Minister for Immigration and Multicultural Affairs v Thiyagarajah, Varatharajah
[1997] FCA 1494
•19 DECEMBER 1997
FEDERAL COURT OF AUSTRALIA
Citizenship and immigration - refugee law - Refugees’ Convention - definition of “refugee” - asylum seeker recognised as refugee in France and accorded rights and obligations as a refugee under the Convention in France - applicability of Art. 1E of the Convention - whether rights and obligations accorded to a refugee in France same as those of a national - whether asylum seeker is a person to whom Australia has protection obligations under the Convention - whether risk of refoulement contrary to Art. 33 if asylum seeker returned to France - whether “well-founded fear of being persecuted” test applies to Art. 33 - whether Refugee Review Tribunal found as a fact that the asylum seeker did not have a well founded fear of persecution if returned to France - whether Australia obliged to assess the substantive merits of the asylum seeker’s claim to be a refugee - whether the deportation of the asylum seeker would be inconsistent with Australia’s obligations under the Convention.
Migration Act 1958 (Cth), ss 36, 91A-91G
Migration Reform Act 1992 (Cth)
Asylum and Immigration Appeals Act 1993 (UK)
Migration Regulations, regs 2.12A, 2.12B, Schedule 2, Part 866
Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 followed
Barzideh v Minister for Immigration and Ethnic Affairs (1996) 139 ALR 710 followed
Applicant A v Minister of Immigration and Ethnic Affairs (1997) 142 ALR 331
Robtelness v Brennan (1906) 4 CLR 395
T v Home Secretary [1996] AC 742
Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273
Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529
Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695
Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Nguyen Tuan Cuong v Director of Immigration [1997] 1 WLR 68
Reg v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514
R v Secretary of State, ex parte Mehari [1994] QB 474
Reg v Home Secretary, ex parte Onibiyo [1996] QB 768
Reg v Home Secretary, ex parte Abdi [1996] 1 WLR 298
Kaberuka v Canada (Minister of Employment and Immigration) (unreported, Federal Court of Canada, Ottawa, 20 July 1995)
The Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191
Immigration and Naturalization Service v Stevic (1984) 467 US 407 - not followed
Immigration and Naturalization Service v Cardoza-Fonseca (1987) 480 US 421 not followed
R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958 followed
Re Attorney General of Canada and Ward; United Nations High Commissioner for Refugees et al (1993) 103 DLR 1
“The Law of Refugee Status” 1991, Hathaway
“The Refugee in International Law, 2 ed., Guy S Goodwin-Gill
“Who is a Refugee: A Comparative Case Law Study”, 1997, Carlier, Vanheule, Hillman and Galiano (eds)
Immigration: Law and Practice”, 1996, Professor David Jackson
“Restructuring Asylum: Recent Trends in United Kingdom Asylum Law and Policy”, (1997) 9 IJRL 60, Colin Harvey
“Australia’s Safe Third Country Provisions. Their Impact on Australia’s Fulfillment of Its Non-refoulement Obligations”, (1996) 15 University of Tasmania Law Review 196, Savitri Taylor
“Three Heresies in the Application of the Refugee Convention”, (1989) 1 IJRL 155, Professors James Crawford and Patricia Hyndman
Matter No. NG 221 of 1997
VARATHARAJAH THIYAGARAJAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VON DOUSSA, MOORE & SACKVILLE JJ
SYDNEY
19 DECEMBER 1997
IN THE FULL COURT OF THE
FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRYNG 221 of 1997
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPELLANTAND:
VARATHARAJAH THIYAGARAJAH
RESPONDENTJUDGES:
VON DOUSSA, MOORE & SACKVILLE JJ
DATE OF ORDER:
19 DECEMBER 1997
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
Liberty to either party within seven business days from today to file and serve written submissions as to the terms of the orders (including the order as to costs) proposed in the Reasons for Judgment for the disposition of this appeal. Liberty to the other party to file and serve written submissions in reply within a further seven business days. If neither party files and serves written submissions the proposed orders will be made by the Court.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FULL COURT OF THE
FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY
NG 221 of 1997
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPELLANT
AND:
VARATHARAJAH THIYAGARAJAH
RESPONDENT
JUDGES:
VON DOUSSA, MOORE & SACKVILLE JJ
DATE:
19 DECEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
VON DOUSSA J This is an appeal by the Minister for Immigration and Multicultural Affairs (“the Minister”) from a decision of a single judge of this Court (Emmett J) which set aside a decision of the Refugee Review Tribunal (“the RRT”). The RRT had held that the respondent and his wife and child were not persons to whom Australia has protection obligations under the “Refugees Convention” and had affirmed a decision of the delegate of the Minister to refuse to grant the respondent and his wife and child protection visas. The “Refugees Convention” means 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 applicant, at the time of the RRT’s decision on 28 March 1996, was a 40 year old Sri Lankan national of Tamil ethnicity. He and his wife and child entered Australia from France on 12 December 1994, as visitors on an entry permit valid for three months. In April 1995, he applied for protection visas for himself, his wife and child.
Section 36 of the Migration Act 1958 (Cth) (“the Act”) makes provision for a class of visa known as a protection visa. Subsection 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 [Refugees Convention]”
Part 866 of Schedule 2 of the Migration Regulations prescribes the criteria for the grant of a protection visa, one of which is 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 Refugees Convention.”
The present case turns on whether this criterion was fulfilled in respect of the respondent. If it were, the related criterion to be fulfilled in respect of the respondent’s wife and child is that they are members of the same family unit of the respondent: see Part 866.222. Thus, the fate of the application of the respondent’s wife and child depends on the outcome of his application.
By s 65 of the Act, the Minister, after considering a valid application for a visa, if satisfied that the criteria prescribed by the Act and the regulations have been fulfilled, is to grant the visa; and, if not so satisfied, the Minister is to refuse to grant the visa.
As a Contracting State to the international instruments comprising the Refugees Convention, Australia has obligations to persons who are “refugees” as defined. Article 1 of the Refugees Convention, according to its heading, contains the definition of the term “refugee”. Article 1 is divided into five clauses, A to F. The critical element in the definition appears in Article 1A(2), which 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 former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
In his April 1995 application for a protection visa, the respondent claimed that he left Sri Lanka in February 1985 after he had been arrested and harassed by government forces who suspected that he had assisted the Tamil separatist organisation, LTTE. He stated that he arrived in France in May 1985 and was granted refugee status there in November 1988 under the Refugees Convention. The RRT found that the respondent had been granted a Carte de Resident by France, valid for 10 years and automatically renewable. The Australian Embassy advised the RRT that a Carte de Resident is equivalent to a grant of permanent residence.
The respondent had also been issued by France with a travel document in the form required by Article 28 of the Refugees Convention, and the schedule thereto. The travel document specifically allowed re-entry to France. Further, on the information before it, the RRT said that it “appears that, having lived in France for more than five years, the (respondent) is eligible to apply for French citizenship”. However, the respondent had not so applied. The RRT found that, as a non-citizen of France, the respondent does not have the right in France to vote, or to enter the Public Service. Nor does he have the right to enter certain occupations which require French citizenship. Specifically, the respondent cannot work as a general insurance agent, publican, or director of an entertainment enterprise. Further, certain professions, such as architecture, certified public accountancy, pharmacy and medicine are only accessible to refugees with residence status if they have obtained a special authorisation.
The respondent gave the following explanation for his entry to Australia, and his application for a protection visa. He said that the LTTE had its main base in Paris to co-ordinate its European activities. He said he believed that someone gave information to the LTTE that he had connections with an anti-LTTE Tamil group known as the EPRLF. His cousin’s brother is a member of that group. He said that in France he had received EPRLF leaflets by mail from India. In June 1993 three people had come to his home in Paris to collect money for the LTTE “emergency war fund”. They saw that he had material relating to the EPRLF, they abused him, and said that they would “see to him”. The respondent said that he received four threatening phone calls in August 1994. He also said that in October 1994 while waiting for a train at a main railway station in Paris, a person had approached him and pointed a knife at him. He described this as an attempt to stab him. He ran away into the crowd and the attacker disappeared. Earlier, in May 1994 a prominent LTTE activist whom he occasionally visited had been murdered. After the incident on the railway station, as he feared he too might be killed, the applicant decided to leave France.
