BZAAH v Minister for Immigration and Citizenship [2013] FCAFC 72 | Case summary

LOGAN J: 2 At the heart of this appeal lies the novel proposition, promoted by the appellants and contested by the first respondent, the Minister for Immigration and Citizenship (Minister), that the European Union (EU) is a "country" for the purposes of s 36(3) and s 36(4) of the Migration Act 1958 (Cth) (the Act). 3 Whatever might otherwise be a person's qualification for the grant of a protection visa under the Act on the basis that the Minister is satisfied, pursuant to s 36(2), that Australia has protection obligations with respect to that person under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (collectively, the Refugees Convention), s 36(3) deems there to be no such obligation if that person "has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national". The application of s 36(3) is, in turn, subject to a number of exceptions, also specified in s 36, of which only that specified in s 36(4) is presently material. The text of s 36 is set out later in this judgment. 4 The appellants are Romanian born citizens of that country, mother and infant son. Their application for a protection visa failed on merits review because the Refugee Review Tribunal (Tribunal) concluded that they had a right to enter and reside in Spain and that the circumstances of the case were not such as to render inapplicable, by virtue of s 36(4), the deemed absence of protection obligations flowing from what was otherwise the application to them of s 36(3) of the Act. Acceptance of the proposition that the EU was a country was said to have the consequence that the Tribunal's decision was attended with jurisdictional error, because it had failed to consider the appellants' position with respect to the EU and thus failed to take a relevant consideration into account. 5 The appellants expressly conceded in the course of submissions that Spain was a "country" for the purposes of s 36(3) and s 36(4) of the Act. This concession was said not to render the appeal futile because, if the EU were a country, the Tribunal had nonetheless failed to consider the EU. 6 The appellants entered Australia in February 2009 using their Romanian passports and with the benefit of tourist visas granted to them by the Department of Immigration and Citizenship (the Department). In May 2009, the female appellant applied for a protection visa on her own as well as her son's behalf. Her son's application is derivative in the sense that it is wholly dependent upon the basis of the claim made by her for that visa. 7 Given the issue at large in the appeal, it is not necessary to set out in any detail the basis of the claim made for a protection visa. Suffice it to say, the female appellant alleged that she feared persecution in Romania because of a report which she had made concerning official corruption in that country and because, such was the pervasiveness of corruption there, she was unable or unwilling to avail herself of the protection of Romanian authorities. 8 In August 2009, a delegate of the Minister rejected the appellants' application for a protection visa. The appellants then sought the review of that decision by the Tribunal. 9 The Tribunal's reasons disclose an intensive and extensive engagement by the member concerned with the basis of the claim, the supporting materials submitted by the female appellant and with other information otherwise before the Tribunal in the course of undertaking its merits review function. Ultimately and though the Tribunal member confessed to entertaining a doubt as to whether the basis of the claim fell within the Refugees Convention criteria, the Tribunal concluded (reasons, para 268) that the female appellant should be accepted as having a well-founded fear of persecution in Romania by reason of her political opinion. 10 Nonetheless, the Tribunal found that she and her son were not persons to whom Australia owed protection obligations, because s 36(3) of the Act applied to them. The basis for that finding was as follows. 11 The Tribunal found as a fact that Romania had become and was at the time when the Tribunal came to decide the review application, a Member State of the EU. The Tribunal then addressed whether the appellants, as Romanian citizens, had a legally enforceable right to enter and reside in any other EU country (reasons, para 269). For that purpose, the Tribunal referred, in the first instance, to EU Directive 2004/38/EC of 29 April 2004 (the EU Directive) and to a summary of that directive which appeared on the EU's official, "Europa" website. Based on that summary, the Tribunal concluded (reasons, para 270) that the EU Directive provided a citizen of an EU Member State with a right to enter another EU Member State by virtue of having a valid Member State identity document or passport issued to that person. The Tribunal also found that, under the EU Directive, the right of residence in another EU Member State was subject to conditions relating, for example, to the person's engagement in economic activity or training and to the person's resources. The Tribunal further found that EU citizens acquired a right of permanent residence in a host Member State after a five year period of uninterrupted legal residence. 12 The Tribunal then considered whether and to what extent this right conferred by the EU Directive was exercisable in practice. For this purpose, the Tribunal referred to and adopted views expressed in a report of the European Parliament of March 2009 concerning the transposition of the EU Directive into the domestic law of Member States with respect to rights of residency of EU citizens. The Tribunal cited an observation in that report that there was no Member State which had "effectively and correctly" transposed the entire EU Directive into their domestic law. On this basis, the Tribunal did not consider that it was possible to conclude that, as citizens of an EU Member State and on the basis of the EU Directive alone, the appellants had a right to enter and reside, whether temporarily or permanently, in any EU Member State. The Tribunal concluded (reasons, para 272) that it was, instead, "necessary to consider the manner in which the EU Directive has been transposed into the domestic legislation of particular states" to establish whether the appellants had any such right of residence. 