SZLAN & Anor v MIAC & Anor

[2009] HCATrans 25

[2009] HCATrans 025

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S318 of 2008

B e t w e e n -

SZLAN

First Applicant

SZLAO

Second Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2009, AT 10.29 AM

Copyright in the High Court of Australia

__________________

MR D.H. GODWIN:   May it please the Court, I appear for the applicants, your Honours.  (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)

MR G.R. KENNETT:   May it please the Court, I appear for the Minister.  (instructed by Clayton Utz)

GUMMOW J:   There is submitting appearance from the second respondent.

MR GODWIN:   Thank you, your Honours.  The issue that arises in this matter is whether, following this Court’s decision in NAGV, section 36(3) of the Migration Act should be allowed to deem persons not to be refugees who in fact are refugees, that not being the intention expressed in the extrinsic materials that accompanied the passage of the legislation.  The relevant portion of the extrinsic materials appears at application book page 71 at about line 45 where Senator Patterson’s tabling speech is extracted by the court below and where Senator Patterson stated domestic case law ‑ ‑ ‑

GUMMOW J:   Just before you get any further, what was the basis on which Federal Magistrate Emmett decided this case?

MR GODWIN:   That the first ground upon which the Tribunal decided against my clients, that there was no Convention nexus for the harm they feared, disposed of the matter and that there was no need for the Tribunal to have made the subsequent two findings.

GUMMOW J:   She was fixing upon what the Tribunal was saying at page 25, was she not, of the application book, about line 20, “Overall, the Tribunal is satisfied that . . . extortion, based on the applicant’s wealth”, et cetera.

MR GODWIN:   Yes, your Honour.  But the way this matter was argued below and the way the judge below accepted the submissions from my clients was that the following paragraph at about line 33, which commenced, “If the Tribunal is wrong about this”, expressed sufficient doubt by the Tribunal about its findings as to Convention nexus ‑ ‑ ‑

HEYDON J:   No, I do not think so.  That just means “I decided on one point, but let me assume that is not so, he has another point”.  It is not casting doubt, as you say, or indicating any security about the first point. 

GUMMOW J:   You can escape this because your opponent indicates that page 111, paragraph 27 foreshadows a notice of contention which would put this on the table.  So we have to look at it now, working out whether this is an appropriate case to test this point about the Nepal‑India treaty.

MR GODWIN:   Yes, your Honour.  I suppose these submissions are, firstly, if you look at the words the Tribunal has used, it has used a phrase which has become a well‑known phrase in refugee law, concerning the “what if I’m wrong” test.  Although I understand that that is not written in law and does not mean that it cannot have had a different meaning when it used the phrase, there is certainly a strong argument that it would have known what the words “if I’m wrong about this” implied in terms of refugee law.

The other argument is the other answer that the court below accepted, which was that in any event there is an error in the first ground used by the Tribunal to reject my client’s claim in that it has identified a social group of wealthy Nepalis and then failed to make an express finding as to whether or not my clients were fearing persecution because of a member of that social group.  If the court were to accept that construction of the Tribunal’s reasons, then the other issues would still need to be resolved as well because they are the bases on which the Tribunal’s decision could be supported if there is that jurisdictional error in the first ground.  I do not think I can take that issue much further other than to say that we would submit this ‑ ‑ ‑

GUMMOW J:   What do you want to say about your other points?

MR GODWIN:   Yes.  We just submit that there are sufficient prospects that there will be enough in the first point that would mean that the other points will have to be decided one way or the other.  This Court in NAGV confirmed that Australia does not have obligations to individuals under the Refugees Convention. In this circumstance, should section 36(3) of the Migration Act be given its literal meaning, which is simply declaratory of the legal consequence that because Australia does not have obligations to individuals under the Refugees Convention, it has no protection obligations to a subset of individuals who apply for protection. 