The respondent said that he did not go to the police about the attempt to stab him because Paris is one of the LTTE strongholds and the LTTE can easily identify, locate and eliminate someone wherever they live in France, if its members suspect that person belongs to an opposing group. He said if he informed the police he would be vulnerable and the police would be unable to protect him.
The delegate of the Minister refused the respondent’s application for a protection visa. The delegate considered that by operation of the exclusionary provision in Article 1E, the Refugees Convention did not apply to the respondent. Article 1E provides:
“E. This Convention shall not apply to a person who is recognized 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 respondent had undoubtedly taken up residence in France. The delegate considered that the respondent had rights and obligations recognised by France “similar to those of French nationals”, which were sufficient to enliven Article 1E. However, the delegate went on to consider the respondent’s claim that he would not receive adequate protection against threatened harm from the LTTE if he were to be returned to France. The delegate said:
“The real issue here is not whether the applicant has a well-founded fear of persecution against (sic) France but whether he was accorded basic human rights in France such that he can be said to have ‘prior protection’. Only if I was to find that France is unable to provide protection to the applicant could it legitimately be argued that the applicant does not fall within the terms of Article 1E of the Convention.”
The delegate concluded that the respondent would be accorded protection by the French authorities on his return. Accordingly he found that Article 1E applied, and that consequently Australia had no protection obligations to the applicant.
The RRT upon review of the delegate’s decision, approached the respondent’s claim for a protection visa in a similar way. The RRT first considered the operation of Article 1E. It found that the restrictions on refugees with residence status entering the public service and certain professions were not inconsistent with a status which “generally includes the rights and obligations of nationals”. The RRT concluded that the respondent was therefore recognised in France as having the rights and obligations which are attached to the possession of the nationality of that country, within Article 1E of the Refugees Convention.
Notwithstanding this conclusion, the RRT went on to consider the protection which would be available to the respondent if he were returned to France. The RRT said:
“The Convention deals with persecution in a person’s country of nationality. There is no explicit provision relating to persecution in a country of refuge.
However, the purpose of Article 1E is essentially to exclude ‘persons who are not considered to be in need of international protection’ (UNHCR Handbook, paragraph 140). It therefore follows that it is not intended to exclude persons who are in need of protection because of persecutory treatment in the country in which they earlier sought refuge.
...
Although there is nothing in the words of Article 1E to suggest that it cannot apply if there is evidence of a failure of protection in the country of residence, such a result must be assumed. It would be anomalous if a strict interpretation would preclude a third State (in this instance, Australia) from offering protection to a person at risk of persecution in both his country of nationality and that where he had taken residence.”
The RRT accepted that the LTTE was active in France, but found that there was nothing in the information before it to suggest that the French authorities were unable or unwilling to protect the applicant. The RRT said:
“In view of the human rights record of France, its political structures and mature judicial system, the Tribunal finds that the Applicant does have recourse to the authorities for protection against persecution on return to France. It can confidently be said that, if sought, the degree of protection normally expected of a government would have been forthcoming and that there is no real chance that the French authorities are unable or unwilling to provide such protection.”
The respondent applied to the Federal Court for review of the refusal of the grant of a protection visa on the ground specified in s 476(1)(e) of the Act, namely:
“that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.”
The grounds of the application were confined to the issue of whether Article 1E of the Refugees Convention had the effect that the respondent was not entitled to a protection visa. The grounds relied on were that the Minister (whose powers had been exercised by the RRT on review: see s 415 of the Act) had erred:
“1.When he concluded that the Applicant possesses the rights and obligations attached to the possession of nationality in accordance with Article 1E.
2.By determining the application of Article 1E of the Convention by reference to the adequacy of state protection and by failing to take into account the risks to the Applicant caused by the activities of the LTTE (a Tamil separatist group) present in Paris.
3.In deciding that Article 1E of the Convention applied to the circumstances of the Applicant.”
Emmett J considered that grounds 1 and 3 raised the same question of principle which fell fairly within s 476(1)(e). However, he considered ground 2 did not fall within s 476(1)(e). It raised only a question of fact. His Honour held that the RRT’s conclusion that there was no real chance that the French authorities would be unable or unwilling to provide protection if it were sought by the respondent raised questions of fact not open to review in this Court.
As to grounds 1 and 3, Emmett J concluded, contrary to the decision of the RRT, that the restrictions on a refugee with resident status entering the public service and certain occupations and professions meant that the refugee did not possess the rights and obligations which are attached to the possession of the nationality of France, and that Article 1E therefore did not apply to the respondent. His Honour considered that the RRT had erred in law by applying Article 1E where the applicant for a protection visa had most but not all the rights normally enjoyed by nationals. His Honour set aside the decision of the RRT, and the matter was remitted to the RRT for consideration in accordance with the principles relating to the interpretation of Article 1E stated in the reasons for judgment.
The RRT relied on the decision of Olney J in Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191. In that case, the applicant was a Sri Lankan national. He had taken residence in Norway in September 1987 and had been accepted as a refugee in that country. He resided in Norway until August 1990. He then came to Australia and applied for refugee status in Australia. The decision-maker rejected the claim for refugee status in Australia on the ground of the exclusionary provisions in Article 1E of the Refugees Convention. It was argued before Olney J that the fact that the applicant had refugee status in Norway and could return to Norway was in itself sufficient to establish that the applicant came within Article 1E. Olney J rejected that submission. His Honour said, at 198-199:
“The question which requires determination is whether recognition by the host country of a person as a refugee confers upon the refugee the same rights and imposes upon him the same obligations, which are attached to the possession of nationality of that country. The answer to that question will inevitably be a matter for the domestic law of the host country. As a starting point however, a perusal of the terms of the Convention shows that refugees, in a country which is a Contracting State are, in some respects, to be accorded the same treatment as nationals eg freedom to practise their religion and freedom as regards the religious education of their children (Art 4); the protection of industrial property and rights in literary, artistic and scientific words (Art 14); access to courts (Art 16); rationing (Art 20); elementary education (Art 22); public relief (Art 23); matters relating to labour legislation and social security (Art 24); fiscal charges (Art 29). But in other respects the status of refugee confers only the same rights as an alien. Indeed, Art 7(1) provides: ‘Except where this Convention contains more favourable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally.’ And there are many specific provisions in the Convention equating the rights of a refugee to those of an alien.”
His Honour, at 200, also said:
“There is no question that par E applies in cases where the person concerned possesses something less than nationality. If this were not so, par E would have no purpose in view of the provision of par C(3)”.
Article 1C(3) provides, relevantly, that the Convention shall cease to apply to any person falling within the definition of “refugee” if that person has acquired a new nationality, and enjoys the protection of the country of his new nationality.
The correctness of Olney J’s observations was not challenged in the present appeal. However, in Nagalingam, the rejection of the argument that the grant of refugee status was sufficient in itself to enliven Article 1E, disposed of the issue between the parties, and it was not necessary for the Court to consider what limitations on the rights of a national were compatible with the operation of Article 1E. Nagalingam did not propound as a test that if the rights and obligations of a refugee were “generally” or even “substantially” the same as those possessed by a national, the exclusionary provisions of Article 1E would apply.
Between the RRT’s decision and the hearing before Emmett J, Hill J decided Barzideh v Minister for Immigration and Ethnic Affairs (1996) 139 ALR 710. In that case, the applicant was a national of Iran who had been living in Germany since 1986. He had been granted refugee status in Germany in May 1991. On 1 March 1994, he applied to be recognised as a refugee in Australia. The application was refused, and review of that decision was sought from the RRT.
