SZCZJ v Minister for Immigration & Anor
[2006] FMCA 1583
•25 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCZJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1583 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant was originally a citizen of Vietnam – applicant obtained asylum in Switzerland – applicant entered Australia and overstayed her visa – applicant’s right of asylum in Switzerland was cancelled because she had not lived in Switzerland for over three years – statelessness – whether applicant is stateless – where Tribunal found that the applicant is a citizen of Vietnam – Refugees Convention – whether Article 1A(2) or Article 1C(5) applied to the applicant – whether applicant had already been recognized as a refugee – matters relating to granting of refugee status – Australia’s protection obligations – no jurisdictional error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 474
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Family Law Act 1975 (Cth) Part VII
Migration Regulations 1989 (Cth) Schedule 2
Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951
NAGV & NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 213 ALR 668; 79 ALJR 609; [2005] HCA 6 followed.
Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 referred to.
NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373 referred to.
QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363; [2005] FCAFC 136 referred to.
NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60 followed.
NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1554 referred to.
Minister for Immigration & Multicultural & Indigenous Affairs v Huynh [2004] FCAFC 47 referred to.
Minister for Immigration and Multicultural and Indigenous affairs v SZANS [2005] FCAFC 41 referred to.
Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) Fam LR 339; FLC 93-174 followed.
Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 referred to.
Simsek v Macphee (1982) 148 CLR 636 referred to.
| Applicant: | SZCZJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 704 of 2004 |
| Delivered on: | 25 October 2006 |
| Delivered at: | Sydney |
| Hearing date: | 3 May 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Parish Patience Immigration |
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 704 of 2004
| SZCZJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal made on 12th January and handed down on 3rd February 2004. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
By her amended application filed in court on 3rd May 2006, the Applicant seeks writs of certiorari, mandamus and prohibition and a declaration that the decision of the Tribunal is null and void.
Background
The Applicant, according to the Tribunal, claims to be stateless and formerly a citizen of Vietnam. She arrived in Australia on
7th March 1996. On 24th January 2003 the applicant applied for a Protection (Class XA) visa, but it was refused on 17th June 2003.
The Applicant then applied to the Refugee Review Tribunal for a review of that decision on 17th July 2003.
Refugee Review Tribunal application
The Tribunal wrote to the Applicant on 9th October 2003, inviting her to attend a hearing on Friday 14th November. The Applicant replied to the hearing invitation, indicating that she would need a Vietnamese interpreter. She also asked the Tribunal to take evidence from another person, whom she had known since they were in a refugee camp in Hong Kong.
The Applicant attended the hearing and gave evidence on
14th November 2003.
The Tribunal noted the Applicant’s history, which is set out in some detail on pages 176 to 178 of the Court Book. The Applicant departed Vietnam on 10th July 1980 and lived in Hong Kong until
30th November 1990. She was resettled in Switzerland in
December 1990. On 7th March 1996 the Applicant came to Australia to visit her children who live in this country. She travelled on a Swiss travel document valid until 20th August 1997.
The Applicant claimed to the Tribunal that she decided to return to either Switzerland or Vietnam but was denied travel documents and entry to both countries. The Applicant produced to the Tribunal a letter to her from the Swiss Consul General dated 23rd July 2002 stating that according to Swiss asylum law, asylum expires if the refugee has been living for more than three years outside Switzerland. The letter told the Applicant that she was not entitled to re-enter Switzerland but was entitled to lodge an application if she wished to return.
The Applicant submitted a fax from the Embassy of the Socialist Republic of Vietnam dated 24th October 2002, which said that the Embassy was not in a position to issue her with either a passport or a travel document because she did not hold any evidence that she was a citizen of Vietnam. The Applicant claimed that she was, therefore, stateless.
The Applicant’s migration adviser argued that
Denial of access to protection, re-entry, residence and citizenship is a form of punishment and persecution
by both Switzerland and Vietnam and she was therefore suffering persecution because of her “nationality”.