13 The Tribunal further concluded (reasons, para 272) that it was "not practical or necessary" to consider the position in every EU Member State. Instead, the Tribunal chose to consider the position with respect to one such Member State, Spain. This choice was not happenstance. It was made by the Tribunal on the basis of independent information before the Tribunal that Spain was considered an attractive destination for Romanian workers. 14 The Tribunal then undertook a thorough analysis of the material before it relating to the right of the Romanian passport holders to enter and reside in Spain. The end result of that analysis was a conclusion by the Tribunal that the appellants had a right of residence in Spain of the kind to which s 36(3) of the Act was directed. The Tribunal considered, and rejected as inapplicable on the facts it found, s 36(4) and s 36(5) of the Act. It is not necessary further to detail this aspect of the Tribunal's reasons for decision, because it is not relevant to the issue which is controversial in the appeal. 15 On 12 July 2010, the Tribunal decided to affirm the decision of the Minister's delegate not to grant a protection visa to the appellants. The appellants then sought the judicial review of the Tribunal's decision by what was then known as the Federal Magistrates Court (now Federal Circuit Court) (Federal Magistrates Court). On 20 December 2012, that court dismissed the judicial review application. It is from that judgment that the appellants appeal to this Court. 16 The grounds of review before the Federal Magistrates Court raised a number of issues as between the appellants and the Minister other than the present, enduringly controversial one. It is not necessary to detail those other issues. As to the issue at large in these proceedings, the learned federal magistrate (as he then was) (learned federal magistrate) concluded that the EU was not a "country" for the purposes of s 36(3) and s 36(4) of the Act. In so doing, his Honour expressly adopted and applied observations made by Tamberlin J in Koe v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 289 (Koe) as to the meaning of the word "country" as it appears in the Refugees Convention. His Honour did so because, in his view, "nothing [in Koe] suggests that approach would be inapposite to a statutory term collateral to the [Refugee Convention]" which "appears to be picked up" in s 36 of the Act (reasons for judgement, para 77). 17 The appellants did not contend that there was any error on the part of the court below in determining whether or not the EU was a "country" for the purposes of s 36(3) and s 36(4) by reference to criteria identified in Koe. Their submission was that, applying those criteria, the conclusion to be drawn from the material before the Federal Magistrates Court was that the EU was a "country". Yet further, they submitted that this was a question which was open to this Court itself to determine, because it was a "jurisdictional fact". The detailed content of those submissions will be apparent from what follows. For his part, the Minister maintained, as he had in the court below, that the EU was not a "country" and, thus, that there had been no failure to take into account a relevant consideration on the part of the Tribunal. 18 Before turning to Koe, it is both necessary and desirable to consider the issue from first principles. 19 At the time when the Tribunal made its decision, s 36 of the Act provided: 36 Protection visas (1) There is a class of visas to be known as protection visas. Note: See also Subdivision AL. (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; or (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa. Protection obligations (3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. (4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country. (5) Also, if the non-citizen has a well-founded fear that: (a) a country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion; subsection (3) does not apply in relation to the first-mentioned country. Determining nationality (6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country. (7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act. 20 The word, "country" is not defined in the Act. On its face, s 36(2) incorporates an obligation arising under an international instrument namely, the Refugees Convention. In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 (QAAH) and NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 (NBGM) the High Court made a number of observations as to the approach to be followed when construing an Australian statute which incorporates such an obligation. These observations were helpfully collated by Dowsett J in Russell v Commissioner of Taxation (2011) 190 FCR 449 at [26] to [29]: 26 … [I]n QAAH at [34], Gummow ACJ, Callinan, Heydon and Crennan JJ said, after discussing various aids to interpretation of such legislation: The relevant law of Australia is found in the Act and in the Regulations under it. It is Australian principles of statutory interpretation which must be applied to the Act and the Regulations. 27 After referring to the approach taken to legislation and regulations giving effect to international conventions their Honours continued: But despite these respects in which the Convention may be used in construing the Act, it is the words of the Act which govern. 