Ovcharuk v Min for Imm and Multicultural Affairs

[1999] HCATrans 25

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  Nos M109 and 125 of 1998

B e t w e e n -

IGOR OVCHARUK

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Applications for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 FEBRUARY 1999, AT 9.34 AM

Copyright in the High Court of Australia

MR A.R. CASTAN, QC:   May it please the Court, I appear with my learned friend, MR S.J. SHARPLEY, for the applicant.  (instructed by Mallesons Stephen Jaques)

MR K.H. BELL, QC:   If the Court pleases, I appear on behalf of the respondent.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Castan.

MR CASTAN:   If the Court pleases, by way of addition to the material, the written materials that have been provided, there are some points we would seek to make that are not expounded in those materials and one in particular that is, I should say in advance, new, of which I was only able to notify my learned friend this morning.  It relates, your Honours, to the way in which this matter has come now to this Court and came to the Federal Court.  The matter proceeded on the basis that a determination had been made or a decision had been made by the delegate of the Minister that the applicant was a person to whom Article 1F(b) of the Treaty on Refugees applied and that that matter having been determined, that disposed of any possibility of a refugee determination by him.

It is our contention, having looked again at the matter in very recent times, that the matter has in fact miscarried or has gone on a track which has been misconceived, and we say that because of the way in which Article 1F(b) is worded.  Can I ask your Honours to turn to the article which your Honours would find set out, perhaps, conveniently at page 56 of the application book.  That is one source.  It is in the materials also that have been provided.  Your Honours will see it in the course of the judgment of her Honour Justice Branson.  Your Honours will see that 1F is set out there from line 10:

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.

This matter had proceeded through a decision-making process, the Administrative Appeals Tribunal, and two levels of the Federal Court upon the basis that the determination of the matters referred to in (b), that is to say that “he has committed a serious non-political crime outside the country of refuge”, is a matter which arises prior to determining whether or not he is a person who is otherwise eligible for admission to Australia as a refugee.

Your Honours will observe that those words “prior to his admission to that country as a refugee” do not appear in subclauses (a) or (c), that is to say, the determination of what we would respectfully contend is the primary issue, “Is he a person who otherwise qualifies as a refugee?”, is not a prerequisite for disqualification if “he has committed a crime against peace, a war crime, or a crime against humanity” or a determination that “he has been guilty of acts contrary to the purposes and principles of the United Nations.”

Now, in applying Article 1F, in our respectful submission, one cannot determine the question of whether or not there has been a serious non‑political crime committed outside the country of refuge until it has been determined that the country is a country of refuge, and that has not been determined in the relevant sense, prior to admission to the country as a refugee.  The concept referred to is the concept of refuge.  What has occurred here is that the matter has gone forward without determining that issue.

Now, it might be thought in some instances or it might be said that is rather academic because, after all, if he is disqualified in any event by reason of the commission of such a crime, the other determination is perhaps irrelevant.  But, in our respectful submission, it is of critical importance in the Australian context, given the way in which the Act is constructed.  The reasons for that can be summarised.  I can take your Honours to the sections.  But, in summary, the reasons for that are that decisions under Article 1F are decisions which, if reviewed, must be taken under the Act to the Administrative Appeals Tribunal.  Decisions of determination of refugee status that the person has a well-founded fear of persecution, the ordinary criteria for “refugee”, which would be the preliminary question as we would contend, if the subject of appeal or review, must go under the Act to the Refugee Review Tribunal.

The Act provides that a person who has been unsuccessful in an application to the Refugee Review Tribunal has the capacity – section 417 deals with this, and I can take your Honours to it – provides for the possibility of what I will call – and the word is not used – a “humanitarian” discretion.  That is to say, if a person applies as a refugee and fails, there is the possibility of going to the Minister and saying, “Well, in any event, although I do not technically fall within the ‘refugee’ classification, in the circumstances you should nevertheless let me stay in the country.”

