Ovcharuk v Minister for Immigration and Multicultural Affairs
[1998] FCA 313
•1 APRIL 1998
FEDERAL COURT OF AUSTRALIA
IMMIGRATION - refugee status - whether applicant a refugee as defined in Convention Relating to the Status of Refugees (“Convention”) - applicant involved in importation of heroin to Australia - Convention definition of refugee excludes persons for whom there are “serious reasons for considering” that he/she has committed a “serious non-political crime outside the country of refuge” - degree of proof required for conclusion that “there are serious reasons for considering” - whether exclusion applies only to “fugitives from justice” - whether “serious crime” must be a “serious crime” in the law of the country where crime committed - whether exclusion includes “serious crime” as defined by the law of the country of refuge.
STATUTES - construction of statute incorporating international convention
Migration Act 1958 (Cth) s 500
Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, Art 1F and Art 33(2)
Vienna Convention on the Law of Treaties, Art 31 and Art 32
Daher v Minister for Immigration and Ethnic Affairs (1997) 147 ALR 643, referred to
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556, followed
Canada (Attorney-General) v Ward (1993) (1993) 103 DLR 1, referred to
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, applied
The Law of Refugee Status (1991), James C Hathaway
The Status of Refugees in International Law (1966), A Grahl-Madsen
The Refugee in International Law 2nd ed (1996), Guy S Goodwin-Gill
IGOR OVCHARUK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
VG 00536 of 1997
IGOR OVCHARUK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
VG 00570 of 1997
MARSHALL J
MELBOURNE
1 APRIL 1998
IN THE FEDERAL COURT OF AUSTRALIA
VG 536 of 1997
VICTORIA DISTRICT REGISTRY
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT FORREST
BETWEEN:
IGOR OVCHARUK
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
1 APRIL 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The appeal be dismissed with costs, including reserved costs, if any.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VG 570 of 1997
VICTORIA DISTRICT REGISTRY
BETWEEN:
IGOR OVCHARUK
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
1 APRIL 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The application be dismissed with costs, including reserved costs, if any.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT FORREST
BETWEEN:
IGOR OVCHARUK
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTVG 536 of 1997
BETWEEN:
IGOR OVCHARUK
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTVG 570 of 1997
JUDGE:
MARSHALL J
DATE:
1 APRIL 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
There are two applications before the Court. One is an appeal by the applicant, Mr Igor Ovcharuk from the decision of the Administrative Appeals Tribunal (“AAT”) on 12 September 1997 which affirmed the decision of a delegate of the respondent to refuse Mr Ovcharuk a protection visa. The second application is one by Mr Ovcharuk to review the same decision, being a judicially reviewable decision. The applications were heard together. Mr Cavanough QC appeared with Mr Herbert and Mr Holdenson for Mr Ovcharuk. Mr Bell QC appeared for the respondent.
FACTUAL BACKGROUND
Mr Ovcharuk is a Russian national. He was employed as a seaman. On 28 January 1993 Mr Ovcharuk was a member of the crew of a Russian merchant vessel “Maxim Mikahilov” which was berthed in the Port of Melbourne. In the early hours of 29 January 1993 Mr Ovcharuk was arrested by Australian Customs and the Australian Federal Police (“the AFP”) for being in possession of a trafficable large quantity of heroin and a smaller quantity of cannabis resin. Mr Ovcharuk fully co-operated with the AFP and assisted the AFP in successfully prosecuting certain persons in Australia who had intended to sell the drugs.
In return for his co-operation Mr Ovcharuk was promised protection by the AFP and a prospect of a reduction in his term of imprisonment. The offer of protection was understood by Mr Ovcharuk as meaning that he would receive protection from authorities in Australia for as long as was necessary. On 18 June 1993, Mr Ovcharuk pleaded guilty in the County Court of Victoria to two counts of importing heroin and cannabis into Australia contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). He was sentenced to six years imprisonment, with a minimum term of four years and six months.
In November 1996, whilst serving his sentence at Ararat Jail, Mr Ovcharuk applied for a protection visa. The application was made given Mr Ovcharuk’s apprehension that should he be deported to Russia after completing his sentence he would be killed by Russian criminals because he had co-operated with the AFP. On 19 February 1997 a delegate of the respondent refused the application for a protection visa. The delegate held that Mr Ovcharuk was excluded from being a refugee by virtue of Art 1F of “the Refugees Convention”, ie. the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (“the Convention”).