28 In NBGM, Callinan, Heydon and Crennan JJ, with whom Gummow ACJ agreed, observed, at [61], concerning the approach taken by a member of this Court in the decision under appeal: It is appropriate to point out at this stage that to approach the matter in that way was to invert the steps which an Australian court should take in situations in which international instruments have been referred to in, or adopted wholly or in part by, enactments. The first step is to ascertain, with precision, what the Australian law is, that is to say what and how much of an international instrument Australian law requires to be implemented, a process which will involve the ascertainment of the extent to which Australian law by constitutionally valid enactment adopts, qualifies or modifies the instrument. The subsequent step is the construction of so much only of the instrument, and any qualifications or modifications of it, as Australian law requires. The first step is not, contrary to his Honour's express holding, to derive an understanding of the proper interpretation and operation of the Convention. 29 At [68]-[69] their Honours continued: 68 It is desirable to say something further, however, about the proper approach to the construction of the Act and the Convention. Section 36 of the Act must be considered in context. The context is provided by other provisions of it. … 69 The Convention does not provide any of the framework for the operation of the Act. The contrary is the case. That does not mean that the Convention in and to the extent of its application to Australia should be narrowly construed. It simply means that Australian law is determinative, and it is that which should be clearly ascertained before attention is turned to the Convention. 21 The cardinal Australian principle of statutory construction is to begin with the text of the provision concerned, read in the context in which it appears and having regard to the subject matter, scope and purpose of that provision and of the Act as a whole. Next, having regard to QAAH and NGBM, it is necessary in a case like the present to ascertain with precision exactly which part of the international instrument is incorporated by the provision: 22 Adopting this approach in relation to s 36, the following emerges: 1. the "protection obligations" to which s 36(3) refers are those described in s 36(2); 2. the "protection obligations" described in s 36(2) are those arising under the Refugees Convention; 3. the part of the Refugees Convention which s 36(2) incorporates is the part which specifies the person in respect of whom protection obligations arise under that convention, ie a person who is a "refugee" within the meaning of that convention; 4. such is the engagement between s 36 and the Refugee Convention, that the word, "country" in that section must mean the same as it does if that word is used in the incorporated part of that convention; 5. there is an absence of any intention that the word "country" have any different meaning from subsection to subsection within s 36, ie whatever the word means, that meaning is consistent throughout s 36. 23 In the Refugees Convention, a "refugee" is defined by Article 1 (as amended by the 1967 Protocol) and in a way which does use the word, "country": Any person who … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it The word, "country" is not defined by the Refugees Convention for its purposes. 24 Both context and purpose dictate that in s 36 of the Act and in the definition of "refugee" in the Refugees Convention, the word "country" is used in the sense of a nation state. That is one meaning afforded to that word in the Oxford Dictionary (online edition, consulted 30 May 2013). As there defined, the alternative meaning, "a region once independent and still distinct in race, language, institutions, or historical memories" is offered, which certainly accords with experience of ordinary English usage, eg with regard to Scotland. That alternative does not supply the sense in which the word, "country" is used in s 36 or in the definition of "refugee". 25 Of the various meanings the Macquarie Dictionary (online edition, consulted 30 May 2013) gives to the word "country", the only one which, having regard to context and purpose, could have any application is: a. a relatively large area of land occupied by a group of people organised under a single, usually independent, government; nation; state; land Once again, contextual and purposive considerations dictate that the defining features of the word as used in s 36 and in the definition of "refugee" in the Refugees Convention are body political with the geographic a subordinate feature reflecting where the body politic exercises sovereignty. The area occupied by a nation or state is subsumed within the use of the word but is not its defining feature. For example, ascertaining a "country of former habitual residence" requires the identification of a location of residence but that location must be that of a body politic recognisable as a nation state. "Nation" and, more particularly, "State" are the apt parts of the meanings offered by this dictionary. 26 Further, and with all due respect to the editors of that dictionary, I doubt that, even as used only in a geographic sense, the adjectival qualification "relatively large" is warranted in relation to a definition of the word, "country". For example, in the Pacific Region, to say nothing of independent European principalities such as Monaco, Andorra and Lichtenstein, there are many island nations which occupy relatively small areas of land. In the body political sense of the word "country", land size, truly, does not matter. 