Federal Court. Can it be said that "the existence of unreasonable or even very harsh conditions in a third country is not a basis to disengage s 36(3), unless the circumstances in subss (4), (5) or (5A) exist"? If so, is "an interpretation of the phrase “right to enter and reside” which incorporates some limited form of qualitative assessment" precluded? If so, would a person "entering a refugee camp, or a camp for displaced persons, where their freedom would be confined and they would be dependent (for example) on international aid" have the right to reside in the country?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: A Tribunal Member made a series of adverse findings against the appellant. A court then remitted the matter to the Tribunal for reconsideration according to law. The second Tribunal was constituted by the same Member. The claims remained the same in most respects before second Tribunal and the issues remained the same. Can it be said that those circumstances "may well have been capable of giving rise to an apprehension in a reasonable lay observer that it might not bring an impartial mind to the second review"?
Question 2: Can it be said that "the existence of unreasonable or even very harsh conditions in a third country is not a basis to disengage s 36(3) [of the Migration Act 1958 (Cth)], unless the circumstances in subss (4), (5) or (5A) exist"?
Question 3: If the answer to Question 2 is 'yes', does that answer "preclude an interpretation of the phrase “right to enter and reside” which incorporates some limited form of qualitative assessment"?
Question 4: If the answer to Question 3 is 'yes', would a situation where a person "entering a refugee camp, or a camp for displaced persons, where their freedom would be confined and they would be dependent (for example) on international aid" be an example of circumstances where a person has no right to reside in a country?
The FCA answered those questions as follows: