FEDERAL CIRCUIT COURT OF AUSTRALIA
SZRNT v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 765	

Catchwords: 
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (RRT) – whether RRT considered whether the applicant has not taken all possible steps to avail himself of the right the RRT found the applicant had to enter and reside in India – whether it was an integer of the applicant’s claims for protection that the applicant would need to travel to Nepal before he could gain entry to India and that he would suffer harm in Nepal in the course of his seeking to gain entry into India – jurisdictional error.

ADMINISTRATIVE LAW – Whether the “no evidence” ground of review applies to decisions based on negative findings of fact.	

Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5(1)(h), 5(3)
Migration Act 1958 (Cth), ss.36(2)(a), 36(3), 36(4), 36(5), 36(5A), 476(1)(g), 476(4)	

Abrath v North Eastern Railway Co (1883) 11 QBD 440
Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporation [2011] FCA 370
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35
Sarancharkh v Minister for Immigration and Multicultural Affairs [2001] FCA 1461
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21
SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995
SZFWB v Minister for Immigration and Citizenship [2007] FCA 167
SZKMX v Minister for Immigration and Citizenship [2008] FCA 856
Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147
SZTOG v Minister for Immigration and Border Protection [2015] FCCA 180
WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139	

Applicant:	SZRNT	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Refugee Review Tribunal	

File Number:	SYG 380 of 2014	

Judgment of:	Judge Manousaridis	

Hearing date:	23 July 2014	

Delivered at:	Sydney	

Delivered on:	1 April 2015	

REPRESENTATION
Counsel for the Applicant:	Mr P Bodisco with Mr Little	

Solicitors for the Applicant:	Stanford Lawyers	

Counsel for the Respondents:	Mr T Reilly	

Solicitors for the Respondents:	Australian Government Solicitor	

ORDERS
(1)	The decision of the second respondent made on 15 January 2014 affirming the decision of the delegate of the first respondent made on 19 March 2012 not to grant the applicant a protection visa is quashed.
(2)	The second respondent determine according to law the application made to it to review the decision of the delegate of the first respondent made on 19 March 2012 not to grant the applicant a protection visa.
(3)	The first respondent pay the applicant’s costs.
(1)	
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Sydney	
SYG 380 of 2014
SZRNT	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent

Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
Introduction
1.	The applicant, a national of Nepal, claims the second respondent (Tribunal) made a number of jurisdictional errors in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.
2.	The nature of the grounds on which the applicant relies requires me to give only a brief outline of the applicant’s claims for a protection visa, and the Tribunal’s reasons for not accepting them.
The applicant’s claims for protection before the Tribunal
3.	The applicant claimed before the Tribunal that he has a well-founded of persecution if he returned to Nepal because he fears harm from:
a)	an ethnic Madeshi party which targeted landowners in the Terai region because the applicant belongs to a landowning family of a particular caste in the Terai;
b)	Maoists, including from the Young Communist League which is the youth wing of the Unified Communist Party of Nepal (Maoist) because the applicant had publicly criticised Maoists and these groups;
c)	lower castes, political groups, individual members of government authorities, and by the community generally because the applicant was convicted in Australia for sexual assault; and 
d)	members of a youth group known as “Unity of Youth” of which the applicant was a member because, in 2008, he stole $5,000 from that group to enable him to fund the costs of his fleeing to Australia.
The Tribunal’s reasons
4.	The Tribunal did not accept the applicant was a witness of credit. The Tribunal was satisfied the applicant had throughout fabricated some matters and exaggerated others to enhance his claims for a protection visa. The Tribunal, therefore, was unable to accept the applicant’s claims at face value. For reasons it is not necessary to set out, the Tribunal was satisfied the applicant does not face a real chance of serious harm in Nepal amounting to persecution for a Convention reason or reasons.
5.	The Tribunal, however, accepted the applicant had stolen money from the “Unity of Youth” group, and that it was plausible that one or more individual members of the original group “should they hear of the applicant’s return to Nepal, might seek restitution or revenge for the comparatively large sum that he stole and that this might involve significant harm to the applicant”. The Tribunal therefore concluded that the applicant may face a real risk of significant harm from those in Nepal from whom he stole the $5,000, and that that “gives rise to protection obligations under s.36(2)(a) of the”  Migration Act 1958 (Cth) (Act).
6.	The Tribunal then considered whether s.36(3) of the Act applied. That subsection provides:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
7.	The Tribunal concluded it was satisfied that “as a matter of practical reality, the applicant as a Nepalese national has a right to enter and reside in India”. In so concluding the Tribunal said it:
has had regard to the terms of the 1950 Treaty of Peace and Friendship between India and Nepal; the consequential administrative provisions as currently set out by the Bureau of Immigration, Ministry of Home Affairs, Government of India, on its website; and the recent advice of Australia’s Department of Foreign Affairs and Trade in relation to the actual situation.
8.	The Tribunal also considered subsections 36(4), (5), and (5A) of the Act. The Tribunal was satisfied the applicant did not have a well-founded fear of persecution if he went to India, or that there were substantial grounds for believing there was a real risk the applicant would suffer significant harm in India. The Tribunal concluded, therefore, that Australia owed the applicant no protection obligations.
Ground 1 – the Tribunal misconstrued s.36(3) of the Act
9.	The applicant’s first ground of review is: 
[The Tribunal] applied the incorrect test.
Particulars
[The Tribunal] misconstrued section 36(3) of the [Act] and/or asked itself the wrong question by conflating the possibility that the Applicant could avail himself of a right to enter or reside in India with the statutory question of whether the Applicant has taken all possible steps to avail himself of these rights.
10.	The substance of this ground is that the Tribunal did not consider whether the applicant had not taken all possible steps to avail himself of the right the Tribunal found the applicant had “as a matter of practical reality” to enter India. The Tribunal instead restricted its consideration to whether it was possible for the applicant to avail himself of this right of entry into India.
11.	The Minister accepts the Tribunal did not expressly find that the applicant had not taken all possible steps to avail himself of the right to enter and reside in India. The Minister submits, however, that the Tribunal should be taken to have understood that the taking of all possible steps was part of the test in s.36(3) of the Act, but that the Tribunal did not make any finding to the effect that the applicant did not take all possible steps to avail himself of a right to enter and reside in Australia because the applicant did not raise it as an issue. The Minister submits that the issue before it was whether the applicant had a right to enter and reside in India, and whether one of the exceptions in s.36(4), 36(5) or 36(5A) applied. The Minister further submits that it was implicitly accepted on all sides that the applicant had not taken all possible steps to avail himself of the right to enter and reside in India.
