SZAHC v Minister for Immigration
[2005] FMCA 449
•11 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAHC v MINISTER FOR IMMIGRATION | [2005] FMCA 449 |
| MIGRATION – Review of RRT decision – Tribunal found that applicant was able to receive effective protection in a third country – whether the Tribunal fell into error in not first considering whether the applicant had a well-founded fear of persecution and therefore a person to whom Australia owed protection obligations. |
| Migration Act 1958 (Cth), s.36 |
| NAGV and NAGW of 2002 v Minister for Immigration [2005] HCA 6 Minister for Immigration v Singh (2002) 209 CLR 533 Kola v Minister for Immigration (2002) 120 FCR 170 NAFG v Minister for Immigration [2003] FCAFC 152 |
| Applicant: | SZAHC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG404 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 November 2003 |
| Date of Last Submission: | 24 November 2003 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2005 |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms S McNaughton |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondents costs in the sum of $3,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG404 of 2003
| SZAHC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
There falls for me to consider whether or not the following expression of the Tribunal constitutes a misunderstanding of its obligations in law and therefore a jurisdictional error entitling me to quash this decision and require that the applicant’s request for a review of the decision of the delegate be referred back to the Refugee Review Tribunal to be heard and determined according to law. The relevant part is in the following form found at [CB 143]:
“However for the reasons that follow, and even if I were to accept that the applicant might face some risk of harm from the Maoists if he returned to Nepal, it is not necessary for me to finally determine whether the applicant’s fear of harm is well-founded within the meaning of the Convention.”
The Tribunal then proceeds to find as a fact that the applicant was able to receive effective protection in a third country, India, without any fear of being refouled to Nepal. The Tribunal did not complete the task upon which it embarked of deciding whether or not the applicant was a person to whom Australia owed protection obligations arising out of his well founded fear of persecution for a convention reason but excluded him from Australia’s protection because of the right, which it found he had, of effective protection in a third country, India.
At the time when I heard this case on 24 November 2003 I was aware that there was an appeal pending in the High Court in NAGV and NAGW of 2002 v Minister for Immigration [2005] HCA 6. On that day I made a statement to the applicant, a copy of which is annexed to these reasons. Since that time the High Court has handed down its decision in NAGV and NAGW. This was a case involving a Russian asylum seeker of Jewish extraction and his wife (who was not Jewish) who were found by the Tribunal to have effective protection in Israel, a country they had never visited nor wished to visit, and were thus precluded from the protection of Australia, a country to which they had fled from the persecution which the Tribunal found to exist in Russia.
The decision of the High Court is short and effectively unanimous. The version of s.36 of the Migration Act 1958 (Cth) (the “Act”) which existed at the time of NAGV’s application did not contain the form of s.36(3) which was inserted into the Act prior to the time that the applicant in the instant case made his application for asylum. In NAGV the High Court found at [47]:
“The adoption of the expression “to whom Australia has protection obligations under [the Convention]” removes any ambiguity that it is to s A only that regard is to be had in determining whether a person is a refugee, without going on to consider, or perhaps first considering, whether the Convention does not apply or ceases to apply by reason of one or more of the circumstances described in the other sections in Art 1.”
The effect of this decision was to preclude consideration of the alleged right of abode in Israel for those applicants.
However, the Act is no longer the same, and as Kirby J said at [99]:
“It may be that issues will arise in the future under exclusion provisions of Australian Statutes, which will present questions of ambiguity.”
The High Court pointed out that the Refugees Convention was negotiated and agreed between the relevant Contracting States and obligations are owed between those states not to refugees. The Convention does not detract from the right of a Contracting State to determine who should be allowed to enter its territory. It is also clear that the rights of the applicant in the instant case to bring these very proceedings is a right which exists by virtue of the alleged breach of the Act and not of any alleged breach of the Convention. The Convention is required to be reduced into domestic law before it becomes enforceable in Australia. It is not suggested that if the translation into domestic law does not slavishly adopt the wording of the Convention the domestic law is thereby rendered invalid or unconstitutional, although it may be considered unconstitutional if the Act is solely based upon the foreign affairs powers of the Commonwealth and does not sufficiently reflect the exercise of those powers in the signing of a Convention or Treaty.
Section 36(3) of the Act is in the following form:
“Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.”
It affects the rights of this applicant as an attempt by the legislature to incorporate into the domestic legislation its response to what the High Court in NAGV describes as “asylum shopping”. Indeed at [58] the Court refers directly to s.36(3) in this regard before commenting at [60]:
“The interpretation of the revised s.36 does not arise on this appeal.”
In my statement annexed hereto I noted that the Tribunal had found as a fact that the applicant had the right to enter and reside in another country namely India and furthermore that as a question of fact India would not refoul him to Nepal. In those circumstances, if s.36(3) is a valid limitation upon Australia’s willingness to provide protection the applicant’s claim for review must fail.
As great as the temptation to write an erudite treatise upon this subject might be, I do not think it is the appropriate step to take in this case. The applicant was not represented before me. He made no submissions. It is not for me to advocate his case for him. If, after considering the short views which I shall now express, he wishes to appeal and to challenge the validity of s.36(3) he may well be granted pro bono assistance by the Full Bench of the Federal Court to do so. As things stand it is my view that the clear words of s.36(3) do have the effect that was intended of limiting that class of persons to whom Australia owes protection obligations. This being the case, the consideration by the Tribunal of this aspect of the matter would appear to me to be no more in error than the consideration by the Tribunal referred to in Minister for Immigration v Singh (2002) 209 CLR 533 discussed by the High Court in NAGV at [46] where the Court said:
“By contrast, in Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533, the Court, in considering s 36(2) of the Act, proceeded on the footing that a decision-maker does not err in law in considering as a preliminary issue whether the applicant for a protection visa falls within an exception in Art 1F.”
The views which I have expressed appear to reflect those found in Kola v Minister for Immigration (2002) 120 FCR 170 at [63] and approved by the Full Bench in NAFG v Minister for Immigration [2003] FCAFC 152 at [47] – [48].
It follows from the above that I am not satisfied that the Tribunal erred in law in the manner in which it came to its decision in this case and I must dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $3,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 11 April 2005
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