Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332
MIGRATION – protection visas – application for an order of review from decision of Refugee Review Tribunal – where the Refugee Review Tribunal found that the applicant had a right to enter and reside in Syria – meaning of “protection obligations” in s 36(2) of the Migration Act 1958 (Cth) (“the Act”) – consideration of principle that Australia does not owe protection obligations to a person who has effective protection in a third country – whether s 36(3) of the Act is a codification of this principle – meaning of a “right to enter and reside” in a country – whether error of law within s 476(1)(e) of the Act
ADMINISTRATIVE LAW – MIGRATION – no evidence ground of review– application of the no evidence ground of review to a decision based on non-satisfaction that certain criteria have been met – application of the no evidence ground of review to a decision of the Minister for Immigration and Multicultural Affairs (or the Refugee Review Tribunal) not to grant a visa – where the Refugee Review Tribunal had determined that the respondent had a well-founded fear of persecution in Iraq – whether the Refugee Review Tribunal was required by law to grant the respondent a protection visa unless it was established that the respondent had a right to enter and reside in Syria (for the purposes of s 476(4)(a) of the Act) – whether the finding that the respondent could obtain sponsorship to re-enter Syria was a finding of a “particular fact” for the purposes of s 476(4)(b) of the Act.
MIGRATION – whether the Court has power to order that a matter be remitted to the Refugee Review Tribunal as originally constituted – circumstances in which a Court should order that a matter be remitted to the Refugee Review Tribunal as originally constituted – circumstances in which the Court has the power to order that a matter be remitted to the Refugee Review Tribunal to re-consider only some of its previous findings or to assume the existence of a certain state of affairs – circumstances in which the Court should so order
WORDS & PHRASES – “protection obligations”, “right to enter and reside”
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332
Case
[2001] FCA 1332
Decision Date
CaseChat Overview and Summary
In the case of Minister for Immigration and Multicultural Affairs v Applicant C, the appellant, the Minister for Immigration and Multicultural Affairs, appealed against a decision of the Federal Court, while the respondent cross-appealed. The central issue revolved around the interpretation of section 36(3) of the relevant legislation, specifically whether the term "right" in this context meant a legally enforceable right or merely the capability to enter and reside in a third country.
The court examined the legislative amendments and the judicially developed doctrine of effective protection, ultimately determining that the term "right" in section 36(3) does not necessarily mean a legally enforceable right. Instead, it refers to the capability or ability to legally enter and reside in the third country in question. This interpretation was consistent with subsequent decisions of the Federal Court, which affirmed that section 36(3), when read with sections 36(4) and (5), does not codify the pre-existing common law principles but rather establishes specific circumstances under which Australia’s obligations under the Convention are not breached.
The court concluded that the primary judge’s interpretation of section 36(3) was correct, and the appeal was dismissed. However, the cross-appeal was allowed, and the matter was remitted to the Refugee Review Tribunal for reconsideration in light of the court's findings. The appellant was ordered to pay the respondent's costs of both the appeal and the cross-appeal.
Orders
Orders of the court
1. the appeal be dismissed;
2. the cross-appeal be allowed;
3. order 2 of the primary judge made on 12 March 2001 be set aside;
4. the following order be substituted for order 2:
“2. The matter be remitted to the member of the Refugee Review Tribunal who made the decision of 28 August 2000 to be determined according to law”;
5. liberty to apply be reserved in case the member of the Refugee Review Tribunal who made the decision of 28 August 2000 should be unavailable;
6. the appellant pay the respondent’s costs of the appeal and the cross-appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Section 476(1)(g) is set out in [31] above. The application of the section is limited by s 476(4) in that this ground of review cannot be made out unless it can be shown that either pars 476(4)(a) or (b) applies. Application of “no evidence” ground of review where statutory power not exercised It was asserted that the “no evidence” ground of review in s 476(1)(g) applies only where a statutory power has been exercised, that is where there has been a positive decision. Accordingly, the appellant submitted, the section has no application to a decision of the Tribunal to affirm a decision not to grant a protection visa to an applicant because the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. In such a case, the power to grant a protection visa is not exercised. If this submission is correct, s 476(1)(g) could have no application to a decision refusing to grant a protection visa. In making this submission the appellant relied on the reasoning of the New South Wales Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (“Azzopardi”). The case concerned the dismissal of a worker’s compensation claim by the Workers’ Compensation Commission in relation to an injury to the applicant’s knee. On appeal it was submitted that the judge of the Workers’ Compensation Commission fell into error of law in that it was not open to him to find that the worker had not suffered an injury to his knee. The resonance that this claim has with the no evidence ground of review in the Act is obvious. Glass JA (with whom Samuels JA agreed) noted that the Court was not permitted under the relevant legislation to correct errors of fact in a finding of the trial judge. In relation to the claim of error of law his Honour made the following observation (at 156):“To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence. Finally, the burden of proof to which the applicant is subjected cannot be masked by the use of double negatives. A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof.” [emphasis in original]
Decision
Reasons for decision