This case is a classic case because it is a case where the Commonwealth, through one of its agencies, the Federal Police, offered the witness protection program to this applicant if he co-operated and he co‑operated and he was put under the witness protection program.  He served his time and, having come out, what has occurred is that by reason of the provisions of the Migration Act, it is now said, “Although the Commonwealth, by one arm, offered you the witness protection program, its other arm, the Immigration Minister and the operation of the Act, is such that you have to go back to Russia.”  The uncontested evidence is that he will, given his co-operation, which has been publicised, and which was publicised in Vladivostok - all of this material is, I think, uncontested - that he will be dealt with by the Russian drug Mafia, the people who employed him in the first place to bring the drugs into Australia.

So he has had a promise by Australia:  protection if he co‑operates.  He has co‑operated.  He has had that protection within Australia but Australia then says, “Sorry, our laws require you to go back and our protection, of course, cannot extend to what happens to you if you go back.”  So, he, in our respectful submission, is a classic case of a person who would, if there were a discretion, come to a minister and say, “In these circumstances, there are both policy reasons because the offer of witness protection will be rendered less effective if people like me are sent back and disposed of when I get back.  Those offers will be not regarded seriously, so there are policy reasons why you should not send me back and should maintain that promise”, and obviously, there are reasons of individual justice affecting the particular person.

Now, the difficulty with the way in which the Migration Act is constructed is that that discretion does not exist.  The Minister does not have the capacity even to substitute a decision or “make a decision more favourable”, as it is termed, in section 417 of the Act, except after the determination of the Refugee Review Tribunal.  The determination that has been made here which was a determination adverse to the applicant through the avenue of the Administrative Appeals Tribunal, which exclusively deals with these 1F applications, does not – perhaps it is a legislative oversight - it is not clear why - but section 417 which provides for the additional ministerial discretion does not apply.

GLEESON CJ:   Is the consequence of this argument that the procedure that was followed in the first place - - -

MR CASTAN:   Was erroneous.

GLEESON CJ:   - - - by your client or on his behalf was erroneous.

MR CASTAN:   No, it was not erroneous by him.  He applied to be classified as a refugee.  A determination was then made that he was not qualified.  Well, the determination was made that his refugee status would not be considered because he did not get to that stage.

GLEESON CJ:   Yes, but that was an administrative decision, but the steps that he took after that to get judicial review of that administrative decision were all misconceived.

MR CASTAN:   They were misconceived.  In our respectful submission, what he should have or could have done, perhaps, had all this been appreciated, was perhaps to have sought to obtain an order for mandamus to compel consideration of his refugee status.

GLEESON CJ:   Maybe he still could but what would be the point of our giving special leave to appeal in relation to a series of judicial decisions that were all based on a misconception initiated by your client?

MR CASTAN:   Because, your Honour, the question that is raised is, first of all, this question of construction:  is it correct that under Article 1F(b), the critical question that needs to be determined is, is it the position that properly matters under Article 1F(b) should not be determined in relation to the question of serious non‑political crime until refugee status, in its general application, has been considered as the section, as we would respectfully submit, contemplates.  That question is a critical question because of the way in which it affects these issues.

Now, we concede it has not been dealt with before but it has a dramatic effect on this applicant’s situation, given the peculiarities of the available recourse that he has and the way in which the Migration Act is constructed.  It is not as though, as used to be the case, the Minister can, in any event, if he sees fit, make determinations that permit people to stay who otherwise should be permitted to stay for whatever good policy reasons dictate.  Those discretions have all been, in effect, eliminated by the Parliament other than in the very restricted circumstances that I have described.

McHUGH J:   But how does the Convention operate if your argument is correct?  The opening words say:

The provisions of this Convention shall not apply…..there are serious reasons for considering that -

If the provisions of the Convention do not apply, then there is no question of determining whether or not he is a refugee, is there?

MR CASTAN:   There is, your Honour, because the point of (b) is that it is necessary to first consider whether he is a refugee before considering whether or not – the view that your Honour has put no doubt has been the prevailing view that has operated in terms of departmental practice but, in our respectful submission, that renders these words totally otiose.  It renders them totally nugatory or irrelevant.

It would not be necessary to say “prior to admission to that country as a refugee” if it were the case that one did not have to undertake the process of determining that.  That is illustrated by the absence of those words in (a) and (c).  In our respectful submission, what happens is that if you make the determination of refugee status and you then get to the question of, “Well, nevertheless, are you, in effect, disqualified from the benefits of refugee status because the provisions of the Convention don’t apply?”, one gets to the second level of the question.  Of course, it would then be necessary to consider that.  It would also be then necessary to consider Article 33 which is the other protective provision that your Honours will see further down page 56 of the application book.

