FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZAAH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1228 |
| MIGRATION – Judicial review – Refugee Review Tribunal – application for protection visa – whether the Tribunal erred in making its decision – whether the Tribunal failed to consider whether the applicant had a well founded fear that she could be returned from Spain to Romania – whether the Tribunal failed to consider whether the Applicant would be returned to Romania for reasons of political opinion – whether the Tribunal failed to apply the correct test under section 36(5)(a) Migration Act 1958 (Cth) – whether the Tribunal identified the wrong “country” under section 36(3) and 36(4) Migration Act 1958 (Cth) – characteristics of a “country” – whether the European Union is a “country – held that the European Union is not a “country” – the Tribunal did properly consider the claim – application dismissed. |
| Acts Interpretation Act 1901 (Cth), s.15AA Border Protection Legislation Amendment Bill 1999 (Cth) |
| First Applicant: | BZAAH |
| Second Applicant: | BZAAI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 785 of 2010 |
| Judgment of: | Burnett FM |
| Hearing date: | 9 June 2011 |
| Date of Last Submission: | 9 June 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 20 December 2012 |
REPRESENTATION
| Counsel for the First Applicant: | Mr M. Brady and Mr R. Haddrick |
| Solicitors for the First Applicant: | Russo Mahon Lawyers |
| Counsel for the Second Applicant: | Mr M. Brady and Mr R. Haddrick |
| Solicitors for the Second Applicant: | Russo Mahon Lawyers |
| Counsel for the First Respondents: | Mr P. Bickford |
| Solicitors for the First Respondents: | Clayton Utz |
| Counsel for the Second Respondents: | Mr P. Bickford |
| Solicitors for the Second Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Unless application is made by either party for other orders within 21 days of these orders, the applicants pay the respondent’s costs of and incidental to the application fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 785 of 2010
| BZAAH |
First Applicant
| BZAAI |
First Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant and her son (the second applicant) (the applicants) arrived in Australia on 8 February 2009. On 5 May 2009, they applied to the Department of Immigration and Citizenship for Protection (Class XA) Visas. On 3 August 2009 a delegate of the Minister decided to refuse to grant the visas and notified the applicants of that decision and their review rights by letter of 3 August 2009. The applicants then applied to the Tribunal on 19 August 2009 for a review of the decisions of the delegate. On 12 July 2010, the Refugee Review Tribunal refused an application by each of the applicants made pursuant to s.476 of the Migration Act 1958 (Cth) (the Act). The applicants now seek review of that decision.
Grounds of Application
The applicants submit that the Tribunal erred in making its decision. They advance three grounds, they being that the Tribunal:
“1. Failed to apply the correct test pursuant to sub-sections.36(3) and 36(5) Migration Act 1956 Cth (“Migration Act”) in considering the issue of whether the applicant had a well-founded fear that Spain would return her to Romania;
Particulars
(a) The Tribunal failed to consider whether the applicant had a well founded fear that she could be removed from Spain by reason of “serious reasons of public policy”;
(b) The Tribunal failed to consider whether the Applicant would be returned to Romania in the event that the Applicant failed to register her personal details in Spain because of her well-founded fear of persecution, in Spain, by certain Romanian persons identified in the Decision (“the Romanian persecutors”) for reasons of political opinion;
2. failed to give any, or any proper, reasons for the finding that the chance that the applicant would be persecuted in Spain by the Romanian persecutors was remote, in breach of the requirements of s.430 Migration Act;
3. failed to apply the correct test in identifying the “country” for the purposes of sub-sections.36(3) and (4) Migration Act and thereby erred in determining a jurisdictional fact.
Particulars
(a) In considering the application of s.36(3) and (4) Migration Act, the Tribunal was required to identify a “country” in which the applicant had a right to enter and reside, apart from Australia;
(b) In choosing Spain as such a country, the Tribunal erred as to a jurisdictional fact as Spain was part of the European Union;
(c) For the purposes of the application of ss.36(3) and (4) Migration Act, “the European Union” is the relevant “country.””
Ground 1 – Failure to apply the correct test
In its reasons the Tribunal found:
a)That the first applicant and her son had not taken all possible steps to avail themselves of a legally enforceable right to enter and reside in Spain[1];
b)That there is no real chance that Spain will return the applicants to Romania[2]; and
c)That s.36(3) is applicable to their circumstances, meaning that the applicant and her son are ineligible to apply for a protection visa.
[1] Reasons for decision at [252].
[2] Reasons for decision at [327].
The jurisdictional error raised by the applicants is whether the Tribunal correctly considered the effect of ss.36(5)(a) upon the first applicant in making the finding at point (b) above. That is, the applicants were entitled to protection obligations on the basis of a well-founded fear of their return from Spain to Romania.
Section 36 of the Act deals with protection visas. Relevantly it provides:
“Protection visas
(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protectionhttp:// - visa visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a);
Protection obligations
(3) 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.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.”
The applicants are Romanian citizens. They travelled to Australia on tourist visas and claimed asylum. The basis of the asylum claim is a fear of political persecution in Romania and fear of refoulment to Romania if they were to travel to any Member State of the European Union, in particular Spain, a country in which it was noted that many Romanians travelled to in order to seek refuge from Romania. The basis for her fear is an expression of adverse political opinion. She stated that she had made a criminal complaint against members of her immediate family who she believes have engaged in corrupt practices. These family members are claimed to be personally and politically close to a powerful political elite group from Arges County. She fears retaliation if she is returned to Romania.
It was submitted for the applicants that from paragraph [269] of the reasons onwards that the Tribunal noted that Romania is part of the European Union and that “free movement of persons between member States is one the basic aims of the European Union.” It submitted that the Tribunal had in considering that issue misdirected itself as to the proper operation of the test in ss.36(5)(a) and (b) of the Act. In particular, it contended that s.36(5) creates a two part test. That is, if the non-citizen has a well-founded fear that:
a)The country will return the non-citizen to another country; and
b)The non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
then the requirement of s.36(3) will not apply.
It was submitted that a serious deficiency in the Tribunal’s reasons for decision gives rise to a jurisdictional error, in that the Tribunal had failed to identify the correct test and apply ss.36(5)(a) and (b) of the Act to the evidence and information provided by the parties to the Tribunal. It submitted that the second limb of ss.36(5) was considered by the Tribunal and found to have been met in that the Tribunal made a positive finding that the first applicant would be persecuted in Romania for Convention related reasons[3].
[3] Reasons for decision at [268].