27 The sense in which the word "country" is being used in s 36 of the Act and in the definition of "refugee" in the Refugees Convention has a colloquial quality. The most precise and contextually apt definition of the word is "State" in the sense of a nation state. The inquiry therefore is whether the EU is to be regarded as a "country" in that sense? 28 Yet again, context and purpose, particularly the deliberate incorporation of an international obligation in respect of a particular class of person and the inter-relationship between that obligation and the operation of ss 36(3), 36(4) and 36(5), coupled with the absence of an express definition of "country" in the Refugees Convention, strongly suggest that the Australian parliament intended that what constitutes a "country" for the purposes of s 36 should be one and the same as what constitutes a "country" or nation state under public international law. That is because, in the absence of a definition in the Refugees Convention, the meaning of that word in that convention would be determined by reference to public international law. Inferences which may be drawn from the drafting of the section also support an intention that the word bears the same meaning as it does under public international law in that s 36 supposes: (a) by the inclusory reference in s 36(3) to "countries of which the non-citizen is a national", that a feature of a "country" is an ability to confer nationality on a person; and (b) in the requirement in s 36(6) to determination of nationality "by reference to the law of that country", that another feature of a "country" is possession of a system of domestic law with the entailed attributes of national sovereignty, eg a domestic law making body. Each of these statutory suppositions accords, as will be seen, with what is regarded as an attribute of a nation state under public international law. To adopt this approach to the construction of the word "country" also accords with the settled common law principle that permits resort to the international convention concerned so as to resolve any ambiguity in the meaning of a statute giving effect to an obligation arising under that convention: Yager v The Queen (1977) 139 CLR 28, 43-44 (Mason J); Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 4 FCR 450, 458, applying Salomon v Commissioners of Customs and Excise [1967] 2 QB 116 at 143-145 per Diplock LJ. That common law principle is taken up in s 15AB(2)(d) of the Acts Interpretation Act 1901 (Cth). 29 As to public international law conceptions of a nation state, it is helpful to start with the early 19th century understanding revealed in the classic work, Wheaton H, Elements of International Law: With A Sketch of the History of the Science (Carey, Lea & Blanchard, 1836 (reprint: The Lawbook Exchange Ltd, 2002)). Dr Wheaton LLD, writing in 1836, opined (p 51): The subjects of international law are separate political societies of men living independently of each other, and especially those called Sovereign States. A sovereign state is generally defined to be any nation or people, whatever may be the form of its internal constitution, which governs itself independently of foreign powers. This definition, unless taken with great qualifications, cannot be admitted as entirely accurate. Some states are completely sovereign, and independent, acknowledging no superior but the supreme Ruler and Governor of the universe. The sovereignty of other states is limited and qualified in various degrees. [footnotes omitted] Dr Wheaton further opined (p 70): The identity of a state consists in its having the same origin or commencement of existence; and its difference from all other states consists in its having a different origin or commencement of existence. A state, as to the individual members of which it is composed, is a fluctuating body; but in respect of the society, it is one and the same body, of which the existence is perpetually kept up by a constant succession of new members. This existence continues until it is interrupted by some change affecting the being of the state. 30 Thus far then, under public international law, the following attributes of a nation state, which may be qualified, flow from Dr Wheaton's work on the subject: (a) internal self government under a domestic constitution; (b) an identifiable society composed of a fluctuating body of individuals but in perpetual collective succession as a society; (c) related to (b), a national "people", a nationality. 31 Other public international law features of a nation state may also be identified in Dr Wheaton's work. These comprise the possession of certain international rights, some of which he classifies (p 81) as absolute and some, conditional. Amongst the former is a right of self-defence. This, he stated (p 81), "involves the right to require the military service of all its people, to levy troops, and maintain a naval force, to build fortifications, and to impose and collect taxes for all of these purposes". He also identified (p 82) as another international right of a nation state, a right to increase, by all lawful and innocent means, that nation state's national dominions, wealth, population and power. He gave (p 82) as examples, each of which he described as "an incontrovertible right of sovereignty, generally recognised by the usage and opinion of nations": the pacific acquisition of new territory; the extension of national navigation and fisheries; the improvement of national revenues, arts, agriculture and commerce; the increase of a national naval and military force. 