"WAT" and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 1150
•7 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1150
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/372
GENERAL ADMINISTRATIVE DIVISION )
Re "WAT"
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President
Date7 November 2002
PlacePerth
Decision The Tribunal affirms the decision under review.
..……..(sgd) S D Hotop........................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – protection visa – whether applicant a person to whom Australia has protection obligations under Refugees Convention – whether serious reasons for considering that applicant has committed a serious non-political crime outside Australia prior to admission to Australia as a refugee.
Migration Act 1958 ss 29(1), 31, 36, 65(1)
Migration Regulations Sched 2, subcl 866.221
Convention relating to the Status of Refugees 1951 Arts 1A, 1F(b)
Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326
Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465
Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Director of Public Prosecutions v Doot [1973] AC 807
Minister for Immigration and Multicultural Affairs v Singh (2002) 186 ALR 393
NADB v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 293
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173
Savvas v R (1995) 183 CLR 1
REASONS FOR DECISION
7 November 2002 Associate Professor S D Hotop, Deputy President
This is an application for review of a decision made on 4 October 2000 by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the respondent") refusing to grant a Protection (Class XA) (Subclass 866) visa to the applicant.
At the hearing the applicant was represented by Mr S Walker, Solicitor, and the respondent was represented by Ms J Andretich, a Lawyer employed by the Australian Government Solicitor. The Tribunal had before it the documents ("T documents" – T1-T24, pp 1-377) lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. No witnesses were called, and no exhibits were tendered in evidence, by either party.
The Factual BackgroundThe relevant background facts are not in dispute and the Tribunal, for the sake of convenience, adopts the summary of those facts as set out in the Statement of Facts and Contentions (as amended at the hearing) lodged with the Tribunal by the respondent on 16 January 2002. That summary is as follows:
"1. The Applicant was born in Tibet in 1945. (T8, p96)
2. In about 1960 the Applicant escaped from Tibet to India when the Chinese occupied Tibet. (T12, p306 and T16, p355)
3. In 1961 or 1962 the Applicant joined the Indian Army and served in the 'Special Frontier Force' on the Tibetan (Chinese)/Indian border and in the 22nd Tibetan Regiment until 1972. (T12, pp306-309)
4. In 1972 the Applicant moved from India to Nepal. The Applicant states that after moving to Nepal he continued to spend time in India. (T12, p309)
5. In 1976 the Applicant entered a de facto relationship (T12, p310) with a woman with whom he had 4 children. One child and the woman died and he subsequently entered another de facto relationship with a woman with whom he had one child. (T8, p99 and T12, p310)
6. The Applicant's second wife and youngest child now reside in India. (T12, p310) The Applicant does not know the whereabouts of his 3 older children but last saw them in India.
7. On 5 March 1989 the Applicant entered Australia travelling under a Nepali passport, issued in a false name. (T6, pp69-80 and T12, p312)
8. The Applicant, in the company of three others, was arrested shortly after arrival and charged with drug importation offences.
9. On 10 November 1989, the Applicant was convicted of the following offences:
conspiring to import into Australia prohibited imports to which s 233B of the Customs Act 1901 (Cth) applied, namely, narcotic goods consisting of a quantity of heroin, contrary to s233B(1)(cb) of the Act.
importing into Australia prohibited imports to which s233B of the Customs Act 1901 (Cth) applied, namely, narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to heroin, contrary to s233B(1)(b) of the Act.
possessing prohibited imports to which s233B of the Customs Act 1901 (Cth) applied, namely, narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to heroin which were imported into Australia in contravention of s233B(1)(c) of the Customs Act 1901 (Cth).
(T4, pp25-26)
10.…
11.The Applicant was sentenced to imprisonment for 12 years for the conspiracy offence and 7 years for each of the importation and possession offences to be served concurrently with no parole. The length of the sentence was reduced on appeal to 9 years and the Applicant was made eligible for parole. (T4, pp26 & 49)
12. On 14 December 1990 the Applicant was served with a deportation order. (T8, p95)
13. On 19 June 1993 the Applicant was released from prison but remained in immigration detention.
14. On 18 June 1993 the Applicant applied for refugee status. (T8, p96)
15.On 21 September 1993 the Applicant's application for refugee status was refused by a delegate of the Respondent. (T16, p322)
16.On 6 October 1993 the Applicant applied for review of the delegate's decision by the Refugee Review Tribunal (RRT). (T14, p329)
17. As a result of changes to the Migration Act 1958 (the Migration Act), which came into effect on 1 September 1994, the Applicant's application for refugee status was taken to be an application for a protection visa.
