Jaber v Minister for Immigration and Multicultural Affairs

grounds of the application 4 The applicant does not appear to have had legal assistance in drafting his application. I reproduce below the relevant portions of the application exactly as they appear in that document: "I have fear of prescution in Syria, and I can't retured to Syria." "The submission follow".

my reasoning 5 The applicant was not legally represented at the hearing before me today. He made an oral submission to the effect that the Tribunal had erred in finding that the United Nations would protect him in Syria. He said "the U.N. cannot protect us". He made no other submissions.

Statutory framework 6 The following description of the relevant statutory framework is taken from the judgment of French J in Minister for Immigration and Multicultural Affairs v Quiader [2001] FCA 1458 at [19]: "The grant of protection visas falls within the general statutory framework for the grant of visas for non-citizens and is dealt with in Division III of Part 2 of the Migration Act 1958 (Cth). There is a general power in the Minister to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia (s 29). Classes of visas are provided for in the Act and also prescribed under the Regulations (s 31). Criteria for specified classes of visas may be prescribed in the Regulations (s 31(3)). Where an application is made for a visa it is to be considered by the Minister (s 47). If satisfied that the prescribed criteria and other conditions have been met, the Minister is to grant the visa. If not so satisfied, the Minister is to refuse the grant (s 65). Protection visas are provided for under s 36 of the Act. It is a criterion for the grant of a protection visa that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (s 36(2)). The criterion is replicated in Schedule 2 of the Migration Regulations which, pursuant to reg 2.03, sets out criteria for the grant of various classes of visa. Item 785 of Schedule 2 deals with temporary protection visas and Item 866 with protection visas. Both include as a criterion that: "…the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention"."

