Recent Federal Court decision clarifies the requirement in section 36(3)

Publish Date: Sep 09, 2013

Generally speaking a person will be entitled to a protection visa if they have a well-founded fear of serious / significant harm in their home country.  However in cases where the person has “a right to enter and reside in” another country, they may be disqualified from qualifying for a protection visa.  This exception is set out in section 36(3) of the Migration Act.

Until the recent decision of the Full Federal Court in Minister for Immigration v SZRHU there had been a lot of confusion as to meaning of ‘right’.  In an earlier decision the Court had found that ‘right’ meant a legally enforceable right, such as a visa; while in another decision the Court held that it could be something less than a legally enforceable right.  

The judgment of Justice Buchanan in Minister for Immigration v SZRHU now makes it clear that where an applicant for a protection visa has the permission of a country to enter or reside in it, whether or not that permission is legally enforceable, that person can be denied protection under section 36(3) of the Migration Act.

Case officers considering protection visa applications of people from Nepal often find that the Treaty of Peace and Friendship between India and Nepal gives Nepalese citizens a right to enter or reside in India.  Interestingly, the judgment of the Full Federal Court leaves open the possibility that the Treaty of Peace and Friendship does not give Nepalese citizens such a right.

Craddock Murray Neumann are experts when it comes to migration law.  We handle literally thousands of refugee cases each year, most of which raise complex legal or factual issues.  If you are thinking about applying for a protection visa, or have applied, you should come and get some advice from one of our senior lawyers about the best way to argue your case and how we can assist you.

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