18. On 21 October 1994 the RRT affirmed the delegate's decision to refuse to grant a protection visa to the Applicant. (T14, p328)
19. [In] November 1994 the Applicant applied to the Federal Court…for an order for review of the RRT decision. (T15, p350-353)
20. [In] November 1995 a single judge of the Federal Court dismissed the Applicant's application. (T18, p362)
21.[In] November 1995 the Applicant appealed to the Full Court of the Federal Court…(T19, pp368-369)
22. [In] March 1998 the Full Court made an order by consent that the decisions of the RRT and the delegate be set aside and that the Applicant's application for a protection visa be remitted to a delegate of the Respondent for reconsideration. (T24, p376)
23. On 4 October 2000 a delegate of the Respondent refused the Applicant's application for a protection visa. (T1, p5)
24. On 11 October 2000 the Applicant applied to the Administrative Appeals Tribunal for review of the delegate's decision. (T1, p1)".
(original emphasis)
The Legislation
Section 29(1) of the Migration Act 1958 ("the Act") authorises the respondent to grant to a non-citizen a visa to enter and/or remain in Australia. Section 31 of the Act provides that there are to be various classes of visas, including the class provided for by s 36, and that the regulations may prescribe criteria for visas of specified classes, including the class provided for by s 36.
Section 36(1) of the Act provides for a class of visas to be known as "protection visas". Section 36(2) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has "protection obligations under the Refugees Convention as amended by the Refugees Protocol". In s 5(1) of the Act "Refugees Convention" is defined to mean "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "Refugees Protocol" is defined to mean "the Protocol relating to the Status of Refugees done at New York on 31 January 1967".
Under s 65(1) of the Act the respondent, if satisfied that specified criteria (including criteria for the grant of the relevant visa prescribed by the Act or the regulations) and other matters have been fulfilled, is obliged to grant the visa, or, if not satisfied that those criteria and other matters have been fulfilled, is obliged to refuse to grant the visa.
The prescribed criteria for the grant of the various subclasses of visas are set out in Schedule 2 to the Migration Regulations ("the regulations"). Among the criteria to be satisfied at the time of a decision on an application for a subclass 866 protection visa is the following criterion set out in subclause 866.221 in Schedule 2 to the regulations:
"The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention."
In subclause 866.111 in Schedule 2 to the regulations "Refugees Convention" is defined to mean "the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees".
The Refugees Convention
Australia is a party to the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees ("the Refugees Convention"), and, accordingly, Australia has "protection obligations" under the Refugees Convention to a person who is a "refugee" within the meaning, and for the purposes, of that Convention. Article 1 of the Refugees Convention relevantly states:
"A. For the purposes of the present Convention, the term 'refugee' shall apply to any person who:
(1) …;
(2) …owing to 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; …
…
F. 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."
The Issues
The general issue in this case is whether the applicant falls within the terms of Article 1F of the Refugees Convention. It is not contended by the respondent that the applicant falls within either para (a) or para (c) of Article 1F. The respondent does contend, however, that the applicant falls within para (b) of Article 1F. The specific issue for the Tribunal's determination is, therefore, whether, in terms of para (b) of Article 1F, "there are serious reasons for considering that" the applicant "has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee". The relevant country for present purposes is, of course, Australia.
The parties made oral submissions in relation to that issue and those submissions will be referred to and addressed by the Tribunal below in the course of its consideration of that issue.
Consideration of Issue and FindingsThe applicant concedes (rightly, in the Tribunal's opinion) that each of the 3 crimes of which he was convicted on 10 November 1989 (referred to in para 9 of the statement of relevant facts set out in paragraph 3 above) is a "serious non-political crime", within the meaning and for the purposes of para (b) of Article IF of the Refugees Convention. The applicant submits, however, that there are no "serious reasons for considering that" the applicant committed any of those crimes "outside [Australia] prior to his admission to [Australia] as a refugee", within the meaning and for the purposes of that paragraph. More generally, the applicant also submitted that, in determining whether a person falls within para (b) of Article IF of the Refugees Convention, it is necessary to consider all the circumstances of that person's case (including, for example, rehabilitation and the risk of recidivism), and also to balance the degree of seriousness of the crime(s) allegedly committed by that person against the degree of persecution feared by that person if returned to their country of nationality.
