Cavell v Repatriation Commission

[1998] FCA 464

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - application for protection visa - applicant of Sri Lankan origin - applicant held permanent residence permit in New Zealand and came to Australia from New Zealand - nature and extent of applicant’s status and rights in New Zealand - whether Australia had protection obligations to applicant under Art 33 Refugees Convention in light of that status and those rights - whether risk of refoulement contrary to Art 33 if applicant returned to New Zealand - whether absence of recognition of applicant by New Zealand as ‘refugee’ under Convention significant - whether in circumstances necessary to address definition of ‘refugee’ under Art 1 - consideration of relationship between Arts 1 and 33.

IMMIGRATION - application for protection visa - applicant of Sri Lankan origin - applicant held permanent residence permit in New Zealand and came to Australia from New Zealand - whether applicant had rights and obligations which are attached to New Zealand nationality - significance of absence of ‘guarantee’ that New Zealand would not return applicant to Sri Lanka - whether applicant excluded from definition of “refugee” by Art 1E of Convention - whether necessary for Refugee Review Tribunal to have considered whether applicant had well founded fear of persecution if he were returned to Sri Lanka.

Migration Act 1958 s 36(2)
Migration Regulations Sch 2 Pt 866

Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs
(1992) 38 FCR 191, considered
Barzideh v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 417, applied
Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 176, considered
Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685, considered and applied

KARTHIGESU RAJENDRAN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SG 24 of 1997

MANSFIELD J
ADELAIDE
4 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 24  of   1997

BETWEEN:	KARTHIGESU RAJENDRAN APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	4 MAY 1998
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. Application dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 24 of 1997

BETWEEN:	KARTHIGESU RAJENDRAN APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	4 MAY 1998
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

BACKGROUND

The applicant, who is now fifty-seven years of age, is a Sri Lankan of Tamil ethnicity.  He entered Australia on 4 November 1995.  On 23 January 1996 he applied for a protection visa under the Migration Act 1958 ("the Act"). To qualify for a protection visa under s 36 of the Act, the applicant had to meet the criteria specified in s 36(2) of the Act and Pt 866 of Sch 2 of the Migration Regulations (“the Regulations”). Section 36(2) provides that:

“A criterion for a protection visa is that the applicant for a visa is a non citizen in Australia to whom Australia has protection obligations under the [Convention]”

and par 866.221 of Sch 2 of the Regulations requires that at the time of the decision:

“The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the [Convention]”,

that is, the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).

It is common ground that the relevant provisions of the Convention are Articles 1A(2) and 1E.  Article 1A(2) provides that a refugee is any person who:

“. . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his formal habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Article 1E provides:

“This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”

The application was rejected by the delegate of the respondent on 5 August 1996.  As he was entitled to do, the applicant sought review of that decision by the Refugee Review Tribunal ("the Tribunal").  On 13 February 1997, the Tribunal affirmed the decision not to grant a protection visa.  It found that Australia did not have protection obligations to the applicant under the Convention because of the operation of Art 1E.  This is an application for review of that decision.

THE APPLICANT’S CLAIMS

The applicant is married with three children.  His wife and children are New Zealand citizens, and will not be affected by this application.  He has medical qualifications.  He worked in various medical capacities in Sri Lanka, until he left Sri Lanka in March 1985.  He then travelled to India and then in August 1985 to the United Kingdom.  In January 1987 he went to New Zealand.  After some two and a half years in New Zealand, in September 1989 he travelled to the United States and thence to Canada where he again lived for several years.  He returned to New Zealand in December 1994, until his entry to Australia in November 1995.

The reason for his perambulations, according to his evidence as recorded by the Tribunal, is that his home town is in northern Sri Lanka which is a well known stronghold of the Tamil separatist movement LTTE.  He fears the Sri Lankan Armed Forces who, he said, suspect every Tamil of being a terrorist.  He also fears the LTTE, who he believes suspect him of informing upon them in 1979.  Thus, from February 1979 LTTE members have “terrorised” him by contact with him and with the hospital in which he has worked, by public threats, and by assaults.  That included damage to his house during riots in 1983 when he had moved to Colombo as a result of concerns about his safety, and was there working as a doctor.  He thereafter returned to northern Sri Lanka, but again he was assaulted three times by the Sri Lankan army, which suspected him of treating Tamil separatists, but he was also threatened by the LTTE.  That conduct persisted up to the time he left Sri Lanka.  It was the reason why he left.

