Diatlov v MIMA

Case [1999] FCA 468

FEDERAL COURT OF AUSTRALIA

Diatlov v Minister for Immigration & Multicultural Affairs [1999] FCA 468

MIGRATION – application for protection visa – whether stateless applicant must be outside country of former habitual residence as a result of persecution for a Convention reason, or whether statelessness alone amounts to refugee status – whether Refugee Review Tribunal failed to make findings on material questions of fact, or to refer to the evidence on which findings of fact were based – Migration Act 1958 (Cth), ss 430(1)(c), 430(1)(d)

Migration Act 1958 (Cth), ss 430(1)(c), 430(1)(d)

Federal Court Rules, O 80, r 4

Convention Relating to the Status of Refugees, Art 1A(2)
Vienna Convention on the Law of Treaties, Art 31
Convention Relating to the Status of Stateless Persons, Arts 3, 4, 7, 13, 15-20, 22, 26, 27, 28, 31

De Silva v Minister for Immigration and Multicultural Affairs [1999] FCA 1074, cited
Rishmawi v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 421, followed
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, cited
Haris v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, 12 February 1998, discussed
Bank of Western Australia Ltd v Federal Commissioner of Taxation (1994) 55 FCR 233, cited
Al-Anezi v Minister for Immigration and Multicultural Affairs [1999] FCA 355, cited
Adan v Secretary of State for the Home Department [1997] 1 WLR 1107, not followed
Adan v Secretary of State for the Home Department [1999] 1 AC 293, considered
Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100, cited
Savvin v Minister for Immigration and Multicultural Affairs [1999] FCA 1265, not followed
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, cited
Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1126, cited

J C Hathaway, The Law of Refugee Status (1991)

UNHCR Handbook on Procedures and Criteria for Determining Refugee Status

ANDREI DIATLOV v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 424 OF 1999

JUDGE:  SACKVILLE J
PLACE:  SYDNEY

DATE:  25 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 424 OF 1999

BETWEEN:

ANDREI DIATLOV
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

SACKVILLE J

DATE OF ORDER:

25 OCTOBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the respondent’s costs of the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 424 OF 1999

BETWEEN:

ANDREI DIATLOV
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

SACKVILLE J

DATE:

25 OCTOBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The Adjourned Proceedings

  1. The applicant is an ethnic Russian who has lived virtually all his life in Estonia.  He sought review of a decision by…

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AGLC
Diatlov v MIMA [1999] FCA 468
Case
[1999] FCA 468
Decision Date

CaseChat Overview and Summary

Diatlov v MIMA involved a dispute regarding the interpretation of Article 1A(2) of the Refugee Convention, specifically its application to stateless persons. The case was heard in the Federal Court of Australia. The central legal issue was the meaning of Article 1A(2) concerning the circumstances under which a stateless person may be considered a refugee. This involved determining whether the events leading to a stateless person’s displacement must specifically relate to persecution or could be any events occurring before January 1, 1951.

The court examined the language of Article 1A(2) and the broader context of the Refugee Convention, including its legislative history. The judge considered the different interpretations proposed by various authorities and found the approach in Rishmawi to be preferable. This interpretation required that the events leading to a stateless person’s displacement be connected to persecution, as defined by the rest of Article 1A(2). The judge concluded that the ambiguity in Article 1A(2) could only be resolved by considering the context and object of the Refugee Convention, ultimately rejecting the broader interpretation that any pre-1951 events were sufficient.

The court dismissed the application and ordered the applicant to pay the respondent’s costs. The decision underscored the importance of a holistic approach to interpreting international treaties, taking into account both the text and the broader context, object, and purpose of the treaty.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It must be said, with respect, that there is nothing inherently implausible in Dowsett J’s approach to the construction issue. Questions of construction often involve judicial choice between two (or perhaps more) plausible views as to the meaning of a provision. The range of choice may be widened when dealing with treaties which, as McHugh J observed in Applicant A, at 255-256, often fail to exhibit the precision of domestic legislation, this being the “necessary price paid for multinational political comity”. While the language of the law tends to encourage particular decisions or reasoning being characterised as “correct” or “erroneous”, in truth it is often a question of choosing between arguable alternatives, each of which has merits and drawbacks. The doctrine of precedent ultimately produces an answer which earns the label of being the “correct” construction of a particular enactment or treaty.Choosing Between Inconsistent Decisions Since there are now two inconsistent decisions on the meaning of article 1A(2) of the Refugee Convention as applied to stateless persons, it is necessary for me to choose between them. My preference is for the approach taken in Rishmawi. I can state my reasons briefly, without unnecessarily traversing the ground already covered by Cooper J in that case. The judgments in Applicant A make it clear that, although the text of the treaty is to be given primacy, the context, object and purpose of the treaty must also be considered: Applicant A, at 240, per Dawson J; 254-255, per McHugh J; 277, per Gummow J. As McHugh J said (at 254), an “ordered yet holistic approach” is appropriate. If attention is directed to the context of the Refugees Convention (what in domestic terms would be described as its legislative history), the ambiguity inherent in the latter part of article 1A(2) is in my opinion exposed. Article 1A(2), as adopted in 1951, took the following form:“As a result of events occurring before 1 January 1951 and 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 former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”The bolded words were removed by the 1967 Protocol. The words “as a result of such events” in the second part of article 1A(2) made it clear that a stateless person qualified as a refugee only if he or she were outside the country of former habitual residence as a result of events occurring before 1 January 1951. This language immediately presents the question “What kind of events?”. On one view, it would be enough for a stateless person to have left his or her country of former habitual residence for any reason at all, so long as the reason involved events occurring before 1951. On another view, a stateless person would qualify if displaced by general war-time or post-war conditions, without the need to show that he or she suffered or feared persecutory conduct. A third view is that the required pre-1951 events were intended to be confined to persecutory conduct of the kind identified in the rest of article 1A(2). It is difficult to see how an answer to the question of construction could have been obtained without reference to the travaux preparatoires in the manner undertaken by Cooper J.

Ratio Decidendi

Legal Principle Established

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