It is convenient for the Tribunal first to consider the lastmentioned general submission made on behalf of the applicant. The Tribunal notes that, although the substance of that submission has been supported by leading textwriters (see, for example, Hathaway, The Law of Refugee Status (1991), pp 224-225; Goodwin-Gill, The Refugee in International Law (2nd ed, 1996), pp 106-107 and by the Office of the United Nations High Commissioner for Refugees (UNHCR) (see UNHCR Handbook on Procedure and Criteria for Determining Refugee Status (1992), para 156), it has not been adopted and applied by the courts in Australia, England, New Zealand and Canada. In Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 the Federal Court of Austalia (French J) said (at 563-564):
"But once the non-political crime committed outside the country of refuge is properly characterised as 'serious' the provisions of the Convention do not apply. There is no obligation under the Convention on the receiving State to weigh up the degree of seriousness of a serious crime against the possible harm to the applicant if returned to the state of origin. …
In T v Secretary of State for Home Department [1995] 1 WLR 545 at 554-555; [1995] 2 All ER 1042 at 1050-1051, the Court of Appeal held that there is nothing in the Convention to support the view that in deciding whether a non-political crime is 'serious' the relevant Minister or appeal tribunal is obliged to weigh the threat of persecution if asylum be refused against the granting (sic) of the crime. It is not necessary for present purposes to decide whether the evaluative characterisation of an offence as serious attracts elements of a balancing exercise. For on any view, a conspiracy to import into Australia trafficable quantities of heroin must be regarded as a serious offence."
More recently, in NADB v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 293 the Federal Court of Australia (Hely J) surveyed various relevant authorities as follows (at 300-302):-
"A Balancing test?
[30] Paragraph 156 of the UNHCR Handbook (1979) states, in relation to Art 1F(b):
In applying this exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has well-founded fear of very severe persecution, eg persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee.
[31] Zagor, 'Persecutor or Persecuted: Exclusion under Article 1(A) and (B) of the Refugees Convention' (2000) 23 UNSWLJ 164 at 186 notes that the balancing test (that is, the balance between the nature of the offence presumed to have been committed and the degree of persecution feared) is advocated by all eminent writers in the field and is 'clearly consistent with the object and purpose of the clauses, and overarching human rights purpose of the Convention. However, it has been explicitly abandoned in the common law jurisdictions of the United Kingdom, Australia, Canada, New Zealand and the United States. In other words, once a non-political crime is characterised as 'serious', no assessment of the feared persecution is required.'
[32] Mr Zagor also notes that in Australia, the lack of a weighing principle is given systemic support by the institutional arrangements for review under the Act, whereby an appeal from a primary rejection on the basis of an exclusion clause is reviewed not by the expert refugee review body, but by the AAT, which has neither the appropriate resources nor the expertise to consider fully the human rights implications of a negative decision.
[33] Keller, in a note appearing in (1999) 2 Yale Human Rights and Development Law Journal 183 refers to an issue of debate as to whether Art 1F(b) requires countries to consider the severity of the persecution that the individual would face upon repatriation. The author states that the European Union has advocated a balancing approach, which takes into consideration both the context of the crime and the nature of the persecution faced by the refugee in determining the seriousness of the crime. Chahal v United Kingdom (1996) 23 EHRR 413, a decision of the European Court of Human Rights, is cited in support of this proposition, but that case was concerned with deportation issues rather than Art 1F(b).
[34] Professor Gilbert, in the article earlier referred to, notes at p 18 that the view ordinarily adopted by several states is that whether the applicant would be persecuted if denied refugee status and forced to return to his country of origin is of no consequence when applying Art 1F.
[35] In T v Secretary of State for the Home Department [1995] 1 WLR 545; [1995] 2 All ER 1042, after referring to para 156 of the UNHCR Handbook, the United Kingdom Court of Appeal said (at WLR 555; All ER 1051):
If a person has committed a serious non-political crime outside the United Kingdom prior to his arrival here, the provisions of the Convention do not apply to him. We can find nothing in the Convention which supports the view that, in deciding whether a non-political crime is 'serious' and therefore within Article 1F, the Secretary of State or the appeal tribunal is obliged to weigh the threat of persecution if asylum be refused against the gravity of the crime.