It follows, on the applicants’ submissions, that it is the first limb of ss.36(5) which has not been properly considered by the Tribunal and that its failure to properly consider that criterion for ascertaining whether the first applicant has a duty under ss.36(3) to seek to reside in Spain constituted a jurisdictional error by the Tribunal.
The applicants submitted that the jurisdictional issue for the Tribunal to consider when considering ss.36(5)(a) was not whether the first applicant is or is not able to enter Spain, or whether the first applicant is able to sustain a living in Spain, or indeed whether the first applicant would be subject to being persecuted for a Convention reason in Spain, but rather whether the applicant had a well-founded fear that Spain would return her to Romania.
It was submitted that whether or not a person is able to enter into and reside in a country (either temporarily or permanently) is an entirely separate question from whether a person has a well-founded fear that he or she will be returned by that country to the country from which they are fleeing.
While paragraphs [270] to [275] inclusive of the reasons for decision set out the Tribunal’s consideration of Spain’s implementation by Royal Decree of the European Union’s Directive (2004/38/EC) that member States of the European Union conform to certain conditions which regulate the ability of European citizens to come, stay and leave Member States which are not their original Member States, paragraph [275] is the only paragraph of the reasons where the Tribunal appeared to consider how the domestic laws of Spain would regulate whether or not the first applicant could be forced to return to Romania if she were in Spain. In paragraph [275], the Tribunal observed:
“[275] According to the DFAT advice, the grounds on which a Romanian national residing in Spain could be deported or expelled from the country are if they carry out an act that constitutes a serious threat to public order or public security, although a decision to deport such an individual would follow a process including a right of appeal. The Tribunal notes that Article 15 of Spanish Royal Decree 240/2007 provides that a measure to deport a citizen of an EU member state may only be adopted for serious reasons of public policy or public security. It provides that such a measure “may not be adopted for economic ends.” The Tribunal notes that the EU Parliament’s report of 24 March 2009 observed that the transposition of the EU Directive is “partial” in the sense that Spanish law does not include an “express reference to the need for allowing an evaluation of the legality of the expulsion decision.” While the Spanish law might not be strictly in conformity with the EU Directive in this regard, the Tribunal nevertheless considers that it provides for deportation of a citizen of an EU Member State only on very narrow grounds, which do not include economic grounds. The DFAT information indicates that a decision to deport would follow a process (including a right of appeal) which takes into consideration factors including the person’s personal circumstances.”
The applicant contended that this was the only place in the Tribunal’s 99 pages of reasons where it could be seen that it considered whether a person could, under Spanish law, be sent back to Romania. There the Tribunal did recognise that Spanish domestic law allows the returning of non-citizens for “serious reasons of public policy or public security” and that Spanish domestic law does provide a judicial mechanism “for allowing an evaluation of the legality of the expulsion decision.”
The applicant particularly contended that the effect of the Tribunal’s decision expressed in paragraph [275] was to recognise that Spanish domestic law allowed the returning of the first applicant for what are described as “serious reasons [not offences] of public policy or public security.” It was submitted that the finding was far too wide for the purposes of ss.36(5)(a) which had the consequence that the first applicant was in fact at risk of Spain returning her to Romania.
The applicants accordingly submitted that the Tribunal made a jurisdictional error in confusing the question of whether a person can enter and reside in a country with the correct test under ss.36(5)(a), that is, whether the first applicant has a well-founded fear of being refouled to Romania by Spain.
At the outset, the respondent did not accept that the Tribunal had made a definitive finding that the applicants would be subject to Convention related harm. It noted that the Tribunal was willing to proceed on the basis that the harm the first applicant fears in Romania was for reason of political opinion and therefore Convention related. The respondent contends that such observations were made solely for the purpose of demonstrating that even if the first applicant was likely to be persecuted in Romania for reasons of her political opinion there was no likelihood that Spain would return her to Romania. Accordingly, she could not meet in any event the requirements of s.36(5) of the Act. So much appears correct although nothing turns on the respondent’s distinction.
In particular, the respondents refer to those parts of the Tribunal’s decision where it dealt with the possibility of refoulment. The respondents referred not only to paragraph [275] of the Tribunal’s reasons (the paragraph relied upon by the applicants) but also referred to paragraphs [317] to [324] of the reasons.
At paragraph [275], the Tribunal stated the grounds on which a Romanian national residing in Spain could be deported or expelled are “if they carry out an act that constitutes a serious threat to public order or public security.”
The Tribunal stated that it considered those grounds constituted “narrow grounds.”[4] Arguably, so much appears inconsistent with the language. For instance, the applicant submitted that if the grounds were intended to be narrow they might include a more definitive test such as “criminal offence” or similar. Undoubtedly the words do afford greater scope than the Tribunal indicated. However, that of itself may not have led the Tribunal into error.
[4] Reasons for Decision at paragraph [318].
Commencing at [317] the Tribunal dealt with the applicant’s situation. At [317], the Tribunal observed:
“… The Tribunal does not consider that the evidence indicates that the applicant’s circumstances are such as to prevent any threat to public order or public security, or to cause her to be regarded as presently such a threat.”
The Tribunal noted that she had not committed any crime but acknowledged that she may become visible once registered in Spain. It was conscious of her close relationship with persons wanted by the Romanian authorities and the prospect that they may be informed of her presence in Spain.[5] Despite those matters, it noted:
“Given the very limited grounds on which an EU citizen can be deported from Spain, the Tribunal considers to be even more remote the chance that the applicant would be deported to Romania by Spain even if the Romanian authorities were aware of her presence there.”
[5] Reasons for Decision at paragraph [319].
The Tribunal expressly noted its consideration of the applicant’s evidence concerning registering and intelligence sharing in making this finding.[6] These findings were supported by other findings concerning the extent of her father’s connection and influence, the degree of international police co-operation and general police interest in the applicant.[7]
[6] Reasons for Decision at paragraph [319].
[7] Reasons for Decision at paragraph [320].
Plainly the Tribunal’s observations at paragraph [317], particularly concerning the first applicant’s circumstances, are informed by those matters addressed in the following paragraphs mentioned above.
Each of those other paragraphs addresses the Tribunal’s consideration of the “very narrow grounds” upon which it considered Spain would effect deportation. Although paragraphs [317] to [324] explain the Tribunal’s views on that matter its conclusion is summarised by its observations at [323] where the Tribunal stated:
“Looking to the reasonably foreseeable future it finds to be remote the chance that they would be returned to Romania by Spain for these or any other reasons. It finds that the applicants do not have a well-founded fear of being returned to Romania by Spain.”