32 Yet other attributes of a nation state identified by Dr Wheaton were: (a) A right of independence which included a right "of establishing, altering, or abolishing its own municipal constitution of government". Tellingly for present purposes, he observed (p 95) of this right, "[n]o foreign state can lawfully interfere with the exercise of this right, unless such interference is authorised by some special compact, or by a clear case of necessity as immediately affects its own independence, freedom and security." (b) The exclusive right of an independent state to its territory and other property (p 137). (c) The "rights of legation", ie a right to send to and receive from other sovereign states diplomatic representatives (p 167). (d) The power of negotiating and contracting public treaties between nation and nation (p 185). (e) A right "to resort to force as the only means of redress for injuries inflicted upon it by others, in the same manner as individuals would be entitled to that remedy were they not subject to the laws of civil society", with an associated right, "to judge for itself what are the nature and extent of the injuries which will justify such a means of redress" (p 209). 33 Dr Wheaton's concept of a nation state and its attributes accords with what has come to be termed "Westphalian sovereignty". This term is derived from the Peace of Westphalia 1648, which has been described as the "first of several attempts to establish something resembling world unity on the basis of states exercising untrammeled sovereignty over certain territories and subordinated to no earthly authority": Gross L, "The Peace of Westphalia (1648-1948)" (1948) 42 AJIL 1 at p 20. 34 The aptness of attributing this concept of a nation state to the Peace of Westphalia is not without its critics. For example in the chapter, "Sovereignty and Plurinational Democracy: Problems in Political Science in Sovereignty in Transition", (Walker N, Sovereignty in Transition (Oxford - Portland Oregon, 2003) at p 191), Michael Keating reminds that the treaties concerned, the Treaty of Munster and the Treaty of Osnabrück, each of 1648, which ended the Thirty Years War, contained no reference to sovereignty or to anything like the nation state. Rather, these treaties were directed to a "'nationalisation' of religion as a way of coping with a problem which had threatened public order over the previous hundred years". Keating describes the attribution as the "Westphalian fallacy". Fallacy or not in terms of the actual provisions of the treaties concerned, the term "Westphalian sovereignty" has nonetheless come to be associated with the notion that a nation state has the attributes mentioned above. 35 The 19th century understanding of the attributes of a nation state revealed by Dr Wheaton's work is helpful because it represents their apogee. He was writing at a time prior to the internationally pervasive, calamitous 20th century conflicts of the First and Second World Wars and prior to the international responses, which successively saw the establishment over the course of that century of the League of Nations and later the United Nations, as well as a host of other international bodies including, materially, the EU and a myriad of international treaties. All of these developments have had an impact on "Westphalian sovereignty" and thus on the defining attributes of a nation state. Even in the early 19th century, Dr Wheaton conceded that his definition of a sovereign state could be regarded as accurate only if greatly qualified. Two hundred years later, in the early 21st century, the need for great qualification applies even more so. Such considerations lie behind Professor Triggs' observation, in Triggs GD, International Law Contemporary Principles and Practices (2nd ed, LexisNexis Butterworths, 2011) at p 206, para 5.6, that, "[m]any of the classical attributes of sovereignty are under challenge by contemporary international law, which has significantly modified the role of the modern state." Earlier in her work (p 201, para 5.1), Professor Triggs observes, "[w]hile states were once the only actors on the international stage, contemporary international law has recognised roles for other international persons. International organisations and trans-national corporations, along with national liberation movements and non-governmental organisations, have certain, albeit limited, capacities to make claims and engage with other persons in the international sphere." 36 The Refugees Convention was originally made in 1951 and modified by protocol in 1967. Under Australian domestic law, it is permissible to construe the Refugee Convention by reference to principles of interpretation set out in the 1969 Vienna Convention on the Law of Treaties [1974] ATS 2 (Vienna Convention): QAAH at [34]. These principles, in turn, include the requirement that a treaty be construed by reference to its context, object and purpose (Article 31) and that it is permissible to take into account in construing a treaty its preparatory work (Article 32). Even so, a meaning derived by the application of these principles to the interpretation of the incorporated international obligation would have to yield to any contrary meaning evident in the adopting Act: QAAH at [34]. As it happens, there is no tension between applying these Vienna Convention principles to the construction of the international obligation derived from the Refugees Convention and the meaning which one would in any event afford the word "country" for the purposes of the Act. 37 What is evident on the face of the Refugees Convention is that it is a compact between Contracting States Parties, not supra-national bodies. The word "country" is used in the same sense as "State" in the convention, ie as a reference to a nation state. Where the Refugees Convention uses "State" it is referring to a nation state which is a State Party; where it uses "country", it is referring to a nation state which may or may not be a party to the convention. This is made plain by Article 31, clause 2: 2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. [Emphasis added] 38 There is nothing in the preparatory work to suggest that it was ever intended otherwise. If anything, the preparatory work and a study of the Refugees Convention as a whole suggests that the contracting parties hoped that the protections it offered might be widely honoured but recognised that, even amongst signatories, there would be many places where the protections would not be available. The "Territorial Application Clause", Article 40 (known in the original draft of the Convention as the "Colonial Clause") proves this. That clause permits a State party, at the time of signature, ascension or ratification, to declare that the Convention shall apply to, "all or any of the territories for the international relations of which it is responsible". Absent such a declaration, the convention would not apply in those territories. 