An appeal to the House of Lords (T v Immigration officer [1996] AC 742; [1996] 2 All ER 865) was dismissed. At AC 769; All ER 882, Lord Mustill said:
The gravity of the offence is relevant to the question whether it is 'serious' for the purposes of Article 1F(b). But the crime either is or is not political when committed, and its character cannot depend on the consequences which the offender may afterwards suffer if he is returned.
The same may be said about whether a crime is 'serious'."
His Honour then cited Dhayakpa (above) per French J (at 563) and continued:
"[37] In S v Refugee Status Appeals Authority [1998] 2 NZLR 291 the New Zealand Court of Appeal considered whether Art 1F(b) requires a balancing exercise, under which there is need to weigh the seriousness of the crime against the gravity of the consequences of return to the person's homeland. The court held, after considering authorities in Australia, England and Canada as well as academic writings, that nothing in Art 1F indicated or required that such a balancing exercise be conducted. A crime is or is not serious when committed, and its character as such cannot depend on later consequences should the offender be returned to the homeland. The court concluded that whether a crime is to be categorised as serious is to be determined by reference to the nature and details of the particular offending, and its likely penal consequences. It does not depend upon, nor does it involve, a comparative assessment of its own gravity with the gravity of the perceived persecution if returned (sic) to the homeland eventuates. That accords with the approach adopted by the Canadian courts, which was reaffirmed by the Federal Court of Appeal in Malouf v Canada (Minister of Citizenship & Immigration) (1995) 190 NR 230."
Hely J's decision has very recently been upheld by the Full Court of the Federal Court of Australia: see Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326. The Full Court, after reviewing the relevant authorities, said (at para 41):
"The court in the common law jurisdictions have rejected the views expressed in the UNHCR Handbook and by eminent writers that Art 1F(b) requires a balancing test. Those views appear to be based upon a policy allegedly underlying Art 1F(b) that a person should not be denied the protection of the Refugees Convention unless the seriousness of the crime outweighs the risk of the persecution the person is likely to suffer if he or she is refouled to his or her country of nationality. The difficulty with that view is that the policy underlying Art 1F(b) is to be found in the Article's specification of the criterion for exclusion to be the commission of a 'serious non-political crime' prior to the person's admission into the intended country of refuge. Thus, the Article provides that the commission of such a crime, of itself, is sufficient to exclude the person in question from the protection of the Refugees Convention. In the context of the limited manner in which the Refugees Convention has been incorporated into municipal law in Australia (see Khawar v Minister for Immigration and Multicultural Affairs (2002) 187 ALR 574 at 584) the purpose of Art 1F(b) is clear; if a person has committed a serious non-political crime prior to the person's admission into the intended country of refuge he or she is not a person to whom Australia has protection obligations under the Refugees Convention. In determining whether the disqualifying crime is 'serious' it is appropriate to have regard to the fact that it must be of such a nature as to result in Australia not having protection obligations to persons who commit such crimes. However, there is no textual or contextual basis for reading into Art 1F(b) an additional requirement of a balancing test nor would such a requirement be justified on the basis that it is giving effect to a purpose or object of Art 1F(b) of the Refugees Convention."
In accordance with the abovementioned judicial dicta, the Tribunal does not regard it as either necessary or appropriate, for the purpose of determining whether the applicant falls within article 1F(b) of the Refugees Convention, to have regard to all the circumstances of his case (including, for example, rehabilitation and recidivism) or to engage in the exercise of balancing the seriousness of the relevant crime against the persecution feared if returned to the country of origin, as submitted by the applicant. The Tribunal regards French J's dictum in Dhayakpa, that "on any view, a conspiracy to import into Australia trafficable quantities of heroin must be regarded as a serious offence" for the purposes of Article 1F(b), as particularly apposite in this case.
Accordingly, the Tribunal will consider forthwith whether the applicant falls within the terms of Article 1F(b) of the Refugees Convention.