On 21 July 1987, he secured permanent residence in New Zealand on humanitarian grounds, but from 1989 he perceived the resumption of threatening behaviour by or on behalf of the LTTE, so he again left.  However, he experienced similar threats whilst in Canada and so returned to New Zealand.  Having arrived back in New Zealand in 1994, according to the applicant, things were not much better.  He complained of being chased with a knife, of a flat break-in, and a fear that if he again returns to New Zealand the LTTE will hire local criminals to kidnap, torture and kill him.  He fears the same consequence should he be returned to Sri Lanka, either by the Sri Lankan Army or the LTTE.  In his evidence, as recorded by the Tribunal, those concerns received colour by detailed events described by the applicant.

The Tribunal did not ultimately determine the applicant's status under Art 1A(2) of the Convention.  It expressed concerns as to the reliability of his evidence, in so far as he attributed his experiences in New Zealand and in Canada to persecution by the LTTE or the Sri Lankan authorities.  It said:

"There was a clear disposition by the Applicant to attribute (at least in hindsight) every adverse circumstance to the targeted attention of the LTTE, even where incidents were far removed in time and place.  The issue is not so much the Applicant's subjective apprehension but the objective basis for his concerns.  The Tribunal has great difficulty in accepting, for example, the Applicant's inferences that incidents in New Zealand involving hypnotherapists, Maoris, gangs and others represent sustained attempts by the LTTE to kill him in relation to matters said to have taken place in Sri Lanka years earlier.

Although it is generally the case that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt, "It is not the case . . . that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal.  Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective.  This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible":  Nicholson J. in Chen Xin He v Minister for Immigration and Ethnic Affairs, No. WAG 124 of 1994, 23 November 1995 (unreported), at p. 11.  The Tribunal is not required to accept uncritically any and all claims made by applicants:  see Randhawa v MILGEA (1994) 124 ALR 265 (Black CJ, Beaumont and Whitlam JJ), where Beaumont J. has observed (at page 278) that a liberal attitude concerning proof of persecution in the context of an application for refugee status "should not, however, lead to 'an uncritical acceptance of any and all allegations made by suppliants' ".

The Tribunal is not satisfied that the Applicant's subjective perceptions are in all instances well-founded."

It was unnecessary, in the Tribunal's view, to finally decide such issues because of the view it took that the applicant was ineligible for recognition as a refugee by reason of Art 1E. The Tribunal also specifically addressed the question whether circumstances are such that, in New Zealand, he would be entitled to and would be accorded the right to the protection of law against persecution or from possible harm or violence.  The Tribunal was affirmatively satisfied on that score.  It expressly said so.  It found that the applicant would have the full protection of the New Zealand authorities in the event of any feared harm being directed towards him.  It addressed his evidence of past conduct towards him, and his present fears.  Notwithstanding his evidence, the Tribunal expressed itself as having

"very serious reservations about the objective reality of many of the Applicant's stated concerns and is not satisfied that the Applicant's claimed fears of harm in New Zealand are well-founded".

It concluded that it was

"not satisfied that the Applicant is being pursued in New Zealand by the LTTE in relation to an incident in Sri Lanka in 1979 or in relation to any other matter nor that the claimed incidents, to the extent that they have any objective reality, have any connection with the LTTE or with the Applicant's prior experiences in Sri Lanka."

THE APPLICANT'S STATUS IN NEW ZEALAND

The applicant's Sri Lankan passport discloses that he is a permanent resident of New Zealand.  It bears a New Zealand Returning Residence Visa issued on 24 October 1995 and is valid to 14 December 1998.  It guarantees that he may travel to New Zealand and on application be granted a residence permit.

He claims that his permanent residency in New Zealand does not entitle him to the full rights of a New Zealand citizen.  He says that he does not have the right to travel on a New Zealand passport, does not have full economic rights, cannot work in some public service positions, cannot own rural land, and does not have full access to education or selection for national sporting teams.  He needs a Returning Residence Visa whenever he leaves New Zealand.  He is unable to enter Australia without a visa.