If so, what, if any, is the effect of section 36(3) on the entitlements of persons who satisfy the requirements of section 36(2)? If section 36(3) is to have some limiting effect on the entitlements of persons who satisfy the requirements of section 36(2), then what is the meaning of the term “right of entry and residence” and should it be construed in such a way as not to infringe upon Australia’s obligations to other state parties to the Refugees Convention?

The decision of this Court in NAGV has three relevant consequences.  Firstly, it rejected any doctrine of effective protection arising by implication under Article 33 of the Convention.  Secondly, it made clear that obligations under the Convention are owed to the contracting states and not to individuals.  And, thirdly, it made clear that there are protection obligations in respect of individuals under the Convention, even if there would be no breach of Article 33 if they were returned to a third country.

It is apparent that when it was drafted, having regard to what Senator Patterson said at the time of its tabling, it was not the intention of Parliament to remove the status of refugee from persons who are otherwise found to be refugees because of the doctrine of effective protection.  NAGV found that there was no such doctrine in international law which prevented a person becoming a refugee. There are other provisions in the Act, sections 91A to G, which concern persons covered by safe third country bilateral agreements, and sections 91M to 91Q, which prevent a person who is a dual national or with a prescribed connection to a prescribed safe third country in which they have lived seven or more days from applying for a protection visa. Section 36(3) is thus not concerned with these categories of persons as they cannot make an application for a visa at all.

So there is a considerable range of options within the Act itself for the prescription of safe third countries and by the making of treaties with other countries to enable persons to be not considered at all for the question of refugee status. How section 36(3) differs is, instead of just saying “your application cannot be considered”, it deems the people not to be refugees, and that, as best my researchers can find, is a unique approach in the common law world.

The prescribed third country approach, which is dealt with in those other provisions, the 91A, et cetera, provisions, is similar to the approach in the UK and to Canada.  Also in the USA there is a requirement that there be a treaty which enables the removal of the applicant to a third country as well as a requirement that the alien would have access to a full and fair procedure for determining a claim for asylum or equivalent temporary protection. 

A person does not become a refugee by an act of recognition or grant of status by a contracting state.  A person within the contracting state who fulfils the Convention definition is, and at all times has been, a refugee.  The Convention does not provide that the incurring of obligations with respect to the refugee to whom the Convention applies is at the option or discretion of a contracting state, and nor does it provide that a contracting state will not incur obligations to a refugee under the Convention if the refugee has had or has the opportunity to seek protection from another country. 

The protection obligations to which section 36(3) refers was construed in NAGV as a general expression of the precept to which the Convention gives effect and presents a criterion in section 36(2) that the person has the status of refugee as they answer the definition of “refugee” spelt out in Article 1.  NAGV confirms there is no doctrine of effective protection. The only way, therefore, that section 36(3) can be construed so as not to impinge on Australia’s obligations in respect of a person who is a refugee as defined in Article 1 is to conform with legal exceptions as are recognised in international law.

This brings the focus to the precise words of section 36(3) to 36(5). The overall purpose of the provisions concerning protection visas is to ensure that Australia has the legislative system for meeting its protection obligations under the Convention, and that would be the starting point of the construction. The issue for the Court is whether the construction below means that Australia will be infringing its international obligations under the Refugees Convention should the applicants in fact be refugees and, if so, whether there is another construction which should be preferred.

The first construction issue concerns the phrase “right to enter and reside”. It is the applicants’ contention the construction of section 36(3), which enables conformity with Australia’s obligations under the Convention, could be achieved by construing “right” as meaning an existing right which a person who claims to be a person to whom the Convention applies may exercise, being a right to enter, re-enter and reside in a country other than Australia pursuant to prior acceptance or acknowledgement by the country that will accord the person protection from the risk of persecution that would exist if the person were returned to his or her country of nationality or habitual residence. Your Honour would be aware that that was the formulation by Justice Lee in the Full Court decision of WAGH.