article 1(d) of the refugees' convention 7 The respondent, in his written submissions, raised the matter of the construction of Article 1(D) and its application to the applicant. Article 1(D) of the Convention reads as follows: "This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention." 8 The Tribunal referred to Article 1(D) in paragraphs numbered 2 to 7 (inclusive) of its reasons. 9 First, it rejected a submission from the applicant's advisers that the second paragraph of Article 1(D) operated to confer refugee status on the applicant, regardless of the validity of his individual claims to a well-founded fear of persecution for a Convention reason. For reasons which I give below, I agree with the Tribunal's conclusion on this point, but not on the basis that the point was decided in the case referred to by the Tribunal in paragraph 2 of its reasons - Minister for Immigration and Multicultural Affairs v Savvin [2000] FCA 478. In my view, that point did not arise in Savvin. 10 Savvin was a case which involved construction of the definition of "refugee" in Article 1A(2) of the Convention. The Full Court in Savvin held that it was not sufficient for the purposes of that definition for a stateless person to be outside his country of former habitual residence and to be unable to avail himself of the protection of that country. The Court held that Article 1A(2), properly construed, also required that person to have a well-founded fear of being persecuted for a Convention reason. 11 There are learned commentators who take the view that the second paragraph of Article 1(D) operates in the manner suggested by the applicant's advisers. For example, Professor Goodwin-Gill in "The Refugee in International Law" (2 ed) expresses such an opinion at 92: "Palestinian refugees who leave UNRWA's area of operations, being without protection and no longer in receipt of assistance, would seem to fall by that fact alone within the Convention, whether or not they qualify independently as refugees with a well-founded fear of persecution." 12 That view is expressed more forcibly and at greater length in an amicus curiae brief prepared jointly by Associate Professor Susan M Akram and Professor Goodwin-Gill, submitted on a date which does not appear from that document, to the United States Department of Justice Executive Officer for Immigration Review, Board of Immigration Appeal, Falls Church, Virginia. 13 Atle Grahl-Madsen in "The Status of Refugees in International Law" 1966, Vol 1 p 141 observed: "The words 'ipso facto' in the second paragraph of Article 1D suggest that no new screening is required for the persons concerned to become entitled to the benefits of the Convention. This view, which implies that upon cessation of UNRWA assistance and/or protection the persons concerned will become a kind of 'statutory refugees', seems to be shared by GUILLEMINET, 162 f." 14 Professor Hathaway in "The Law of Refugee Status" in a footnote (footnote 116) to p 208 sets out an opposite view, quoting from the UNHCR "Handbook on Procedures and Criteria for Determining Refugee Status" as follows: "[A] refugee from Palestine who finds himself outside [the UNRWA operational] area does not enjoy the assistance mentioned and may be considered for determination of his refugee status under the criteria of the 1951 Convention." 15 Curiously, Hathaway quotes Grahl-Madsen and Goodwin-Gill as being in accord with that observation. 16 It is clear that there are conflicting interpretations and applications of Article 1(D) by these and other commentators. 17 I think that I should set out briefly what I consider to be the correct approach to be taken in Australia to the construction of Article 1(D). As Associate Professor Akram notes (at 31 of her joint brief), Article 31(1) of the Vienna Convention on the Law of Treaties ("the Vienna Convention") provides: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose." 18 As Katz J pointed out in Savvin at [90] the Vienna Convention is not applicable to the construction of the Refugees Convention because Article 4 of the Vienna Convention renders that Convention applicable only to treaties which are concluded by States after the entry into force of the Vienna Convention. The Vienna Convention entered into force as late as 27 January 1980 while the Refugees Convention entered into force on 22 April 1954 and the Refugees Protocol of 1967 entered into force generally on 4 October 1967 and with regard to Australia particularly on 13 December 1973. 19 But Gummow J explained in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 277 that the rules of interpretation stated in the Vienna Convention reflect customary international law. His Honour said this: "Regard primarily is to be had to the ordinary meaning of the terms used therein [the Convention and Protocol], albeit in their context and in the light of the object and purpose of the Convention. Recourse may also be had to the preparatory work for the treaty and the circumstances of its conclusion, whether to confirm the meaning derived by the above means or to determine a meaning so as to avoid obscurity, ambiguity or manifestly absurd or unreasonable results. However, as McHugh J demonstrates by the analysis of the subject in his reasons for judgment, with which I agree, it is important to appreciate the primacy to be given to the text of the treaty." 20 Brennan CJ at 230-231 made the following observation: "It a statute transposes the text of a treaty or a provision of a treaty into the statute so as to enact it as part of domestic law, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty. To give it that meaning, the rules applicable to the interpretation of treaties must be applied to the transposed text and the rules generally applicable to the interpretation of domestic statutes give way. In interpreting a treaty, it is erroneous to adopt a rigid priority in the application of interpretative rules. The political processes by which a treaty is negotiated to a conclusion preclude such an approach. Rather, for the reasons given by McHugh J, it is necessary to adopt an holistic but ordered approach. The holistic approach to interpretation may require a consideration of both the text and the object and purpose of the treaty in order to ascertain its true meaning. Although the text of a treaty may itself reveal its object and purpose or at least assist in ascertaining its object and purpose, assistance may also be obtained from extrinsic sources. The form in which a treaty is drafted, the subject to which it relates, the mischief that it addresses, the history of its negotiation and comparison with earlier or amending instruments relating to the same subject may warrant consideration in arriving at the true interpretation of its text." 21 Dawson J at 240 agreed that the technical principles of common law construction are to be disregarded in construing the text of a treaty. McHugh J considered the correct approach to construction at 251-255. 22 I shall now endeavour to apply to Article 1(D) the approach to construction which was explained in Applicant A. Hesitant as I am to disagree (as I do on some points) with what appears to be a substantial body of learned commentary, I would construe the Article as follows. I should say that I have had regard generally to the preparatory work referred to by the commentators in forming my views of the proper construction of Article 1(D). 