The applicant has not taken out New Zealand citizenship, but as the evidence shows that is simply because he has not been ordinarily resident in New Zealand for the required full period of two years.  Once he meets that residency requirement, as a spouse of a New Zealand citizen, he is eligible for New Zealand citizenship.

The Tribunal was satisfied on the evidence that it could make findings as to the state of New Zealand law, without the assistance of an expert. Material had been submitted to it both by the applicant and by the Minister. It is instructed under s 420(2)(a) of the Act to act without being bound by technicalities or rules or evidence, and under s 425(1)(b) of the Act to procure such evidence as it considers necessary. No complaint is made about the Tribunal’s decision that, in the circumstances, it knew sufficient of New Zealand law to determine the application.

The Tribunal found that the applicant had secured permanent residence in New Zealand when he travelled there with his family in 1987.  Having left New Zealand in late 1989, he returned there in 1994, and resumed residence.  He has maintained an entitlement to return to and reside in New Zealand.  As the holder of a current New Zealand permanent residence permit, he is entitled to a Returning Residence Visa.  He does not need to reapply for residence.  There is no limit on how often he may leave and then return to New Zealand because the Returning Residence Visa can be renewed.  The current endorsement on his passport gives him that status at least until 14 December 1998, guaranteeing that he may presently travel to New Zealand and on application be granted a residence permit.  He remains within the validity of his current Returning Residence Visa and retains his entitlement to return to and reside in New Zealand.

The Tribunal then identified the issue before it in the following terms:

"The question to be determined in accordance with Article 1E of the Convention is whether, as a New Zealand permanent resident with a valid Returning Resident's Visa, the Applicant is recognised by the competent authorities of New Zealand as having the rights and obligations which are attached to the possession of New Zealand nationality."

It had information provided by the New Zealand High Commissioner that, other than the right to stand for parliamentary or local body elections and to work in certain government positions, a New Zealand permanent resident with a valid Returning Residence Visa has the same rights as a New Zealand citizen.  The applicant does not have to reapply for residence on his return to New Zealand.  The Tribunal found that he is recognised by the competent authorities of New Zealand as having the rights and obligations which are attached to the possession of New Zealand nationality.  It therefore found that the Convention did not apply to him because of the application of Art 1E of the Convention.  It noted that he appears to be eligible for full New Zealand citizenship should he take up a minimum residence requirement.

THE CONTENTIONS

The applicant's contentions focus only upon Art 1E.  He submits that the Tribunal erred in concluding that he was excluded from the protection of the Convention under Art 1E because it failed to consider Art 33(1) of the Convention.

Article 33 provides:

“1.No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2.The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

It is contended that Art 1E did not operate to exclude the applicant from the Convention's protection because, either the applicant did not have a guaranteed right to remain in New Zealand and not to be expelled or deported to Sri Lanka, or it was not shown on the evidence that the applicant enjoyed such a guaranteed right.  If that step is taken, then the Tribunal was required to consider whether the applicant had a well founded fear of persecution were he to be returned to Sri Lanka, whereas the Tribunal addressed only the question of whether he had a well founded fear of persecution were he to be returned to New Zealand.  The evidence upon which the positive finding that there was no guaranteed right to remain in New Zealand was said to be available (and appropriate) was a sentence in 'Guide for Returning Residents - New Zealand, the Right Choice' which read:

"Approval for a new residence permit cannot be guaranteed, as policy may have changed since you were originally granted residence".

The respondent in reply contends that Art 1E is not to be read as subject to Art 33, that Art 1E does apply to the applicant by reason of his resident status in New Zealand, and that on the material before the Tribunal the applicant has the right to remain in New Zealand in any event.  The respondent seeks to uphold the decision of the Tribunal on those matters.

It is also contended for the applicant that the Tribunal had erred in any event in failing to consider and determine whether the applicant had a well founded fear of persecution were he to be returned to Sri Lanka, and had limited its conclusions in respect of Art 1A(2) to whether he had a well founded fear of persecution were he to be returned to New Zealand.  The respondent disputed that the approach of the Tribunal was erroneous, whilst acknowledging that it did not positively conclude whether the applicant had a well founded fear of persecution were he to be returned to Sri Lanka.