The RRT rejected the application on the basis that the applicant was not a person to whom Australia had protection obligations, since the applicant fell within the exclusionary provisions of Article 1E. The RRT found that refugees in Germany had rights “largely equivalent” to German nationals, although they were precluded from voting and from entering some areas of public employment, and the obligation to serve in the armed forces was reserved to German citizens only. The extent of the rights enjoyed by refugees was sufficient, in the view of the RRT, to enliven Article 1E and thus to exclude the applicant from the protection of the Refugees Convention.
Hill J, after a review of recognised texts on refugee law, the travaux préparatoires that preceded the Refugees Convention and the overseas judicial authorities, concluded that the RRT had misconstrued Article 1E. His Honour summarised the position as follows (at 721-722):
“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.”
In the present case, before Emmett J, counsel for the Minister contended that Hill J’s conclusions in Barzideh were incorrect, and that the provisions of Article 1E will be satisfied if the person were to be granted “essentially the same rights” or “the fundamental rights of a national”. Emmett J rejected this contention. His Honour considered that Hill J, although making reference to the travaux préparatoires, had given primacy to the text of the Refugees Convention, in accordance with the approach to the interpretation of a treaty approved by Brennan CJ, McHugh and Gummow JJ in Applicant A v Minister of Immigration and Ethnic Affairs (1997) 142 ALR 331 (a decision given after Barzideh).
Emmett J generally agreed with the reasons for decision of Hill J in Barzideh, but his Honour added a qualification:
“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 Article 1E. That may raise a factual matter for consideration by the Tribunal in the appropriate case.”
His Honour did not consider that such a factual issue arose in the present case. He considered the employment disabilities suffered by the respondent in France were not insignificant and set the applicant apart from a national of that country.
On appeal to this Court, the Minister in written submissions posed the question raised by the appeal as whether a person who has effective protection in another country, including the right to reside, enter and re-enter, to work in most occupations and to apply for citizenship, and who has established residence in that country, is entitled to claim protection from other Contracting States under the Refugees Convention. It was submitted that the question arose in two ways: (a) whether, as the RRT found, Article 1E applied to the respondent; and (b) whether independently of Article 1E, the protection obligations under the Refugees Convention apply to a person who has established residence and acquired effective protection as a refugee in another country. The Minister’s written submissions focused upon the first argument and said very little about the second contention.
The Minister submitted that Hill J in Barzideh and Emmett J had erred in giving Article 1E a limited operation. It was argued that unless Article 1E was interpreted and applied in the way that the RRT had applied it, a person who had obtained refugee status could have an effective right of movement between Contracting States without the need to comply with immigration laws of general application. It was said that such an interpretation would not further the “protection” objects of the Refugees Convention, and indications could be found in Articles 1, 2, 28, 31 and 34 that once a person has been granted refugee status in one Contracting State, that person is no longer entitled to the protection of the Refugees Convention.
The respondent submitted that this Court should uphold the interpretation placed on Article 1E in Barzideh and dismiss the appeal. By notice of contention the respondent also sought to uphold Emmett J’s decision to set aside the decision of the RRT on the ground that his Honour should have found that the respondent’s failure to seek the protection of the French authorities for fear of retaliation by the LTTE did not disentitle him from protection in Australia under the Refugees Convention. It was submitted on the respondent’s behalf that the material before the RRT established that there was a real chance that such protection as was available in France would be inadequate, such that there was a well founded fear of persecution of the respondent in France for reason of his race or political opinion.
It is convenient to consider the second limb of the Minister’s submission first despite the fact that it was not developed fully in the Minister’s written submissions. If it is the case that, independently of Article 1E, Australia as a Contracting State does not owe protection obligations to a person who has established residence and acquired effective protection as a refugee in another country (a “third country”), it is not necessary to determine the scope of Article 1E, since the respondent would not have satisfied the criterion identified in s 36(2) and Part 866 of Schedule 2 of the regulations.
Australia as a sovereign State has the undoubted right to determine who it will admit to its territory, who shall be allowed to remain here, and who shall comprise its members: Robtelness v Brennan (1906) 4 CLR 395, at 413, James Hathaway “The Law of Refugee Status” 1991, (“Hathaway”), p 14, and T v Home Secretary [1996] AC 742 at 754 per Lord Mustill. By acceding to the Refugees Convention, Australia undertook the obligations imposed on a Contracting State as a matter of international law. The Refugees Convention did not thereby become part of the domestic law of Australia. It forms part of the domestic law of Australia only to the extent that Parliament has enacted legislation that incorporates the international obligations, in whole or in part, into the domestic law of Australia: see Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 and Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 at 534.
In the case of the Refugees Convention, the Migration Act 1958(Cth), prior to the Migration Reform Act1992 (Cth) (No. 184 of 1992), incorporated the definition of “refugee” from the Refugees Convention into domestic law. It did so in s 4(1), by defining “refugee” as having the same meaning as it has in Article 1 of the Refugees Convention. The Executive was empowered to grant an entry permit to a person within the definition, as a qualification to the obligation otherwise imposed upon the Executive by the Act promptly to remove from Australia “prohibited persons”: see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, at 366 per Gummow J.
The Migration Reform Act 1992 (Cth) repealed the definition of “refugee”, along with the related provisions of the Act which had required the Executive, as a matter of domestic law, to extend protection to refugees within the meaning of the Refugees Convention. In place of the repealed provisions, definitions of “the Refugees Convention” and “the Refugees Protocol” were inserted into s 5. These definitions identified the Refugees Convention. Provisions were enacted to establish a class of visa to be known as “protection visas” and to prescribe a criterion for a protection visa in the terms which now appear in s 36(2) of the Act. By this process, the existence of protection obligations under the Refugees Convention became the central criterion among those specified in s 65 of the Act and Part 866 of the regulations, the fulfillment of which requires the Minister to grant the protection visa: see Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695 at 698.
Where asylum is claimed by a person seeking protection from Australia as a Contracting State under the Refugees Convention, that claim is now made by application for a protection visa. In considering that claim the central question for determination must be the criterion for a protection visa prescribed in s 36(2) of the Act: is the applicant a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention? This is a question posed by the domestic law of Australia, but the content of the question must be gauged by reference to the protection obligations owed by Australia under the Refugees Convention as a matter of international law.
The question now posed by s 36(2) of the Act is significantly different from that posed by the “refugee” provisions of the Act repealed by the Migration Reform Act 1992. Under the repealed provisions the relevant enquiry was whether the asylum seeker, to the satisfaction of the Minister, had the status of a “refugee”. This was the question that was considered by the High Court in Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567.
Judicial decisions in Australia under the legislation as it stood before the Migration Reform Act 1992 seem to have proceeded on the assumption that, if the asylum seeker established his or her status as a refugee within the meaning of Article 1A(2) (as incorporated into Australia’s domestic law), then the asylum seeker became entitled to enjoy the rights and obligations due to a refugee under the Refugees Convention: see, for example, Jong, at 698. The enjoyment of those rights and obligations was effected by the grant of an entry permit allowing residency in Australia.
This case illustrates the significance of the change which the 1992 amendments have introduced. If the second limb of the submissions of the Minister is correct, the respondent might be a refugee within the meaning of Article 1A(2), since he continues to hold a well founded fear of being persecuted for a Convention reason if he were to be returned to Sri Lanka yet he is not necessarily a person to whom Australia presently owes protection obligations under the Refugees Convention.
The Refugees Convention by Article 1 gives a definition of the term “refugee”, and the balance of the Articles set out the rights and obligations that arise in consequence of a person coming within that definition. Although reference has already been made to portions of Article 1, to understand the structure of Article 1, it is necessary to refer to its full text. Article 1 reads:
“A. For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:
(1)Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933, United Kingdom Treaty Series No 4 of 1937 (Cmd 5347) and 10 February 1938, United Kingdom Treaty Series No 8 of 1939 (Cmd 5929), the Protocol of 14 September 1939, United Kingdom Treaty Series No 20 of 1940 (Cmd 6222), or the Constitution of the International Refugee Organisation, Australian Treaty Series 1948 No 16; United Kingdom Treaty Series No 25 of 1950 (Cmd 7934); United Nations Treaty Series Vol 18, p 3;
Decisions of non-eligibility taken by the International Refugee Organisation during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfill the conditions of paragraph 2 of this Section;
(2)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.