23 First, in my view, Article 1(D) should not be read as referring only to persons who, as at or about 1951, were receiving the relevant protection or assistance. It should be read as applying to persons who are at present (i.e. currently) actually receiving from the relevant United Nations organs or agencies protection or assistance. This seems to be the view taken by French J in Quiader. I respectfully agree with his Honour in that regard. I have not overlooked the observations made by some of the commentators, drawing on the preparatory work for the Convention and in particular Article 1(D), some of whom take a different view. 24 It is not necessary for me to decide whether there is now only one relevant United Nations organ or agency, namely UNRWA. Nor is it necessary for me to decide whether Article 1(D) applies only to Palestinians. That is because the applicant is a Palestinian of the relevant type (presumably by male descent) and the agency concerned is in fact UNRWA. 25 I think that the reference to "or" in the phrase "protection or assistance" in the first paragraph of Article 1(D) should be read as "and", so that merely receiving such assistance as UNRWA might be able to provide would not give rise to exclusion under the first paragraph if UNRWA did not also provide protection from persecution in the relevant country. It would be contrary to the purpose of the Convention, in my opinion, to exclude from the benefits of the Convention those persons who were persecuted (i.e. not given protection), simply because they might receive (or even were receiving) some form of assistance from the relevant United Nations organ or agency. Such a construction of the word "or" would be permissible even in an Australian statutory context - see D C Pearce and R S Geddes "Statutory Interpretation in Australia" (4 ed) para 2.15 at p 38 and the cases there cited. 26 In that regard, I agree with the view expressed by the Tribunal at paragraph numbered 4 of its reasons. 27 I do not think that the words "at present receiving" should be construed as meaning "at present entitled to receive" even though the relevant person may not be within the area of UNRWA's operations. To the extent that this opinion differs from the views expressed by Heerey J in Abou Loughod v Minister for Immigration and Multicultural Affairs [2001]FCA 825 (the case referred to by the Tribunal in this matter at paragraph numbered 3 of its reasons), I respectfully differ from those views, to the degree which entitles me not to follow them. It is possible that Abou Lougod is distinguishable on the facts of this case in the same manner as French J distinguished it in Quiader. 28 In Quiader, the Refugee Review Tribunal had found that the applicant for refugee status (the respondent in the Federal Court) had a well-founded fear of persecution if he were returned to Syria. Although Mr Quiader was registered with UNRWA, and his family received assistance from UNRWA until 1975, the Tribunal followed the interpretation of Article 1(D) in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. The Tribunal noted that the applicant was clearly outside the relevant geographical area and was not presently receiving assistance from UNRWA. The Minister, as applicant, submitted to French J that the Tribunal had erred in its construction of the first paragraph of Article 1(D). 29 His Honour rejected that submission, saying at [33]: "In my opinion, Art 1(D) does not apply, to exclude from the protection of the Convention, a Palestinian, entitled to protection and assistance from UNRWA, who is nevertheless at risk of persecution if returned to his home region notwithstanding that it is within the territorial competence of UNRWA." 30 I respectfully agree with his Honour's construction. As will be seen below, I think that the converse applies i.e. that if there is no real chance of an applicant being at risk of persecution if returned to his country, there is nothing in Article 1(D) which prevents his return to that country. I now turn to the second paragraph of Article 1(D). 31 In my opinion, the second paragraph of Article 1(D) is to be construed as providing that when a person who has been receiving protection and assistance from a relevant United Nations organ or agency, but has ceased for any reason to receive such protection and assistance (and his or her position had not been definitely settled in accordance with the relevant General Assembly resolutions) then such person will be entitled to the benefits of the Convention. 32 Australia's relevant protection obligation is the non-refoulment obligation created by Article 33 which reads as follows: "1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger…". [Emphasis added] 33 I regard as significant the use of the words "benefit" and "refugee" in each of the sub-paragraphs of Article 33. 34 The reference to "refugee", in my view, picks up and requires the application of the definition of that term in Article 1A(2). In short, I do not think that the second paragraph of Article 1(D) operates automatically to confer refugee status on the applicant. I think that the Tribunal was right to reject the applicant's submission in that regard. 35 If it is accepted that the Convention is designed to provide protection only to those who truly require it (as I think it is - see for example Hathaway at p 205), then it would be contrary to that purpose to give automatic refugee status to persons, such as the applicant, who have been found not to have a well-founded fear of persecution. They would be depriving more deserving and, in that sense, more genuine refugees of their place in the queue. The international resources for care of refugees are limited. It is more consistent, in my opinion, to construe the Convention in a manner which will not result in a waste of those resources. 36 The next issue is whether the Tribunal erred in law or fell into jurisdictional error in its assessment of whether the applicant was a refugee. 37 I have scrutinised the papers and the Tribunal's reasons. In the first part of its reasons the Tribunal set out the relevant law correctly and, in my view, there is nothing later in its reasons to suggest that it did not apply the law as earlier recited. 38 The essential basis for the Tribunal's decision was simply that it did not believe the applicant. This can be seen from paragraphs numbered 21, 27, 32 (particularly), 34, 35, 36 and 37 of its reasons. 39 Finally, the Tribunal dealt with the applicant's sur place claim. In my opinion, its reasons for rejecting that claim do not reveal legal or jurisdictional error. 40 In my view, the Tribunal's findings were open to it, and there was sufficient evidence and material to justify its conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention. 41 In my opinion, the Tribunal made no reviewable error whether error of law or jurisdictional error.

Conclusion 42 For the foregoing reasons, the application will be dismissed with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

A/g Associate: Dated: 20 December 2001 The Applicant appeared in person:

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 20 December 2001

Date of Judgment: 20 December 2001