Minister for Immigration and Multicultural Affairs v WABQ

Federal Court of Australia (Full Court)|2002-11-08|Before: French J, Tamberlin JJ, Hill J

background to the situation relating to palestinian refugees 136 I should note that at the conclusion of the appeal hearing the parties agreed to provide detailed background material to the Court. A considerable body of material was provided to the Court and written submissions were made as to the significance of that material which I have considered in reaching my conclusions in this matter. This material related largely to the history, functions and operations of the UN organs or agencies charged with the provision of protection or assistance to Palestinians. 137 During the period between 1948 and the finalisation of the Convention on 28 July 1951, there were a series of discussions and negotiations proceeding in parallel concerning the adoption of the Statute of the Office of the United Nations High Commissioner for Refugees, (adopted by the UN General Assembly as Annex to Resolution 428(V) on 14 December 1950), together with the creation of a relief agency for Palestinians. That agency (UNRWA) was established by UN General Assembly Resolution 302 (IV), passed on 8 December 1949. It continues in operation through to the present time. Resolution 302(IV) is entitled "Assistance to Palestine Refugees" and it contains the following resolution whereby the General Assembly: "7. Establishes the United Nations Relief and Works Agency for Palestine Refugees in the Near East: (a) To carry out in collaboration with local governments the direct relief and works programmes as recommended by the Economic Survey Mission; (b) To consult with the interested Near Eastern Governments concerning measures to be taken by them preparatory to the time when international assistance for relief and works projects is no longer available; …" 138 The Commissioner-General of UNRWA has furnished reports since the inception of the agency and its work is described in the Report to the General Assembly for the year ended 30 June 2000 in these terms: "1. The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) is the largest United Nations programme in the region, employing some 21,000 staff and operating or supporting some 900 facilities. Through its regular programmes, UNRWA provides education, health care, relief and social services to the 3.7 million refugees registered with the Agency in Jordan, Lebanon, the Syrian Arab Republic, and the West Bank and Gaza Strip. Agency services include: elementary and preparatory schooling; vocational and technical training; comprehensive primary health care, including family health; assistance towards hospitalization; environmental health services in refugee camps; relief assistance to needy households; and developmental social services for women, youth and persons with disabilities. Those services are for the most part provided directly by UNRWA to the beneficiaries, in parallel to public-sector services. UNRWA services are funded mainly by voluntary contributions from donors. Where appropriate and feasible, refugees contribute to the cost of Agency services by means of voluntary contributions, co-payments, self-help schemes, volunteer efforts and participation fees. In addition to its regular programmes, the Agency carries out a range of infrastructure projects and operates a highly successful income-generation programme which provides loans to micro and small enterprises. 2. UNRWA commemorated 50 years of operation during the reporting period (the Agency was established by General Assembly resolution 302 (IV) of 8 December 1949 and began its work on 1 May 1950). The Secretary-General spoke at a special observance in New York on 8 December 1999 and later inaugurated a commemorative exhibition of photographs portraying refugee living conditions, which was on view in the General Assembly building throughout May 2000. The Secretary-General paid tribute to UNRWA's many staff who had delivered essential services to generations of refugees in a region and during a half-century marked by displacement, destruction and political upheaval. He said UNRWA's achievements in education, health and relief care were a result of their dedication, and warned that those achievements were under threat due to the Agency's financial situation. The anniversary was also marked by the refugees in field-based events during the period, including the preparation of five large embroidered quilts illustrating what UNRWA has meant to them. During these anniversary events, it was widely noted that the longevity of UNRWA, and the continuing need for its services, signified that the refugee problem remained unsolved." (Emphasis added) 139 The work of UNWRA is described in pars 55 and 56 of that Report in the following terms, which also includes a description of the registration system for eligibility to claim the benefits provided by UNRWA: "55. Refugee registration. There were 3.7 million Palestine refugees registered with UNRWA on 30 June 2000, an increase of 3.1 per cent over the 30 June 1999 figure of 3.6 million (see annex I, table 1). As in the previous reporting period, the rate of increase reflected the rate of natural population growth, with most requests for updating of records representing new births, marriages and deaths. The largest proportion of refugees was registered in Jordan (42 per cent of the Agency-wide total), followed by the Gaza Strip (22 per cent), the West Bank (15.6 per cent), the Syrian Arab Republic (10.3 per cent), and Lebanon (10.1 per cent). Of the registered population, 36.5 per cent were aged 15 or under, 54 per cent were between 16 and 59 years of age, and 9.5 per cent were aged 60 or older. About one third of the total registered refugee population lived in the 59 refugee camps in the areas of operation, the remainder resided in towns and villages (see annex I, table 2). During the period under review, the Agency witnessed an increase in the number of refugees updating their registration records with UNRWA, particularly in Jordan. As a result, a working group of senior managers from the fields and headquarters was formed to update the guidelines for registering Palestine refugees. The Agency continued to consolidate all the data pertaining to registered refugees in the family files (which form the historical archives of the registered refugees over the 50 years of UNRWA operations) through the amalgamation of "ex-codes" (previous registration numbers) within the family files. At the end of the reporting period 250,013 index cards were amalgamated within the respective 337,116 files. 56. Unified registration system. Further progress was made on the unified registration system (URS), which aimed to integrate two existing computerized databases - namely, the registration database and the socio-economic database - with the family files archive. Contacts continued with outside parties, and a related study was undertaken by external archival experts to computerize the family files paper archives and integrate them with the existing computerized components of the URS. Project implementation was to begin once extrabudgetary contributions were received. Extensive work on a redesign of the outdated field registration system was carried out, and a detailed study of user requirements, together with a comprehensive project proposal, was coordinated with external consultants. Subject to the availability of funds, the development and implementation of a new field registration system, which would be open for future linkages to other UNRWA databases, was to commence during the next reporting period. The field social study system, which was completely decentralized to all fields and areas during the reporting period, is now fully operational, and a number of amendments aimed at further improving the system were implemented. The URS Unit at headquarters (Amman) continued its field support activities through visits and workshops. To improve local programme support further, the post of Field Unified Registration System Administrator was established in all fields. The Unit and the Social Services Office began the development of a non-governmental organization information system aimed at supporting programme-related networking and fund-raising efforts in the fields." 140 There is no suggestion in the background material that UNWRA ever provided "protection" as distinct from "assistance" in the nature of education, health care and social services.