The Applicant made a further submission to the Department that she and her then husband left Vietnam because they were very poor and there were dangerous conditions in Vietnam. She went on to state:
I do not wish to return to Vietnam because I have a deep fear of suffering persecution and starvation. I have not had any proper contact with my siblings for twenty years and I do not consider that I have any safety in Vietnam. I will not have any accommodation, financial support or close relations in Vietnam.[1]
[1] See Court Book at 178
The Applicant submitted a letter from the Swiss Federal Office of Refugees, Federal Department of Justice and Police, dated
31st July 2002. The letter told her that the asylum granted to her in Switzerland was cancelled because she had not lived in Australia for over six years. She was told that she could appeal against that decision.
The Applicant told the Tribunal that she came to Australia to visit her children in 1996 and remained in Australia because she did not wish to be separated from them. About seven years later Immigration officers told her that she had overstayed her visa and she had to leave the country. Her adviser lodged an application for a protection visa for her.
The Applicant said that she did not realize that her asylum status in Switzerland had been cancelled until she sought to return. She said that she did not appeal against the decision to cancel her Swiss asylum status.
The Applicant told the Tribunal that the Vietnamese authorities refused to recognize her as a citizen. The authorities would not recognize her expired Swiss travel document as proof of her identity or Vietnamese citizenship and said that she had to produce her birth certificate.
She said she was unable to obtain her birth certificate because she had left Vietnam twenty years before. The Tribunal stated:
The Tribunal asked her what steps she had taken to obtain a copy of her birth certificate. The applicant provided vague responses to the Tribunal’s questions. She did not provide any meaningful information to indicate that she had tried to obtain the document.
The Tribunal referred to Law No. 07/1998/QH10 on Vietnamese Nationality of 20 May 1998, obtained from the Internet. The Tribunal commented that according to Vietnam’s nationality laws the Applicant was a citizen of Vietnam and had not lost her nationality.
The Tribunal told the Applicant that it accepted her claim that she had no right to enter and reside in Switzerland but was a citizen of Vietnam. The Tribunal asked the Applicant why she did not return to Vietnam. The Applicant replied that she had been away from Vietnam for a long time and feared that the authorities would punish and imprison her for fleeing the country illegally.
In a later submission, the Applicant’s adviser provided further material and claimed that as a Buddhist, the Applicant would have her religious activities greatly restricted by the authorities in Vietnam.
Findings and reasons
The Tribunal’s findings and reasons are set out on pages 184 to 189 of the Court Book. The Tribunal considered these claims by the Applicant:
a)That the government of Vietnam no longer recognizes her as a citizen; and
b)That she is unable to obtain a birth certificate for the purpose of verifying her citizenship.
The Tribunal found that both of those claims lacked credibility.
As to the first claim, the Tribunal found that the Applicant had provided no meaningful information to support her claim that she had lost her Vietnamese citizenship. None of the provisions in the relevant nationality law of Vietnam on losing Vietnamese nationality applied to the Applicant. The Applicant claimed that she was denied a passport by the Vietnamese Embassy because she was no longer considered a citizen of Vietnam, but the Tribunal found that the Applicant was denied a passport because she made no attempt to obtain the necessary documents. The Tribunal said:
The applicant effectively ensured that her application for travel documents would fail by not meeting the requirements of the application. The Tribunal does not accept as credible the applicant’s claim that she was denied a passport or travel documents by the government of Vietnam because she is no longer considered a citizen of Vietnam. It finds that the applicant, who did not wish to return to Vietnam but was compelled by DIMIA to apply for a passport, created a situation which ensured that the passport application would fail.[2]
[2] Court Book at 186
The Tribunal considered the Applicant’s claim that she had attempted to obtain a copy of her birth certificate by contacting her brother in Vietnam. The Tribunal noted that the Applicant introduced the claim at the end of the hearing after the matter had been discussed with her at some length and stated:
The Tribunal has formed the view that if indeed the applicant had taken meaningful steps to obtain a birth certificate she would have described those steps to the Tribunal when the matter was initially discussed with her. When the Tribunal asked her why she withheld the information she did not provide a plausible explanation. The Tribunal finds that the applicant fabricated the claim to enhance the application. It finds that the applicant did not contact her brother in Vietnam or take meaningful steps to obtain a copy of her birth certificate.[3]
[3] Court Book at 186
The Tribunal considered the Applicant’s claim that she had become stateless and no longer had a right to enter and live in either Vietnam, her country of citizenship at birth, or Switzerland, her country of former habitual residence. The Tribunal accepted the Applicant’s claim that her asylum visa granted to her by Switzerland in 1990 was cancelled when she failed to comply with the requirements of the visa and found that she cannot return to Switzerland.