Mr Ovcharuk applied to the AAT to review the decision of the respondent’s delegate. The AAT has jurisdiction pursuant to s 500 of the Migration Act 1958 (Cth) (“the Act”) to review decisions refusing to grant a protection visa in which the respondent’s delegate has relied upon Art 1F of the Convention. See Daher v Minister for Immigration and Ethnic Affairs (1997) 147 ALR 643.
The AAT heard the matter on 11 and 12 August 1997. On 12 September 1997, Deputy President Forrest determined that Art 1F of the Convention applied to Mr Ovcharuk and consequently he affirmed the decision of the respondent’s delegate refusing to grant Mr Ovcharuk a protection visa.
Upon the completion of his sentence Mr Ovcharuk was placed in migration detention. On 24 September 1997 Northrop ACJ ordered, by consent, that the respondent be restrained from removing Mr Ovcharuk from Australia until the hearing and determination of these proceedings.
ARTICLE 1F OF THE CONVENTION
Article 1F of the Convention is part of the definition of “refugee” contained in Art 1. Article 1A and Art 1B, together define the persons to whom the term “refugee” applies , whilst Arts 1C, 1D, 1E and 1F establish exceptions to what would otherwise be comprehended by Art 1A and Art 1B.
Article 1F provides that:
“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.”
In these matters the respondent relied upon Art 1F(b). Mr Bell contended that there are serious reasons for considering that Mr Ovcharuk has committed a serious non-political crime outside Australia prior to coming to Australia. Mr Cavanough submitted that Art 1F(b) is inapplicable to Mr Ovcharuk. He contended that Art 1F(b) should be construed as applying only to fugitives from justice or in the alternative those who have committed serious crimes recognised by international law or defined as such by the law of the country in which the crime was committed.
DHAYAKPA
The proper construction of Art 1F(b) was considered by French J in Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556. The facts of that case have some features in common with the circumstances surrounding Mr Ovcharuk. Mr Dhayakpa was a Tibetan national who resided in India. He entered Australia in possession of a trafficable quantity of heroin. He was ultimately sentenced to nine years imprisonment. He co-operated with the AFP and as a consequence feared he would be killed if he returned to India.
French J observed at 561 that counsel for Mr Dhayakpa had submitted to him that:
“... the purpose of Art 1F(b) of the Convention is to prevent persons who have committed serious crimes overseas from escaping legitimate criminal liability by claiming refugee status.”
That submission was akin to the “fugitive from justice” submission made by Mr Cavanough and referred to earlier in these reasons for judgment.
French J further observed at 561 that counsel for Mr Dhayakpa had submitted that:
“The Article was not intended to apply to a crime which may have had its origins overseas, but was committed at least in part in the country of refuge and which could be or had been adjudicated in that country.”
A similar submission was put in these proceedings as was the submission that the “serious non-political crime” must be justiciable where it was committed. The latter submission was also put to French J in Dhayakpa.
French J at 563 referred to the use of the words “serious reasons for considering that” in the open words of Art 1F. His Honour said:
“ The use of the words ‘serious reasons for considering that’ suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts.”
However, his Honour did add at 563:
“The precise construction of that phrase does not fall for consideration in the present case as it is not in dispute that the crime relied upon by the Tribunal to ground the rejection of the claim for refugee status was committed.”
His Honour was there referring to the offence of conspiracy to import prohibited imports into Australia. In the instant maters Mr Cavanough has emphasised that Mr Ovcharuk was not charged with conspiracy to import a prohibited import.
Notwithstanding that French J’s views about the words “serious reasons for considering” were not central to his reasons for judgment and notwithstanding that Mr Dhayakpa had been found guilty of conspiracy, whereas Mr Ovcharuk has not, I consider his Honour’s approach to the meaning of those words to be highly persuasive. Absent some other relevant consideration in the context of the Convention, when read as a whole, the words “serious reasons for considering” suggest that there is no obligation upon the respondent to identify with precision or particularity the “serious non-political crime” which was committed outside Australia prior to an applicant for refugee status entering Australia. All that is required is the proper identification of a non-political crime which is “properly characterised as ‘serious’.”
