Case: WAGH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 194 ; (2003) 131 FCR 269
Outcome: referred to
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]). 64 Hill J dealt with the matter more extensively in WAGH at [54]. His Honour said: '54 The word "right" tends to suggest, prima facie, a legally enforceable right. However, it was held by a Full Court of this court in V872/00A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 185 ; (2002) 122 FCR 57 that "right" as used in the subsection did not mean legally enforceable right of entry and re-entry to a safe third country. The ratio of that decision in the narrowest sense is that s 36(3) will operate in a case where not only is there a legal right of entry but also where, absent a legally enforceable right of entry the person is likely to be allowed entry to the third country and is likely, as a matter of practical reality to have effective protection there and not be subject to refoulement contrary to Art 33 of the Convention: see per Black CJ at [5] and per Tamberlin J at [83], where his Honour said that the question is whether there was "any real risk that the applicant would not be able to secure access to that country so as to attract its protection". ...' 69 In WAGH at [66], Hill J expressed the opinion that the Tribunal had committed an error by ignoring altogether the requirement of s 36(3) that an applicant have not merely a right of entry, but also a right to reside in the other country. I respectfully agree that a right of residence within the meaning of the subsection is not sufficient. However, there can be no foundation for the suggestion that one has to find a separate right of entry and a separate right of residence. The Tribunal was entitled to find as it did that the appellants had a right to enter and reside in India. 70 The STATEMENT OF DECISION AND REASONS of the Tribunal has been recorded on some 28 pages of closely typed script. For present purposes it is sufficient to note the following extracts from the country information referred to: 'Something interesting is happening these days in otherwise turbulent Nepal. Instead of incessant headlines about senseless killings and human-right abuses on a daily basis, there is news of peace parleys and multilateral dialogue. This seemingly non-violent face is a u-turn for a war-torn country so often described as a nation on the brink of collapse, a failing state. In what appears to be a major breakthrough in the decade-long civil war, the ruling pro-democratic seven-party alliance (SPA) and the insurgent Maoists decided on 8 November 2006 to disarm under United Nations supervision. The 35,000 "regular" Maoist guerrillas will be kept in seven cantonments around Nepal and their arms will be locked up. ...' 71 Another report referred to in the country information included: 'The Maoists' 10-year journey from the jungle to government was partly a result of compulsion and partly political wisdom. After 10 years of fighting, the loss of 13,000 lives and massive damage to the country's infrastructure and economy, they were still unable to capture even a district headquarters, let alone the power in the centre. ...'