In the case of a person who has more than one nationality, the term ‘the country of his nationality’ shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
B. (1) For the purposes of this Convention, the words ‘events occurring before 1 January 1951’ in Article 1, Section A, shall be understood to mean either
(a) ‘events occurring in Europe before 1 January 1951’; or
(b) ‘events occurring in Europe or elsewhere before 1 January 1951’; and each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purpose of its obligations under this Convention.
(2) Any Contracting State which has adopted alternative (a) may at any time extend its obligations by adopting alternative (b) by means of a notification addressed to the Secretary-General of the United Nations.
C. This Convention shall cease to apply to any person falling under the terms of Section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily reacquired it; or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under Section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;
(6) Being a person who has no nationality he is, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, able to return to the country of his former habitual residence;
Provided that this paragraph shall not apply to a refugee falling under Section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.
D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.
When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.
E. 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.
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c)he has been guilty of acts contrary to the purposes and principles of the United Nations.”
It will be noted that Clause A of Article 1 states that the term “refugee shall apply to any person who ...” meets the criteria which it set out in that clause. Clause B is supplementary to Clause A. Clause C states that the “Convention shall cease to apply to any person ...” in the events then enumerated. Clauses D and E state that the “Convention shall not apply ...” to a person or persons who come within the provisions of those clauses. Clause F is introduced by similar words to those used in Clauses D and E. Notwithstanding these differences in the expressions which introduced the clauses, it seems clear from the context that the clauses are to be treated as component parts of the overall definition of “refugee”. Thus, a person who, owing to a well founded fear of being persecuted for a Convention reason is outside his country of nationality and who is unable or, owing to fear, is unwilling to avail himself of the protection of that country so as to come within Clause A may nevertheless not be a refugee for the purposes of Article 1 if he comes within the exclusionary provisions of Clauses D, E or F. To interpret Article 1 in this way is consistent with the definition of “refugee” which appeared in the Act before the 1992 amendment. It is also the interpretation adopted in Nagalingam at 198.
If the clauses in Article 1 are understood as together comprising the definition of refugee, it is in accordance with the definition for the RRT, as it purported to do in the present case, to determine an application for a protection visa on a consideration of Article 1E, without undertaking a separate and antecedent enquiry as to whether the applicant for a protection visa still meets the requirements of Article 1A(2). If the conclusion is reached that the exclusionary provision in Article 1E applies, then, that must be the end of the inquiry. The applicant does not fulfill the definition of “refugee” and the Refugees Convention has no application. The position is the same as if, under Article 1C(3), the applicant although at one time coming within Article 1A(2) had acquired a new nationality and enjoyed the protection of the country of his new nationality. This appears to have been the approach of the RRT in Nagalingam, and Barzideh, as well as in the present case.
If it is clear on the information before the decision-maker that the applicant has taken residence in a country other than his country of nationality and is recognised by the competent authorities of that country as having rights and obligations which are attached to the possession of the nationality of that country (so as to come within Article 1E), there is neither need nor practicable purpose in the decision-maker exploring whether the applicant still falls, or indeed whether he ever fell, within Article 1A(2). Even if the decision-maker considered that there could be reason to question, for example, whether the applicant left his country of nationality owing to well founded fear of being persecuted for a Convention reason, it would be a matter of history that the competent authorities in the intermediate country in which the applicant had taken up residence had accorded him a right of residency and had recognised him as having rights and obligations which attach to the possession of nationality. The reason why these rights and obligations came to be recognised by the intermediate country would be of no consequence in the determination of the application.
However, if the decision-maker considered that the exclusionary provisions in Article 1E did not apply, that is not the end of the issues that must be considered. It does not follow that because the applicant has at an earlier time been recognised as a refugee in a third country that he continues to be a refugee. Insofar as the approach adopted by the RRT in the present case, and it seems in earlier ones, suggests otherwise this is not so. For example, the Refugees Convention may have ceased to apply to the applicant by reason of changed circumstances in the country of his nationality so as to invoke the provisions of Article 1C(5). The notion of “once a refugee, always a refugee”, is a fallacious one: Chan v Minister of Immigration and Ethnic Affairs at 405, 414, 432.
Even if the applicant might continue to fulfill the definition of a refugee in Article 1A(2) and otherwise be a refugee as defined in Article 1, there remain two further questions concerning the obligations of Australia, as a Contracting State under the Refugees Convention. It would appear that these questions have not yet been considered by the courts in Australia, probably because the mechanism by which the Act offered protection before the 1992 amendment directed primary attention to whether the asylum seeker had the status of a refugee. The first question is 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. One of the consequences of being recognised as a refugee by a third country is that the applicant will probably have travelled to Australia on travel documents issued by that country pursuant to Article 28 of the Refugees Convention. In accordance with the requirements of the schedule to the Refugees Convention the travel documents should contain a right of re-entry to the third country. This was so in the present case.
The second question is related to the first. It is 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 Article 1.
As posed, these two questions concern the obligations of Australia under international law as a Contracting State to the Refugees Convention. As a matter of domestic law it would be possible for the Act to vary these obligations, but by enacting in s 36(2) that the relevant criterion for a protection visa is whether Australia has protection obligations under the Refugees Convention, it has not done so.
Under international law, the primary obligations imposed on a Contracting State in relation to a refugee who seeks asylum are to be found in Articles 31, 32 and 33 which provide:
“Article 31
Refugees unlawfully in the country of refuge
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
Article 32
Expulsion
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
Article 33
Prohibition
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 judgement of a particularly serious crime, constitutes a danger to the community of that country.”
Article 31 can have no application to the respondent in the circumstances of the present case. In relation to Article 32, the present respondent entered Australia lawfully on an entry permit valid for three months. Although this is not an issue that was explored either in earlier hearings or on the appeal, it seems that his application for a protection visa - his claim for asylum - was made after the expiry of the permit so that he may not then have been lawfully in Australia, in which event Article 32 could have no application. If Article 32 were to apply, Australia would have an obligation to extend due process of law. The mechanism for extending due process is to be found in the Migration Act. Moreover Article 32 is to be read with Article 33.
Article 33 imposes the principal obligation required by the Refugees Convention on a Contracting State. The Contracting State must not expel or return a refugee to the frontiers of territories where his life or freedom would be threatened on account of a Convention reason. It will be noted that Article 33 refers to “territories” generally, not just to the country of the refugee’s nationality. Further, the description of the potential harm to the refugee is expressed in terms which are significantly different to the description in Article 1A(2). Hathaway, at p 14, describes the obligation of non-refoulement as a duty to avoid the return of a refugee to a country where the refugee faces a genuine risk of serious harm. Whilst the terms of Article 33 itself do not refer to a well founded fear of persecution held by the refugee it may be that, as a matter of interpretation to achieve the object and purpose of the Refugees Convention, a similar test to that which arises under Article 1A(2) should be applied in determining whether a proposed expulsion or return of the refugee to another territory contravenes Article 33. It will be necessary to return to the interpretation of Article 33 later in these reasons.
The obligations imposed by Article 33 fall short of creating a right in a refugee to seek asylum, or a duty on part of the 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. This is described by Hathaway, at p 14, as a deficiency in the Convention which later attempts to rectify by treaty have not been successful. In Nguyen Tuan Cuong v Director of Immigration [1997] 1 WLR 68 at 79 Lord Goff of Chieveley and Lord Hoffmann, after referring to Article 33, said:
“Refugee status is thus far from being an international passport which entitles the bearer to demand entry without let or hindrance into the territory of any contracting state. It is always a status relative to a particular country or countries. And the only obligations of contracting states are, first, not to punish a refugee who has entered directly from the country in which his life or freedom was threatened for a Convention reason and secondly, not to return him across the frontier of that country. In all other questions of immigration control: for example, punishment for illegal entry from a third country, or expulsion to a third country from which there is no danger of refoulement to a country falling within article 33, the question of whether a person has refugee status is simply irrelevant.”