The threshold requirement – "serious reasons for considering…"Before para (b) of Article 1F of the Refugees Convention can apply, there must be "serious reasons for considering" that the relevant person has committed a crime within the category referred to in that paragraph. The meaning of the phrase "serious reasons for considering" has been explained by the Federal Court of Australia. In Dhayakpa (above) French J said (at 563)
"Article 1F excludes from the application of the Convention persons with respect to whom there are serious reasons for considering that they have committed the classes of crime or been guilty of the classes of act there specified. 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…".
More recently, in Arquitav Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 Weinberg J followed the approach of French J in Dhayakpa. Weinberg J said (at 478):
"It is sufficient, in my view, if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as 'strong'. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as 'strong' without meeting either of these requirements.
…
The expression 'serious reasons for considering' means precisely what it says. There must be reason, or reasons, to believe that the applicant has committed an offence of the type specified. That reasons or those reasons must be 'serious'."
Are there serious reasons for considering that the applicant has committed a serious non-political crime outside Australia?
It is common ground that on 10 November 1989 the applicant was convicted, in the District Court of Western Australia at Perth, of the 3 drug-related offences referred to in para 9 of the summary of relevant background facts set out in paragraph 3 above. It is also common ground that each of those offences constitutes "a serious non-political crime" within the meaning of para (b) of Article 1F of the Refugees Convention. The parties are, however, in dispute as to whether any of those crimes was committed by the applicant outside Australia, as required for the application of Article 1F(b).
The applicant submitted that the relevant offences of importing into Australia a 'trafficable quantity' of heroin, and possessing such a quantity of heroin, were clearly not committed outside Australia. The applicant also submitted, albeit less strongly, that the offence of conspiring to import into Australia the relevant quantity of heroin was not committed outside Australia. The respondent submitted that the lastmentioned conspiracy offence was committed by the applicant outside Australia and (albeit less strongly) that the abovementioned possession offence was also committed by the applicant outside Australia.
As regards the abovementioned conspiracy offence, the Tribunal notes that the relevant indictment, on which the applicant was tried and convicted, alleged as follows:
"Between 1st December 1988 and 6th March 1989 at Perth and other places outside Australia [the applicant and 3 other named persons] conspired with each other and divers other persons to import into Australia prohibited imports to which s 233B of the Customs Act 1901 (Cth) ('the Act') applied, namely, narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to heroin, contrary to s 233B(1)(cb) of the Act."
Although the crime of conspiracy is committed as soon as the agreement to perform the relevant unlawful act is made, it continues in existence during the performance of that unlawful act: see, for example, Director of Public Prosecutions v Doot [1973] AC 807; Savvas v R (1995) 183 CLR 1 at 8; Dhayakpa (above) at 565. In the present case it appears from the material in the T documents that the relevant agreement between the applicant and the other 3 persons to import heroin into Australia was made outside Australia prior to the applicant's initial entry into Australia (with a quantity of heroin secreted within his body) on 5 March 1989 (see T4, pp 28-41). Furthermore, the applicant was, as mentioned above, convicted of the relevant conspiracy offence on an indictment which described that offence as having occurred "(b)etween 1st December 1988 and 6th March 1989 at Perth and other places outside Australia".
On the basis of the abovementioned material the Tribunal finds that there are "serious reasons for considering" that the applicant "committed a serious non-political crime", namely, conspiracy to import into Australia a trafficable quantity of heroin contrary to s 233B(1)(cb) of the Customs Act, outside Australia, within the meaning and for the purposes of Article 1F(b) of the Refugees Convention.
In the light of that finding it is not necessary for the Tribunal to determine whether there are also serious reasons for considering that the applicant committed the offence of possessing a prohibited import, namely a trafficable quantity of heroin, contrary to s 233B(1)(c) of the Customs Act outside Australia.