THE AUTHORITIES

This matter involves considerations similar to those addressed in the decisions of the Court in Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191, Barzideh v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 417 and Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 176 at first instance and on appeal Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685. The Tribunal's decision in this matter was made before the Full Court decision in Thiyagarajah.  The parties were given the opportunity to make further submissions following that decision.  Each of those decisions except Barzideh concerns an application by a Sri Lankan national of Tamil ethnicity seeking the protection of Australia under the Act as a refugee. In each of those cases, as in the present matter, the applicant had established residence in another country between the time of leaving Sri Lanka (or Iran, in the case of Barzideh) and the time of the application for a protection visa under the Act.

As von Doussa J in Thiyagarajah at 693-694 explained, the Migration Reform Act 1992 significantly restructured the provisions of the Act relevant to identifying the appropriate questions for consideration of the Court on an application such as the present.

In Thiyagarajah (above), the visa applicant had, at the intermediate stage of his passage from Sri Lanka to Australia, been granted refugee status in France.  France had accorded him permanent residence and a travel document which was in the form required by Art 28 of the Convention and, once having lived in France for more than five years, the right to apply for French citizenship.  The Full Court (von Doussa J, with whom Moore and Sackville JJ agreed) concluded in the circumstances that Australia did not owe protection obligations to the visa applicant because he had been recognised as a refugee in France, and had been accorded the rights and obligations of a refugee under the Convention in France.  The visa applicant had not elected to apply for French citizenship, and so did not have the right to vote or to enter the public service or to enter certain occupations which require French citizenship.

At first instance, the Court had held that those occupational restrictions meant that the visa applicant did not possess the rights and obligations which are attached to French nationality, so Art 1E did not apply to him.  That is, of course, consistent with the decision of Olney J in Nagalingam (above) that the grant of refugee status (in that instance, by Norway) was not of itself sufficient to enliven Art 1E.  It is necessary to consider the rights enjoyed by refugees in the country where that status has been recognised to determine whether Art 1E excludes a visa applicant from the protection of the Convention:  Barzideh (above) is an illustration of such a consideration. Hill J in that case concluded (at 429):

“In summary, it is my view that Art 1E only operates to exclude a person from being considered a refugee where:

(a)   there is a general law of the place of intermediate residence; or

(b)the competent authorities of that place apply a rule to a particular person; and

(c)in either case the consequence of the general or specific rule is that that person has the same rights and is under the same obligations as a national of the place of intermediate residence.

As presently advised, I do not think that the article is rendered inapplicable merely because the person who has de facto national status does not have the political rights of a national.  That is to say, the mere fact that the person claiming to be a refugee is not entitled to vote, does not mean that the person does not have de facto nationality  But short of matters of a political kind, it seems to me that the rights and obligations of which the article speaks must mean all of those rights and obligations and not merely some of them.”

That decision was followed by Emmett J in Thiyagarajah at first instance, but perhaps with the qualification that (at 185):

“It may be that some disabilities suffered by an alien would be so slight as to be negligible.  That is to say, a disability which is minimal may not necessarily be sufficient to exclude the operation of Art 1E.  That may raise a factual matter for consideration by the Tribunal in the appropriate case.”

The occupational disabilities of the applicant in Thiyagarajah were held not to be of the insignificant nature there referred to.

The Full Court in Thiyagarajah decided the appeal on a different ground to which I shall refer shortly.  It did however (at 705-706) consider the correctness of those earlier decisions on the proper construction of Art 1E.  As it is contended that the principal reasons of the Full Court do not assist in determining the present application, it is necessary to identify and apply what the Full Court said about the proper construction of Art 1E.  Put simply, the Court upheld the decision in Barzideh, noting however that (at 706):

"its practical significance is limited by the conclusion that Australia does not necessarily have protection obligations to a person who has rights of residency in a third country (that is not his or her country of nationality)."

For reasons which appear below, in my view it is significant that the Court there referred to the existence of "rights of residency" without necessarily attributing such rights to recognition in the third country (in this instance, New Zealand) of refugee status.

