiterated this point (at [50]) by reference to the reasons of Black CJ in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 522 (at [20]) where the Chief Justice said (as noted above):

As a final matter of construction, I see no requirement for a decision-maker to be satisfied as to whether or not Australia has “protection obligations” pursuant to s 36(2) before considering the qualification in s 36(3). In an appropriate case, it may indeed be proper for a decision-maker to consider first whether or not Australia is taken not to have protection obligations to the applicant by reason of the operation of s 36(3) (see NBLC at [48] (Graham J)). Such an approach finds a parallel in the permissible approach to Art 1 of the Convention: NAGV and NAGW of 2002 (High Court) at [47]. (emphasis added)

28    The primary judge also had regard to the judgments of the Federal Circuit Court in SZSMG v Minister for Immigration and Border Protection [2014] FCCA 776 (particularly [17] of that judgment) and SZRUT v Minister for Immigration and Border Protection [2015] FCCA 263 (particularly [47] of that judgment).

29    As noted above, the Minister agrees that the primary judge’s conclusion that the Tribunal did not fall into jurisdictional error by addressing the matters raised by s 36(3) of the Act without first having made findings in the appellant’s favour under s 36(2). The Minister relies expressly on the remarks made by Black CJ in NBGM (at [20]) that, as a matter of construction, the Chief Justice saw no requirement for a decision-maker to be satisfied as to whether or not Australia has ‘protections obligations’ pursuant to s 36(2) of the Act before considering the qualification in s 36(3). (I pause to acknowledge that NBGM was affirmed in the High Court, but this particular point did not arise: NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52.)

30    The Minister required a notice of contention to advance the argument that the judgment of the Federal Circuit Court was correct not only on the basis that there was no error going to jurisdiction, but also no error at all. Although the argument was advanced late in response to my inquiries, I permitted the Minister to rely on such a notice of contention largely for the reasons he advanced, namely:

24.    First, a principal consideration to be taken into account when exercising the discretion to extend time is "the interest of the proper administration of justice and the need to ensure that a decision has been made in a procedurally fair manner and in accordance with law". The appellant will not suffer any prejudice if time were extended given that the issue has been argued fully, not only orally at the hearing of the appeal by the Minister but also in the parties' written submissions. This Court has permitted a notice of contention to be filed after the conclusion of a hearing and it should do so again if necessary. To remove any potential prejudice, the Minister would not oppose the appellant seeking leave to file short written submissions confined to the question as to whether leave should be granted to the Minister.

25.    Secondly, the issue raised in the notice of contention is not only "similar to those issues previously advanced before the [primary judge]"; it is identical. Thus, the Minister does not require a separate grant of leave to raise a point not raised below.

26.    Thirdly, the issue is a purely legal question and does not require either party to adduce evidence.

27.    Fourthly, it is important for this Court to resolve the issue and to correct or clarify the primary judge's statements at [48] and [49] of his reasons. This is an issue that is very likely to arise in future cases. It is in the interests of justice, therefore, that decision-makers be given guidance as to the construction and application of s 36 so as to avoid making legally erroneous decisions.

31    I have some reservation as to the precise correctness of [25], but it is academic in light of the other submissions, which I accept. The Minister submits that, contrary to the primary judge’s observation at [49], the fact that the Tribunal does not follow the ‘correct’ procedure set out in SZRTC, does not necessarily result in the Tribunal having made an error within jurisdiction as there may be other permissible approaches as acknowledged by Black CJ in NBGM. By analogy, the Minister refers to those cases which reject the suggestion that in Australian law Art 1A of the Refugees Convention can be considered before exclusion under Art 1F, such as Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533 per Gleeson CJ (at [5]), per Kirby J (at [86], [141(1)]); WAKN v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 579 per French J (as his Honour then was) (at [41]). Or, that in the context of particular social groups claims, decision-makers must first consider whether a particular social group exists and whether the applicant is a member of that group before considering whether he or she fears persecution by reason of his or her membership of that group, such as in BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 per Collier J (at [21]-[25]); SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 per Greenwood J (at [78]). In any event, even if the primary judge were correct in holding that the Tribunal’s approach gave rise to a non-jurisdictional error, it would still not be sufficient for the appellant to obtain relief.