The Tribunal did not accept the Applicant’s claim that her Vietnamese nationality had either been cancelled or was in doubt. The Tribunal was satisfied that it was “a mere formality” for the Applicant to be recognized as a citizen of Vietnam and acquire the necessary documents to enter and reside in Vietnam. The Tribunal stated;
The Tribunal is satisfied that with assistance from the United Nations High Commissioner for Refugees (UNHCR, or other agencies in Australia and Vietnam, the applicant can obtain the documents she requires to verify her identity. The Tribunal is satisfied that the applicant, as a citizen of Vietnam, has the right to enter and reside in Vietnam.
The Tribunal noted from the Handbook on Procedures and Criteria for Determining Refugee Status (United Nations High Commissioner for Refugees, Geneva, 1992, para. 80), that holding political opinions different from those of the government is not in itself a ground for claiming refugee status, and an applicant must show that he or she has a fear of persecution for holding those opinions. The Tribunal was not satisfied that an adverse political opinion would be attributed to the Applicant by the authorities in Vietnam because she left the country illegally overseas.
The Tribunal considered the Applicant’s claim that she did not support the communist government in Vietnam and found:
However, as the applicant has not been involved in any political activities, and she has not expressed her political opinion in a meaningful or effective way, her political opinion will not attract the adverse interest of the authorities in Vietnam. The Tribunal finds that the applicant does not have the profile of a political activist, or an opponent of the government of Vietnam, who will be of interests or concern to the authorities in Vietnam in the reasonably foreseeable future.[4]
[4] Court Book at 188
The Tribunal considered the Applicant’s claim that she did not have sufficient financial resources to live in Vietnam and accepted that she may suffer economic hardship in Vietnam. Nevertheless, the Tribunal found that the Applicant would not suffer economic disadvantage for a Convention reason.
The Tribunal found that the Applicant did not have a well-founded fear of persecution in Vietnam for reasons of political opinion.
The Tribunal accepted the Applicant’s claim that she is a Buddhist. The Tribunal found that Buddhists in general are not targeted or prevented from participating in religious activities of their choice in Vietnam and stated:
The Tribunal finds that the applicant is not a religious activist and she will not be a person of particular interest or concern to the authorities in Vietnam because she is a Buddhist.
The Tribunal also finds that she will be able to participate in religious activities of her choice in Vietnam.[5]
[5] Court Book at 189
The Tribunal found that the Applicant did not have a well-founded fear of persecution in Vietnam for reasons of religion or any other Convention reason.
The Tribunal noted that the Applicant had raised humanitarian issues that her entire immediate family live in Australia and she did not wish to be separated from them, but pointed out that issues of that nature are not matters that the Tribunal could consider. A consideration of the Applicant’s circumstances on other grounds is a matter solely within the discretion of the Minister.
The Tribunal was not satisfied that that Applicant was a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951, done at Geneva on
28 July 1951 (the Refugees Convention) and did not satisfy the criterion in s.36(2) of the Migration Act for the grant of a protection visa.
