Case: Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 ; (2001) 116 FCR 154
Outcome: referred to
In Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 ; (2001) 116 FCR 154 ('Applicant C') Stone J, with whose reasons for judgment, Gray and Lee JJ relevantly agreed, held that the primary judge had been correct in his interpretation of s 36(3). The primary judge had said (see [2001] FCA 229 at [30] ): '30 A literal construction of the word "right" in a statute must, in my view, be that it is a legally enforceable right. The extraneous materials to which I have referred above tend to support a literal construction. So does the fact that a literal construction would advance the purposes of the Refugees Convention whereas to construe the word "right" as meaning something less than a legally enforceable right would place much greater obstacles in a refugee's path.' 62 For my part I would have taken the view that the passages from the tabling speech referred to above demonstrate a clear intention on the part of the legislature that much greater obstacles should be placed in a putative refugee's path. Be that as it may, it is important to note that in Applicant C Stone J said at [60]: '60 It should also be recognised that a right of entry such as I have postulated may arise other than by grant of a visa. A country's entry requirements may be met by proof of identity and citizenship of a nominated country being provided at the border, for example by production of a valid passport, without the necessity for a visa. This would explain the use in s 36(3) of the phrase, "however that right arose or is expressed".' 63 In WAGH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 194 ; (2003) 131 FCR 269 ('WAGH') Lee J adhered to the construction of 'right' in s 36(3) which he had given when concurring with that part of the reasons of Stone J in Applicant C which addressed that matter. Carr J considered that Applicant C was authority for the proposition that the word 'right' in s 36(3) meant a legally enforceable right, albeit one that could be revoked (at [74]). 65 His Honour proceeded to refer to the leading judgment of Stone J in Applicant C and then said at [56]-[58]: '56 In the course of her judgment her Honour said, in a passage quoted by the learned primary judge at [65]: The combination of the amendments to s 36 and the doctrine of effective protection leads to [t] his position. Australia does not owe protection obligations under the Convention to: (a) a person who can, as a practical matter, obtain effective protection in a third country; or (b) a person who has not taken all possible steps to avail himself or herself of a legally enforceable right to enter and reside in a third country. 57 It is true that the court affirmed the decision of the learned primary judge in that case. I am not sure that the reference to "effective protection" can, however, be ignored. In any event, after V872/200A the comments of Stone J should, in my view, be read so as to include (if not already comprehended by (a)), a category of persons of whom it can be said that while they have not, in a strict sense, a legally enforceable right, the factual situation is that they are likely to be afforded entry to the third country and as a matter of practical reality, have effective protection there. If there is any conflict between Applicant C and V872/00A I would follow the latter and later case. 58 One reason why a strict construction can not be given to the word "right", so that it is to be read as "legally enforceable right" is that all countries retain as a matter of sovereignty a right to exclude persons from the country. It would be unlikely in many cases that a visa would give a legally enforceable right, although as a matter of practical reality it would be virtually certain that the person in question would be permitted entry.' 66 In its reasons for decision in the present case, the Tribunal said in the section of its decision headed 'FINDINGS AND REASONS': 'DFAT advised on 23 October 2006 that Nepalese citizens do not require a visa to enter India, and if travelling by air, it is necessary only to produce a valid national passport ... The Tribunal also accepts that a Nepalese citizen can fly directly to India from Australia provided they are in possession of a valid Nepalese passport ... The Tribunal finds that the applicant and his wife have valid current Nepali passports, and they could fly directly to India from Australia. ... The Tribunal finds that the applicant and his wife ... would not be denied entry to India, and they could live there indefinitely.' 67 The Tribunal also found that India accepted the Treaty of Peace and Friendship between India and Nepal and that the Treaty had been incorporated into the domestic law of India and, as such, could be accessed by the first appellant. In the circumstances, if it were necessary to find that the first appellant had a right of entry as explained by Stone J in Applicant C then no more was required than the matters which the Tribunal found (see in particular at [60] in Applicant C ). 97 The Tribunal did not err in finding, as it did, that the first appellant had a legally enforceable right to enter and reside in India pursuant to the Treaty of Peace and Friendship between India and Nepal, in the sense which Stone J described in Applicant C at [60]. 98 In my opinion grounds 3 and 4 fail. Accordingly, the alternative basis for affirming the decision of the Federal Magistrates Court, as set out in paragraph 2 of the Notice of Contention, should be upheld. The appellants conceded that, if grounds 3 and 4 failed, the appeal should be dismissed. 99 In all the circumstances, the appeal should be dismissed with costs. I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 13 June 2008 Counsel for the First and Second Appellants by direct client access: D H Godwin Counsel for the First Respondent: L Clegg Solicitor for the First Respondent: Clayton Utz The Second Respondent filed a submitting appearance. Date of Hearing: 26 and 28 May 2008 Date of Judgment: 13 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/904.html