39 It is to be remembered that, in the years after World War II when the Refugees Convention was being negotiated and up to and including when it was made in 1951, many European powers were still colonial powers. In some of these (France and Portugal), those in the colonies enjoyed rights equal or akin to those in the governing power. Portugal was excluded from participation in negotiations, because it was then neither a member of the United Nations nor the Council of Europe. Spain, then another European colonial power, also did not participate in negotiations for like reasons. The United Kingdom did participate and was then, even after the granting of independence to India and Pakistan, a major colonial power. It fully participated in the negotiations which led to the convention in 1951. The preparatory work discloses that the United Kingdom (as did, amongst others, Australia) argued for and secured the inclusion of what became Article 40: see Cox L, "The Failure of the Peoples' Republic of China to Extend the Refugee Convention to Hong Kong: The Contemporary Use of the "Colonial Clause" by a Non-Colonial Power to Circumvent Human Rights Obligations" (2008) 4(2) JMRI 80. Thus, when the United Kingdom signed the Refugees Convention, it assumed the obligations in that convention only in respect of itself, not additionally in respect of its then colonies, such as Hong Kong. 40 As a matter of interpretation and in the face of Article 40, the word "country" is not to be construed as extending to other than nation states or, put another way, it does not, in the absence of a declaration by a State Party, extend to that State's colonies or to "all or any of the territories for the international relations of which it is responsible". The word "country" appears not just in the definition of "refugee" in Article 1A but, overall, no less than 57 times in the Refugees Convention. It is qualified by words such as "nationality", "habitual residence", "lawful residence", "residence" and "domicile". There is no suggestion in the preparatory work that the meaning of the word "country" is to change according to its qualification. The meaning is constant, a nation state. The change in application comes via the qualifying words. 41 The amendment which inserted s 36(3) and s 36(4) was made by s 2 and Sch 1, Pt 6, item 65 of the Border Protection Legislation Amendment Act 1999 (Cth) (Border Protection Legislation Amendment Act). Though there have been subsequent amendments, these do not detract from the continuing applicability of the statement by the then Minister in the supplementary explanatory memorandum which accompanied the clauses in the Bill which became the Border Protection Legislation Amendment Act. This statement confirms what a reading of s 36 would in any event suggest, which is that the amendments were directed to those who were nationals of more than one country with the aim of preventing "forum shopping" in relation to the securing of protection. There is nothing in the supplementary explanatory memorandum which would suggest that "country" where it appeared in the amendments was being used in any way other than the meaning I have ascribed to it by reference to text and context. More particularly, there is nothing in the supplementary explanatory memorandum which would suggest that the word "country" was intended to apply to supra-national organisations. 42 The appellants highlighted a number of features of the EU on the evidence which, they submitted, dictated a conclusion that it was a country in its own right: Since the Maastricht Treaty of 1992, the EU has had a legislature, the European Parliament. The EU has a Head of State and a Head of Government. The EU has defined geographic boundaries. Many of its Member States use the same currency, the "euro". The EU has its own flag, anthem and commemorative day, "Europe Day" on 9 May. There is an official set of languages for the EU. The Maastricht Treaty provides for European citizenship. The name of the EU appears on passports issued by Member States. There is freedom of movement within the EU and co-operative law enforcement akin to that of a federation such as the United States of America. The EU has its own courts. 43 In addition, the appellants pointed to evidence that Australia had accredited a diplomatic representative of the EU amongst those accredited in Australia. 44 The appellants submitted that the reasoning adopted by the High Court in Sue v Hill (1999) 199 CLR 462 (Sue v Hill) to reach the conclusion that, by the time that case was decided, the United Kingdom was a "foreign power", was applicable by analogy. In so doing, they acknowledged that the discussion in that case of what constituted a foreign power occurred in the context of constitutional interpretation but submitted that the discussion had a more general relevance as to the determination of what was or was not a "country". In particular, they submitted that the Court should adopt an approach of the law following the facts and the "march of history", evident in the reference with approval by Gleeson CJ, Gummow and Hayne JJ in Sue v Hill at [50] to the judgment of Windeyer J in Bonser v La Macchia (1969) 122 CLR 177 at 223. 