If “right” is not construed in this way, then the Court will be required to determine whether the right has to be legally enforceable or some lesser status is sufficient.  In this case, the issue is linked with a further issue as to what level of enforceability is sufficient for the right to be right of entry and residence.  A right of residence is of no assistance to a refugee seeking protection unless they can enter the country.  The RRT in this case claimed that the 1950 Treaty of Peace and Friendship between Nepal and India provided the applicants with a right to entry and residence in Nepal.  As NAGV explains, this treaty could not provide rights. 

GUMMOW J:   The right to go to India.....

MR GODWIN:   Yes.  As NAGV explains, the treaty could not provide rights to individuals.  If there had been no further analysis by the RRT, there would have been a clear jurisdictional failure to determine whether the applicants had a right.  However, the Tribunal went on to make findings that the treaty had been incorporated into the domestic law of India, albeit without legislative force.

The treaty in its terms does not seek to impose rights and obligations of entry to nationals of other contracting states.  The state parties to the treaty in its terms give undertakings as to the treatment of nationals of the other contracting state who are within its borders.  There are no privileges conferred with respect to entry.  The RRT considered available information about the practice of India admitting entry to nationals of Nepal.  It accepted the Nepalese do not require a visa to enter India if travelling by air if they can produce a valid passport.  However, there was no finding as to what the source of this right was in the law of India. 

It concluded that the Tribunal accepts that Nepalese nationals are not denied entry into India unless they are on lookout lists of security agencies suspected of involvement with terrorist activity or under instruction from intelligence agencies.  Further, the Indian government has indicated it will not tolerate Maoists and will send hem back to Nepal.  The ability of the applicants to enter India thus had no legislative source and was clearly at the whim of the border officials. 

A question for the Court is whether the factual findings were sufficient to constitute a right of entry within the meaning of section 36(3). There has been a division of opinion at intermediate appellate level on this issue. The relevant division of opinions is actually set out in the respondents’ submissions, and I will not trouble your Honours with that now.

In the end, the court below purported to apply what Justice Stone said in Applicant C, which was that a country’s entry requirements may be

met by proof of identity and citizenship of a nominated country being provided at the border, for example, by production of a valid passport.  However, the difficulty is that the RRT in this case has made no finding as to what the legal status of this entry requirement for India is. 

The next issue is whether the RRT has failed to make a required finding of jurisdictional fact.  The Tribunal has failed to make findings about what steps could have been reasonable for the applicants to have taken to enter and reside in India and that the applicants have failed to take those steps.  The court below inferred those findings from the RRT’s conclusion that having considered the evidence as a whole, the Tribunal is not satisfied that the first‑named applicant is a person to whom Australia has protection obligations under the Convention.  It is submitted that inference is not a sufficient or adequate basis to support the existence of a critical jurisdictional finding having regard to the requirements of section 430 of the Act. 

The next issue is the statement by the court below that the applicants bore an onus of satisfying the RRT that they had not been excluded from eligibility for a protection visa by their failure to take all possible steps to avail themselves or a right to entry into India.  The reasoning of the court below has extreme consequences.  Assume no third country to which the applicant might have had access is identified on the material before the RRT, if no evidence is led by an applicant on this issue at all, then presumably they have failed to satisfy the onus.  The reasoning of the court below requires all applicants to provide evidence that there is no third country to which they have a legally enforceable right to enter and reside.

Getting back to the first point that your Honours raised with me, the question of “what if I’m wrong” and whether the case can be disposed on that basis and these issues that I have addressed your Honours do not arise, the simple point that the court below made and which we would repeat to your Honours is that we are talking about a Maoist trade union extorting money from a businessman.  The fact that the Tribunal has said it has some doubt that there may be some political connection or that there may be some social group connection is understandable in those circumstances.  Unless there is anything further, your Honours, those are my submissions.  

GUMMOW J:   We do not need to call on counsel for the Minister.

Having regard to the first basis on which the Refugee Review Tribunal decided the matter, it is not an appropriate case to consider what the applicant submits is a question of construction of section 36(3) of the Migration Act 1958 (Cth).

Special leave is refused with costs.  We will adjourn to reconstitute.

AT 11.47 AM THE MATTER WAS CONCLUDED