SZCDM v Minister for Immigration
[2006] FMCA 258
•24 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCDM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 258 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims Article 1C(5) Proviso not limited to Article 1A(1) refugees and applies also to Article 1A(2) refugees – failure by Tribunal to consider claim. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.474; 483 Refugees Convention as amended by the Refugees Protocol Articles 1A(1); 1A(2); 1C(5) |
| R (Hoxha) v Special Adjudicator [2005] 1 WLR 1063 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 |
| Applicant: | SZCDM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2718 of 2003 |
| Judgment of: | Emmett FM |
| Hearing date: | 17 February 2006 |
| Date of Last Submission: | 17 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S. Hodges, Stephen Hodges Solicitor |
| Counsel for the Respondent: | Mr S. Lloyd |
| Solicitors for the Respondent: | Ms N. Johnson, Sparke Helmore Solictors |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The application before this Court is dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $7000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2718 of 2003
| SZCDM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 October 2003 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.
The Applicant is a 41 year old man who claims to be a citizen of Vietnam.
The Applicant arrived in Australia on 12 August 1982, as a United Nations High Commissioner for Refugees (“UNHCR”) mandated refugee under the community settlement scheme indo-chinese refugee (family reunion) programme. The visa was valid for a single journey to Australia and permitted indefinite stay.
On 13 November 1990, the Applicant was issued with a certificate of identity valid for 3 years, which did not allow re-entry into Australia.
On 5 December 1990, the Applicant left Australia and travelled to Vietnam on the certificate of identity, without obtaining a resident return visa. As a result, he lost his permanent resident status in Australia.
On 31 March 1991, the Applicant returned to Australia and was granted a 30 day border entry permit and asked to report to the Department within that time, but failed to do so.
On 14 August 1991, the Applicant was detained as an illegal immigrant.
On 6 March 1992, the Applicant was granted refugee status under the Convention, based on the fact that he had previously come to Australia as a refugee and that Article 1C of the Convention did not apply to him.
In May 1992, the Applicant lodged an application for a “domestic protection (temporary) entry permit (“TBDEP”).”
On 3 August 1992, the Applicant was granted TBDEP valid for 4 years.
On 1 September 1994, when the Migration Reform Act 1992 (Cth) and related transitional provisions commenced, the Applicant, as a holder of a TBDEP, was taken to be an applicant for a protection (class AZ) visa.
In July 1996, the Applicant was arrested and imprisoned on criminal charges for 4½ years.
On 19 December 2000, the Department sent a letter, addressed to the applicant at the jail, advising him that he was taken to be an applicant for protection class AZ visa and inviting him to attend an interview. Neither the applicant, nor First Respondent was able to confirm whether that interview took place. However, towards the end of 2001, submissions were received by the Department on behalf of the Applicant from his migration agent.
On 1 February 2002, the Applicant was interviewed by the Delegate.
On 18 February 2002, the Delegate refused the application for a protection visa.
On 13 March 2002, the Applicant lodged an application for review with the Tribunal.
On September 2003, the Applicant attended a hearing before the Tribunal.
On 4 November 2003, the Tribunal handed down a decision affirming the Delegate’s decision not to grant a protection visa. The Tribunal made findings of fact that there had been fundamental and durable changes in Vietnam such that, pursuant to Article 1C(5) of the Refugees Convention as amended by the 1967 Refugees Protocol, the Applicant ceased to be a refugee. The Tribunal was not satisfied that the Applicant otherwise had a well founded fear of persecution in Vietnam for any new reasons. The reasons sought to be advanced by the Applicant at the hearing were that he feared that he would face serious harm at the hands of authorities because of his criminal record in Australia. The Tribunal had regard to Independent Country Information before it in rejecting that claim. The Applicant also claimed that he feared returning to Vietnam because he would have no family support after such a long absence and would have difficulty finding work and establishing himself. The Tribunal concluded that such a claim was not within the scope of the Convention.
The Tribunal also had regard to the Applicant’s request for his application to be considered on humanitarian grounds. The Tribunal noted that it explained to the Applicant that it had no power to grant a visa on such grounds. The Tribunal further noted that the Applicant’s adviser informed the Tribunal that she had advised the Applicant of this but had requested that the submissions of the Applicant be placed on the record.
On 10 December 2003, the Applicant lodged with this Court an application for judicial review of the Tribunal’s decision.
On 18 December 2004, the Applicant filed an amended application relying on the following ground:
“That the order of the refugee Review tribunal sated(sic) 4 November 2003 be set aside on the grounds that the Tribunal failed to give consideration to Article 1C(5) of United Nation Refugees Convention notwithstanding that the applicant adduced evidence and supportive documentation to the said tribunal tending to show that there were compelling reasons arising out of the persecution suffered by the applicant as to why he should not return to Vietnam. Thus the Tribunal made a jurisdictional error in that it failed to consider relevant facts and law.”