Arguably reference, particularly to paragraph [317] highlights the basis for the first applicant’s concern. At paragraph [317] the Tribunal indicated that from the independent country information:
“… there are only very limited grounds on which a Romanian national residing in Spain could be deported or expelled., DFAT has indicated that a Romanian residing in Spain could be expelled only if they carried out an act that constituted a serious threat to public order or public security…indicates that a decision to deport would follow a process (including a right of appeal) taking into consideration the individual’s personal circumstances and ties to the country of origin. … The Tribunal does not consider that the evidence indicates that the applicant’s circumstances are such as to present any threat to public order or public security, or cause her to be regarded as presenting such a threat.”
Given those remarks did not expressly address the concern raised by the first applicant as to what is meant by “serious reasons of public policy”, the applicants submit the Tribunal did not consider the question of whether or not there were serious issues of public policy in Spain which gave rise to a well-founded fear of refoulment to Romania from Spain.
It was submitted the factual basis for the first applicant’s concern was her registration upon arrival in Spain. It was contended that upon her registration it would then be a relatively simple task for her presence in Spain to be recorded by an intra European Union police co-operation agreement.
The applicants submitted the Tribunal’s failure was to consider whether the first applicant’s prospective failure to register was because of a well-founded fear of refoulment to Romania from Spain.
Respectfully, I do consider the applicants’ contention was dealt with. In finding that I note generally that the decisions of administrative tribunals ought not be read with an eye finely attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Plainly in other parts of its decision the Tribunal did address the question of refoulment in the event the applicant registered to reside in Spain. Whilst the applicant might complain about the sequencing of material in the decision I do not think that upon any fair reading of the decision it can be reasonably contended the matter was not addressed and considered by the Tribunal.
In my view the more substantive point is whether or not the Tribunal’s view that the grounds for deportation or expulsion were “narrow”, or something else, gave rise to error. To give rise to jurisdictional error the error needs to be one that does so “in a way that affects the exercise of power”: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
Here the characterisation of the basis upon which Spain would determine to deport a citizen on the narrow grounds of “serious threat of public policy or public security” was immaterial in the context of a decision on the facts given the applicant’s circumstances were not contended to give rise to serious reasons of public policy or public security.[8] Respectfully it was unnecessary for the Tribunal to undertake such characterisation in the context of this application.
[8] Reasons for Decision at paragraph [317].
However given the characterisation, which in my view was incorrect, was immaterial to a determination of the underlying issue it has not given rise to jurisdictional error.
For completeness the respondent contended the Tribunal correctly construed and applied s.36(3) and (5). In SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97, Rares J, in considering those sections, observed:
“… s 36(3) is satisfied so long as the person’s right to enter and reside in another country exists, however it arose or is expressed. This suggests that apart from s 36(4) and (5), the content or incidence of the right to enter and reside described in s 36(3) is not to be the concern of the Minister or decision-maker. Thus, any such right will not satisfy s 36(3) if the non-citizen would have a well-founded fear that he or she … could be refouled from there to another country where that persecution could occur (s 36(5))).”
While the observations are of general assistance here, unlike in SZMWQ, the first applicant’s sole and principal concern with residence in Spain is not the question of being permitted entry but rather her fear of refoulment. In SZMWQ the court was considering the issue of whether or not the terms upon which an applicant would be permitted to reside in a third country, in that instance Spain, was material to that applicant’s right to enter and reside in terms of s.36(3). As the respondent submitted it is clear from the Tribunal’s decision that it considered the operation of s.36(5). Once addressed the effect of s.36(3) was axiomatic.
In my view the issue of refoulment upon the basis of the applicant being deported for “serious reasons of public policy” was understood by the Tribunal. Its decision illustrated its appreciation of the issue by its conclusion at paragraph [317] that this involved “taking into consideration the individual’s person circumstances and ties to their country of origin.”
The Tribunal’s reasons do indicate that the first applicant’s personal circumstances were considered. Although the facts were not expressly addressed in the context of their bearing upon the term “a serious threat to public order or public security” the Tribunal’s discussion does suggest that the Tribunal did consider appropriately the matters relevant to that issue. I accept that the inference that the Tribunal has failed to consider a relevant matter “is an inference not to readily be drawn where … the issue has at least been identified at some point”; Applicant WAEE v MIAC (2003) 75 ALD 630 at [640]. In my view, that inference is not justified in this case, particularly given the very detailed examination of the facts and their expressed consideration in the reasons of the Tribunal.
It follows I am satisfied the Tribunal did consider and address this issue. Ultimately the finding by the Tribunal was one on the merits against the applicants. It is not open to review.
Ground 2
At the commencement of the hearing the applicant abandoned this ground of the application. It is now unnecessary to further consider it.
Ground 3 – Identification of wrong “country”
The applicants submit that the Tribunal erred in failing to apply the correct test in identifying the “country” for the purposes of ss.36(3) and (4) of the Act and thereby erred in determining a jurisdictional fact.
The Tribunal assessed the applicants’ claim against Romania as their country of nationality.[9] For the purposes of ss.36(3) and (4) of the Act the Tribunal is required by statute to identify a “country” for the purposes of satisfying the test as to whether the first applicant has a “well-founded fear.” It was submitted that the cumulative effect of ss.36(3) and (4) is that once the first applicant has satisfied the Tribunal that they have a well-founded fear (based on a Convention related reason) of returning to their “country” then they must take “all possible steps” to enter and reside in another “country”, other than Australia. This requirement is however subject to the proviso in ss.36(4) that:
“… If the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion nationality, membership of a particular social group or political opinion, ss.(3) does not apply in relation to that country.”
[9] Reasons for decision at [249].
It was submitted this sub-section requires that the delegate and the Tribunal be satisfied that the correct “country” has been selected for the purpose of satisfying that requirement, as a jurisdictional fact. It was submitted that in this respect both the delegate and Tribunal erred in choosing Spain as the “country” to apply to test required in ss.36(4) rather than considering whether the political and geographic entity, the European Union was the correct “country” for the purposes of the test required by ss.36(3) and (4).
The applicants noted that there is no legislated definition of “country” in either the Act or in the Acts Interpretation Act1901 (Cth). In submissions for the applicants it was noted that the Act does not use more precise terms such as “state” or “nation” or “sovereign state”; rather the more general and elastic term “a country” is used thus requiring an examination of the indicia of “a country.” It was noted that it was open to the Commonwealth Parliament to amend the Act to use a more precise term than “country” or alternatively it was also open to the Governor General in Council to make regulations which expressly set either a legislative definition for the expression or, for the Parliament by way of schedules to the Act to expressly state which geographic, political and cultural entities are “countries” for the purposes of the Act.