45 Yet if one adopts this approach and takes as a starting point the "Treaty on European Union" and of the "Treaty on the Functioning of the European Union", together with the annexes and protocols thereto, as they result from the amendments introduced by the "Treaty of Lisbon", which was signed on 13 December 2007 in Lisbon and which entered into force on 1 December 2009 (Official Journal of the European Union, C83, Volume 53, 30 March 2010) (the EU Treaty), one is directly confronted with the following in Article 4 of that treaty: 1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States. 2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State. 46 Responsibility for national security, a key indicator of sovereignty, is expressly reserved to Member States by Article 4, clause 2. It is a noteworthy feature of the judgment below that absence of an EU defence force, as opposed to Member State defence forces, was regarded as a factor telling against regarding the EU as a country. In this, the learned federal magistrate was not mistaken. The EU Treaty envisages that the EU may have a common defence and security policy but in terms of the latter extending to defence, puts matters no higher than it includes "the progressive framing of a common union defence policy that might lead to a common defence" (Article 32 and Article 42, clause 2). The treaty provides for a "European Defence Agency" but membership of that by Member States is optional (Article 45, clause 2). 47 The EU Treaty is to be contrasted with arrangements whereby a separate nation state concedes in whole or in part responsibility for its defence and foreign affairs to another power with which it is in friendly association. Locally, the Cook Islands offers an example of such an arrangement. New Zealand undertakes those roles for the Cook Islands in consultation with what is a self governing country: Cook Islands Act 1964 (NZ). 48 Article 4, clause 2 of the EU Treaty makes it plain that the Member States of the EU are not merging their separate identities into the "Union". That is unlike, for example, the union effected between the hitherto separate kingdoms of England and Scotland pursuant to the Treaty of Union 1706, as ratified by the then separate parliaments of those countries: Union with Scotland Act 1706 (Eng); Union with England Act 1707 (Scot). Article 1 of the Treaty of Union 1706 provided: That the two Kingdoms of England and Scotland shall upon the First day of May which shall be in the year One thousand seven hundred and seven and for ever after be united into one Kingdom by the name of Great Britain There is no equivalent article in the EU Treaty. 49 The Member States of the EU can and do conduct their own foreign policy and related international defence force deployments. The United Kingdom and France, each EU Member States, have not, by the EU Treaty, lost their separate permanent membership of the United Nations Security Council or their individual membership of the United Nations General Assembly. In contrast, for example, Scotland and England lost their separate ability to conduct independent defence and foreign policy after the legislation ratifying the Treaty of Union took effect. 50 The EU Treaty exemplifies the extent to which the "dominium" of a modern nation state over its territory has, in modern times, been qualified by international obligations. At present, the EU is but a special example of the post-World War II phenomenon described by Professor Triggs in which the actors on the international stage include others apart from national states. Writing at a time when the "Maastricht Treaty" (Treaty on European Union, Official Journal C 191, 29 July 1992) had been made but before the amendments were made by the "Treaty of Lisbon" (Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, Official Journal of the European Union, C306, Volume 50, 17 December 2007) and thus in respect of what had come to be termed the "European Community", the learned authors of Jennings R and Watts R, Oppenehim's International Law (9th ed, Oxford University Press, 1996) Vol 1 at p 20-21, fn 27 opined in respect of that body: The creation of the European Communities [sic] has thus involved, at a regional level, a notable concession of sovereign powers by member states and a degree of supranationality for the Communities. The transfer of sovereign powers from the member states to the Communities and the pooling of sovereignty involved in membership of the communities are, however, limited by the ultimate possibility of withdrawal from the communities: so long as that possibility remains, any transfer of powers from states to the organisations is in the last analysis essentially temporary. Even after the amendments made to the Maastricht Treaty by the Treaty of Lisbon, the possibility of withdrawal from the EU by a Member State remains. Such transfer of powers from Member States to the EU as has to date occurred remains "essentially temporary". That is not consistent with regarding the EU as a nation state in its own right. 51 It may perhaps be that the present form of the EU is but a transitional stage between separate European nation states and a full geopolitical union between those nation states whereby they lose separate national personality and create a new nation, Europe, having such a personality. Only the "march of history" will tell whether, in hindsight, that is how the present arrangements should be viewed. For the present, what can be said is that, though the EU bears many of the trappings of sovereignty, it is not a separate nation state. 