McHUGH J:   Yes, but “refugee” in paragraph (b) is not being used in the sense that it is used in other sections, is it?  The paragraph talks about “outside the country of refuge”, and it is directed to the country that the person has come to seeking refuge and in that context that person is described as a “refugee”.

MR CASTAN:   Your Honour, there are grave difficulties, with the greatest of respect, with that view, to say “We will use the word ‘refugee’ as meaning a person who would like to be a refugee.”  The complications of applying that in other provisions of the Treaty, as now incorporated into Australian law, could be extraordinary.  The whole structure of the - - -

McHUGH J:   It would be even more extraordinary if you have a clear declaration that the provisions of the Convention do not apply to a person and yet you say that before you come to determine whether the provisions apply to him you have to determine whether he is a refugee for the purposes of the Convention.

MR CASTAN:   Yes, your Honour, because - - -

McHUGH J:   It is hardly surprising that the Department, and your client and his advisers, have taken the contrary view.

MR CASTAN:   Your Honour, the difficulty with that view – and I appreciate the force of what your Honour is putting about the words “shall not apply” but that disqualifier, if applied in that way, renders those words totally otiose.  This Court, of course, has recently a year or two ago dealt with the way in which treaties should be applied.  They should not be applied, we would respectfully submit, in ways which render provisions of them utterly - - -

McHUGH J:   But we also said in the same case that they cannot be applied with the tort of logical precision that you expect of Acts of Parliament.

MR CASTAN:   Of course, your Honour.  We acknowledge all of those comments and we appreciate that that is so.  All we are putting is that here you have a situation in which the Treaty contains a distinction between the kind of way in which a determination is to be made in relation to war criminals, to take one of the groups in (a), and those who have committed prior crimes.

McHUGH J:   What is the error of law that the Tribunal made on this argument?

MR CASTAN:   On this argument it made the error of law of – well, I would have to say the Tribunal itself did not consider this question of construction.  I have to acknowledge that.

McHUGH J:   But is that not the problem?  You have only a right of appeal in respect of an error of law, have you not?

MR CASTAN:   Yes, your Honour, but if the proceedings have come up in a way that is totally contrary to the way in which the provisions operate, and have done so in circumstances which have this result, in our respectful submission, that is itself reason why this Court should grant special leave.  The justice of the particular case, the denial of the potential right to come to the Minister, is a matter which this Court should be taking into account.  In our respectful submission, the error of law is the application of the test in Article 1F(b) without first determining refugee status, and at each of the levels of consideration of this matter that error has been made.  It has not been articulated and it has not been argued but it is, nevertheless, inherent.  It is an error that is inherent in the whole of the proceedings to this point.  In that sense it is an error of law with which this Court can deal. 

In our respectful submission, it is the consequences that flow.  If this were a mere matter of abstract construction, one might say, “Well, what does it matter if you decide which is the first question?  What does it matter whether it is the chicken or the egg, the serious crime first or the refugee first?  You do not get to be a refugee if you have committed the serious non‑political crime.  So, what is the point of going through the determination?”  But it is because there is a point here and a point of an actual statutory right to achieve a result that is otherwise unachievable that we say it is of significance and should warrant special leave.

The relevant section, just so your Honours are conscious of the section, that provides for that restricted substitution of decision is section 417 of the Migration Act.  It is tab 3 if it is the volume of the materials that was supplied by the applicant and some extracts are to be found there.  Your Honours will see in section 417:

If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

The Tribunal, under section 415, as your Honours will see from the previous page, is the Refugee Review Tribunal, and section 500 makes it clear that determinations for review of decisions relating to paragraph 1F of the Treaty cannot be determined by the Refugee Review Tribunal, they must be made to the Administrative Appeals Tribunal.  That is section 500(4).  So, that capacity to come to the Minister and say, “You should now consider me under a different classification” or “There are good policy reasons why I should be permitted to stay” is dealt with in those provisions.