As noted above, the Full Court approached the matter in a somewhat different way. Following the amendments to the Act effected by the Migration Reform Act 1992 (Cth), it said that the relevant question is whether the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention: s 36(2). It pointed out that the definition of "refugee" in the Convention is a composite one, comprising both inclusionary and exclusionary matters.  If an exclusionary matter, e.g. under Art 1E, applied then the visa applicant could not be a refugee under the definition.  But simply because a particular exclusionary matter does not apply does not mean that the visa applicant is a refugee, even though at an earlier point in time that person may have been a refugee (see at 696).

It concluded that Australia does not owe protection obligations to a person who has been recognised as a refugee and accorded protection in another country.  That conclusion was the result firstly of identifying two questions necessarily to be addressed in circumstances such as the present, and then of addressing those two questions having regard to the obligations imposed by the Convention and in the light of the status of the visa applicant in the third or intermediate country.

Those two questions are expressed as follows (at 696-697):

". . . whether Australia is under an obligation to assess the refugee status of a non-citizen who has come to Australia from a third country which has recognised that person as having the status of a refugee under the Refugees Convention.

. . . whether under the Refugees Convention, Australia is obliged not to deport a non-citizen asylum seeker from Australia to the third country from whence he or she came if that person falls within the definition of "refugee" in Art 1."

In that regard, the Full Court noted that one consequence of recognition of refugee status is that the visa applicant will probably have travelled to Australia on travel documents issued by the third country pursuant to Art 28 of the Convention, so as to contain a right of re-entry to the third country.

In the present matter, the applicant has travelled to Australia on travel documents issued by New Zealand which do contain a right of re-entry to New Zealand, albeit not travel documents issued to him under Art 28 as he has not been recognised in New Zealand as a "refugee".

The Court then addressed the primary obligations imposed upon a Contracting State in relation to a refugee who seeks asylum, in particular Arts 31, 32 and 33. As in the case before the Court, it was Art 33 which drew the major focus of the Full Court. In the present circumstances, Art 31 does not apply as it is not suggested that the applicant is not lawfully in Australia. Article 32 does apply to the applicant. It imposes on Australia an obligation to extend to him due process of law. That due process is prescribed by the Act, including the present proceedings. It was not contended that it was otherwise of significance to the present application.

Article 33 is set out above.  It precludes Australia from expelling or returning a refugee to the frontiers of territories where that person's life or freedom would be threatened on account of a Convention reason.  The Full Court opined (at 698) that, despite its significantly different wording from that of Art 1A(2), a similar test to that which arises under Art 1A(2) should be applied in determining whether a proposed expulsion or return of a refugee to another territory contravenes Art 33, and later (at 705) that the same standard to measure the threat of harm should apply to each Article.  After referring to legislative and judicial consideration of the obligations of Contracting States under Art 33 in some overseas countries, and academic commentary on such matters, the Court concluded (at 702):

“It is not necessary for the purposes of disposing of this appeal to seek to chart the outer boundaries of the principles of international law which permit a Contracting State to return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status.  It is sufficient to conclude that international law does not preclude a Contracting State from taking this course where it is proposed to return the asylum seeker to a third country which has already recognised that person’s status as a refugee, and has accorded that person effective protection, including a right to reside, enter and re-enter that country.”

It is, in my view, significant to consideration of the present application that the Full Court observed (at 698) that the obligations imposed by Art 33 do not entitle a refugee to seek asylum, nor oblige a Contracting State to whom a request for asylum is made to grant it, even if the refugee's status as such has not been recognised in any other country.  As the visa applicant in Thiyagarajah had in fact been granted refugee status in France, the Court did not however need to address the boundaries of Art 33 beyond that fact.  In the quoted passage it can be seen that the Full Court stated the requirements of Art 33 to include

"effective protection, including a right to reside, enter and re-enter"

the third country.  It noted that France had accorded the visa applicant recognition as a refugee, had accorded him permanent residency, and had provided him with a travel document in accordance with Art 28 of the Convention.  It also concluded that, in terms of Art 33, to return the visa applicant to France would not be to expel or return him "to the frontiers of territories where his life or freedom would be threatened".  Despite his subject fear of persecution if he were returned to France, it was not a well founded fear as meaningful protection was available from the French authorities.