Whilst their Lordships were delivering a dissenting opinion, this does not detract from the authority of their statement. The majority of the Privy Council did not find it necessary to consider the obligations imposed by the Refugees Convention on Contracting States.
In Reg v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514, the appeal by Mr Musisi involved a refugee from Uganda who had lived in Kenya for a period before arriving in the United Kingdom where he first sought entry as a visitor, and on being refused entry, sought asylum as a refugee from Uganda. The House of Lords held that if he could be returned to Kenya without danger of being sent back to Uganda by the Kenyan authorities, there could be no breach of obligations imposed on the United Kingdom by the Refugees Convention. Lord Bridge of Harwich, with whose speech the other Law Lords agreed, said at 532:
“My Lords, I can well see that if a person arrives in the United Kingdom from country A claiming to be a refugee from country B, where country A is itself a party to the Convention, there can in the ordinary case be no obligation on the immigration authorities here to investigate the matter. If the person is refused leave to enter the United Kingdom, he will be returned to country A, whose responsibility it will be to investigate his claim to refugee status and, if it is established, to respect it. This is, I take it, in accordance with the ‘international practice’ of which Mr. McDowall speaks in his affidavit. The practice must rest upon the assumption that all countries which adhere to the Convention may be trusted to respect their obligations under it.”
Mr Musisi had not been granted formal recognition in Kenya as a refugee. Lord Bridge’s statement of principle was not dependent upon the person claiming to be a refugee in the United Kingdom having been so recognised, or having even made application to the third country for recognition as a refugee. In the “ordinary case” the person could be returned to the third country without the United Kingdom considering the merits of the claim to be a refugee. The “ordinary case” is one where the return of the person claiming to be a refugee does not offend Article 33.
A decision to deport Mr Musisi was quashed by the House of Lords only because the Home Secretary had not given proper consideration to whether a danger existed that Kenya would return him to Uganda, a course which would effect indirectly what Article 33 prohibited.
Hathaway, at 47, observes that European States are moving rapidly towards a system designed to limit the right of asylum seekers to choose their place of asylum within Europe and refers to the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Community (the Dublin Convention, June 1990). The text of the Dublin Convention is conveniently reproduced in Guy S Goodwin-Gill, The Refugee in International Law, 2 ed. (“Goodwin-Gill”), as annexure 2, No. 13 at 455.
In December 1992 the Ministers of the Member States of the European Communities responsible for Immigration adopted a resolution on “host third countries”. The resolution proposed a number of “fundamental requirements” as pre-conditions to the identification of a State as one to which asylum seekers and refugees may be returned in accordance with their obligations under the Refugees Convention. The applicant’s life or freedom must not be threatened in the country in question, within the meaning of Article 33. The applicant must not be exposed to torture or inhuman or degrading treatment (cf. The 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 3, to which Australia is a party). The applicant must either already have been granted protection, or have had a previous opportunity to contact the third country’s authorities to seek protection. Finally, the applicant “must be afforded effective protection in the host third country against refoulement, within the meaning of the Geneva Convention”: see Goodwin-Gill, at 334. These fundamental requirements emphasise the primary obligation which arises under Article 33. Goodwin-Gill observes, at 334, that this approach has been largely followed in practice, particularly among European States.
In the United Kingdom this practice is reflected in the legislative scheme established by Asylum and Immigration Appeals Act 1993 (UK) and the rules made thereunder. The scheme reflects the United Kingdom’s position that a Contracting State is not required to investigate the merits of a claim for asylum where the putative refugee arrives in the United Kingdom from a third country to which he or she can be returned. The scheme is discussed in R v Secretary of State, ex parte Mehari [1994] QB 474 at 483 - 487. See also Reg v Home Secretary, ex parte Onibiyo [1996] QB 768.
Section 1 of the 1993 Act defines a claim for asylum as a claim that it would be contrary to the United Kingdom’s obligations under the Refugees Convention for a person to be removed from or required to leave the United Kingdom. In Part 13 of the Statement of Changes in Immigration Rules laid before Parliament on 5 July 1993 as House of Commons Paper No. 725, under the procedure provided by s 3(2) of the Immigration Act 1971, the following provisions appear:
“180D: The Secretary of State may decide not to consider the substance of a person’s claim to refugee status if he is satisfied that the person’s removal to a third country does not raise any issue as to the United Kingdom’s obligations under the Convention and Protocol. More details are given in paragraphs 180K and 180M.
...
180K: If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Art. 33 of the Convention) and the government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention and Protocol. The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless: (a) the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity, at the border or within the territory of a third country, to make contact with that country’s authorities in order to seek their protection; or (b) there is other clear evidence of his admissibility to a third country. Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of a third country before the removal of an asylum applicant.”
Those changes to the Immigration Rules took effect on 26 July 1993 and were considered by the House of Lords in Reg v Home Secretary, ex parte Abdi [1996] 1 WLR 298. It was not disputed by the parties, see at 310, nor questioned by their Lordships, that the legislative scheme, if properly invoked, was in accordance with the obligations of the United Kingdom as a Contracting State under the Refugees Convention. The House of Lords upheld a decision that nationals of Somalia, who arrived in the United Kingdom after short breaks in their journey in Spain, could be returned to Spain without consideration of the merits of their claims for asylum. There was no evidence before the relevant decision-makers that Spain was not “a safe country”.
The same practice is reflected in the Asylum and Immigration Act 1996 (UK) which amended the procedures under the 1993 Act. In the second reading speech on the Bill for the 1996 Act the Home Secretary said the legislation would seek to embody in the law what the Home Secretary described as the “well-established principle” that those in danger of persecution apply for asylum in the first safe country in which they arrive: 268 HC Official Report (6th series), col. 699, 705, 11 December 1995.
In Canada, amendments to the 1976 Immigration Act, made in 1992, reflect a similar position. Section 46.01(1) of the amended Act provides:
“A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person
(a)has been recognised as a Convention refugee by a country, other than Canada, that is a country to which the person can be returned;
(b)came to Canada, directly or indirectly, from a country, other than the country of the person’s nationality or, where the person has no country of nationality, the country of the person’s habitual residence, that is a prescribed country...”
A prescribed country is one that complies with Article 33 of the Refugees Convention other than the asylum seeker’s country of origin: see s 114(1)(s). Section 46.01 is to be read in conjunction with s 53(1) of the amended Act, which recognises Canada’s obligations under Article 33: Kaberuka v Canada (Minister of Employment and Immigration) (unreported, Federal Court of Canada, Ottawa, 20 July 1995). Relevantly, s 53(1) provides that neither a person determined to be a refugee, nor any person who has been determined to be not eligible to have a claim determined under s 46.01(1)(a), shall be removed from Canada to a country where the person’s life or freedom would be threatened for a Convention reason.
Goodwin-Gill, at 339-343, considers the varying practices adopted by a number of countries and says at 341, that:
“There is certainly no consistent practice among ‘sending’ and ‘receiving’ States as would permit the conclusion that ... any rule exists with respect to the return of refugees and asylum seekers to safe third countries, simply on the basis of a brief or transitory contact. Equally, it cannot be said that, in relation to [the Refugees Convention], there is ‘any subsequent practice in the application of the treaty which establishes the agreement of parties regarding its interpretation’.[ see Article 31(3)(b), 1969 Vienna Convention on the Law of Treaties]. In the absence of any applicable agreement, such returns therefore run the risk of violating article 33...”