Further, in my view, Art 1F(b) is not confined to crimes considered as serious according to the law of the country where the crime was committed. A narrow construction, providing that the only relevant serious crimes for Article 1F(b) purposes, are crimes as defined by the law of the country where the crime was committed, is not supported by the plain meaning of the words in the Article. I agree with Mr Bell’s submission that, conduct outside the country of refuge which constitutes a serious crime as defined by the laws of the country of refuge, come within the meaning of Art 1F(b). This is consistent with the approach of French J in Dhayakpa, where Australian law with respect to conspiracy, was considered as relevant law for the purposes of Art 1F(b).
It is not contested that Mr Ovcharuk in concert with his Russian principal conspired in Russia to import heroin into Australia. That act was a serious crime of a non-political nature. Any other view simply defies logic and common-sense. As French J said in Dhayakpa at 564:
“... on any view, a conspiracy to import into Australia trafficable quantities of heroin must be regarded as a serious offence.”
Also at 564, his Honour summarised the contention of a learned international law academic commentator, A Grahl-Madsen in the text The Status of Refugees in International Law (1966), that Art 1F(b):
“... does not extend to crimes for which punishment has been suffered or crimes which are either too unimportant to warrant extradition or are no longer justiciable.”
I agree with French J where he said in response at 564:
“The difficulty with that construction, so far as it refers as to prior punishment or justiciability, is that it imports into Art 1F(b) limitations not able to be found in the language of the Article.”
In his conclusion at 565, French J said as follows:
“In my opinion the Tribunal has not been shown to have erred in its approach to the application of Art 1F and the criteria for the grant of a protection visa. The application should be dismissed with costs.”
I find the approach of his Honour in Dhayakpa compelling and I should follow it unless I can discern from the Convention, when read as a whole, that some contrary view should apply.
WARD
In Dhayakpa no reference is made by French J to the judgment of the Supreme Court of Canada in Canada (Attorney-General) v Ward (1993) 103 DLR 1. Mr Cavanough sought to rely on that point to persuade the Court that it should decline to follow Dhayakpa.
The judgment of the Supreme Court of Canada in Ward, which was delivered by La Forest J, referred to Art 1F. After the reference to Art 1F the following was said at 36:
“The articulation of this exclusion for the ‘commission’ of a crime can be contrasted with those of s. 19 of the Act which refers to ‘convictions’ for crimes. Hathaway, [The Law of Refugee Status, (1991)], at p 221, interprets this exclusion to embrace ‘persons who are liable to sanctions in another state for having committed a genuine, serious crime, and who seek to escape legitimate criminal liability by claiming refugee status’. In other words, Hathaway would appear to confine para. (b) to accused persons who are fugitives from prosecution. The interpretation of this amendment was no argued before us. I note, however, that Professor Hathaway’s interpretation seems to be consistent with the views expressed in the Travaux Préparatoires, regarding the need for congruence between the Convention and extradition law: see statement of United States delegate Henkin, U.N. Doc. E/AC.32/SR.5 (January 30, 1950), at p. 5. As such, Ward would still not be excluded on this basis, having already been convicted of his crimes and having already served his sentence. This addition to the Act does answer, however, in a more general fashion, the concerns raised by the majority of the Court of Appeal and renders less forceful the argument that morality and criminality concerns need be accommodated by narrowing the definition of ‘particular social group’.”
La Forest J ascribes to Mr Hathaway, a learned author in the field of international human rights law, the view that Art 1F(b) is confined to “fugitives from prosecution”. However, his Honour noted that, in Ward, this issue was not argued. The high point of Mr Ovcharuk’s reliance on Ward, is its apparent endorsement of Mr Hathaway’s interpretation by noting the consistency of that interpretation with certain views expressed in the Travaux Préparatoires prior to the adoption of the Convention. Nevertheless, the views of Mr Hathaway are consistent with those of Mr Grahl-Madsen, which were referred to by French J at 564 in Dhayakpa. I do not believe that in Dhayakpa, if French J had been referred to Ward, his Honour would have come to any different conclusion to the one he reached. Significantly, I do not see anything contained in Ward, which merits a reconsideration of the views of French J in Dhayakpa.