The applicants submitted that when the expression “a country” is examined and defined in terms of :
a)Its natural and ordinary meaning;
b)Historical context;
c)Characteristics of the constitutional development of “a country”;
d)The Australian Government’s recognition of the European Union; and
e)Past judicial consideration of the expression “a country”;
the European Union could be considered the relevant ”country” for the purposes of ss.36(3) and (4) of the Act for the purpose of the first applicant’s application for a Protection Visa.
It was submitted that as a general statement of the first applicant’s submissions, the expression “a country” in ss.36(3) and (4) of the Act is a fluid and flexible criterion which requires the examination of a number of characteristics, and an appreciation of the different senses in which the expression “a country” can be used. The first applicant submitted that the expression can be construed in both a narrow and a broad sense and by inference the Tribunal adopted too narrow a construction in determining Spain and not the European Union as the relevant country. Such error was submitted to be jurisdictional.
In the circumstances the first matter it be addressed is whether or not the European Union is a country. If it is not then no issue as to whether or not its characterisation as such enlivens a question of jurisdictional fact arises. If it is then the issue of whether the characterisation of it as a country remains to be resolved as an issue as to whether that is simply a fact to be determined on its merits or is a jurisdictional fact.
Proper approach to statutory interpretation
Before commencing to examine the applicants’ submissions concerning the appropriate approach to defining the term “country” it is apposite, as the respondents have submitted that the starting point for interpretation be the text of the written law.[10] The respondent submitted that it is in the text of the statute that the legislature expresses its purpose or “intention.” It further submitted that it is a mistake for the court to begin its search for meaning with judicial elaborations,[11] ministerial statements[12] or history of the statute.[13] The respondent submitted that construction must begin with consideration of the text itself.[14] I accept the respondent’s submissions as correctly annunciating the approach to be taken and construing s.36 in particular the word “country” where it appears in ss.36(3) and (4).
[10] Australian Finance Direct Ltd v Director of Consumer Affairs Victoria (2007) 234 CLR 96 at [34]; Sons of Gwalia Ltd (subject to deed of company arrangement) v Margaretic (2007) 231 CLR 160 at 116; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72 at [9]; Combet & Ors v Commonwealth of Australia (2005) 224 CLR 494 at [135].
[11] Central Bayside General Practice Association Ltd v Commissioner of State Revenue of the State of Victoria (2006) 228 CLR 168 at [84] – [86];
[12] Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518.
[13] Described by Justice Scala as “make weight” in Bank One Chicago NA v Midwest Bank & Trust Co 516 US 264 (1996) at 281.
[14] Northern Territory v Collins (2008) 235 CLR 619 at [99]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47]; Section 15AA of the Acts Interpretation Act 1901 (Cth).
The applicants addressed the term “country” by reference to its ordinary and natural meaning together with its meaning in both a historical context as well as the characteristics of the constitutional development of a country. Whilst those matters inform the term in seeking to afford a proper construction to the use of the word in s.36 it is also plain by reference to authority that such matters are subordinate to the proper approach to statutory interpretation.
The ordinary and natural meaning
The applicants submitted the starting point for the judicial construction of the word “country” is a natural and ordinary sense in which the word is used in the English language within Australia. At the outset it proffered the definition provided for in the Australian Concise Oxford Dictionary, 4th Edition, published by Oxford University Press, Australia in 2007 which defines the word “country” as:
“1a the territory of a nation with its own government; a sovereign state. b a territory possessing its own language, people, culture, etc. 2 (often attrib.) rural districts as opposed to towns or the capital (a holiday in the country; a country town). 3 the land of a person’s birth or citizenship; a fatherland. 4a a territory, esp. an area of interest or knowledge. b a region associated with a particular person, esp. a writer (Hardy country). 5 a national population, esp. as voters (the country won’t stand for it.) 6 Aust. the traditional territory of an Aboriginal people. 7 Aust, (in combinations) land exhibiting a designated physical characteristic (sand country; box country).”
The applicants submit that the only senses reasonably open to the Court to ascribe to the word “country” are identified at 1a, 1b and 3 of the Oxford Dictionary definition. They submitted that of those three possible senses the most probable sense consistent with the way in which the word is used in ss.36(3) and (4) of the Act is the meaning provided for in 1a being “territory of a nation with its own government” that definition incorporates the term “nation.” The term “nation” itself is defined in the Australian Concise Oxford Dictionary as:
“1 a community of people of mainly common descent, history, language, etc., forming a sovereign state or inhabiting a territory. 2 = COUNTRY 6. 3 a tribe or confederation of tribes of North American indigenous peoples.”
It was submitted that the European Union answers to the definition of a “country” in its natural and ordinary sense. Further it was submitted that the European Union continues to answer to the definition of a “country” in its natural and ordinary sense if the meaning of the “nation” is combined with the first sense in which the word “country” is used – that is, a “country” is construed as a territory of a community of people of mainly common descent, history, language with its own government.
Acknowledging the proper approach to statutory construction and the objects of the Act provided by s.4 I accept the applicants’ submission as to the meaning of the term “country” and that it is as provided at 1a of the Australian Concise Oxford Dictionary definition.
Historical context
It was submitted by the applicants that the term “country” also can be considered in an historical sense recognising that what amounts to a country and the use of the expression often depends upon at which stage in global history one considers whether a geographical, cultural or political entity is “a country.”
By way of illustration it was submitted for the applicants that an example of a narrow application of the expression “country” can be seen with the United Kingdom. There what amounts to a single sovereign state would be the kingdoms of England, Scotland and Wales with each of these being “countries” within a unified state the United Kingdom of Great Britain and North Ireland. By contrast an example of a wide application of the expression “country” is the Swiss Confederation, a country made up of 26 independent cantons. It was submitted this illustrates a “country” where the country is the larger sovereign entity to the smaller political entities that comprise it.
It was submitted that the evolution of the European Union post the Maastricht Treaty and the Treaty of Lisbon is such that it should now be considered a “country” for the purposes of the statutory tests in ss.36(3) and (4). It was submitted that the European Union has developed in a constitutional economic and cultural way so now to be identified to other countries of the world as constituted as a federation which would now be described as “a country.” Other examples include the United States of America, the Dominion of Canada, the Russian Federation and the United Kingdom of Great Britain and Northern Ireland.
The characteristics of the constitutional development of “a country”
The applicants further submitted that in considering the construction of the legislated expression “a country” the court should in deciding whether the European Union was “a country” for the purposes of s.36 of the Act have regard to the multitude of constitutional, political cultural and economic factors that are usually associated with entities described as “a country” and assess those against the European Union. Accordingly it was submitted the delegate and the Tribunal should have considered the following characteristics or indicia of the European Union when considering whether the European Union meets the description of “a country.”