The amendments to s 36,and in particular the introduction of subs (3), raises the question of whether the judicially developed doctrine of effective protection, as outlined in [20] – [23] above, has been subsumed into s 36(3) or whether the operation of the subsection is more narrow. This issue is discussed below at [63] – [65].TRIBUNAL’S DECISION The Tribunal found that the applicant was a refugee from Iraq within the meaning of the Convention, that is, that the applicant had a well-founded fear of persecution in Iraq because the authorities would perceive him as politically suspect and opposed to the Iraqi government. The Tribunal, however, upheld the decision of the Minister’s delegate that Australia did not owe protection obligations to the applicant because it held he would be able to enter Syria and remain there on an indefinite basis without persecution and without fear of return to Iraq. This finding arose from evidence before the Tribunal concerning the respondent’s escape from Iraq. The respondent had gone into hiding during April and May 1999 at a relative’s house in Iraq. He later moved to his aunt’s house, where he learnt that the Iraqi security forces were continuing to search for him. The respondent’s cousins arranged for an invitation from the Iraqi Affairs Office in Damascus (run by groups opposed to the current Iraqi government) to visit Syria for a period of up to three months. Despite a claim by the respondent to the contrary, the Tribunal found that the invitation was genuine. The respondent left Iraq illegally with a driver arranged by his cousins and arrived in Syria on 17 September 1999. He left Syria about two and a half months later using a false Iraqi passport and came to Australia via Indonesia. The Tribunal considered whether the applicant has effective protection in Syria and directed itself as follows:“In relation to this, the Tribunal is obliged to consider whether the applicant has taken all possible steps to avail himself of a right to enter and reside in Syria, whether on a temporary or a permanent basis. The Tribunal is further required to consider whether the applicant has a well-founded fear of being persecuted in Syria or of being refouled to Iraq by the Syrian authorities.” The Tribunal discussed the process by which Iraqi citizens are able to enter and reside in Syria. Referring to independent evidence, it found that Iraqis can enter Syria if they are sponsored by a family member, a friend or one of the Iraqi opposition parties operating in Syria. It noted, once in Syria, “Iraqis are permitted to remain indefinitely without a residence permit. They are able to access free education and health services. They are also able to rent accommodation and engage in business and employment activities. The independent evidence – which includes evidence from UNHCR personnel based in Syria – is that Syria does not deport Iraqis unless they become involved in illegal activities. The evidence further indicates that whilst there have been some changes in the relationship between Syria and Iraq, there is unlikely to [be] an improvement in the relationships such as that Iraqi asylum seekers or dissidents would be returned.”
Ratio Decidendi
Legal Principle Established
The appellant Minister alleges that the primary judge erred in holding that the word “right” in s 36(3) means a “legally enforceable right”. Senior counsel for the Minister, Mr Tracey QC, submitted that subss 36(3) to (5):(a)effect a codification of the pre-existing common law test dealing with effective protection; and (b)impose a requirement, operating in addition to s 36(2), that must be met before Australia has protection obligations to a non-citizen, namely that he or she must have taken all possible steps to take advantage of any right to enter and reside in a third country. In his submission the term, “right to enter and reside in” does not mean a legally enforceable right of entry and residence, but rather means the ability or capability legally to enter and reside in the relevant country. The submissions made in support of this interpretation are discussed in detail in [50] below.Judicial consideration of s 36(3) Since the primary judge’s decision there have been a number of other first instance decisions of this Court that have considered the meaning of s 36(3) and have accepted the construction given by the primary judge; S115/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 540 (“S115/00A”); Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 (“Kola”); Bitani v Minister for Immigration & Multicultural Affairs [2001] FCA 631; W228 v Minister for Immigration & Multicultural Affairs [2001] FCA 860 (“W228”); V1043/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 910. In W228, French J impliedly rejected the notion that s 36(3) as qualified by ss 36(4) and (5) amounted to a codification of the judicially developed “effective protection” principles and commented (at [40]) that the effect of the subsections, “is to identify a subset of the circumstances in which the return of a refugee to a third country will not involve a breach of Australia’s obligations under Article 33.” In S115/00A at [8], Finn J also impliedly rejected the codification analysis and stated that the effect of the decision of the primary judge in this matter was:“(i)where a non-citizen in Australia has a legally enforceable right to enter and reside in a third country, that person will not be owed protection obligations in Australia if he or she has not availed himself [or herself] of that right unless the conditions prescribed in either s 36(4) or (5) are satisfied, in which case the s 36(3) preclusion will not apply;(ii)where a non-citizen in Australia does not have a legally enforceable right to enter and reside in a third country, Australia will nonetheless be entitled to refoule that person to that country consistent with Australia’s obligations under Article 33 of the Convention, if that person is likely to be given effective protection in that country; and(iii)if neither s 36(3) or the wider effective protection principle applies to a person, that person is owed protection obligations if he or she is otherwise a ‘refugee’ within Article 1A [of] the Convention to whom the provisions of the Convention apply or continue to apply: see Article 1C to F; see also s 91ff of the Act.A consequence of these varying contingencies is that the denial of a protection visa because of a non-citizen’s ‘connection’ with a third country can result from either of two causes – (i) that s 36(3) applies to that person; or (ii) that the person nonetheless has effective protection in that third country.”