Are there serious reasons for considering that the applicant committed the abovementioned conspiracy offence "prior to his admission to" Australia "as a refugee"?The applicant submitted that when he was first admitted to Australia on 5 March 1989 he was not admitted "as a refugee" or even as an applicant for refugee status, and that he has never been admitted to Australia "as refugee" or as an applicant for refugee status. He submitted that he first applied for refugee status in Australia on 18 June 1993 – some 4 years and 3½ months after he was admitted to Australia. Accordingly, the applicant submitted that he did not fall within the literal terms of para (b) of Article 1F of the Refugees Convention. In support of that submission the applicant also submitted that the Refugees Convention is a remedial or beneficial instrument which was intended to benefit a particular class of persons, namely, refugees, and that, consistently with the analogous principle of statutory interpretation which is applied in respect of remedial or beneficial statutory provisions, the provisions of the Refugees Convention (including para (b) of Article 1F) should be construed beneficially in favour of the class of persons intended to be benefited, namely, refugees (including applicants for refugee status). Accordingly, he submitted that Article 1F(b) – an exclusionary provision – should be construed narrowly so as to limit its application to a relevant person who has been admitted to the relevant country either as a person who is then in fact a refugee or as a person who then proposes to apply for refugee status. The applicant submitted that, since he fell into neither of those categories, he did not fall within para (b) of Article 1F of the Refugees Convention.
The respondent submitted that para (b) of Article 1F of the Refugees Convention is itself not a beneficial provision but rather an exclusionary provision whose purpose is to protect the order and safety of the receiving State (citing Dhayakpa, at 565; Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 at 179, 185), and that the construction of para (b) for which the applicant contended was contrary to the views expressed by justices of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Singh (2002) 186 ALR 393.
The applicant (in reply) submitted that, on the contrary, the relevant dicta of the justices of the High Court in Singh (above) either supported, or were, at least, not inconsistent with, the construction of para (b) of Article 1F of the Refugees Convention for which he contended.
The dicta of the justices of the High Court in Singh that are relevant to the present issue are as follows:
Gleeson CJ said (at 395):"[4] A point was raised for the first time in this court. It concerns the concluding words of Art 1F(b). The respondent left India by stowing away on a ship. When he arrived in Australia, he disembarked secretly and joined some fellow Sikhs. He then applied for a protection visa. The Australian authorities have never made any decision, or taken any step, that could amount to the admission of the respondent to Australia as a refugee. At present, his refugee status remains unresolved. If the decision of the Full Court of the Federal Court is upheld, the matter will go back to the tribunal for further consideration, according to law, of the application of Art 1F and, depending upon the outcome of that consideration, of any other issues that arise concerning the respondent's status. Neither the delegate, nor the tribunal, has made a decision as to whether the respondent has a well-founded fear of persecution, upon a Convention ground. The respondent claims to fear torture; but that claim might not be believed. He may simply have a well-founded fear of being prosecuted. Even if his criminal conduct were found to be political, that would not necessarily mean that for the Indian authorities to proceed against him, in accordance with due process of Indian law, would amount to persecution.
[5] To give Art 1F(b) a strictly literal interpretation, so that it could only be considered and applied after the Australian authorities had made a decision that the respondent was a person to whom protection was owed under the Convention, would involve an internal inconsistency in the Convention as it applies by force of Australian law. Article 1F is expressed as an exception. If it is satisfied, the provisions of the Convention are said not to apply to the person in question. If the provisions of the Convention do not apply to the person, the person cannot be entitled to protection under the Convention. Whatever the operation of the expression 'admission…as a refugee' in other systems of municipal law, in Australia there would be nothing to which the language could apply. It would be necessary to read the words 'prior to his admission to that country as a refugee' as meaning no more than 'prior to his entry into that country'. The preferable solution is to read the reference to 'admission…as a refugee' as a reference to putative admission as a refugee. Although the point was not adverted to before the tribunal or the Full Court, that, in practical effect, was how the case proceeded. It was regarded, on both sides of the record, as convenient, and appropriate, to consider the application of Art 1F before addressing any other issues that might have arisen concerning the respondent's refugee status. The respondent has been legally represented at all stages, and it has not been suggested that this involves any unfairness to him. There may be cases in which it would be inappropriate to decide an issue arising under Art 1F as a preliminary question, but this is not one. There is no difficulty in assuming, without deciding, that the respondent has a well-founded fear of persecution on Convention grounds if he were returned to India, and deciding whether, on his own account to the delegate of his role in the KLF, there are serious reasons considering that he has committed a serious non-political crime outside Australia before he entered Australia and applied for a protection visa."
Gaudron J said (at 402):
[30] Before turning to the facts, it is convenient to refer to an argument made on behalf of Mr Singh for the first time in this court. The argument concerns the phrase 'outside the country of refuge prior to his admission to that country as a refugee' in Art 1F(b). It was argued on behalf of Mr Singh, by reference to that phrase, 'that Article 1F(b) could have [no application to him] in the absence of a finding that he was a "refugee" in terms of Article 1A'.