The Applicant was represented before this Court by the solicitor who had filed the applications on his behalf.
At the heart of the Applicant’s complaint is a contention that the Tribunal failed to have regard to the Proviso attached to Article 1C(5). Article 1C(5) is set out as follows:
“C. This Convention shall cease to apply to any person falling under the terms of section A if:
He can longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
(“Article 1C(5)”)
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.”
(“the Proviso”)
Article 1A(1) and (2) are set out as follows:
“Article1
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 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization; Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;
(“Article 1A(1))
(2)As a result of events occurring before 1 January 1951 and owing to a 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 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 avail himself of the protection of one of the countries of which he is a national.”
(“Article 1A(2)”)
The Applicant concedes that he does not fall within section A1 of the Article. Article 1A(1) refugees are referred to as statutory refugees and Article 1A(2) refugees as non statutory refugees. (See R (Hoxha) v Special Adjudicator [2005] 1 WLR 1063 (“Hoxha”))
At the heart of the Applicant’s contention is that the Tribunal failed to consider whether the Applicant may fall within the Proviso, in that, the Proviso should be taken to include Article1A(2) refugees who are able to invoke “compelling reasons” arising out of previous persecution, for refusing to avail themselves of the protection of the country of nationality.
The Applicant’s solicitor submitted that refugees ought to receive equal treatment and that there is no distinction between Article 1A(1) or Article 1A(2) refugees, in that, the intention is that once one is classified as a refugee, there are no classes of refugee.
The Applicant’s solicitor submitted that if this Court accepted that the Proviso should be read as possibly including Article 1A(2) refugees, then the Tribunal was bound to consider whether the Applicant had “compelling reasons” that should entitle him to the benefit of the Proviso.
Certainly the Tribunal did not consider the applicability of the Proviso to the situation of the Applicant. Nor was a claim made at the hearing that the Proviso applied to the Applicant. However, the Applicant’s solicitor contends that it should have been sufficiently apparent to the Tribunal that the humanitarian grounds upon which the Applicant sought to rely were sufficient to have alerted the Tribunal to cause it consider whether they were capable of being “compelling reasons” for the purposes of the Proviso.
The Applicant’s solicitor submitted that, when one has regard to the following texts, that it is apparent that the Proviso should not be read as excluding Article 1A(2) refugees from the Proviso, and indeed, state practice would compel its inclusion. The text referred to by the Applicant’s solicitor are as follows:
1. the preamble to the 1967 protocol, “considering that it is desirable that equal status should be enjoyed by all refugees covered by the definition in the Convention irrespective of the date line 1 January 1951…”
2. The UNHCR handbook on procedures and criteria determining refugee status at paragraph 136, “the second paragraph of this clause (Article 1C(5)) contains an exception to the cessation provision contained in the first paragraph…the exception, however, reflect a more general humanitarian principle which could apply to refugees other than statutory refugees.”
3. Lisbon Conference in 2001, the UNHCR, concluded, at paragraph 18, as follows, “application of the “compelling reasons” exception to general cessation contained in Article 1C(5-6) is interpreted to extend beyond the actual words of the provision and is recognised to apply to Article 1A(2) refugees. This reflects general humanitarian principle that is now well grounded in state practice.”
(“the Texts”)
The First Respondent’s counsel submitted that it is plain on the face of the Proviso, that it refers to Article 1A(1) refugees. He stated that the Lisbon conference was, in acknowledging the position of some states, merely having regard to best state practice. Certainly, there has been no further treaty since the 1967 Protocol, to which Australia is a signatory, that requires that Article 1A(2) refugees be treated in the same way as Article 1A(1) refugees for the purposes of the Proviso.
The House of Lords in Hoxha, found that the state practice argument was unsustainable. Lord Brown particularly noted the disagreement of countries with such a proposition, including Australia, New Zealand and the United Kingdom. His Lordship stated at paragraph 85:
“It is one thing to invite this House to construe the Convention as a living instrument generously and in the light of its underlying humanitarian purposes; quite another to urge your Lordships effectively to rewrite it so as to create a fresh entitlement to refugee status based upon no more than historic fear and present compelling reasons for non-return, with no need at all for any current fear of persecution. That would be to distort entirely the language and structure of the text and in my judgment to do a serious disservice to the cause of human rights generally.”