12.	In my opinion, the Tribunal was required to consider and satisfy itself that the applicant had not taken all possible steps to avail himself of the right to enter and reside in India before the Tribunal could be satisfied s.36(3) of the Act applied. That is so even if, as the Minister submits, the applicant implicitly accepted he had not taken all possible steps to avail himself of the right to enter and reside in India. The requirement that the Tribunal satisfy itself of all elements of s.36(3) does not depend on a visa applicant notifying the Tribunal that he or she did not accept s.36(3) applied, or on the applicant notifying the Tribunal of any particular element of s.36(3) the applicant claimed did not apply to the circumstances of his or her case.
13.	The Minister relies on the applicant’s not having made any attempt, at least after he applied for a protection visa, to avail himself of the right to enter and reside in India. That the applicant made no such attempt, however, cannot by itself reasonably support the conclusion that the applicant did not take all possible steps to avail himself of the right to enter and reside in India. That is so because, before the Tribunal can reasonably be satisfied a visa applicant has not taken all possible steps to avail himself or herself of a right to enter and reside in another country, the Tribunal must satisfy itself that there is at least one possible step the visa applicant could have taken to avail himself or herself of that right. A visa applicant’s not having taken any steps to avail himself or herself of a right to enter and reside in another country may equally be explained by there in fact not being any possible step the applicant could have taken to have availed himself or herself of that right.
14.	In my opinion, what the Tribunal was required to do, but did not do, was to consider whether there were in fact any possible steps the applicant could have taken to avail himself of the right to enter and reside in India. Had the Tribunal satisfied itself there was at least one such possible step, it would have been entitled to be satisfied on the basis of the applicant’s not having taken any step that the applicant had not taken all possible steps to avail himself of that right.
15.	The applicant, therefore, succeeds on his first ground of review.
Ground 2 – failing to deal with integer of claim
16.	The second ground of review is:
[The Tribunal] failed to deal with the full integers of the Applicant’s claim.
Particulars
[T]he Tribunal failed to deal with the full integers of the Applicant’s claim in failing to deal with the harm that could flow to the Applicant while in transit from Nepal to India.
17.	The applicant submits that part of the applicant’s claim before the Tribunal was that, to have availed himself of the right to enter and reside in India, the applicant first had to pass through Nepal. The Tribunal did not, however, consider whether there was a substantial risk of significant harm to the applicant if he were to attempt to enter India via Nepal. The Minister, on the other hand, submits no such case was put to the Tribunal, and such case is not reasonably apparent on the material that was before the Tribunal. I accept the Minister’s submissions.
18.	The applicant did not claim that he would enter India only after travelling to Nepal. There was nothing in the material that indicated that that is the likely means by which the applicant would intend to enter India if his claim for a protection visa failed. For these reasons, the applicant does not succeed on ground 2.
19.	Although it formed no part of the applicant’s claim that he would need to travel to Nepal first before he could travel to India, how the applicant could have gained entry to India from Australia would have been a question the Tribunal would have had to consider had it considered whether the applicant had not taken all possible steps to avail himself of a right to enter and reside in India. 
Ground 3 – findings without evidence
20.	The applicant’s third ground of review is:
[The Tribunal] made a finding of which there was no evidence.
Particulars
a. [The Tribunal’s] findings that no “look out” notice has been issued by the authorities in Nepal to block the Applicant’s entry into India, as stated at paragraph [104], was a finding for which there was no evidence.
b. In determining that the Applicant had not taken all possible steps to avail himself of a right to enter or reside in India, [the Tribunal] has made a finding for which there was no evidence.
21.	The second particular of this ground is inconsistent with the first ground of review on which the applicant relies, namely, that the Tribunal made no finding that the applicant had not taken all possible steps to avail himself of the right to enter and reside in India. As I have already found, the Tribunal made no such finding. Accordingly, the second particular cannot be made out.
22.	As to the first particular, the finding the applicant says the Tribunal made without evidence is contained in the following paragraph of its reasons: 
The only exclusions or qualifications to the right of Nepalese citizens to enter and reside in India are that they may be excluded from entry to India if a “look out” notice is issued against a person by the Nepal government advising that they must not be allowed entry to India; and that Nepalese nationals already in India can be forcibly removed if convicted of a crime in either Nepal or India. Neither of these situations applies to the applicant.