Application for Judicial review
The Applicant commenced these proceedings on 12th March 2004 by filing an application. She filed an amended application on
29th March 2004 and her counsel obtained leave to file in court an amended application on 3rd May 2006.
In her amended application the Applicant claims that the Tribunal constructively failed to exercise its jurisdiction under the Act and or acted in excess of its jurisdiction.
The Applicant also claims that the Tribunal committed jurisdictional error by assessing the applicant’s application for a protection visa under Article 1A (2) of the Refugees Convention rather than determining whether Article 1C (5) of that Convention applied to her circumstances.
The particulars of that latter claim are that Article 1C (5) was applicable because the Applicant had already been recognized as a refugee in terms of the Refugees Convention. That being so, the question was whether a cessation clause in Article 1C applied to her.
Submissions
Counsel for the Applicant, Mr Karp, submitted that the Tribunal’s approach was misconceived, because, as the Applicant had previously been recognized as a Convention refugee, albeit in another country, she remained a refugee unless and until Article 1C(5) of the Refugees Convention applied to her. In other words, she remained a refugee until the circumstances in connection with which she was recognized as a refugee ceased to exist.
Mr Karp referred the Court to NAGV & NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 213 ALR 668; 79 ALJR 609; [2005] HCA 6, where it was held that Australia has protection obligations to a person pursuant to s.36(2) of the Migration Act if he or she meets the definition of a Refugee in Article 1 of the Convention (at [33] and [42] – [43]). This is so whether or not Australia would be in breach of Article 33(1) by returning an applicant to his or her country of origin (at [29]), and in this respect the High Court declined to follow the reasoning of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543.
Mr Karp submitted that there is nothing in the Migration Act or the Migration Regulations that says that Australia does not have protection obligations to a person if he or she has been assessed to be a refugee by another state, or by the UNHCR. He went on to submit that the Court should draw the inevitable conclusion that Australia has protection obligations under the Refugees Convention to any person who has been recognized as a refugee anywhere in the world unless and until they have lost that recognition having fallen within Articles 1C, 1E or 1F.
Mr Karp then considered the meaning of Article 1C(5). On the one hand, Article 1C(5) could merely be the inverse of Article 1A(2).
If that were so, it would apply if a person no longer had a well founded fear of persecution for a Convention reason (see NBGM v Minister for Immigration and Multicultural Affairs [2004] FCA 1373). He also referred the court to the decision of the Full Court of the Federal Court in QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363; [2005] FCAFC 136, where Wilcox and Madgwick JJ held that the question of whether Australia has protection obligations to a person under s.36(2) of the Migration Act is separate from the question of whether they have a visa.
They also held that Article 1C(5) meant something very different from Article 1A(2).
If the views of Wilcox and Madgwick JJ are correct, he submitted, the Applicant must succeed.
Counsel for the First Respondent Minister, Mr Johnson, submitted that the only issue is whether the Tribunal was obliged to consider the matter under Article 1C(5). He referred to the fact that the appeal in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs (supra) was expected shortly and respectfully asked the Court to await the Full Court judgment in NBGM. The Full Court of the Federal Court handed down its decision on 12th May 2006 (NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60).
Mr Johnson submitted that it is not necessary to deal with the correctness of the decision in QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs (supra) because QAAH is a case where it had once been determined that Australia owed a protection obligation towards the applicant but the Applicant in the case before the Court has never been recognized as person to whom Australia owed protection obligations.
Counsel for the First Applicant submitted that the present case is more akin to NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1554, where Moore J found that the Refugee Review Tribunal had erred by considering an application under Article 1C(5) in circumstances where an applicant had been recognized as a refugee by an overseas UN agency. The criteria under which Australia had allowed the applicant in that case to enter were not the same as those that pertained under s.36(2) of the Act or Article 1A(2) of the convention. The assessment had not been made on behalf of Australia (at [35]-[39]).