·Since the Maastricht Treaty of 1992 – the EU has had a legislature, executive and judicial arm of government.
·It has a Head of State and Head of Government.
·It has defined geographic boundaries, with a set geographic domain.
·It has a common or near common currency.
·The European law is supreme over the law of “Member States.”
·There is a set of official European languages.
·It has a flag, an anthem and commemorative day.
·Its composite units are described as “Member States” not countries.
·There is liberty of movement around the Member States, and essential law enforcement cooperation among the States, akin to law enforcement arrangements in any other federations like the United States of America.
·The Maastricht Treaty of 1992 gives nationals of Member States “citizenship” of the European Union.
·The European Union conjointly issues passports along with Member States to its citizens.
The applicants also submit that some assistance in the resolution of this matter can be gained from consideration of the High Court’s decision in Sue v Hill (1999) HCA 30; (1999) 199 CLR 462, a case where the High Court was considering the question of whether the United Kingdom was “a foreign power” to Australia for the purposes of prohibition under s.44(i) of the Commonwealth Constitution of persons who hold an allegiance to a foreign power from nominating for the Senate.
In Sue v Hill the court considered the constitutional development of Australia and in particular the independence of the legislative, executive and judicial arms of government, including but at least since 3 March 1986 (the date on which the Australia Acts commenced) of the Commonwealth of Australia as an independent power to the United Kingdom and therefore whether a person who held an allegiance to the United Kingdom was under an allegiance to “a foreign power.”
The applicants in particular noted the court’s recognition that the task invited the court’s attention “to questions of international and domestic sovereignty”[15] and that what does not amount to “a foreign power” at one point in time in the constitutional development of a political entity, might amount to “a foreign power” at another point in time in the constitutional development of the political entity. Although in that instance the High Court was considering the question of “a foreign power” it was submitted for the applicants that those characteristics of international and domestic sovereignty and their fluid nature over time were both significant. It was submitted that while speaking in the context of constitutional interpretation their Honours said the following in respect of how legal principles (in that case constitutional principles) follow the constitutional facts of history unfolding[16]:
“[50] In Bonser v La Macchia, Windeyer J referred to Australia having become "by international recognition ... competent to exercise rights that by the law of nations are appurtenant to, or attributes of, sovereignty"[51]. His Honour regarded this state of affairs as an instance where "[t]he law has followed the facts"[52]. It will be apparent that these facts, forming part of the "march of history"[53], received judicial notice[54]. They include matters and circumstances external to Australia but in the light of which the Constitution continues to have its effect and, to repeat Windeyer J's words[55], "[t]he words of the Constitution must be read with that in mind.””
[15] At paragraph [48].
[16] At paragraph [50] (footnotes acknowledged but omitted)
It was contended that similarly here whether a political, geographic cultural or economic entity amounts to “a country” may differ at different points in time, at different historical periods and different stages of the constitutional development of that entity. In that instance the first applicant contended that their Honours Gleeson CJ, Gummow and Hayne JJ concluded that the United Kingdom of Great Britain and Northern Ireland is a “foreign power” for the purposes of the Commonwealth Constitution. There their Honours used as the constitutional test whether Australian courts are “as a matter of fundamental law of this country, immediately bound to recognise and give effect to the exercise of legislative, executive and judicial power by the institutions of the government of the United Kingdom.”[17] Their Honours proceeded to consider the existence and independence of the exercise of legislative, executive and judicial power within the Commonwealth of Australia as indicia of that matter.
[17] At [59].
The applicants submitted that whilst the expressions “a foreign power” and “a country” are separate they do have common features. It was submitted that both expressions call for the identification of a power; and both expressions require an examination of the constitutional features and independence of those features from other entities. Accordingly it was submitted it was open to the court to conclude that the two expressions “a foreign power” and “a country” are grammatically different but interrelated expressions. In other words what is another country may be described as “a foreign power” and what is “a foreign power” may be another country. Following the logic of that submission the applicants contended that the European Union meets the description of “a country” as the European Union has at least since the Maastricht Treaty of 1992 its own legislative executive and judicial arms of government. More recently the development of European law and government demonstrates these matters as extended beyond a mere theoretical construct. There is now extant a significant body of European ordnance supported by a legislative, executive and judicial arms of government. Conceptually I accept the applicant’s submission on this point.
For the respondent it was submitted whether or not the European Union was a country was in part assisted by indicia identified by Tamberlin J in Tjhe Kwet Koe v Minister for Immigration and Ethnic Affairs & Ors (1977) FCA 912; 148 ALR 353. In particular, it submitted those matters included his Honour’s observations relevant to Hong Kong:
a)It had identifiable borders;
b)It had its own immigration laws; and
c)It was inhabited by a permanent and identifiable community.
It submitted that applying the decision in Koe in relation to the question of whether or not the European Union is a country the following indicia are relevant:
·There are currently 27 Member States in the EU;
·Not all countries in Europe are currently members of the EU;
·The EU, while varied, may be seen as permanent and identifiable, albeit the latter may be described so broadly as to lose identity or definition;
·However the EU does not have its own immigration laws and relies upon the Member States to incorporate into domestic law any agreements;
·Free movement of people within the EU and the degree of autonomy of the European Parliament is limited to matters conferred upon it by the Member States and under the co-decision procedure that requires the European Council to have majority agreement with Parliamentary decisions;
·As a matter of common discussion it appears in appropriate to refer to a person as coming from or returning to the EU;
·The EU was established through the Treaty of Lisbon which consisted primarily of two treaties (the EU Treaties) and entered into force on 1 December 2009;
·The EU treaties provide, inter alia, that:
“The Union shall respect the quality of member states before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self government. It shall respect their essential state functions, including ensuring the territorial integrity of the state, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each member state.”
·Features of self government, political and constitutional integrity and the maintenance of laws fulfil the co-requirement of a degree of autonomy in administration;
·Territorial integrity concerns identifiable borders referred to in Koe and notions of national identity and national security arguably concern a permanent and identifiable community;
·The EU was not establishing a new country by reason of the EU Treaties, but creating an agreement between Member States while at all times preserving the national integrity of those members states; and
·Whilst the EU creates citizenship of the Union for every national of a Member State, citizenship of the Union is “additional to” and does “not replace national citizenship.”
It was submitted that having regard to those matters the better view is that the European Union is not a country for the purposes of s.36(3) to (5) of the Act although there is no doubt that Spain and Romania are countries for that purpose.