THE ADDITIONAL INTERNATIONAL LEGAL MATERIALS
Mr Cavanough submitted that when one has regard to the Travaux Préparatoires of the Convention, one is driven to the conclusion adopted by the learned authors, Hathaway and Grahl-Madsen, that Art 1F(b) has the narrow scope for which these authors contend. Mr Cavanough also referred to Art 31 of the Vienna Convention on the Law of Treaties (“the Vienna Convention”) and to the judgment of the High Court of Australia in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, especially per McHugh J at 351 - 352.
The Vienna Convention and Applicant A support the proposition that primary consideration must be given to the ordinary meaning of the words used in a Convention. It may be that, in light of the objects and purpose of a Convention, the literal meaning attributed to certain words might produce an unjust or unintended outcome. Given that a Convention must be interpreted in a “holistic” manner, it is appropriate to have regard to the text, object and purpose of a Convention compositively. As French J observed, the exclusion provided in Art 1F, is designed to protect the country in relation to which refugee status is claimed. In my view, this is a material factor when considering the text of the Convention in the context of its object and purpose.
Mr Cavanough referred the Court to Art 33(2) of the Convention in support of his construction of Art 1F(b). Mr Cavanough contended that French J was in error in Dhayakpa in holding that Art 1F(b) was directed to the protection of the country of refuge. He submitted that such work is performed by Art 33(2) which enables a country of refuge to expel a refugee, “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is.” I accept the submission put by Mr Bell that Art 33(2) “deals with a wholly different subject matter to Art 1F”. Article 1F is a “pre-admission exclusion provision”, whilst Art 33 deals with “a post admission refugee”. Therefore, Art 33(2) does not assist in determining the meaning of “refugee” in Art 1 of the Convention. More particularly, it does not assist in the construction of Art 1F(b) of the Convention.
The extrinsic materials referred to by Mr Cavanough also do not lead me to the view that the literal meaning of Art 1F(b) is contrary to the objects or purpose of the Convention or produces an unjust or unintended outcome. As Mr Bell submitted, the learned authors who have published materials in this area of international law, after considering the relevant Travaux Préparatoires are not unanimous in their views. In The Refugee in International Law, 2nd ed (1996), Guy Goodwin-Gill, after noting that the “travaux préparatoires provide no hard answers,” writes at 104:
“The commission of a serious non-political crime may be sufficient reason for exclusion because it is indicative of some future danger to the community of the State of refuge; or because the very nature and circumstances of the crime render it a basis for exclusion in itself, regardless of extradition, prosecution, punishment or non-justiciability. In such cases, the principle of balancing crime against consequences becomes redundant.”
REFERENCE TO EXTRINSIC MATERIAL
Mr Bell put in issue the Court’s entitlement to have regard to extrinsic material such as the Travaux Préparatoires. He referred to Art 31 and Art 32 of the Vienna Convention in support of the proposition that one should not use such material where the meaning of a Convention is clear on its face. The Court’s approach to the interpretation of the Convention has been to consider the text of the Convention in the context of its object and purpose. This analysis has caused the Court to reach certain conclusions on the scope of the exemption established by Art 1F. This approach to the interpretation of the Convention is consistent with Art 31 of the Vienna Convention and the approach of the High Court in Applicant A. From an abundance of caution, I have examined the extrinsic material, and concluded that such material does not give cause to disturb those conclusions and take a different approach to the one taken by French J in Dhayakpa.
CONCLUSION
Having regard to the foregoing, it is my view that I should follow the approach of French J in Dhayakpa. His Honour’s approach is supported by the plain meaning of the words in Art 1F(b). Further, there is nothing in the Convention, when read as a whole, which reveals that such a construction is inconsistent with any object or purpose of the Convention or produces a result which is absurd or unintended. Recourse to the writings of learned authors in the area do not lead me to a contrary conclusion. Consequently, the application and the appeal must each be dismissed with costs, including reserved costs, if any.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall
Associate:
Dated: 1 April 1998
Counsel for the Applicant: Mr A L Cavanough QC with
Mr G J Herbert and Mr O P HoldensonSolicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: Mr K Bell QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 February 1998 Date of Judgment: 1 April 1998
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