Mr Johnson also referred the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Huynh [2004] FCAFC 47, where the applicant had entered Australia on an Australian Entry Visa, Class 200, which was called a “Refugee” visa in Schedule 2 of the Migration Regulations 1989 in force at the time he entered Australia. That applicant was also found not to be a person who had been the subject of an earlier determination that Australia owed the applicant a protection obligation.
In short, Mr Johnson submitted that the threshold for consideration of Article 1C(5) has not been established.
In a submission in reply, Counsel for the Applicant submitted that the decision in NBKS (supra) was wrongly decided. The decision in NBKS was not an appeal from this Court and would not therefore be binding, but he conceded that the Court would be obliged by judicial comity to follow the decision unless convinced that it was clearly wrong (Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at [35]-[38]).
The submission is that s.36(2) states that a criterion for the grant of a protection visa is that Australia has protection obligations to the individual applicant. Protection obligations are derived from the Refugees Convention, and in particular from Article 1. Mr Karp reiterated that there is nothing in the Migration Act or the Convention that suggests or states that an assessment of refugee status must be made for or on behalf of Australia. He submitted that Moore J in NBKS added a gloss to s.36(2) that is neither supported by the Act.
Conclusions
The Applicant’s submissions are premised on the assumptions that:
a)The Applicant has previously been assessed as a refugee by Switzerland; and
b)Having been so assessed, the Applicant is a person to whom Australia has protection obligations under the Refugees Convention; and
c)Therefore, the Applicant meets the criterion in s.36(2) of the Migration Act for the grant of a protection visa.
These assumptions are misconceived. Counsel for the Applicant has made these essentially similar submissions:
·Specifically there is nothing in the Act or Regulations that says that Australia does not have protection obligations to a person if she has been assessed to be a refugee by another state, or the UNHCR.[6]
·There is nothing in the Migration Act, or indeed the Convention, which suggests – much less states – that an assessment of refugee status must be made for or on behalf of Australia.
[6] United Nations High Commission for Refugees
With respect, the submissions are misconceived. The starting point is that the Refugees Convention has not been incorporated into the domestic law of Australia.
The High Court has made it clear that a treaty to which Australia is a party will not be incorporated into Australian domestic law unless the legislature specifically legislates to that effect. In Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 31 Fam LR 339; FLC 93-174 at [220], Callinan J held that the United Nations Convention on the Rights of the Child had not been incorporated into the domestic law under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) even though the Convention is a “declared instrument” under that Act. There would have to be a clear connection between the law and the treaty. The law must truly have the purpose or object of implementing the treaty.
It is not one of the objects of the Migration Act to implement the Refugees Convention. The Object of the Act is set out in s.4:
1)The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
2)
To advance its object, this Act provides for visas permitting
non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
3)To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.
4)To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.
The comments by Allsop J in NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60 at [164] that:
Subject to a revealed contrary intention, the Act and delegated legislated are to be construed conformably with the carrying into effect of Australia’s international obligations within the Convention …
This is especially so when the Act places the Convention at the fulcrum of its operation in relation to protection visas: ss 36 and 65, in particular by the use of the phrase “to whom Australia has protection obligations under [the Convention] as referring to the whole of Article 1, and not merely Section A thereof…
should not be seen as suggesting otherwise. His Honour goes on to say at [165] that in construing the Act and Regulations it is of central importance to appreciate the content and intended operation of the Convention. The meaning is clear. The Convention is not part of Australian law; it is to be used to construe the relevant parts of Australian law.
In my view, the key to understanding the relationship between the Convention and Australian domestic law is neatly summarised by the High Court in NAGV and NAGW of 2002 (supra) at [13]-[20] under the heading “The Act and international law”:
[13] Something first should be said respecting the means by which consideration of the Convention has been drawn into Australian municipal law.