The matters contended for by each of the applicants and the respondent highlight the fluid nature of States when examined from a temporal perspective. The difficulty associated with the task was plainly highlighted by the High Court in its consideration of the question of “a foreign power” in Sue v Hill (supra).
The indicia identified by the applicants tend to support the characterisation of the European Union as “a country.” However in my view two matters tell against its characterisation particularly when regard is had to the Oxford Dictionary definition of country which I accept and in particular the importation into the definition of country the term “nation” meaning, inter alia, community. The two deficiencies of community and in turn nation which in my view are telling in this case are:
a)The absence of common immigration laws leaving Member States to incorporate into domestic law any agreements, including limitations upon freedom of movement within the EU and upon the autonomy of the European Parliament.
b)National security remains the sole responsibility of each Member State.
A key indicia of a nation are both a right to control immigration and a capacity to defend itself. The right to control immigration in a definite sense involves control not just within borders as the current European Union Scheme permits with respect to European Union member countries citizens but also control of persons external to those nations. Member countries still control their own borders in accord with their individual regulations, a fact apparent to any non-European citizen who seeks entry to a European Union member country. The second criterion is most often exemplified by the existence of a defence force. Ultimately there can be only one commander in chief of a defence force and in the absence of a common identifiable commander in chief of a unified European Union defence force each controlled by each of the Member States are left with command and control of those elements essential to protection of any state. It could not be said that there is in respect of the European Union there exists both a capacity to control a strike or defensive capacity on the part of the European Union as a political organ. Any such conduct presently must involve co-operative approach of the Member States.
In all other respects the matters submitted by the respondent as relevant indicia are in principle no different to the indicia of any State contained within any Commonwealth States or united body of States. Traditionally however subordinate States within a Commonwealth or united body of States do not control immigration policy nor defence policy. It is for this reason that I consider the respondents are correct in their submission that the better view is the European Union is not a country for the purposes of s.36(3) to (5) of the Act.
Furthermore some of the indicia identified by the applicants can be seen to be common with organs such as the United Nations a body which plainly does not constitute a country although that organ includes government recognition, a form of legislature, a flag and an executive body.
Finally on this point, for the respondent it was submitted that some assistance for its contentions can be found in s.91M of the Act. It submitted that the Supplementary Explanatory Memorandum to the Border Protection Legislation Amendment Bill 1999 (Cth) stated that the purpose of amendments to the Act, including the insertion of s.36(3) and s.91M was to “… ensure the persons who are nationals of more than one country, or have a right to enter and reside in another country where they will be protected, have an obligation to avail themselves of the protection of that other country.”[18] Both ss.36(3) and 91M have the same purpose and are written in similar language. In WAGH v MIMIA[19] it was noted s.91M “should be taken to be part of the particular context in which ss.36(3) is to be construed.”[20] Section 91M provides that where a non citizen can “avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, (that person) should seek protection from the third country ....” It was submitted that the clear inference was that a country has the ability to confer nationality or a right to re-enter and reside but that the European Union has not conferred that ability and therefore it does not fall within what appears to be the contemplation of “country” for the purpose of s.91M. I accept that submission for as I have earlier noted control of immigration policy is regarded as the prerogative of a nation and not some other political state.
[18] Supplementary Explanatory Memorandum – paragraph 2.
[19] (2003) FCAFC 194 at [29].
[20] At [29].
The Australian Government’s recognition of the European Union
It was submitted by the applicants that in giving consideration to the construction of the legislative expression “a country” the Tribunal should have had regard to the status accorded to the entity by the Executive Government of the Commonwealth of Australia. In particular it was submitted the Tribunal should have had regard to the fact that Australia’s:
·Diplomatic recognition of the European Union as “a country” evidenced for instance by the fact that DFAT expressly describes the European Union as a “country” and lists other international organisations separately, apart from those recognised as country. It submitted by way of illustration that DFAT does not for instance describe the African Union as a country;
·Diplomatic recognition of the “Ambassador” of the European Union to the Commonwealth of Australia; and
·Diplomatic recognition that “the European Union” has a “Head of State” and “Head of Government” – both features of “a country” which is a developed sovereign State.
It was submitted that it is open to the court to conclude that the word “country” is best attributed to those political entities that the executive government of the Commonwealth of Australia in exercise of prerogatives of the Crown in the right of the Commonwealth has chosen to attribute “country” status to. It was submitted that in using this interpretational method the Tribunal can avoid the difficult questions of international recognition and leave those to the proper arm of government, that is the Executive, and it also enabled it to avoid the difficult questions of country status, such as for instance the debate over the recognition of Chinese Taipei (Taiwan) or Tibet.
However as the respondent submitted these matters are also largely common to Australia’s recognition of the United Nations and it is not suggested the United Nations too would satisfy the definition of “country”, generally or for the purpose of s.36. I accept that to be the case.
Past judicial consideration of the expression “a country”
Finally it was contended by the applicants that by reference to past judicial expression it was open to the Tribunal to determine that the European Union was a country. The matter arose for consideration in Tjhe Kwet Koe v Minister for Immigration and Ethnic Affairs & Ors (supra) where it was considered by Tamberlin J. It was submitted that adopting the approach of his Honour in that instance a construction of the expression “a country” which is consistent with avoiding a “narrow technical construction which would undermine the humanitarian purposes of the Convention by excluding some persons from its protection” could be adopted. In that case at [360] his Honour stated:
“These two limitations on the application of the Convention, namely that the requirement that an applicant be outside his or her country and the requirement that the fear of persecution must be for a Convention reason, serve to distinguish “stateless persons” in general from those “stateless persons” who are also refugees and are therefore entitled to the protection of the Convention. These limitations do not require that “country” be defined as a sovereign state. To approach the term “country” in a narrow technical way would undermine the humanitarian purposes of the Convention by excluding some persons from its protection without any sound reason in principle for so doing.” [Emphasis added]
“If the definition of “country” is not restricted to sovereign state, the question is how to decide whether an area is a “country” for the purposes of the Convention. The New Shorter Oxford English Dictionary defines “country” to include “the territory of nation; a region constituting an independent State, or a province … which was formerly independent and is still distinct in institutions, language …” The Macquarie Dictionary includes “a state”, “the territory of a nation” and “any considerable territory demarcated by geographical conditions or by a distinctive population” within its description of “country.” The word “country” has a more extensive meaning on these descriptions than the concept of either a State or nation.”
“There is authority to support the proposition in a certain context that the expression “country” can be read as meaning an area or part of the world.”