Lord Brown acknowledged that the Convention does not meet all humanitarian needs (Hoxha at paragraph 86). Lord Brown, also, stated that the language of the Proviso is clear and unambiguous. Further Lord Brown noted that:
“failure in 1967 to amend it (the Proviso), as it could so easily have been amended simply by deleting the “(1)” from the reference to “section A(1)”, seems to me eloquent of the continuing intention of the contracting parties to confine the benefit of the Proviso to the diminishing number of statutory refugees who would otherwise have remained vulnerable to the loss of their Convention rights under the cessation clause.”
(Hoxha at paragraph 69)Lord Hope stated that, “there is a profound gap between what various commentators would like the Proviso to mean and what it has actually been taken to mean in practice.” (Hoxha at paragraph 5) Lord Hope rejected the claim before him that the applicability of the Proviso extents to Article 1A(2) refugees. Lord Hope stated at paragraph 16:
“There is, then, no getting away from the plain words of the Proviso. The only conclusion that can properly be drawn from its terms, having regard to their context and the drafting history, is that the contracting parties were not willing at the time the Convention was entered into to extend the benefit of the Proviso to non-statutory refugees.”
Lord Hope concluded that there was not a clear and wide spread state practice sufficient to override the express words of limitation in the Proviso.
The decision of the House of Lords in Hoxha would seem to put beyond doubt that the construction contended for by the Applicant in this case is not open to him. However, the Applicant submits, quite properly, that the decision in Hoxha is not binding in this Court. He further submits that it was decided on different facts, in that, the appellant in Hoxha had not yet been granted refugee status. In Hoxha, the appellant had originally entered the United Kingdom in circumstances that would have enabled him to be entitled to protection. However, before a determination of the appellant’s refugee status was made, those circumstances had substantially changed. I regard the pronouncements of the House of Lords on the issue as sufficiently analogous as to be compellingly persuasive.
The Applicant’s solicitor contends that, whilst the outcome of Hoxha may be against the Applicant in respect of the construction of the Proviso, it is not authority for the proposition that the Tribunal was not bound to consider whether the Proviso applied or not. Moreover, the Applicant’s solicitor submitted that Lord Brown, in terms, gave consideration to the question of whether the Proviso did or did not assist the appellants before the House of Lords. The Applicant’s solicitor submitted that the Tribunal should have referred to the Texts (see paragraph 30 above) and, at least, given consideration to the applicability’s of the of the Proviso to the Applicant.
However, the Applicant never put to the Tribunal a claim that the Proviso applied to him because he was an Article 1A(2) refugee and that the Proviso should be read as applying to Article 1A(2) refugees, as well as Article 1A(1) refugees.
The Tribunal is obliged to consider any claim that is sufficiently raised on the material before it, irrespective of whether the Applicant made a specific claim in respect of that material (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263) (“NABE”). Moreover, there was no obligation on the Tribunal to seek creatively to ascertain every possibility of a claim that may arise. The Tribunal is obliged to consider such matters that are articulated by an applicant or are plainly or sufficiently raised by the material (NABE at [63]). The Full Court in NABE cited at [62] Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 at 114:
“Proceedings before the tribunal are not adversarial: and the issues are not defined by the pleadings or analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.”
Whilst the Tribunal noted that it was asked that the Applicant’s case be considered on humanitarian grounds, there is nothing in the decision to suggest that the Applicant was making a claim that his “humanitarian grounds” were related in any way to “compelling reasons” as contemplated in the Proviso. Indeed the Tribunal noted that the Applicant’s adviser before the Tribunal confirmed that the Tribunal had no power to grant a visa on humanitarian grounds and that she had advised the Applicant accordingly. The Applicant’s adviser did no more than request such submission be placed on the record. The submissions relating to humanitarian grounds were put forward in the context of the Applicant’s expressions of regret for past actions and character references in respect of his position within his family.
The Tribunal’s decision is to be read fairly and not with an eye keenly attuned to error. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]. To my mind, no such claim was put before the Tribunal that the Proviso included applicability to Article 1A(2) refugees, of which the Applicant was one, such as to require the Tribunal to consider and determine such a the claim.
The terms of the Proviso so clearly do not apply to the Applicant that I reject any contention by the Applicant that the Tribunal was obliged to consider whether or not the Proviso applied to the Applicant. The fact that it was considered in Hoxha, and rejected, in the context of the submissions before the House of Lords, I do not accept as authority for the proposition that the Tribunal, in the case before this Court, was required to consider the applicability of the Proviso, in circumstances where it was not remotely argued before it. In those circumstances, there was no reason why the Tribunal should have been compelled to consider the Text (see paragraph 30 and above) and their applicability to the Proviso, requiring it to make a determination as to applicability of the Proviso to the Applicant.
Accordingly, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the application before this Court dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Kwong
Date: 23 February 2006
0
5
3