CONSIDERATION OF CONTENTIONS

In substance, the Full Court decision is to the effect that, for the purposes of determining whether Australia has protection obligations under the Convention, it is necessary to look to the individual circumstances of a particular visa applicant to determine whether, if Australia were to return that person to the third or intermediate country, Australia might be in breach of one of the operative Articles of the Convention (relevantly, Art 33).  If not, then whether or not the visa applicant is a "refugee" under Art 1, Australia has no protection obligations in respect of that person.  If Australia would be in breach by such action, then it will be necessary to determine whether that person is a "refugee" under Art 1.  In cases where there is no intermediate country, the two inquiries will effectively overlap:  if a person is a refugee under the definition, then almost ipso facto Australia will have protection obligations at least under Art 33 because, despite the different wording, the same or much the same issues are involved in considerations under Art 1A(2) and Art 33. It does mean that the proper construction of s 36(2) of the Act is that the 'protection obligations' do not arise simply because the visa applicant is a refugee.

That approach has the sensible outcome that it is not simply the theoretical application of Art 33 and like Articles to a visa applicant or a refugee which entitle a visa applicant to a protection visa, but the actual application of Art 33 in the particular circumstances so as to oblige Australia to adopt a course of conduct towards the visa applicant.  The visa applicant will not be entitled to a protection visa unless in fact protection under Art 33 or a like Article is actually needed.

In my view, the effect of the Full Court decision in Thiyagarajah is that the Court must, as a matter of domestic law, in a matter such as the present first consider whether Australia has the obligation to assess the refugee status of the applicant having regard to the content of the obligations imposed by the Convention, relevantly Art 33.  If the return of the applicant to New Zealand would not expose Australia to a breach of Art 33 in relation to him, then the applicant is not a person towards whom Australia has that obligation.  In that event, it is not to the point to turn first to the definition of "refugee" under Art 1, or specifically to Art 1A(2) or to Art 1E.  It is unnecessary.  If, on the other hand, the applicant is a person to whom Australia has such an obligation under Art 33, then to assess the claim to refugee status, it may be necessary to address Art 1A(2) or Art 1E or both.  There is no necessary sequence in which those Articles need be addressed, although if Art 1E applies to exclude the applicant from the description of "refugee", it would be unnecessary to address Art 1A(2) at all.

I conclude that it is not correct to restrict the operation of Thiyagarajah to cases where the third country has granted the visa applicant refugee status.  The fundamental question is whether the status and legal entitlements of the visa applicant in the third country have the consequence that Australia is not obliged to assess the claim to refugee status.  The critical Article is Art 33 as it prescribes, for present purposes, whether Australia has such an obligation.  That emerges not just from the particular passages in Thiyagarajah to which I have referred above, but to the reference in the Full Court's reasons with apparent approval to Bugdaycay v Secretary of State for the Home Department [1987] AC 514; Nguyen Tuan Cuong v Director of Immigration [1997] 1 WLR 68 at 79; R v Secretary of State for the Home Department; Ex parte Abdi [1996] 1 WLR 298, and to the Court's consideration of those authorities and other materials at 698-702.

I have considered carefully the findings of the Tribunal as to the applicant's status and rights in New Zealand.  What is apparent from those findings, as set out above, is that the applicant has permanent residence status in New Zealand; he may travel to and from New Zealand as he wishes, subject to obtaining a further Returning Residence Visa (which reflects the obligation imposed upon a Contracting Party to the Convention under Art 28); he is, after a period of residence, entitled to become a citizen of New Zealand; whilst he is in New Zealand, he has effective protection both generally and specifically from threats to his life or freedom on account of a Convention reason.  Although the Tribunal, in addressing those matters, was not approaching the overall issue in the way that the Full Court in Thiyagarajah indicates, it has applied a legal test and a standard to those questions which the Full Court has indicated is to be applied, whether addressing Art 1A(2) or Art 33 considerations.  Its conclusions on those matters are, in my view, findings which I should accept for the purposes of this application.