32    Ms Baw, pro bono counsel for the appellant, promptly accepted the invitation and filed detailed submissions for which I am grateful. As counsel notes, the additional submissions are filed in relation to the effect of SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 on the appellant’s application. Counsel notes that the additional issue described a question considered by the primary judge (at [48]), namely, ‘…whether s 36(3) [of the Act] is enlivened in circumstances where a decision maker [sic] makes no determination for the purposes of s 36(2)…’. The primary judge concluded that it was an error not to follow the plurality in SZRTC. Counsel submits that, following SZRTC, the Tribunal thus had to make a determination for a protection visa pursuant to s 36(2) of the Act first, as that was a ‘gateway’ to trigger the operation of the qualification. Only if s 36(2) was answered in the affirmative, was it necessary for the Tribunal to consider s 36(3). Of course, if subs (3) applied, the Tribunal would then have to determine whether one or more of the qualifications contained in subs (4), (5) and (5A) would apply. Counsel submits that the Minister’s submission that whether or not it was pragmatic for an administrative body to have construed the section the way that it did overlooks whether the administrative body has been given the power to make that construction in the first place.

33    Jurisdictional error concerns departures from the limits upon the exercise of power, while non-jurisdictional errors do not: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Hayne J (at [162]). Counsel argues that there are judgments from seven judges of this Court who have found that, as a matter of statutory construction, the power that the legislature had conferred in the Tribunal was to determine s 36(2) of the Act first before turning to the qualifications in the subsequent subsections. Counsel’s submissions continued (at [14]-[19]) (necessary amendments made to the quoted cases):

14.    First and second, Tracey and Griffith JJ, the plurality in SZRTC stated at [25]: “The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s 36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s 36(3) and determine whether or not the applicant is a person to whom that section applies. If it does not, the "gateway", created by s 36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s 36(3) applies. If s 36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia's international obligations under the Refugee Convention are met, limit the operation of s 36(3) and keep the "gateway" open.”

15.    Third, Wilcox J in NBLC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 151, [said] at [5]: “…Article 1A(2) [of the Convention] is the gateway through which all applicants for refugee recognition must pass ... s.36(3), a provision that is concerned with people who have already satisfied Art 1A(2), as notionally amended by s 91R, and whose only reason for not being entitled to an Australian visa is that they have a right of residence in another country.” Given that s.36(2) prescribes the criterion for a protection visa, the clear inference is that subsection is part of the ‘gateway’ which is required to be met before the qualifications apply.

16.    Fourth, Bennett J also in NBLC states at [18]: “That means that protection obligations under the Convention, including Art 1A(2), are only owed to a person who has a well-founded fear in his or her own country of nationality and has taken all possible steps to avail himself or herself of any available third country right unless he or she has a well-founded fear in that third country. Accordingly, her Honour construed the exception as operating simultaneously with the rule. Therefore a construction that applied the exception independent of the rule, as in this case, is an inconsistent approach.

17.    Fifth, Emmett J in NBLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1051 made the same point at [38]: “Sections 36(3), 36(4) and 36(5) have no independent effect or operation. They operate only as qualifications of s.36(2). That is to say, s.36(3) is a qualification of s.36(2) and s.36(4) and s.36(5) are qualifications on that qualification. While s.91R(1) refers only to Article 1A(2), it is clear enough that ss.36(3), 36(4) and s36(5) are intended to operate only within the context of s.36(2).” ([original] emphasis added).