For similar discussion see Carlier, Vanheule, Hillman and Galiano (eds) “Who is a Refugee: A Comparative Case Law Study” 1997. In 1993 the United Nations High Commissioner for Refugees stated that the return of those who have obtained effective protection in another country is permissible, subject to the conditions laid down in Executive Committee Conclusion Number 58 (1989) on Irregular Movements: see Goodwin-Gill, 339; 340, fn 71; and 497. At 343, Goodwin-Gill concludes:
“The most that can be said at present is that international law permits the return of refugees and asylum seekers to another State if there is substantial evidence of admissibility, such as possession of a Convention travel document or other proof of entitlement to enter.”
The notion that the Refugees Convention permits a country to whom a claim for asylum is made to remove the asylum seeker to a safe third country, at least as that notion has been expounded by the United Kingdom, is criticised by Professor David Jackson in Immigration: Law and Practice, 1996, at 353. Professor Jackson however acknowledges the UNHCR position that a State may refuse to consider a claim for asylum if refugee status has already been granted in another State (see footnote 5). See also Colin Harvey “Restructuring Asylum : Recent Trends in United Kingdom Asylum Law and Policy” (1997) 9 IJRL 60 and Savitri Taylor, “Australia’s ‘Safe Third Country Provisions. Their Impact on Australia’s Fulfillment of Its Non-refoulement Obligations” (1996) 15 University of Tasmania Law Review 196 at 200-206
In a paper entitled “Three Heresies in the Application of the Refugee Convention” (1989) 1 IJRL 155, Professors James Crawford and Patricia Hyndman discuss the obligations of Contracting States to consider an application for refugee status by an asylum seeker who has not already been recognised by another Contracting State as a refugee. They conclude that in accordance with obligations arising under international law (at 173):
“Australia is not obliged to entertain a claim to refugee status where the claim might more appropriately and with equal moral force be the responsibility of another signatory to the 1951 Convention, provided that there is no reason to doubt that State will consider the claim to refugee status in accordance with the Convention.”
Further, the authors do not suggest that Australia has any obligation to give substantive consideration to a claim for asylum where refugee status has been recognised by another Contracting State. At 169 they say:
“Admittedly there comes a time when a person, though remaining a refugee within the meaning of Article 1 of the Convention, has undoubtedly become the responsibility of a particular government. For example, Article 28 provides for a travel document to be issued by a State Party to a refugee lawfully staying in its territory. Such a travel document undoubtedly carries responsibilities vis-a-vis other States, analogous to the grant of a passport, in terms of the obligation to receive back the holder if he or she is expelled from another State. The obligation to re-admit the holder during the validity of the travel document is expressly recognized in paragraph 13 of the Schedule to the Convention.”
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. The expression “effective protection” is used in the submissions of the Minister in the present appeal. In the context of the obligations arising under the Refugees Convention, the expression means protection which will effectively ensure that there is not a breach of Article 33 if the person happens to be a refugee.
In reaching the conclusion just stated, I have not overlooked Subdivision AI of Division 3 (ss 91A-91G) of the Act which was inserted by Act No.136 of 1994 with operation from 15 November 1994. Section 91A states the reason for the Subdivision:
“91A This Subdivision is enacted because the Parliament considers that certain non-citizens, who are covered by the CPA, or in relation to whom there is a safe third country, should not be allowed to apply for a protection visa or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.”
The “CPA” means “the Comprehensive Plan of Action approved by the International Conference on Indo-Chinese Refugees, held at Geneva, Switzerland, from 13 to 14 June 1989.”
By the definition of a “safe third country” contained in s 91D, such a country must be a prescribed country. The People’s Republic of China (“the PRC”) has been prescribed as a safe third country in relation to a person who is or has been a Vietnamese refugee settled in the PRC or is a close relative or dependent of such a person. See Regulations 2.12A (repealed as from 26 March 1997) and 2.12B. No other country is presently prescribed.
It is obvious from its provisions that Subdivision A1 was inserted to cover a particular situation, and is not intended as a general provision directed to defining the extent of Australia’s protection obligations under the Refugees Convention.
As Subdivision AI was inserted and came into operation after the amendments effected by the Migration Reform Act 1992 had come into operation, it cannot be argued that the express provisions relating to safe third countries in Subdivision AI by implication exclude as a relevant consideration when considering the protection obligations of Australia under the Refugees Convention, the protection available to an asylum seeker in a third country which is not a prescribed “safe third country”.
Subdivision AI has no application in the present case. Section 91E provides that a person to whom the Subdivision applies is unable to make a valid application. In the present case, a valid application for a protection visa was made.
In the present case, the respondent after his flight from his country of nationality was recognised as a refugee in France. France accorded him permanent residency and, when requested, provided him with a travel document in accordance with Article 28 of the Convention. Provided France was able to provide effective protection to the respondent at the time of the determination of his application for a protection visa (see The Minister for Immigration and Ethnic Affairs vSingh (1997) 142 ALR 191) it was not inconsistent with the obligations owed by Australia as a Contracting State to effect his deportation from Australia without considering the substantive merits of a claim to refugee status.
This conclusion makes it necessary to consider the application of Article 33 to the circumstances of this case. It was noted earlier in these reasons that Article 33 imposes an obligation on a Contracting State not to expel or return a refugee “to the frontiers of territories where his life or freedom would be threatened” for a Convention reason, whereas Article 1A(2) posits the right to protection as a refugee upon a “well founded fear of being persecuted” for a Convention reason. It is well established that the definition contained in Article 1A(2) involves a mixed subjective and objective test, and that the definition will be satisfied if an applicant can show genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason, if that person were to return to the country of nationality: Chan at 389, 398, 407 and 429, and Minister of Immigration and Ethnic Affairs v Guo, at 576.
The distinction between the expressions used in Articles 1A(2) and 33 was noted in Kaberuka v Canada. Heald DJ at 11 said that the determinations required under the corresponding provisions of the Canadian Immigration Act involved determinations that were not the same. That approach would impose a higher threshold test of threatened harm under Article 33 than is required under Article 1A(2). This was also the approach taken by the United States Supreme Court to the relationship of Article 1A(2) and Article 33 in Immigration and Naturalization Service v Stevic (1984) 467 US 407 and Immigration and Naturalization Service v Cardoza-Fonseca (1987) 480 US 421. In the first of these cases, Stevens J, giving the unanimous decision of the Court, said that an alien must establish a “clear probability of persecution” to avoid deportation. The question under the clear probability standard was “whether it was more likely than not that the alien would be subject to persecution” on one of the specified grounds (at 424). This standard, the Court held, could be inferred from the bare language of the domestic legislation which reflected Article 33. The Court assumed that the “well founded fear” standard was “more generous than the clear-probability-of-persecution standard” (at 425).
In Immigration and Naturalization Service v Cardoza-Fonseca the Supreme Court confirmed the distinction between “the well founded fear” standard and the “more likely than not” standard, the former being the more generous. In the latter case there was a dissent by Rehnquist CJ, White and Powell JJ on the basis that there should be no practical distinction between the objective proofs that an alien must submit to be eligible for asylum (under the Article 1A(2) test) and those required to prevent deportation. They considered that the lower asylum standard should be applied. The dissenting view has since become the practice in the United States of America in consequence of a ruling of the US Department of Justice Immigration and Naturalization Service in July 1990: see Goodwin-Gill, at 139.
Goodwin-Gill, at 138, says:
“The legal, and to some extent logical, relationship between article 33(1) and article 1 of the 1951 Convention/67 Protocol is evident in the correlation established in State practice, where entitlement to the protection of non- refoulement is conditioned simply upon satisfying the well founded fear criterion. So far as the drafters of the 1951 Convention were aware of a divergence between the words defining refugee status and those requiring non-refoulement, they gave little thought to the consequences.”
and, at 139, concludes:
“Non-refoulement extends in principle, therefore, to every individual who has a well founded fear of persecution, or where there are substantial grounds for believing that he or she would be in danger of torture if returned to a particular country.”