[31] The composite phrase 'outside the country of refuge prior to his admission to that country as a refugee' describes both where and when a serious non-political crime must be committed before Art 1F(b) operates to exclude a person from the benefit of the Convention. The crime in question must have been committed outside 'the country of refuge', a phrase which is apt to include a country in which the person concerned seeks refuge. And the crime must have been committed 'prior to...admission to that country as a refugee'. The fact that the person has not, at the relevant time been admitted as a refugee is not to the point if the crime in question was committed before he or she could be so admitted. In such circumstances, the crime was necessarily committed 'prior to…admission...as a refugee'."
McHugh J said (at 409):
"[61] I agree with other members of the court that the court should reject Mr Singh's attempt to raise a new ground concerning the concluding words of Art 1F(b). As the Chief Justice points out in his reasons, the 'preferable solution is to read the reference to "admission…as a refugee" as a reference to putative admission as a refugee'."
Kirby J said (at 413-415):
"The refugee status point
[79]The respondent's contention: The terms of Art 1F(b) of the Convention are set out in other reasons. The delegate, the tribunal and the Federal Court were unanimous in accepting the submissions of the appellant on the first issue. He submitted that there was no occasion to consider whether the respondent was a 'refugee' within the meaning of the Convention once it was decided that the respondent fell within the exclusion in Art 1F(b). In this court, although not previously, the respondent contended that this approach was wrong in law. He submitted that the failure of the tribunal first to make a finding that he was a refugee was fatal to the appeal.
[80] As the respondent put it, the only foundation for the exclusion, in terms of that paragraph, was that he had already been admitted to this country as a refugee. In the absence of such an 'admission', the exclusionary provisions of Art 1F(b) were not engaged. The respondent argued that he had never been admitted to Australia 'as a refugee'. In fact, he had entered Australia illegally as a ship's deserter.
…[83]Arguments of the parties: The respondent rested his submissions on what he said was the plain language of Art 1F(b). The position of that Article in the scheme of the Convention must also be considered. Article 1F(b) represents an exemption to the definition of 'refugee' contained in Art 1A. According to the respondent, unless the applicant for a protection visa qualifies as one to whom protection obligations are owed, logically, no question of exclusion is presented. By divorcing the exclusion from the entitlement to protection, there was, he submitted, a risk of characterising the 'serious non-political crime' in an artificial light, divorced from the consequences that would follow for the applicant from such a characterisation.
[84] The appellant argued that the introduction of this argument was not sustained by the way in which the case had been presented before the delegate and in the tribunal. He submitted that there were obvious reasons of convenience for separating, and dealing first with, the issue presented by Art 1F(b) of the Convention. In a process that is already time-consuming, vexing and expensive, convenience suggested that it should be open for the delegate and the tribunal to take the course adopted in this case where that course was otherwise appropriate.
[85}Conclusion – no legal error: In my view the respondent has not demonstrated that the appeal must be dismissed for want of proof of an element in the exclusionary provision of Art 1F(b). I leave aside the consequences that would have followed for the respondent from the success of his contention. I will confine myself to dealing with it as it was presented.[86] There was nothing in the procedure followed in these proceedings to prevent the respondent making the points now advanced as reasons for approaching Art 1F(b) as an exception to duties falling upon states bound by the Convention in respect of persons who otherwise qualified within the definition of 'refugee'. Sometimes it could be convenient for both parties to have the suggested applicability of Art 1F(b) decide as preliminary to all other issues. Given that the respondent had been associated with the KLF and that such association was relevant both to his claim to refugee status and his potential exclusion for commission of 'serious non-political crimes', it can readily be understood why a decision was taken to deal first with the exclusion.
[87] In any case, the definition of 'refugee' in Art 1A and the exclusions from it in Art 1F are not necessarily intended to be applied sequentially. Ordinarily, they will be decided, as necessary, in the one proceeding. However, there is nothing in the Convention or the Act that forbids the decision-maker saying to the applicant, as the delegate and the tribunal said, in effect, to the respondent: 'For the moment we will assume that you would be admitted as a refugee. We will approach your case on that footing, without finally deciding it. But we want first to determine whether you have "committed a serious non-political crime outside" Australia'. The Convention is expected to operate in the real world of speedy, economical and efficient decision-making. Where there is a choice between a construction of the Convention that would further decision-making of that character and one that would frustrate those objectives, the former construction should be preferred.
