Minister for Immigration & Multicultural Affairs v Tas - [2000] FCA 1657

FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v Tas [2000] FCA 1657
IMMIGRATION – whether Tribunal failed to consider current status of respondent in Germany as a refugee – whether Tribunal applied the right standard of protection required by the Convention when considering the level of protection offered by Germany.
Immigration Act 1958 (Cth) s 476
Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1 followed
Minister for Immigration and Multicultural Affairs v Ramalingam [1999] FCA 451 followed
Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95 referred to
Re Attorney-General (Canada) & Ward (1993) 103 DLR 1 (4^th) referred to
Horvath v Secretary of State for the Home Department [2000] 3 WLR 379 followed
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V CESIM TAS
N 857 OF 2000
JUDGE:         BEAUMONT J
DATE:           23 NOVEMBER 2000
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 857 OF 2000

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPLICANT

AND:

CESIM TAS
RESPONDENT

JUDGE:

BEAUMONT J

DATE OF ORDER:

23 NOVEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The Tribunal’s decision be set aside.

2.The matter be remitted to the Tribunal to be determined according to law.

3.Costs reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 857 OF 2000

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPLICANT

AND:

CESIM TAS
RESPONDENT

JUDGE:

BEAUMONT J

DATE:

23 NOVEMBER 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT
BEAUMONT J:
INTRODUCTION

This is an application by the Minister for Immigration and Multicultural Affairs (“the Minister”) for an order of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 June 2000, whereby the Tribunal (a) set aside the Minister’s decision (see below) relating to the respondent (who was the applicant before the Tribunal); and (b) remitted the matter for reconsideration, with a direction that the respondent is a person to whom Australia has protection obligations under the Refugee Convention.
Central to the arguments before the Tribunal, and before the Court, are the provisions of Art 33(1) of the Convention Relating to the Status of Refugees (“the Convention”) providing for a prohibition of expulsion or return (“refoulement”) of a “refugee”, as follows:
“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.”
The question sought to be raised in the proceedings is concerned with the construction of the Convention. Because the Convention definition of “refugee” has been imported into Australian statute law, this is a domestic legal question justiciable in this Court (see, e.g., Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 per Gummow J at par 136).
The grounds…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 1657
Decision Date: 23 NOVEMBER 2000

CaseChat Overview and Summary

The Minister for Immigration & Multicultural Affairs sought to appeal a decision made by the Refugee Review Tribunal (RRT) regarding the respondent's application for a protection visa. The respondent had sought asylum in Australia after fleeing Turkey, and the RRT found that the respondent's fear of persecution for a Convention reason was well-founded. However, the Minister argued that the RRT did not adequately consider whether the respondent could return to Germany, a safe third country, to have their refugee claim assessed.

The central legal issue was whether the RRT correctly considered the implications of the respondent's potential return to Germany under the Refugee Convention. Specifically, the court had to determine if the RRT correctly assessed whether the respondent could re-enter Germany on a temporary basis, which would have implications for the applicability of Article 33 of the Refugee Convention. The Minister argued that the RRT failed to address the correct question and made findings that were not legally permissible.

The court considered the precedent set in Minister for Immigration and Multicultural Affairs v Gnanapiragasam and Minister for Immigration and Multicultural Affairs v Ramalingam, where the Federal Court found errors in the RRT's consideration of similar issues. The court found that the RRT did not sufficiently explore the possibility that the respondent could re-enter Germany temporarily, which would allow Germany to consider the respondent's refugee claim. This omission was deemed an error of law, necessitating the setting aside of the RRT's decision. The court concluded that the RRT must ascertain whether the respondent could re-enter Germany temporarily, enabling their claim to refugee status to be considered there.

The court ordered that the RRT's decision be set aside and the matter be remitted to the RRT for reconsideration according to law. Costs were reserved.