18.    Sixth, Graham J also in NBLC (at [71] and [72]) agreed with the above construction by Emmett J in NBLB.

19.    Seventh, SZSMG v Minister for Immigration and Border Protection (2014) 146 ALD 518 was an appeal of SZSMG from the Federal Circuit Court made by consent, however it was not on a ground that overturned the primary judge in that case. Notwithstanding, Rangiah J effectively supported the statutory construction made by his fellow justices as that case demonstrated the rationale for first making a determination pursuant to the ‘gateway’ of subsection 36(2) of the [Act], and said at [16]: “I add that the Tribunal's decision demonstrates the inconvenience and difficulty that can arise when matters are assumed, rather than determined. If the Tribunal had decided the question of whether Australia owes protection obligations to the appellant instead of assuming that matter in favour of the appellant, it is at least possible that the application to the Federal Circuit Court and the appeal to this Court might not have eventuated. Instead, the application is now no further advanced than when it was first before the Tribunal.” Notably, his Honour emphasised that an assumption was an insufficient substitute for a determination under s 36(2), contrary to the First Respondents submissions.

34    The appellant’s counsel submits that this Court has, on numerous occasions, in a supervisory capacity of the Tribunal through judicial review, made consistent conclusions on the statutory construction of the Act and its qualifications, which define its application. The Tribunal has not been conferred any authority to comply with s 36(3) of the Act in a way that is contrary to the statutory construction as declared by the Court. By doing so, it acts without power.

35    The appellant argues that, at a broader policy level, if the Minister’s submission that at worst the Tribunal made an error within jurisdiction is allowed to stand, it may potentially lead to a slippery slope which will weaken the impact of statutory construction applied by courts to limit the powers administrative bodies, especially where rights and freedoms are involved. Further, the supervisory role of the Court should not be ‘watered down’ by merely calling it a ‘non-jurisdictional’ error.

36    As to the question regarding whether there was an error at all, the appellant’s submissions note that the Minister relies primarily on the statement of Black CJ in NBGM to assert that the Tribunal is not in error. The appellant submits that the view expressed by Black CJ differs from the view expressed by seven judges of the Court above in the cases cited by counsel. In any event, in my view, correctly, counsel for the appellant submits that the primary judge rejected that submission in favour of the Minister.

37    As to SZTOX and the attempts by the Minister to distinguish the present case from SZTOX, counsel for the appellant argues there is nothing in the body of law holding that administrative bodies may make errors of law that do not go to jurisdiction by a failure to meet the type of prerequisite described by the Minister. Counsel for the appellant further argues that it muddies the ultimate question for jurisdictional error, which is one of power.

38    Counsel for the appellant also submits that, at a broader policy level, such an argument should be handled with caution as explained by the following analogy. The list of what is counted in Australia as jurisdictional error is not closed. The High Court has reaffirmed the supremacy of s 75(v) of the Constitution in the face of Parliament's attempts to water-down or remove its power, by stating that ‘the jurisdiction to grant s 75(v) relief where there has been jurisdictional error by an officer of the Commonwealth cannot be removed’ and ‘[t]he Parliament cannot confer on a non-judicial body the power to conclusively determine the limits of its own jurisdiction’: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (at 512).

39    Similarly, if it is accepted that unless a prerequisite is met then an error of the Tribunal is ‘non-jurisdictional’, such as requiring a Court to express ‘something more’ or that the Court has to expressly state the decision is ‘vitiated’, despite seven judges of this Court already declaring a certain statutory construction, it will be a back-door way of allowing the Tribunal to determine the limits of its own jurisdiction.

40    In essence, the appellant argues that the Minister's argument reverses the onus by assuming that an administrative body already had the power to go wrong unless a Court expressly states otherwise. According to the appellant, the starting position should be to ask: did the administrative body have the power to go wrong in the first place?

41    The Minister, in response to the supplementary submissions of the appellant, adhered to the position advanced at the outset, which was to the effect that SZTOX is distinguishable on the facts. The Minister filed an affidavit producing the reasons of the Tribunal in SZTOX. There is no reason that affidavit should not be read in the circumstances of this appeal.