There are other matters that we wanted to put in addition to the written material.  The first of them was the significant anomaly between the provisions of Article 1F(b) as interpreted below, and Article 33.  Your Honours will again, as I have mentioned, at page 56, see the two articles set out.  The anomaly that we point to is that if the article is given the interpretation that the court below has given it, that is to say, in broad terms, an interpretation which is based on the perspective that it is, in substance, protective of the receiving State - that is the underlying principle that has underlay the judgments below – then your Honours, we would respectfully submit, will observe that there is a conflict or a contradiction between a criterion of the commission of a serious non‑political crime outside the country of refuge prior to admission in lF(b) and the much more restricted capacity to send back a refugee which is, by way of protection of the receiving State, provided for in Article 33 2:

The benefit of the present provision –

that is to say no explusion, back to a place where you are in fear of persecution –

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

Your Honours will see that a person convicted cannot be sent back unless a danger to a country, whereas a person who is not convicted but merely thought to have, believed seriously to have committed a serious non‑political crime can be sent back whether or not they constitute a danger to the community.

GLEESON CJ:   Thank you, Mr Castan.  Yes, Mr Bell.

MR BELL:   The question that arose here was not the question whether the applicant had the status of a refugee but whether Australia owed protection obligations to him under the Convention and that is apparent from the terms of section 36(2), to be found at the application book at page 55.  The section says, in terms, that a criterion for the protection visa for which the applicant applied is whether he was a person to whom Australia had protection obligations under the Convention.  So that the issue was did the Convention apply to him in a way that imposed protection obligations upon Australia. 

Article 1F provides that the provisions of the Convention do not apply to the person in the circumstances specified in paragraphs (a) to (c).  In such a case there can be no Convention obligation owed in respect of the person.  In particular, Article (b) provides that where there are serious reasons for considering that the person:

has committed a serious non‑political crime outside the country of refuge prior to his admission to that country as a refugee –

the provisions of the Convention do not apply.  Article 1F is a pre‑admission exclusion provision.  Article 33, incidentally, is a post‑admission exclusion provision.  They occupy different places in the Convention scheme.  The words “prior to his admission to that country as a refugee” do not refer to the administrative process of determining whether the person is a refugee because that process can only be undertaken if the Convention applies to the person.  The Convention does not apply to the person by virtue of Article 1F if there are serious reasons for considering that the serious non‑political crime has been committed.  There is no serious

question of construction as to the manner in which the proceedings to date have been carried out.  They have been carried out perfectly properly.

The one other matter relied upon by my learned friend was the alleged anomaly between Article 1F(b) and Article 33.  There is no anomaly.  Article 1F(b) operates according to its terms to exclude from the provisions of the Convention entirely persons to whom the article applies.  Paragraph (b) sets out its own dictionary with respect to what brings within it a person.  Article 33 operates after the grant of refugee status to enable the exclusion, post-admission of a person.  It, too, contains its own dictionary upon the basis upon which a person can be excluded.  There is no anomaly.  If the Court pleases.

GLEESON CJ:   Mr Castan.

MR CASTAN:   The special leave question, in particular, your Honour, is the very one that my learned friend referred to.  He has asserted that one is a pre-admission question, one is a post-admission question.  The difficult issue is whether or not that is correct.  Asserting it does not resolve the question and it remains unresolved and, in turn, the whole question which is dealt with in the written submissions is affected by whether one regards it as a pre-admission or a post-admission issue.  For the reasons I explained earlier, the word in lF(b) itself speaks of it as a post-admission issue.  That is the special leave question that arises and has not otherwise been determined.

GLEESON CJ:   The Court is of the view that there is not sufficient reason to doubt the correctness of the decision of the Full Court of the Federal Court of Australia to warrant the grant of special leave.  In relation to the new point raised in the course of argument this morning, the Court is not satisfied that the interests of the administration of justice require the grant of special leave.  Accordingly, the application is dismissed.

MR BELL:   I apply for costs, your Honour.

GLEESON CJ:   Mr Castan.

MR CASTAN:   I cannot resist the order.

GLEESON CJ:   The applicant must pay the respondent’s costs of the application.

AT 10.01 AM THE MATTER WAS CONCLUDED