Subsequently his Honour proceeded:
“In Australia the meaning of the expression “country” has not directly arisen in relation to the Convention. The Full Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 decided that “country” in the Convention was a reference to the whole country and not just a region within a country. However, the Court made no observation as to what criteria should be used to determine whether an area was a “country” for Convention purposes.”
“The language of Article 1A of the Convention itself draws a distinction between “the country of nationality” and “the country of former habitual residence.” The word “country” in each of these expressions is used in a different sense. In the first phrase it is used to designate a country capable of granting nationality. In the second it is used to denote a country which need not have this capability but in which the individual resides. The concept of “country” is broader than the concept of a State.”
The matter has also been the subject of consideration in the MRT in Leung Wai Yuk [2001] MRTA 2102 (22 May 2001). There in relation to an application for review in the context where the applicant sought to have Hong Kong considered as part of the Peoples’ Republic of China the Tribunal observed:
“[23]. The visa applicant’s migration agent in his submission to the Tribunal on 2 April 2001 stated that the visa applicant was usually resident in Hong Kong however the agent submitted that Hong Kong was an integral part of the PRC, even though at the relevant time it was in the final stages of a lease with Britain. The migration agent also submitted that the delegate has misinterpreted the meaning of “country” within the context of the legislative provision in which it is used, in attributing by implication to Hong Kong a de facto sovereign status. In Tjhe Kwet Koe v Minister for Immigration and Ethnic Affairs (1997) 78 FCA 289 Tamberlin J considered the position of a permanent resident of Hong Kong. The Court held that the Refugee Review Tribunal was correct in considering Hong Kong as the applicant’s country of former habitual residence. In reaching its decision the Court noted that at the time of the Tribunal’s decision, Hong Kong had a distinct area with identifiable borders; enjoyed a degree of autonomy in relation to its administration, including its own immigration law and policy; was considered a “country” as a matter of everyday usage it was not inappropriate to refer to a person as coming from, belonging to, or returning to Hong Kong. The migration agent submitted that this case was not entirely relevant because Justice Tamberlin was dealing with the meaning of “country” within the meaning of the Refugee Convention and even though Hong Kong was considered a country in this sense there were still some elements of confusion or contradiction. The migration agent submitted that whether Hong Kong or the PRC were two different “countries” depended on one’s view of history and educational conditioning. The Court however held:
If the definition of “country” is not restricted to sovereign state, the question is how to decide whether an area is a “country” for the purposes of the Convention. The New Shorter Oxford English Dictionary defines “country” to include “the territory of nation; a region constituting a independent State, or a province … which was formerly independent and is still distinct in institutions, language …” The Macquarie Dictionary includes “a state”, “the territory of a nation” and “any considerable territory demarcated by geographical conditions or by a distinctive population” within its description of “country.” The word “country” has a more extensive meaning on these descriptions than the concept of either a State or nation.
There is authority to support the proposition in a certain context that the expression “country” can be read as meaning an area or part of the world.”
The Tribunal continued:
“It is clear that Hong Kong was not a state or nation. At the relevant time Hong Kong did not have an independent capacity to enter into legal relations. It was under the control, direct or indirect, of the United Kingdom.
Nevertheless, Hong Kong at the relevant date had a distinct area with identifiable borders. It had its own immigration laws, and was inhabited by a permanent identifiable community, and therefore in my opinion it was appropriate to treat it as a “country” in accordance with the meaning and purpose of that expression as used in Article 1A of the Convention. In 1965 Hong Kong enjoyed a degree of autonomy in relation to its administration. This lends further support to the submission that it is a “country.” In addition, as a matter of everyday usage of language, it is not inappropriate to refer to a person as coming from, belonging to, or returning to Hong Kong. The Territory was not simply a place or area but possessed the foregoing additional elements which make it appropriate to be treated as a country for Convention purposes. These last three words are important because the expression can take on different nuances according to the context in which it is used.”
It was submitted for the applicants that Tamberlin J’s language is consistent with the legislative command that in construing the words of statute the court should adopt a purposeful interpretation; s.15AA of the Acts Interpretation Act. It was submitted that in adopting a construction which is consistent with its humanitarian purposes the Tribunal should have given weight, in making the choice of country for the purposes of ss.36(3) and (4) of the Act to identifying a geographical and political entity which has the necessary borders and machinery for law enforcement and which secures the protection of citizens who reside in that country. It was contended that in its approach the Tribunal failed to do so.
In Koe the court was considering the proper approach to the construction of an international Convention. Nothing in the decision suggests that approach would be inapposite to a statutory term collateral to the international Convention and in particular a term employed in the Convention and which appears to be picked up in the statute as is the case with s.36. That section deals with Australia’s protection obligations arising from the Refugee Convention.
For the respondent it was correctly submitted that neither of those cases concerned s.36(3) to (5) of the Act. However that submission ignores the fact that s.36 of the Act expressly supports Australian’s refugee convention obligations and to read the section in isolation from those obligations would enliven the risk of an ultra vires exercise of power and/or jurisdictional error, accepting that in part the source of power for s.36 is in the Refugee Convention and, in turn, the External Affairs power provided in s.51(xxix) of the Constitution.
It is also submitted for the respondent that even if the European Union is a country for the purposes of ss.36(3) and (4) so too are Spain and Romania as well as all other countries which are Member States of the European Union. It was submitted that nothing in s.36(3) to (5) required the Tribunal to identify the “European Union” as the relevant country as opposed to any other country which met the requirements of s.36(3) of the Act. Respectfully however I do not accept that to be so, at least conceptually. As Tamberlin J pointed out in Koe there are two purposes for which it is important to identify the relevant country. Relevantly in this case the second purpose has significance. That is, it is necessary to provide the proper reference point for assessment of the degree of risk of persecution. Without identifying a country, in this case the European Union as opposed to any other country such as Spain, there can be no proper reference point for the assessment of the degree of risk of persecution. In the result this matter remained entirely conceptual because for reasons I have given I do not consider the European Union is a country.
In contending that the European Union was not a country the respondent also relied upon the decision of Leung v MIMA (2009) FCA 1691. In that decision Mansfield J followed Tamberlin J’s decision in Koe which also concerned an applicant from Hong Kong. However nothing in his Honour’s reasoning departed from the approach expressed by Tamberlin J in Koe which highlighted that each case has to be assessed on its own individual merit.
In my view it is open on authority to determine the European Union as the country for the purpose of s.36(3) and (4) although as noted, for other reasons I do not think it is a country.
Additionally for the respondent it was submitted that there are authorities in relation to s.36(3) and (4) in the context of European applicants which have involved the court considering the individual member countries within the European Union to be the relevant “country” rather than the European Union itself. In particular the respondents referred to SZMWQ v MIAC [2010] FCAFC 97 and SZMKF v Minister for Immigration and Citizenship [2009] FCA 173.