42    The Minister contends that there are several features of SZTOX which are distinguishable. The first of those being that the Tribunal did not refer to the Full Court decision in SZRHU anywhere in its reasons for decision, notwithstanding that it had been handed down over two months earlier. Nor did the Tribunal in SZTOX draw SZRHU to the applicant’s attention during the hearing before it. This, together with the fact that there was an absence of any indication in the Tribunal’s reasons that it had properly understood and applied the relevant principles established in SZRHU, was a matter on which the Court in SZTOX placed significant weight. At [39] of SZTOX the Full Court said:

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.

43    The second feature is that the Tribunal (at [51]) in SZTOX said that it had regard to the terms of the Treaty and country information pertaining to administrative arrangements at the Nepal-India border ‘in relation to the practical situation’, as if to suggest that s 36(3) of the Act represents a codification of the doctrine of effective protection.

44    Thirdly, during the hearing, the Tribunal indicated to the review applicant that a ‘relevant consideration’ in determining whether s 36(3) had any application was ‘whether he is able lawfully to enter and reside in India, either temporarily or permanently’ (emphasis added) (see [34]). In these circumstances, the Full Court held in SZTOX (at [40]) that there was:

… 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”.

45    As Allsop J (as the Chief Justice then was) held in V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408 (at [15]), the language that was used by the Tribunal (at [34]) would suggest that it misunderstood what was required of s 36(3).

46    The Minister also notes that, in SZTOX, the Tribunal said (at [32]) that it was ‘well documented that Nepali nationals can readily enter and remain in India under the Treaty of Mutual Friendship and ongoing administrative arrangements, without a visa or further formality’ (emphasis added). The Minister notes that this aspect of the Tribunal’s reasons also ignores the fact that the terms of the Treaty do not appear to give rights of entry to Nepali nationals, which is precisely what Buchanan J observed in SZRHU (at [88]). Rather, the Treaty governs the circumstances of those Nepali nationals who are already in India.

47    Accordingly, it was in this context that the Tribunal in SZTOX concluded in the final sentence (at [51]) that ‘as a matter of practical reality’ the review applicant had a right to enter and reside in India, of which he had not taken all possible steps to avail himself. It was in that context that the Full Court in SZTOX held (at [39] and [40]) that the Tribunal’s use of the expression ‘as a matter of practical reality’ indicated that it ‘labour[ed] under a misapprehension of the correct test under 36(3) [as] that which applied under the now discredited doctrine of effective protection’. Or, at least, it cast serious doubt on whether it properly understood the significance of decisions such as V856 and SZRHU.

48    In the present case, however, the Minister contends that the Tribunal properly understood and applied the requisite test under s 36(3) of the Act because it identified what it called the primary issue (at [34]), namely, whether s 36(3) was engaged. The Tribunal then commenced its consideration of that issue (at [36]), not only by referring to the Full Court’s judgment in SZRHU, but also by acknowledging that the word ‘right’ in s 36(3) of the Act includes the notion of liberty, permission or privilege lawfully given, and is not restricted to a ‘right in the strict sense which is legally enforceable’.

49    The Minister points out that the Tribunal made these observations in a context where:

(a)    the Minister’s delegate had considered that s 36(3) required the existence of a legally enforceable right to enter and reside in another country;

(b)    the Tribunal was well aware that the delegate had formed this view; and

(c)    at the hearing, the Tribunal had explained to the appellant that, the delegate had considered that for s 36(3) to apply, a person must have a legally enforceable right to enter and reside in another country, as held by this Court in cases such as WAGH v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 269.

50    Also, the Tribunal acknowledged (at [38]), consistently with Buchanan J’s observations in SZRHU (at [88] and [90]) and those of the Full Court in SZTOX (at [36]-[38]), that ‘[t]he Treaty itself does not deal with the rights of Nepalese nationals to enter India (and vice versa) but rather concerns their treatment once in India.’ In light of this, the Tribunal considered that it was ‘necessary’ to have regard to ‘other sources’ to determine whether the appellant had a right, in the requisite sense, to enter and reside in India. That material comprised information published by:

(a)    DFAT (and contained on the website of the Indian Bureau of Immigration) as to the administrative arrangements at the Nepal-India border (at [39]);

(b)    DFAT as to the length of time that a Nepali national may stay in India, and the restrictions, if any, on their ability to remain, reside and work in that country (at [41]);

(c)    the Immigration and Refugee Board of Canada, the British Broadcasting Corporation and the Indian Council for Research on International Economic Relations as to the ability of Nepali nationals to reside, work, attend school, and access health services in India, and the number of Nepali nationals who live, work and own property in that country (at [41]-[42]); and

(d)    various authorities as to the fluidity of the Nepal-India border and the shifting population between the two countries (at [43]).

51    In my view, at least one of the issues squarely falling for consideration in NBGM, at least as it was viewed by Black CJ, was the interrelationship between s 36(2) and s 36(3) of the Act. In that case, the primary judge had concluded that he found it difficult to see what relevance s 36(3) had since, in his Honour’s view, if the applicant did not have a well-founded fear of persecution, then Australia did not have a protection obligation to him in the first place and on this view there was no work for s 36(3) to do. Black CJ agreed with the summary of Hill J in V872/00A v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 57 (at [21]-[22]) where his Honour said:

21    The background to the insertion of these subsections is well known to any who have followed the debates on the subject of refugees, boat people and illegal immigrants. The amendments inserting them are to be found in the Border Protection Legislation Amendment Act 1999 (Cth). The general policy of that Act appears both from its title and the explanatory memorandum accompanying the Bill as presented to Parliament. However, the explanatory memorandum offers no specific notes on Sch 1, Pt 6 of the Border Protection Legislation Amendment Act which added subs (3), (4) and (5) to s 36 of the Act. The policy also is well known to any reader of current political news. It is alleged to have been the case that persons who came to Australia, claimed to be refugees and sought protection visas, often either had previously resided in a third country where they had no fear of persecution or alternatively travelled via safe third countries en route to Australia but preferred to travel on and not remain in the safe third country because the economic conditions in Australia would provide better living standards than those available there. There is no suggestion that Parliament in framing the subsections intended in any way to explain or modify the provisions of Art 33 or otherwise limit the obligations which Australia had to refugees, other than by providing an automatic disqualification for persons falling within s 36(3) from obtaining a protection visa.

22    I use the phrase “automatic disqualification” because that is the consequence of s 36(3). There is no question of discretion; no room for differences of opinion. A legally enforceable right to enter and reside in a safe third country automatically disqualifies a person from being granted a protection visa in Australia. If the ability to enter and reside is not a legally enforceable right, then there is no automatic disqualification. The particular circumstances of the applicant must then be considered by the Minister, or on a review, by the Tribunal to determine whether he or it is satisfied that Australia owes protection obligation to the person.

52    This description of an automatic disqualification arose because of the deeming provision. Black CJ made the point that the effect of s 36(3) of the Act was that Australia was deemed not to have protection obligations which, in turn, had been the view expressed by Emmett J dissenting in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 46 (at [43]). Black CJ emphasised that s 36(3) does not provide that ‘Australia does not have protection obligations’ in the circumstances outlined, but that Australia ‘is taken not to have protection obligations’ (emphasis added). His Honour described the process in NBGM (at [18]):

An applicant for a permanent protection visa is still applying for a visa and must still satisfy the criteria for that visa. The criterion of Australia having “protection obligations” to the applicant, which is established by s 36(2), is statutorily negated in the circumstances in which s 36(3) applies. When that statutory negation takes effect, it is only undone by the operation of either s 36(4) or s 36(5). That is, the applicant will only be able to make good the criterion in s 36(2) by making out the exception in s 36(4) or s 36(5). And, as I have noted, the statutory language used in s 36(4) is narrower than the concept of “protection obligations”, which directs attention to Art 1 of the Convention. Section 36(4) does not merely direct attention to Art 1A(2); the legislature has laid down the test, as a matter of domestic law, that must be satisfied for the qualification to the qualification of s 36(2) to be made good. The circumstances to be established are presently existing circumstances, as to which the past may well illuminate the present; but the question remains in the present.