The applicant nevertheless contends that, because he does not have refugee status in New Zealand, he is not guaranteed protection against being returned to Sri Lanka by New Zealand.  In my view, however, the findings of the Tribunal adequately address that question.  I have, in reviewing the reasons of the Tribunal, borne in mind the observations of the High Court as to how that task should be undertaken:  Minister for Immigration and Ethnic Affairs v Wu Sham Liang (1996) 185 CLR 259. The Tribunal has noted that the New Zealand Returning Residence Visa issued on 24 October 1995 guarantees that the applicant may return to New Zealand and, on application, will be granted a residence permit. He does not need to re-apply for residence. In terms of the relevant question to assess whether Australia as a Contracting Party to the Convention would breach Art 33 by returning the applicant to New Zealand, in my view it is clear that the Tribunal was of the view that as a matter of fact there was no real chance of the applicant being returned from New Zealand to Sri Lanka. Its focus upon the question of whether his fears of harm are well founded by reference to the New Zealand position reflects that conclusion. So too does its analysis, for the purposes of Art 1E, of the comparative rights of a national of New Zealand and a New Zealand permanent resident. It is also appropriate to assume that New Zealand as a Contracting State will abide by its obligations under the Convention, including Art 33, if the applicant happens to be a refugee. There is nothing to suggest to the contrary.

This also is not the case to explore the outer boundaries of the principles of international law which permit a Contracting State to return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status:  cp. Thiyagarajah at 702.  The present circumstances involve the proposed return of the applicant to New Zealand.  In the manner described above, it has recognised the applicant's entitlement to permanent residence and after a period of time to New Zealand nationality.  It has accorded him effective protection including the right to travel to and from New Zealand and to re-enter that country.  In my view, consistent with the decision of Thiyagarajah and in accordance with its reasons, those circumstances lead to the view that international law does not preclude Australia as a Contracting State from returning the applicant to New Zealand.

Strictly speaking it is unnecessary separately to consider whether the applicant is ineligible for recognition as a refugee by reason of Art 1E of the Convention.  As the parties put extensive submissions on the topic, I propose to deal briefly with it.  Each ultimately accepted that the decision in Barzideh, as qualified by Emmett J at first instance in Thiyagarajah, laid down the law correctly.  That has since been confirmed by the Full Court in Thiyagarajah.  I accordingly reject the respondent's initial submission, as I am bound to do, that Barzideh was wrong in law.

The issue is not whether the applicant has "taken residence" in New Zealand.  That fact was found by the Tribunal.  It is not now challenged.  The issue is whether the applicant is recognised by the competent authorities of New Zealand "as having the rights and obligations which are attached to" New Zealand nationality.  It concluded that he did, in the light of the information from the New Zealand High Commissioner, and in the light of the reasons of Hill J in Barzideh.  The applicant's contention is not that, having regard to his ineligibility to stand for certain elections or to work in certain government positions, the Tribunal erred in its conclusion.  I do not therefore in this matter have to consider whether, as a matter of law, those matters or either of them mean that the applicant does not have all the rights and obligations of nationality except the political rights of a New Zealand national.  The contention of error by the Tribunal on this score is that one such right is the right to remain in New Zealand, a right which must be "guaranteed", and that the Tribunal failed to address the existence of such a right or that the evidence indicating such a right did not exist.  The right so described is, effectively, the right to which Art 33 refers, namely the right to be protected from "refoulement".

In my view, the composite fact as to the existence or otherwise of the relevant rights and obligations has been considered by the Tribunal.  It has specifically addressed his rights to re-enter New Zealand and to remain in that country.  It has specifically addressed his rights whilst resident there.  It further noted his eligibility for New Zealand citizenship upon meeting "the minimum residence requirements".  Those matters indicate that the Tribunal has not regarded the applicant as being exposed to any real risk, or any real chance, of being returned to Sri Lanka from New Zealand.  I do not accept, therefore, that the Tribunal failed to consider that matter.  The decision on that matter then becomes one of fact, in relation to which the Court should not interfere.

In the light of the above, it is my view that this application must be dismissed.  I so order.

I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:  4 May 1998

Counsel for the Applicant:  Mr M Boylan

Solicitors for the Applicant:  Legal Services Commission

Counsel for the Respondent:  Ms S Maharaj

Solicitors for the Respondent:  Australian Government Solicitor

Date of Hearing:  25 August 1997

Date of Judgment:  4 May 1998