23.	The Minister submits the finding was open to the Tribunal on the basis that the applicant never claimed there was a lookout notice in relation to him, and there was no evidence before the Tribunal suggesting the existence of such a notice. The Minister further submits that, in any event, the “no evidence” principle has no application to such a negative finding that something has not occurred, referring to the Full Federal Court decision in WAJS v Minister for Immigration and Multicultural and Indigenous Affairs and the Federal Court decision in Sunchen Pty Ltd v Commissioner of Taxation. 
24.	Before I consider the competing submissions, it would be useful briefly to examine the “no evidence” ground of review.
The “no evidence” ground of review
25.	At common law a tribunal that decides a question of fact when there is “no evidence” in support of the finding makes an error of law. And it has been held, or at least assumed, that the Tribunal’s making a finding on the basis of no evidence may in certain circumstances lead to its decision being set aside for jurisdictional error. 
26.	There are two dimensions to the scope of the “no evidence” ground of review. The first is the type of findings for which there must be no evidence. The required types of findings have not been described uniformly in the cases. In SZFWB v Minister for Immigration and Citizenship Kenny J said:
Generally speaking, as the Full Court in WAJS noted (at [12] citing Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150 per Wilcox J) the “no evidence” ground has been treated as a distinct ground of invalidity in “cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact”.
27.	Thus, according to Kenny J, the finding of fact for which there must be no evidence must be one on whose existence the relevant decision depended.
28.	In SFGB v Minister for Immigration & Multicultural & Indigenous Affairs the Full Federal Court said:
If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error.
29.	And in SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs, on the other hand, Madgwick J was of the view that the fact for which there must be no evidence must be a jurisdictional fact.
30.	The second dimension to the “no evidence” ground is the meaning of “evidence”. There are a number of statements in the cases that require that the evidence that must be absent is “probative evidence”. Thus, in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporation, Flick J said:
Subject to reservation, it may be accepted as a general proposition that an administrative decision should be based upon material which is relevant to the decision to be made and logically probative: eg, Australian Broadcasting Tribunal v Bond (1990) . . . 170 CLR 321 at 367 per Deane J; GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 at 337 per Burchett J; Sagar v O’Sullivan [2011] FCA 182 at [60] per Tracey J. The common law thus recognised that a decision-maker must base his decision “upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined”: R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488 per Diplock LJ. . . . But caution must be exercised “in considering administrative decisions impugned on the basis of ‘no evidence’ submissions and/or unreasonableness so as not to cross over into the prohibited area of merits review”: Hendy v Repatriation Commission  . . . [(2002)] 72 ALD 112 at 125 per Madgwick J. 
31.	For the purposes of these reasons, I will take the “no evidence” ground of jurisdictional error to apply to findings which formed a critical step in the decision maker’s decision; and that the ground will be made out if there is no material that could logically support the finding.
Does the “no evidence” ground apply to negative findings of fact?
32.	As I note above, the Minister relies on two cases for the proposition that the “no evidence” ground does not apply to negative findings of fact. The first case is WAJS where the Full Federal Court considered a claim that the Tribunal made a reviewable error by deciding not to accept the applicant’s evidence in the absence of any evidence. The Full Court rejected that claim:
This was not a finding for which positive evidence was required; it was simply a matter of disbelief of evidence because of surrounding circumstances. We do not think the ‘no evidence’ ground has application to such a situation. 
33.	In support of its conclusion the Full Court referred to the judgment of Wilcox J in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal, noting that his Honour had reviewed the relevant case law on the “no evidence” ground of judicial review. The Court said:
Wilcox J said that all of the cases of which he was aware, in which ‘no evidence’ was treated as a separate ground of invalidity, ‘were cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact’.