52 This is enough to reject the argument that the EU is a "country" for the purposes of s 36 of the Act and the Refugees Convention. However, as noted, the appellants also relied upon what was said of the word "country" by Tamberlin J in Koe. 53 The issue in Koe was whether the then British Crown Colony of Hong Kong (Hong Kong) was a "country" as that word appears in the expression "country of former habitual residence" in the definition of "refugee" in Article 1A of the Refugees Convention. His Honour held that Hong Kong was a "country" for this purpose. That was on the basis, that "[t]he objective of the [Refugees Convention] is to provide a practical humanitarian solution to the problems of refugees. … Individuals should not be denied the protection of [that Convention] by an unnecessarily narrow reading of the definition of 'refugee'" (78 FCR at 296). His Honour considered that the "country" was used in two different senses in the alternatives "country of nationality" and "country of former habitual residence" in the definition of "refugee". In the first, it was used in the sense of a country capable of granting nationality; in the second, a country which need not have that capability but where the applicant resides (78 FCR at 298). To that end, Tamberlin J construed the word "country" as it appeared in "country of former habitual residence" as having a more extensive meaning than a nation state (78 FCR at 296-297). His Honour regarded that conclusion as supported by the meaning given to the word "country" in the rules of the International Athletics Federation in Reel v Holder [1981] 1 WLR 1226 (Reel v Holder). Though his Honour found that Hong Kong was not a nation state, its possession of a degree of autonomy in administration in respect of a defined territorial area, including separate immigration laws persuaded him to regard it as a "country" within the meaning of the expression "country of former habitual residence" (78 FCR at 299). 54 On this basis, the appellants submitted that a conclusion that the EU was not a nation state was not fatal to their submission that it was nonetheless a "country". 55 Koe is not, of course, binding upon a Full Court. It was decided prior to the amendments to the Act made by the Border Protection Legislation Amendment Act. Furthermore, unlike the applicant in Koe, the appellants have a nationality. Their assertion that they were persons to whom Australia had a protection obligation was grounded upon their being outside their country of nationality, Romania, not the alternative of having no nationality and being outside their country of former habitual residence. In that sense, Koe is distinguishable on the facts. Nonetheless, the appellants rely on Koe as offering a general statement as to what it a "country" for the purposes of s 36 of the Act and the Refugees Convention. 56 It will be obvious from my textual and contextual analysis of the Refugee Convention that I do not, with respect, share the view of Tamberlin J in Koe that the word "country" extends to a colony such as was Hong Kong. 57 Reel v Holder, a case relied upon by his Honour, was decided in a very different context. Under the rules of an international sporting body whose members include geographic sub-units of a nation state or territories which do not enjoy universal international recognition as independent nations, it may be quite natural to construe the word "country" as nonetheless referring to them; England, Scotland and Wales, for example, are not nation states but are treated as countries for the purposes of many international sporting competitions, as is Taiwan. It does not follow that, in the quite different context of the Refugees Convention, "country" is to be so construed, as opposed to meaning a nation state. In any event, for all his reference to Reel v Holder, Tamberlin J did not in the end equate "country" just with a location but also looked to whether there was at least a measure of self-government, including border control in that location. Further and more importantly for present purposes, Tamberlin J did not in Koe equate "country" with a supranational organisation. The EU is a supranational organisation. 58 The parties did not request the Court to over-rule Koe. Each was content to argue the case on the footing that it was correctly decided. Assuming that to be so, all it stands for is that a colony which has a measure of self-governance may be a "country of former habitual residence". It does not hold that a supranational organisation may be such a country, much less a "country of nationality" (if, contrary to my view, the meaning of the word "country" does change as between the alternatives in the definition). 59 It follows, therefore, that the Tribunal did not err in failing to consider the EU as a country in its own right. Instead, it took the correct path of recognising that the EU was made up of numerous countries and then permissibly looking, on logical and rational grounds, to the appellants' position in respect of one of them, Spain. The Federal Magistrates Court was correct in upholding this approach and in concluding that the EU was not a "country". 60 There is a shorter path to this same result. As soon as one concedes that Spain is a "country" and that, so far as the findings touch on Spain, that jurisdictional error does not attend the Tribunal's conclusion that the appellants had not taken all possible steps to avail themselves of a right to enter and reside there and that s 36(4) of the Act was not applicable to them, it necessarily follows that s 36(3) applies and that Australia has no protection obligation to them. That is so whether or not the EU is a "country". 61 For these reasons, the appeal must be dismissed. The second appellant being an infant for the conduct of whose case the first appellant is responsible, the first appellant should pay the costs of the appeal. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

BZAAH v Minister for Immigration and Citizenship

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)