53    Critically, the former Chief Justice observed (at [20]) that he could see no requirement for a decision-maker to be satisfied as to whether or not Australia has ‘protection obligations’ pursuant to s 36(2) before considering the qualification in s 36(3). He noted that, in an appropriate case, it may indeed be proper for a decision-maker to consider first whether or not Australia is taken not to have protection obligations to the applicant by reason of the operation of s 36(3): see NBLC per Graham J (at [48]).

54    In my view, the analysis in SZRTC does not conflict with this process of construction, contrary to the view expressed by the primary judge and other judgments in the Federal Circuit Court. In SZRTC, the Full Court, constituted by Tracey, Flick and Griffiths JJ, held that an appellant’s ability to enter into and remain in another country for six months was a ‘right to enter and reside’ for the purpose of s 36(3) of the Act and in that case the Tribunal had erred by importing temporal considerations relating to protection obligations into s 36(3) of the Act which did not require a period of residence commensurate with a period of time during which a fear of prosecution is likely to continue. Their Honours held that if an applicant satisfies s 36(2) of the Act, it was necessary for a decision-maker to consider whether s 36(3) applies. If s 36(3) does not apply, there is no occasion to consider whether the qualifications contained in subs (4), (5) and (5A) limit its obligation.

55    As noted, it was incidental to the consideration of those provisions that their Honours’ noted that s 36 of the Act contained a cascading series of qualifications. Subsection (3) operates as a qualification on subs (2), subs (4) to subs (5A) then operate as a qualification to subs (3).

56    It was not central to the decision reached by their Honours in SZRTC that a decision be made in relation to s 36(2) of the Act before considering s 36(3). Their Honours were certainly emphasising that it was the correct approach to consider s 36(2) of the Act first (as occurred here) before coming to s 36(3). Of course, if no obligations arose under s 36(2) that is the end of the matter insofar as s 36(3) is concerned. In circumstances where obligations do arise under s 36(2) of the Act, it is necessary then to consider s 36(3), but, in my view, nothing in the observations by their Honours dictates that a decision must be made under s 36(2) of the Act before turning to s 36(3).

57    The Tribunal has taken the correct approach. It has examined the factors going to s 36(2) of the Act and, while it preferred not to reach a determinative conclusion about whether or not obligations were owed under subs (2), was satisfied nevertheless that subs (3) precluded any obligations being owed. It would be wrong to ignore s 36(2) of the Act, as the issue under s 36(2) is the central issue to which s 36 is directed. But as Black CJ observed, it is difficult to see from a perspective of statutory construction why there would be no obligations by virtue of s 36(3). The Tribunal took a slightly different approach saying that it was, in effect, unnecessary to determine s 36(2) because even if obligations were owed under s 36(2), they were negated by virtue of s 36(3) of the Act. As a matter of statutory construction, it is difficult to see how the approach which commended itself to Black CJ could be erroneous. Certainly, it is not jurisdictional error, but in my view, it is no error at all to deal with s 36(3) (which is a deeming provision) on the hypothesis that s 36(2) would apply. Of course, if s 36(2) does not apply, there is no basis for consideration of s 36(3). There is some force in the Minister’s submission that it is highly improbable that Tracey and Griffiths JJ in their observations as to the correct approach in SZRTC, were expressly departing from the views expressed by Black CJ in NBGM, having just cited his Honour’s decision in that case.

58    So, once again, while it is not determinative of the present case on any view, I am inclined to accept the Minister’s submission that no error at all, let alone an error as to jurisdiction, was made by the Tribunal.

CONCLUSION

59    The Court is most grateful for the assistance of pro bono counsel. However, on this occasion, the arguments for the Minister have ultimately prevailed. The orders are:

1.    The Minister has leave to file and rely upon the notice of contention dated 16 September 2015.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent's costs of the appeal, to be taxed if not agreed.

Associate:

Dated:    10 November 2015