In R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958, the House of Lords considered the relationship between refugee status and non-refoulement. Lord Goff of Chieveley, with whom the other members of the House agreed on the interpretation of the Refugees Convention, considered that the same standard should be applied under both Article 1A(2) and Article 33. In so holding the House of Lords disagreed with the Master of the Rolls, Sir John Donaldson MR in the Court of Appeal who had suggested that even if the Secretary of State were to decide that the applicant was a refugee within the definition in Article 1A(2), he nevertheless had to decide whether Article 33, which he considered involved an objective test, prohibited the deportation of the applicant. Lord Goff said, at 1001:
“I am unable to accept this approach. It is, I consider, plain as indeed was reinforced in argument by [counsel for the United Nations High Commissioner for Refugees] with reference to the travaux préparatoires, that the non-refoulement provision in article 33 was intended to apply to all persons determined to be refugees under article 1 of the Convention.”
Echoing the same interpretation of Article 33(1), in T v Home Secretary Lord Mustill at 754 said that the United Kingdom is under an international as well as municipal duty not to return a fugitive to a place where he is liable “to be persecuted”.
The prohibition imposed by Article 33 is against returning a refugee “to the frontiers of territories where ...”. The territory may be to a country other than the refugee’s country of nationality (for example, Mr Musisi’s case reported in R v Secretary of State, ex parte Bugdaycay) but the prohibition extends also to a return to the frontiers of the country of nationality. Having regard to this possibility, it would be a very strange result if different standards for the threat of harm were to be applied under Articles 1A(2) and 33 respectively. This Court should follow the decision of the House of Lords in Sivakumaran, and hold that the same standard should apply under each Article.
In the present case the possible application of Article 33 was not in terms referred to by the RRT, nor was any issue concerning the Article raised before the primary Judge. However, the question of fact whether France was able to provide effective protection to the respondent was raised in the context of the conclusion of the RRT that there was an implied proviso to Article 1E to the effect that Article 1E could not apply if there were evidence of a failure of protection in the country of residence. The finding of fact made by the RRT (set out earlier in these reasons) was that it can confidently be said that, if sought, the degree of protection normally expected of a government would have been forthcoming and that “there is no real chance that the French authorities are unable or unwilling to provide such protection”.
The RRT, in the passages from its decision set out earlier in these reasons, embarked on an enquiry whether the respondent was in need of protection “because of persecutory treatment” in the country in which he had earlier sought refuge. In context, the RRT was using the expression “persecutory treatment” as a reference to the notion of persecution contained in Article 1A(2). The RRT’s express finding of fact was in answer to this enquiry. The finding of fact was reached after referring to a passage from Hathaway, at 125, which reads:
“Insofar as it is established that meaningful national protection is available to the claimant, a fear of persecution cannot be said to exist”.
The RRT also referred to Re Attorney General of Canada and Ward; United Nations High Commissioner for Refugees et al (1993) 103 DLR 1, which is a case dealing with the “well founded fear” test in Article 1A(2). In substance, the RRT found that a subjective fear of persecution held by the respondent could not be a well founded fear of persecution as meaningful protection was available from the French authorities. The finding of fact made by RRT is a finding in respect of the same factual issue which would have arisen had the potential application of Article 33 been raised.
For the reasons given, the second limb of the submission of the Minister on this appeal has been made good. As a matter of domestic and international law, Australia does not owe protection obligations to the respondent as he is a person who has effective protection in France which has accorded him refugee status. Moreover, when his application for a protection visa was determined by the RRT, he had been a resident in France for a long period, he had the right to apply for citizenship in France, and he held travel documents that entitled him to return to France. These added matters are not essential to the finding that Australia did not owe him protection obligations, but serve to illustrate that the respondent’s claim for protection is far removed from the object and purpose of the Refugees Convention.
As I have explained, it is not strictly necessary in view of this conclusion to deal with the construction of Article 1E. However, as the parties have presented argument on the construction question it is appropriate to do so. The conclusion that Australia does not owe protection obligations to a person who has been recognised as a refugee and accorded protection in another country weakens the first limb of the Minister’s submissions, namely that Article 1E should be interpreted to exclude from the definition of “refugee” a person who has most but not all of the rights and obligations which are attached to the position of the nationality of a host country. The submission was based on the proposition that such an interpretation would be in accordance with the objects and purpose of the Convention which did not extend to bestowing on a refugee the right to move from country to country “asylum shopping”.
In the course of arguing that Article 1E should be accorded wider operation than was recognised in Barzideh, counsel for the Minister posed a rhetorical question: does a woman, or a man over 60 years of age, not enjoy an equivalent protection for the purposes of Article 1E on the ground that she or he would fall outside the obligation of military service which applied to nationals, though it would not have applied to them had they been nationals? It is consistent with the context, object and purpose of the treaty to interpret Article 1E in a way that treats issues of this kind as irrelevant to an inquiry under Article 1E. Issues of this kind give rise to no realistic situation where the rights and obligations enjoyed by the asylum seeker differ from the rights and obligations enjoyed by nationals of that country who have a corresponding status. This interpretation could be achieved either by holding that the resident alien is recognised by the competent authorities of the host country as having the right not to submit to the obligation of military service, just as nationals of that country of the same sex or age possess the same right. Alternatively, the conclusion could be reached by recognising the proviso to the Barzideh interpretation which Emmett J proposed, namely that a disability suffered by an alien could be so slight as to be negligible. As his Honour observed, if an issue of this kind arises, there is a factual matter for consideration by the Tribunal, namely whether by reason of the alleged disabilities the particular alien in fact enjoys rights and obligations less than those which would be enjoyed by that person if full nationality of that country were held.
In Barzideh, Hill J observed that the ordinary meaning of the words and the language used in Article 1E give little scope for the Minister’s argument. Nevertheless, his Honour went on to consider the context, object and purpose of the Refugees Convention, as well as academic texts and judicial decisions which could assist in the interpretation. Submissions on the Minister’s behalf do not suggest that there were other aids available to the interpretation that were not consulted, nor do they suggest that his Honour in any way misunderstood the extrinsic materials. His Honour’s conclusions are in accordance with the literal meaning of the text, and the extrinsic material tends to support the literal interpretation. The object and purpose of the Refugees Convention for which the Minister contended has been vindicated by the conclusions reached on the second limb of the Minister’s argument. The decision in Barzideh should be followed by this Court although its practical significance is limited by the conclusion that Australia does not necessarily have protection obligations to a person who has rights of residence in a third country (that is not his or her country of nationality).
The remaining issue concerns the respondent’s notice of contention. Emmett J found that there was no error of law involved in the RRT’s finding that there was no real chance that the French authorities are unable or unwilling to provide the degree of protection normally expected of a government. The notice of contention argues that his Honour erred in failing to find that in the circumstances of the case the respondent’s failure to seek the protection of the French authorities for fear of retaliation by the LTTE should not disentitle him from protection according to the Refugees Convention. On the respondent’s behalf it was submitted that “protection” in the relevant sense must be taken to mean the prevention of harm. A meaning based on the general nature of a state’s law enforcement and judicial systems, which the respondent submits the RRT adopted, does not, so it is argued, address the question as to whether a well founded fear of persecution exists for a particular individual. The respondent’s complaint is, in essence, that even if he had sought protection from the French authorities, they could not have “guaranteed” his safety. It was submitted that the RRT failed to consider whether there was a real chance that such protection as the authorities could provide might not prevent harm to the respondent and his family and this failure resulted in a mis-application of the test whether there was a well founded fear of persecution based on a real chance of failure of State protection.
The submissions raised on the notice of contention in substance seek to re-agitate questions of fact. The RRT dealt with the evidence before it which the respondent argued should lead to a finding that there was a real chance that the authorities in France would not extend to the respondent the degree of protection which would be extended to French nationals and would not provide a level of protection sufficient to remove a real chance of persecution in France by the LTTE. Even accepting that the respondent held a genuine fear in that respect, the fear had to be a well founded one. It was clearly open to the RRT to find, as it did, that there was no real chance, as a matter of objective fact, upon which the respondent’s genuine belief could be “well founded”.
In Attorney-General of Canada and Ward, La Forest J, delivering judgment in the Supreme Court, said at 23:
“The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state’s inability to protect its nationals as well as the reasonable nature of the claimant’s refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state’s inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant’s testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.”
Counsel for the respondent contended that the information placed before the RRT relating to certain incidents that had occurred in France, and the murder of several Tamils in Paris and Switzerland was sufficient to rebut any presumption that the French authorities were capable of protecting the respondent and his family. That raises a factual issue which was agitated before the RRT, and rejected by it. It was clearly open to the RRT to take the view which it did. The ground raised in the notice of contention is not established.
In summary, at the time of the determination of the respondent’s application for a protection visa:
Subject to consideration of Article 33, Australia did not owe protection obligations to the respondent as he had been recognised as a refugee in France and had been accorded the rights and obligations of a refugee under the Refugees Convention in France, including travel documents under Article 28.
Under Article 33 the “well founded fear” test which applies under Article 1A(2) should be applied.
The RRT has found as a fact that effective protection is available to the respondent in France, and that there is no real chance that the French authorities are unable or unwilling to provide such protection. This finding involves no error of law. It determines adversely to the respondent the question whether there was any potential for Article 33 to have application to the respondent, if he were a refugee. Accordingly, Australia did not owe the respondent protection obligations, and the criterion laid down in s 36(2) of the Act for a protection visa was not fulfilled.
As there was no real chance that the respondent would suffer persecution in France, Australia was entitled as a Contracting State to deport the respondent to France without considering the substantive merits of his claim to be a refugee.
Although it is strictly unnecessary to decide, Article 1E of the Refugees Convention did not exclude the respondent from the definition of refugee. The interpretation given to Article 1E in Barzideh should be followed, subject to the qualification identified by Emmett J, namely that some disability suffered by an alien might be so slight as to be negligible.
On an application for review of a decision of the RRT, which is a judicially reviewable decision, the Federal Court may, in its discretion make:
“an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies.” (s 481(1)(a) of the Act)
The formal decision of the RRT, before whom the present respondent was the Applicant, was as follows:
“The Tribunal finds that the Applicant and his wife and child are not persons to whom Australia has protection obligations under the Refugees Convention.
The Tribunal therefore affirms the delegate’s decision to refuse to grant the Applicant and his wife and child protection visas.”
For the above reasons, the decision of the RRT was correct, although the decision was arrived at for different reasons. The questions posed and answered by the RRT were not those identified above. However, insofar as the conclusion that the respondent is not a person to whom Australia has protection obligations under the Refugees Convention turned on a disputed question of fact, that question of fact was nevertheless answered by the RRT. In Minister for Immigration and Ethnic Affairs v Guo the High Court set aside a decision of the Full Court of the Federal Court, and, in effect, reinstated a decision of the RRT adverse to an asylum seeker even though the RRT had posed the questions for decision in a way that differed from the formulation of the correct questions by the High Court. This order was made, rather than remitting the matter to the RRT for further hearing, as the findings made by the RRT answered the correct formulation of the questions: see at 580. Subject to one qualification set out below, as the RRT has in this case decided the disputed question of fact upon which the respondent’s entitlement to a protection visa turns, the appropriate orders would be:
Appeal allowed.
Set aside the order of Emmett J made on 3 March 1997 and in lieu thereof order that the application for judicial review be dismissed with costs.
The respondent to pay the costs of the appeal in the Full Court of the Federal Court.
The qualification arises from comments made by Emmett J, which suggest that the respondent’s travel documents, issued by the French authorities, may have expired after the date of the RRT’s decision. Although no detailed consideration was given to this point in argument, the material before the Court on the appeal indicates that there may possibly now be impediments to the respondent’s entitlement to return to France.
The RRT made the following findings relevant to the issue of whether the respondent (Mr Thiyagarajah) presently has a right to return to France:
He arrived in France in May 1985 and was granted refugee status there in November 1988,
In France, a residence permit is issued to refugees for periods of up to ten years and is renewable.
The respondent, as at March 1996, held a Carte de Resident valid for ten years and automatically renewable, which is equivalent to permanent residence.
The respondent, having lived in France for more than five years, is eligible to apply for French citizenship.
The respondent had current travel documents issued by French authorities and specifically carrying the right of re-entry into France.
The RRT made no finding as to when the travel documents expired and what rights, if any, the respondent had to return to France if the travel documents expired. However, the documents in the Appeal Book indicate that the travel document held by the respondent was valid until 1 December 1996. The document contains provision for the recording of further extensions of time, but it does not specify whether the respondent is entitled to obtain an extension and, if so, on what conditions.
Emmett J noted that there had been no finding by the RRT as to whether the respondent’s rights of re-entry to France were less than those of a French national. Emmett J also referred to the RRT’s findings, summarised above. In addition, his Honour referred, in passing, to the fact that the respondent’s “right of re-entry to France has now expired”.
Emmett J set aside the decision of the RRT and remitted it for further consideration and decision. Had this order been given effect, the question before the RRT would have been whether, at the date of its new decision, the respondent was a person to whom Australia owed protection obligations under the Convention: Migration Act 1958 (Cth), s 36, Schedule 2, Part 866; Minister for Immigration and Ethnic Affairs v Singh (1996) 142 ALR 191.
The orders I have proposed above would set aside the orders made by Emmett J and, in lieu thereof, order that the application for judicial review be dismissed with costs. The effect of this order would be that the RRT’s decision would be reinstated. At the time of that decision, the respondent did not satisfy the requirements for a protection visa.
There is plainly insufficient material before this Court to determine whether the respondent’s travel documents can or cannot now be renewed or whether, if Australia attempted to return the respondent to France, he would now face a danger of refoulement to Sri Lanka. The latter would seem highly unlikely, since France would continue to have obligations under Article 33 of the Convention. Nonetheless, it is perhaps a possibility. Moreover, it would seem that the respondent is precluded by s 48A of the Act from taking a further application for a protection visa, unless the Minister exercises the discretionary power conferred on him under s 48B to permit such an application to be made.
I do not express any view on whether the possibility to which I have alluded should result in orders different from those I have proposed. However, in the circumstances, I think it appropriate to provide an opportunity for either party to make submissions that there should be some variation in the proposed orders. If either party wishes to propose a different form of order, or some other costs order that party should, within seven business days of the date of this judgment, file and serve written submissions in support of the proposed variation. The other party should file and serve its written submissions in reply within a further seven business days. If neither party files and serves written submissions within seven business days, the propsed orders will be made.
I certify that this and the preceding thirty-seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa J
Associate:
Dated: 19 December 1997
IN THE FULL COURT OF THE
FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 221 of 1997
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPLICANTAND:
VARATHARAJAH THIYAGARAJAH
RESPONDENT
JUDGES:
VON DOUSSA, MOORE & SACKVILLE JJ
DATE:
19 DECEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
MOORE J: I agree with the conclusions of von Doussa J and his reasons. I agree, with the qualifications identified in his Honour's reasons, with the proposed orders to dispose of the appeal and the mechanism for their consideration by the parties.
I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
Associate:
Dated:
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
NG 221 of 1997
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPLICANTAND:
VARATHARAJAH THIYAGARAJAH
RESPONDENTJUDGES:
VON DOUSSA, MOORE & SACKVILLE JJ
DATE OF ORDER:
19 DECEMBER, 1997
WHERE MADE:
SYDNEY
REASONS FOR JUDGMENT
SACKVILLE J:
I agree with the reasons and proposed orders of von Doussa J.
I certify that this is a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville
Associate:
Dated: 19 December, 1997
Counsel for the Appellant: Mr J Basten QC with Mr N J Williams and Mr T Reilly Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr S C Churches Solicitor for the Respondent: McDonells Date of Hearing: 8 September 1997 Date of Judgment: 19 December 1997
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