the effective protection question
61 Ms Maharaj fairly acknowledged that the RRT's reasoning on the effective protection question reflected some confusion on its part. There are passages in the RRT's reasons which appear to assume, incorrectly, that the test for determining whether an applicant for a protection visa has a "right to enter and reside in a [third country]" for the purposes of s 36(3) of the Migration Act is the same as the test for determining whether a third country can provide effective protection to the applicant such that Australia does not owe "protection obligations" to that applicant under s 36(2) of the Migration Act: see Minister v Applicant C, at [44]-[65], per Stone J (with whom Gray and Lee JJ agreed).
62 It does not follow that, because the RRT mistakenly assumed that the tests were the same, its decision "involved" an error of law. It is well settled, as Mason CJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 353, that a decision does not involve an error of law
"unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been different".
See also Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, at 576-577 (joint judgment); Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343, at 350 (joint judgment).
63 The following propositions relevant to the present case emerge from the authorities:
· Australia does not owe protection obligations to a person who has established residence and acquired effective protection (in the sense of protection that ensuring there is no breach of Art 33 of the Convention) in a third country: Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, at 562, per von Doussa J (with whom Moore and Sackville JJ agreed); Minister v Applicant C, at [20], per Stone J.
· This principle does not apply only to the case where the person has a legally enforceable right to enter and reside in a third country. It is enough that, as a matter of practical reality and fact, the person is likely to be given effective protection in the third country by being permitted to enter and live there and is neither at risk of being refouled to his or her original country, nor of his or her life or freedom being threatened on account of race, religion, nationality, membership of a particular social group or political opinion: Al-Zafiri v Minister at [26], per Emmett J, approved in Minister v Al-Sallal, at 558, per curiam; Patto v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 119, at [37], per French J, cited with approval in Minister v Applicant C, at [21], per Stone J.
· In determining the likelihood of the person being afforded effective protection, it is necessary to abjure any rigid standard and rely on a judicial assessment of the practical realities and circumstances relevant to that person's position: Al-Rahal v Minister (at first instance)at [29], approved in Minister v Applicant C, at [23], per Stone J.
· The enactment of s 36(3) of the Migration Act has not changed the operation of s 36(2) and, in particular, the operation of the effective protection principle: Minister v Applicant C, at [63]-[64], per Stone J, approving the views expressed by the primary Judge in the present case: Kola at [37]. Accordingly, as was said in Minister v Applicant C, at [65], Australia does not owe protection obligations under the Convention to:
"(a) a person who can, as a practical matter, obtain effective protection in a third country; or
(b) to a person who has not taken all possible steps to avail himself or herself of a legally enforceable right to enter and reside in a third country."
64 In our opinion, the primary Judge was correct in holding that the RRT applied the proper test for determining whether Albania would afford effective protection to the Kolas. The RRT specifically found that on the evidence, as a matter of practical reality and fact, the Kolas were permitted to enter Albania and reside there. The RRT also found that the Kolas would not face a real risk of persecution for any Convention reason in that country. (Insofar as the latter finding is concerned, von Doussa J (with whom Moore and Sackville JJ agreed) in Minister v Thiyagarajah, at 563-565, said that the standard to be applied in relation to Art 33 of the Convention was the same as that applicable in determining whether a person has a well-founded fear of persecution for a Convention reason for the purposes of Art 1A(2) of the Convention. No challenge was made in the present case to the formulation in Minister v Thiyagarajah: cf V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018, at [81], per Allsop J.) The questions posed and answered by the RRT accord with the approach taken by the authorities.
65 It is not to the point that the RRT may have mistakenly assumed that the test stated by s 36(3) of the Migration Act is the same as the test for effective protection under Art 33 of the Convention. As the primary Judge pointed out, the RRT did not need to address the matters referred to in s 36(3) of the Migration Act. Nor did the RRT address those matters, in particular whether the Kolas had a "right to enter and reside in" Albania. It is true that its findings, which were unfavourable to the Kolas, did encompass the matters referred to in s 36(4) and (5), since they overlap with the issues raised by Art 33. But it was unnecessary for the RRT to consider the application of s 36(3) of the Migration Act, since the Kolas failed in any event by reason of the effective protection doctrine.
66 There is no basis for the Kolas' contention that the RRT failed to make any inquiry, assessment or finding on the effective protection issue. As already noted, the RRT asked itself the correct questions. It had material before it, both in the form of country information and oral evidence, particularly by Mrs Kola, as to conditions in Albania and the policy of Albania with respect to granting refugee status to Kosovar Albanians (including people such as the Kolas). The RRT assessed the evidence and concluded that, notwithstanding evidence of criminal conduct in Albania, including cases of rape in refugee camps, the Kolas would enjoy effective protection in Albania and would not be refouled to Serbia. The finding may or may not have been correct as a matter of fact. But the RRT did assess the evidence and make findings on the relevant issues.
67 We should note that Ms Layton referred in written submissions, without elaboration, to cases which have held that, under the legislation then in force, the RRT might be obliged, in certain circumstances, to make inquiries on its own initiative. In Luu v Renevier (1989) 91 ALR 39, for example, a Full Court held (at 50), following Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, that a decision might be unreasonably made
"where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination and which has not been obtained."
That reasoning has its origins and justifications in the concept of Wednesbury unreasonableness, unavailable in this case as a ground of review by reason of s 476(2)(b) of the Migration Act. Later cases suggested that the RRT might be subject to a duty to inquire by reason of s 420(2)(b) of the Migration Act, which obliges the RRT to act according to substantial justice and the merits of the case: see, for example, Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284, at 290-291, per Black CJ, von Doussa, Sundberg and Mansfield JJ. That approach, however, as Ms Layton acknowledged, has now been foreclosed by the High Court's decision in Minister v Eshetu.
68 We did not understand Ms Layton to argue that the principle articulated in these cases survives in some form notwithstanding the enactment of s 476(2)(b) and the decision in Minister v Eshetu. Nor did she argue that the principle survives in some form that takes it outside the scope of s 476(2)(a) or (b) of the Migration Act. Nor did Ms Layton invoke the authorities that suggest that the RRT may be obliged, in certain circumstances, to address issues not expressly articulated by an applicant: cf Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38, at 50, per Sackville J; Sarrazola v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 184, at 196, per Merkel J (with whom Heerey and Sundberg JJ agreed). In any event, it is difficult to see how such authorities could apply to the circumstances of the present case where the RRT did address the correct questions and assess the evidence bearing on those questions.