Orders

Orders of the court

1. The Tribunal’s decision be set aside.

2. The matter be remitted to the Tribunal to be determined according to law.

3. Costs reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal next assessed the respondent’s claims in relation to Turkey concluding that his fears of persecution for a Convention reason were well-founded. (There is no challenge in this proceeding to this aspect of the Tribunal’s findings.)CONCLUSIONS ON THE APPLICATION It will be convenient to consider the issues arising on the several grounds of appeal in turn.(a)Did the Tribunal give consideration to the issues involved in the “return to Germany” question in accordance with legal principle? On behalf of the Minister, reliance is placed upon the decisions of Weinberg J in Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1 and of Lehane J in Minister for Immigration and Multicultural Affairs v Ramalingam [1999] FCA 451, in support of a contention that in both those cases the Tribunal had stronger evidence about the consequences of an expired travel document, yet the Tribunal’s decision was set aside because of a failure to address the correct question, and because findings were made that were not open. In Gnanapiragasam, Weinberg J said (at 18):“While the material before the RRT demonstrates that the respondents have lost their rights to permanent residence in Germany, and are unlikely to regain those rights without being able to establish that, at the very least, there is suitable employment available to the first respondent, it does not follow that the ‘effective protection’ to which reference was made in Thiyagarajah including a right to reside in, enter and re-enter Germany is unavailable to them. Those who are admitted as temporary residents may also have rights which provide them with “effective protection” in a ‘safe third country’. Some classes of temporary resident are permitted to find employment. Their rights to leave and re-enter Germany will be adjudged by European law: see D Jackson, at p 253.If upon further enquiry it emerges that the respondents are not eligible to re-enter Germany, albeit on a temporary basis, the RRT would no doubt proceed to consider their claims to refugee status under Art 1a(2). There seems little doubt that in such circumstances Art 1e would not exclude any finding which might be made as to refugee status. It cannot be assumed, however, that merely because the respondents are unlikely now to be accorded permanent resident status in Germany, they cannot therefore re-enter that country at all. They have a long established connection with that country and the fifth respondent was born there. Temporary residence status may not, in fact, be precluded, notwithstanding the somewhat uncertain terms in which the letters provided by the Consulate General in Melbourne are couched. Nor should it be assumed that the respondents would be denied the ‘effective protection’ of that country were they to be permitted to re-enter as temporary residents while their claim to refugee status was considered. It should not be assumed that Germany would do other than comply fully with its obligations under the Convention in this regard.The failure by the RRT to consider the possible application of Art 33 of the Convention as rendering it unnecessary for the delegate to have determined the respondents’ claim to refugee status constitutes an error of law on its part. That makes it necessary to set aside its decision. The RRT is required to ascertain as clearly as it can whether or not the respondents would be permitted to re-enter Germany, at least on a temporary basis, thereby enabling their claim to refugee status to be considered by that country. Neither Thiyagarajah nor Rajendran should be taken as stipulating as a minimal basis for the applicability of Art 33 that a person who has been resident in a third country before coming to Australia must be shown to have a continuing right to reside there permanently in order for the third country to be able to accord that person ‘effective protection’.”

Ratio Decidendi

Legal Principle Established

It will be convenient to consider the issues arising on the several grounds of appeal in turn.(a)Did the Tribunal give consideration to the issues involved in the “return to Germany” question in accordance with legal principle? On behalf of the Minister, reliance is placed upon the decisions of Weinberg J in Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1 and of Lehane J in Minister for Immigration and Multicultural Affairs v Ramalingam [1999] FCA 451, in support of a contention that in both those cases the Tribunal had stronger evidence about the consequences of an expired travel document, yet the Tribunal’s decision was set aside because of a failure to address the correct question, and because findings were made that were not open. In Gnanapiragasam, Weinberg J said (at 18):“While the material before the RRT demonstrates that the respondents have lost their rights to permanent residence in Germany, and are unlikely to regain those rights without being able to establish that, at the very least, there is suitable employment available to the first respondent, it does not follow that the ‘effective protection’ to which reference was made in Thiyagarajah including a right to reside in, enter and re-enter Germany is unavailable to them. Those who are admitted as temporary residents may also have rights which provide them with “effective protection” in a ‘safe third country’. Some classes of temporary resident are permitted to find employment. Their rights to leave and re-enter Germany will be adjudged by European law: see D Jackson, at p 253.If upon further enquiry it emerges that the respondents are not eligible to re-enter Germany, albeit on a temporary basis, the RRT would no doubt proceed to consider their claims to refugee status under Art 1a(2). There seems little doubt that in such circumstances Art 1e would not exclude any finding which might be made as to refugee status. It cannot be assumed, however, that merely because the respondents are unlikely now to be accorded permanent resident status in Germany, they cannot therefore re-enter that country at all. They have a long established connection with that country and the fifth respondent was born there. Temporary residence status may not, in fact, be precluded, notwithstanding the somewhat uncertain terms in which the letters provided by the Consulate General in Melbourne are couched. Nor should it be assumed that the respondents would be denied the ‘effective protection’ of that country were they to be permitted to re-enter as temporary residents while their claim to refugee status was considered. It should not be assumed that Germany would do other than comply fully with its obligations under the Convention in this regard.The failure by the RRT to consider the possible application of Art 33 of the Convention as rendering it unnecessary for the delegate to have determined the respondents’ claim to refugee status constitutes an error of law on its part. That makes it necessary to set aside its decision. The RRT is required to ascertain as clearly as it can whether or not the respondents would be permitted to re-enter Germany, at least on a temporary basis, thereby enabling their claim to refugee status to be considered by that country. Neither Thiyagarajah nor Rajendran should be taken as stipulating as a minimal basis for the applicability of Art 33 that a person who has been resident in a third country before coming to Australia must be shown to have a continuing right to reside there permanently in order for the third country to be able to accord that person ‘effective protection’.”

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 857 OF 2000

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPLICANT
AND:	CESIM TAS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	23 NOVEMBER 2000
WHERE MADE:	SYDNEY

JUDGE:	BEAUMONT J
DATE:	23 NOVEMBER 2000
PLACE:	SYDNEY