Respectfully however those cases are not on point. In SZMKF the point on appeal was whether the court had erred in concluding that the Tribunal was in error in stating that citizens of Latvia could freely enter and reside in any other of the EU countries because there is different legislation in place for citizens of new Member States.[21] Likewise in SZMKF the relevant question in SZMWQ was not whether or not the European Union was a country for the purposes of s.36 but whether or not the applicant had a meaningful right to “reside” in a third country when that right was not accompanied by sufficient assistance to allow that person to live “comfortably” in that country.[22] They do not assist me.
[21] Supra at [11].
[22] Supra at [25].
For reasons I have provided earlier I do not consider the European Union to be a country for the purpose of s.36. If it were then whether it was the country to be considered by the Tribunal for the purpose of s.36(3) and (4) is a question of fact to be determined on its merits and which, once determined, I do not think is open to judicial review.
Jurisdictional Fact
The applicants submitted the question of the European Union as a country was a jurisdictional fact. If it was then arguably the Tribunal’s decision to adopt Spain as the relevant country for the purpose of s.36(3) and (4) is reviewable. The respondents contend that all other matters aside the issue of selection of “the country” was not a jurisdictional fact. It was submitted, and I agree, that the characterisation of facts as jurisdictional is ultimately a matter of construction. It noted the following considerations had been identified in the authorities as matters most commonly considered by courts in the course of construing the statutory requirement for jurisdictional facts:
a)First and foremost is the statutory drafting. Statutory requirements framed in terms of command or prohibition, might for that reason be more likely to be construed as jurisdictional;[23]
b)The courts seldom treat a factual requirement as jurisdictional if the statute requires the decision maker to be “satisfied” as to the existence, or to have an “opinion” that it exists. In such cases the courts normally recognise that the fact finding task is for the decision maker and not for review in the court;[24]
c)A fact which the decision maker is required to consider or determine is unlikely to be a jurisdictional fact. It submitted it is easier to treat a factual issue as jurisdictional if it can properly be characterised as intrinsic, ancillary or preliminary;[25]
d)Where the decision maker must consider all issues, it is difficult to separate those that are “intrinsic, ancillary or preliminary” from the list;[26]
e)The fact that a statute’s factual requirements are stated in objective terms does not automatically lead to the conclusion that the facts are jurisdictional;
f)Jurisdictional facts are rare because of the extreme improbability of Parliament intending to give courts the last word on most factual issues;
g)Opinions are challengeable on all the normal grounds but not simply on the basis they are wrong;[27]
h)If a statute contains significant evaluative components or components of considerable complexity this often points against the facts being jurisdictional;[28]
i)Another fact relevant to determining the intention of Parliament is any inconvenience that may result from classifying a factual reference in a statutory formulation as a jurisdictional fact. Statutes are construed on the basis that Parliament did not intend to cause inconvenience although it can do so and often has.[29]
[23] Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at 716 to 717.
[24] Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at 90 – 91; Australian Education Union v Lawlor (2008) FCAFC 135 at [210] to [211].
[25] Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259; Woolworths Ltd supra at [718] – [719].
[26] Woolworths Ltd supra at [718].
[28] Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297 at [304]; Woolworths Ltd supra at 719 [58]; Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 46 NSWLR 55 at 72; Corporation for the City of Enfield v Development Assessment Commissioner & Anor (2000) 199 CLR 135.
[29] See Timbarra supra at 72.
The issue of whether or not a fact is a jurisdictional fact is one frequently surrounded by controversy. This case provides no exception. As was submitted by the respondent many judgments assert that a jurisdictional fact is one which has an “objective” existence as opposed to merely subjective existence according to the “opinion” or “satisfaction” of the impuned decision maker.[30]
[30] Re City of Joondalup; Ex parte Mullaloo Progress Association Inc (2003) 132 LGERA 243 at [46].
Section 36(3) and (4) refer to “any country” and “a country” respectively. The word “a” is the indefinite article. “Any” is the indefinite determiner. The word “the” being the definite article is used with a specifying or particularising effect. It follows that the use of “any” or “a” in s.36(3) and (4) looks to an objective feature, namely “any” or “a” country to enliven the rights under s.36. It follows the need for any or a country is jurisdictional in the sense expressed in Corporation of the City of Enfield v Development Assessment Commission at [28]. Usually the fact of a country is not one surrounded by controversy and is one which is objectively ascertainable. However the factual matter of which country, that is the country the object of the statutory demand under s.36(3) or (4) is not jurisdictional. That question is one of fact to be determined on the merits as in this case when two differing countries are contended for; or if two competing countries are contended for whether one of those countries is indeed a country as a matter of fact.
In my view as a matter of construction for the purposes of s.36 the statutory reference to “a country” is a jurisdictional fact. However the question of “the country” constituting “a country” is not a jurisdictional fact. In this case the controversy concerned the identification of the country. The resolution of that question did not give rise to a jurisdictional fact. It was open to the Tribunal to determine that matter upon the merits. In this case the factual context concerning whether the European Union was the relevant country for the purpose of s.36 was never debated. The factual content did include a detailed consideration of the intra-state relationship of European Member States but that was an entirely distinct issue. Accepting this matter was a factual issue to be resolved by the Tribunal it is now too late to raise it unless that failing can be demonstrated to have a jurisdictional consequence. As it was not a jurisdictional fact, in my view, no error arose by the Tribunal’s failure to consider it.
Conclusion
The applicants, a mother and her dependant son are Romanian citizens. They seek refuge in Australia as they claim they are not able to reside in any other country. However citizens of Romania do have a capacity to reside in Spain, another EU country. The first applicant fears she will be expatriated from Spain to Romania where she is in fear of political persecution. The Tribunal rejected her application for review. She sought review in this court of the Tribunal’s decision on the basis:
a)The Tribunal did not properly consider her claim and in particular her claim that she had a well-founded fear of Spain, as the putative country of refuge, repatriating her to Romania; and
b)Committed jurisdictional error in determining Spain as the relevant country for the purpose of s.36(3) and (4) of the Act rather than the European Union as the country.
Each of the applicants’ contentions fail.
Orders
Application dismissed.
Unless application is made by either party for other orders within 21 days of these orders, the applicants pay the respondent’s costs of and incidental to the application fixed in the sum of $6,471.00.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 20 December 2012
- AGLC
- BZAAH v Minister for Immigration [2012] FMCA 1228
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- [2012] FMCA 1228
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