[88] This conclusion has the merit of upholding proper procedures for raising objections before the decision-makers and courts below. It rejects an objection that rings hollow in the mouth of the respondent. It confirms a procedure before the delegate and the tribunal that will, in given cases (of which this was one), be sensible. Moreover, as Lord Slynn of Hadley pointed out in T v Home Secretary, an adverse decision, to the effect that Art 1F(b) of the Convention applies, does not necessarily mean that the applicant for protection must return to the state where he or she has committed a serious crime. It remains open to the minister, if another state can be found willing to accept that person, to permit the applicant to go there." (footnotes omitted)
Callinan J said (at 438):
"[162] Contrary to a submission made in this court for the first time by the respondent, I am of the opinion that the words 'prior to his admission to that country as a refugee' should be understood to mean, 'prior to his entry into the country in which he seeks or claims the status of a refugee'. Otherwise the purpose of the Convention would be subverted in that the nature of an applicant's prior criminal conduct could only be explored after he had been accorded refugee status."
In the Tribunal's opinion none of the above-quoted dicta in Singh supports the construction of Article 1F(b) for which the applicant contends; on the contrary, all of those dicta are inconsistent with that construction. As the justices make clear, the application of Article 1F(b) is to be considered on the basis that the phrase "admission to that country as a refugee" in that paragraph is understood to refer to "putative" admission as a refugee. In other words, the proper approach to adopt, in considering the application (or non-application) of Article 1F(b) to a person, is to determine whether there are serious reasons for considering that, on the supposition or assumption that that person has been admitted to the relevant country as a refugee, that person has committed a serious non-political crime outside that country prior to his or her admission to that country. Moreover, as Gaudron J succinctly stated (at 402):
"The fact that the person has not, at the relevant time been admitted as a refugee is not to the point if the crime in question was committed before he or she could be so admitted. In such circumstances, the crime was necessarily committed 'prior to…admission…as a refugee'."
In the present case the Tribunal has already found (see paragraph 19 above) that there are serious reasons for considering that the applicant committed a serious non-political crime, namely, conspiracy to import into Australia a trafficable quantity of heroin contrary to s 233B(1)(cb) of the Customs Act, outside Australia. Necessarily incorporated in that finding is a finding that there are serious reasons for considering that the applicant committed that crime prior to his admission or entry into Australia on 5 March 1989 (see also paragraph 18 above). Those findings are, in the Tribunal's opinion, sufficient for it to determine that the applicant falls within para (b) of Article 1F of the Refugees Convention. The facts that, when the applicant was admitted to Australia on 5 March 1989, he neither had refugee status nor was an applicant (or even an intended applicant) for refugee status in Australia, and did not apply for refugee status in Australia until over 4 years later, are, consistently with the above-quoted dicta in Singh, not to the point.
Accordingly, the Tribunal finds that there are "serious reasons for considering" that the applicant "committed a serious non-political crime", namely, conspiracy to import into Australia a trafficable quantity of heroin contrary to s 233B(1)(cb) of the Customs Act, "outside…[Australia] prior to his admission to…[Australia] as a refugee", within the meaning, and for the purposes, of Article 1F(b) of the Refugees Convention.
ConclusionIt follows from the Tribunal's findings in paragraphs 19 and 27 above that, in accordance with Article 1F of the Refugees Convention, the provisions of that Convention do not apply to the applicant and that, accordingly, the applicant is not a person to whom Australia has protection obligations under that Convention. The applicant does not, therefore, satisfy one of the essential primary criteria for the grant of a Protection (Class XA) (Subclass 866) visa. In that circumstance, s 65(1) of the Act provides that the applicant's application for the grant of such a visa must be refused.
DecisionFor the above reasons the Tribunal affirms the decision under review.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .. (sgd) V Wong .
AssociateDate/s of Hearing 12 September 2002
Date of Decision 7 November 2002
Counsel for the Applicant Mr S Walker
Counsel for the Respondent Ms J Andretich
Solicitor for the Respondent Australian Government Solicitor
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