34.	Thus, the principle on which the Full Court relied for rejecting the “no evidence” challenge in WAJS was that the “no evidence” principle only applies to findings for which positive evidence is required. That is a different proposition to the one advanced by the Minister, namely, that the “no evidence” ground does not apply to negative findings of fact. For there are circumstances in which a decision maker must be satisfied that no fact exists and that, in order to be so satisfied, there must be positive evidence that such fact does not exist. Under the general law, if “the assertion of a negative is an essential part of the plaintiff’s case, the proof of the assertion still rests upon the plaintiff”. Thus if a decision maker must rely on a finding for which evidence is required, and that finding relates to the non-existence of a fact, there is nothing in WAJS that suggests the no evidence rule does not apply to such findings.
35.	Sunchen Pty Ltd v Commissioner of Taxation, on the other hand, supports the Minister’s submission that the “no evidence” ground does not apply to findings that no facts exist. In that case Perram J said that “the no evidence ground should not be available where the finding challenged is in substance a negative one”. The basis of that conclusion is the difference his Honour identified at “the level of principle” between “a finding of a positive fact for which there is no evidence, and a finding that something is not the case where there is some evidence to show that it is in fact so”. His Honour said:
In the former case, it is not rationally possible to justify the finding for there is no material from which it can proceed: ex nihilo nihil fit. Setting aside such a finding does not therefore impermissibly trespass into the arena of fact finding. Rather, it enforces the procedural requirement that fact finding be based on some evidence.
The analysis is quite different where a negative finding that something is not the fact is involved. If there exists evidence which contradicts that negative finding — that is, suggests that something is the fact — it remains rationally possible for the decision maker to arrive at the same conclusion simply by rejecting that evidence as not credible. For example, where a decision maker finds that a visa applicant has a criminal record and does so in the absence of any evidence to that effect, it is easy to conclude that the finding is vitiated for, on the material, only the opposite conclusion can rationally be reached. Where, however, a decision maker finds that a pension applicant did not work during a six month period, that conclusion is not logically excluded by evidence from the applicant that she did in fact work, for it is possible for the decision maker to disbelieve the applicant and therefore arrive at the same conclusion.
36.	As I understand this passage, his Honour is of the view that the “no evidence” principle applies only where the absence of evidence in relation to a finding renders it illogical to justify that finding. This requirement is capable of being met where the finding is one of positive fact. It is not capable of being met, however, where a negative finding that something is not the fact is involved; and that is because a decision maker is liable to disbelieve or otherwise not accept evidence that contradicts the negative fact. His Honour identified a number of Federal Court authorities which, his Honour believed, support that approach. 
37.	There are two observations that may be made about his Honour’s opinion. First, all of the Federal Court authorities his Honour identifies deal with the no evidence ground that was contained in s.476(1)(g) and s.476(4) of the Act as the Act stood at the time the cases were decided. The ground contained in those sections used the language of s.5(1)(h) and s.5(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). Each of the cases held that that ground of review did not apply to negative findings of fact. The basis of those findings, however, was not the differing logical processes involved in making findings of positive fact or of negative fact; it was based on the construction of s.476(1)(g) and s.476(4) of the Act. That is made clear in the following passage from the decision of Hill J in Sarancharkh v Minister for Immigration and Multicultural Affairs, being the last of the Federal Court decisions Perram J identified:
There is a second reason, however, why the submission must fail on the current state of the law. There are decisions of single Judges of this Court, namely, Abila v Minister for Immigration and Multicultural Affairs [2001] FCA 1186 at [13] to [24], N258/00A v Minister for Immigration and Multicultural Affairs . . . (2000) 101 FCR 478 at 483-486, Aung v Minister for Immigration & Multicultural Affairs [2000] FCA 1562 at [38], Mehandoost v Minister for Immigration and Multicultural Affairs [2001] FCA 1182 at [7] and Perchine v Minister for Immigration and Multicultural Affairs [2001] FCA 168 at [20], which have held that s 476(1)(g) does not apply where the finding is of the non-existence of facts . . . .
The decision of Katz J in N258/00A v Minister for Immigration and Multicultural Affairs . . . (2000) 101 FCR 478 is certainly not clearly wrong. Indeed, for the reasons his Honour gives, the opposite result can only be reached by adopting “an extremely strained construction” both to the language of s 476(1)(g) of the Act as well as the language used in both limbs of s 476(4).
38.	As Flick J said in Dunghutti:
Differences between the ground of “no evidence” at common law (and s 39B of the Judiciary Act) and under the Judicial Review Act initially received no attention in the submissions advanced on behalf of the Applicant. But the differences cannot be ignored: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707, 148 FCR 446. Weinberg J there relevantly observed:
[574] In dealing with the no evidence ground, it must first be noted that there are differences, in respect of findings of fact, between judicial review under the common law, and review under the ADJR Act.
39.	Secondly, and with respect, although the intellectual processes involved in reasoning on the basis of evidence about whether a fact exists may be different from those involved in reasoning on the basis of evidence about whether a fact does not exist, there are many occasions in which a court or an administrative tribunal must positively be satisfied that a fact does not exist. In the case of litigated controversies, the law is clear that a party who bears the onus of proving a fact does not exist must adduce evidence to prove the fact does not exist. If the party adduces no evidence which is probative of the non-existence of the fact, the party will lose. 
40.	The position must be the same with administrative tribunals that are required to find a fact does not exist. That is the case with s.36(3) of the Act. One of the elements of which the Tribunal must be satisfied is 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 requires the Tribunal to do two things. The first is to identify a positive fact, namely, that at least one possible step was available to a visa applicant by which the visa applicant could avail himself or herself of the right to enter another country. The second is to satisfy itself the visa applicant did not take that possible step.
41.	Notwithstanding my respectful disagreement with Perram J’s opinion that, at least outside the operation of the ADJR Act, the “no evidence” principle does not apply to negative findings of fact, I am bound by his Honour’s opinion. It is clear that in Sunchen his Honour applied that opinion in deciding the Administrative Appeals Tribunal made no error of law in finding the relevant negative fact that was in issue before it. 
Did the Tribunal make a finding without evidence?
42.	If I were not bound by Perram J’s opinion that the “no evidence” ground did not apply to negative findings of fact, I would need to consider two issues. The first is whether, in finding s.36(3) of the Act applied to the applicant, the Tribunal relied on the finding that the Nepal government did not issue a “look out” notice advising that the applicant must not be allowed entry in India. The second is, if so, whether the Nepal government did not issue such “look out” notice in relation to the applicant.
43.	The Tribunal relied on its finding that the Nepal government did not issue a “look out” notice in relation to the applicant. The Tribunal found that the issuing of a “look out” notice qualified what the Tribunal found was the right of Nepalese citizens to enter and reside in India. To be satisfied the applicant had a right to enter and reside in India, the Tribunal had to be satisfied that this qualification did not apply to the circumstances of the applicant. And the Tribunal satisfied itself of that by finding that the potential qualification of a Nepalese citizen’s right to enter and reside in India affected by a “look out” notice did not apply to the applicant. And, in the absence of the Minister pointing to any evidence that could rationally lead to the inference that no “look out” notice was issued in relation to the applicant, I am of the opinion there was no material before the Tribunal that was capable of logically supporting its finding that a “look out” notice was not issued in relation to the applicant.
Conclusion on ground 3
44.	Ground 3 fails because the finding of fact which the applicant says the Tribunal made on the basis of no evidence was a negative fact, and the “no evidence” principle does not apply to findings of negative facts. If, however, the “no evidence” principle applied to findings of negative facts, I would have concluded that ground 3 was made out.
Did the Tribunal apply the correct test in any event?
45.	The Minister submitted that the test of practical reality the Tribunal applied in concluding the applicant had a right to enter and reside in Nepal is correct. The Minister relies on a number of paragraphs from the reasons of judgment of Buchanan J in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU.
46.	The Tribunal in the case before me found that “as a matter of practical reality, the applicant as a Nepalese national has a right to enter and reside in India”. These are the same words the Tribunal used in SZTOG v Minister for Immigration and Border Protection. In that case, I found that the words did not reflect the correct test the Tribunal ought to have applied under s.36(3) of the Act. Had I not upheld ground 1 of the applicant’s ground of review, I would have invited submissions from the parties on the question of whether, in light of my decision and reasoning in SZTOG, the Tribunal applied the correct test in concluding s.36(3) applied to the applicant.
Conclusion
47.	The Tribunal failed to consider whether the applicant has not taken all practical steps to avail himself of the right the Tribunal found the applicant had to enter and reside in India. For that reason, the Tribunal made a jurisdictional error.
48.	I propose to quash the Tribunal’s decision, and order that it determine the application for review according to law. I also propose that the Minister pay the applicant’s costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:  

Date:  1 April 2015