[14] First, customary international law deals with the right of asylum as a right of states not of individuals; individuals, including those seeking asylum, may not assert a right under customary international law to enter the territory of a state of which that individual is not a natural.
[15] Secondly, the Convention is an example of a treaty which qualifies what under classical international law theory was the freedom of states in the treatment of their nationals; but the Convention does not have the effect of conferring upon the refugees to which it applies international law personality with capacity to act outside municipal legal systems.
[16] Thirdly, the Convention was negotiated and agreed between the relevant Contracting States and obligations are owed between those states, not to refugees, so that it is at a state level that the Convention has to be understood. Fourthly, the Convention has been construed by the House of Lords and the Supreme Court of the United States as not detracting from the right of a Contracting State to determine who should be allowed to enter its territory. Fifthly, the text of the Convention speaks, as Brennan J pointed out in Minister for Immigration and Ethnic Affairs v Mayer,[7] indifferently of a person who is “considered a refugee” and of one to whom “the status of refugee [is] accorded” for the purposes of the Convention.
[17] Sixthly, Gibbs CJ and Brennan J in Mayer[8] and Stephen J in Simsek v Macphee[9] pointed out that the determination of the status of a refugee is a function left by the Convention to the competent authorities of the Contracting States which may select such procedures as they see fit for that purpose; as will appear, the procedures adopted by Australia have varied from time to time.
[18] Other Contracting States in their migration laws have adopted in different ways criteria drawn from the Convention…
[19] Seventhly, as the title to the Convention suggests,[10] the Convention details the status and civil rights to be afforded within Contracting States to those accorded the status of refugee…
[20] However, the Contracting States accept significant obligations under Art 32 (headed “Expulsion”) and Art 33 (headed “Prohibition of Expulsion or Return (‘Refoulement’)”…
[7] (1985) 157 CLR 290 at 305
[8] (1985) 157 CLR 290 at 294, 305
[9] (1982 148 CLR 636 at 643
[10] Convention Relating to the Status of Refugees
It can be seen that it is for the particular Contracting State to decide whether or not a person is to be accorded the status of refugee for the purpose of the Refugees Convention. The very wording of s.36(2)(a) of the Migration Act emphasizes that the determination is one for Australia to make:
(2) A criterion for a protection visa is that the applicant for the visa is
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;
The determination of a person’s refugee status so far as Australia is concerned, certainly the determination of whether or not the person meets the criterion for a protection visa, is a determination that is made by the Minister under Australian law.
Contrary to what counsel for the Applicant has submitted, NBKS was not wrongly decided, any more than Minister for Immigration & Multicultural & Indigenous Affairs (supra) was wrongly decided (which he did not submit, in fairness).
Counsel for the Applicant submitted:
It is significant to the application before the Court that the applicant arrived in Australia on a Travel Document issued pursuant to Article 28 of the Refugees Convention (RD 27-29), thereby indicating that she was recognized as a refugee under that Convention.[11]
[11] Applicant’s Outline of Submissions filed 26 April 2006, paragraph 4
With respect, it is only significant in that it shows that the Applicant was at some stage recognized by Switzerland. This recognition is not binding on Australia or even persuasive. For the applicant to be entitled to a protection visa, she must meet the criterion in s.36(2) of the Migration Act. It would only be appropriate for her to be considered under Article 1C(5) of the Refugees Convention if she had been the subject of an earlier determination, by Australia, that she was a person to whom Australia had a protection obligation under the Refugees Convention as amended by the Refugees Protocol. That is clearly not the case.
I am satisfied that the Tribunal did not fall into jurisdictional error in determining that the Applicant did not have a well-founded fear of persecution in Vietnam for reasons of political opinion, religion or any other Convention reason. The decision is a privative clause decision as defined by s.474(2) of the Migration and is not, therefore, subject to prohibition, mandamus, injunction, declaration or certiorari.
The application will be dismissed with costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 17 October 2006
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