uncCp 141 In 1948, by virtue of UN General Assembly Resolution 194(III) entitled "Palestine - Progress Report of the United Nations Mediator" the General Assembly established another United Nations agency, the United Nations Conciliation Commission for Palestine ("UNCCP") with the following functions: "2. …(a) To assume the functions given to the United Nations Mediator on Palestine by resolution 186(2) of the General Assembly of 14 May 1948. 11. …that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible; [The General Assembly] Instructs the Conciliation Commission to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations; …" (Emphasis added) 142 The General Assembly Resolution 186(S-2) of 14 May 1948 required the United Nations Mediator on Palestine to: "… (i) Arrange for the operation of common services necessary to the safety and well-being of the population of Palestine; …" 143 It can be seen from this resolution that, unlike UNRWA which was designed to provide assistance in the form of aid, education and welfare, UNCCP was designed to afford protection to the Palestinians by permitting them to return to their homes and live at peace and to protect their property rights by enabling them to obtain restitution for loss of, or damage to, property. This conclusion is reinforced UN General Assembly Resolution 302(IV) of 8 December 1949 (which set up UNRWA) where the UN General Assembly recalls and affirms paragraph 11 of Resolution 194(III) and subsequently directs UNRWA to consult with UNCCP, "… in the best interests of their respective tasks,with particular reference to paragraph 11 of General Assembly resolution 194 (III) of 11 December 1948." (Emphasis added). This indicates that UNWRA and UNCCP were seen as agencies with complementary functions. 144 The role of UNCCP was further elaborated by UN General Assembly Resolution 394(V) of 14 December 1950 which specified that the General Assembly: "2. Directs the United Nations Conciliation Commission for Palestine to establish an office which, under the direction of the Commission, shall: (a) Make such arrangements as it may consider necessary for the assessment and payment of compensation in pursuance of paragraph 11 of General Assembly resolution 194 (III); (b) Work out such arrangements as may be practicable for the implementation of the other objectives of paragraph 11 of the said resolution; (c) Continue consultations with the parties concerned regarding measures for the protection of the rights, property and interests of the refugees; 3. Calls upon the governments concerned to undertake measures to ensure that refugees, whether repatriated or resettled, will be treated without any discrimination either in law or in fact." (Emphasis added) 145 UNCCP explicitly acknowledged the effect of Resolution 394(V) in par 1 of its Ninth Progress Report to the UN General Assembly, dated 22 March 1951. The Report recognised that Resolution 394(V) recalled: "… the concern of the United Nations for the settlement of all questions on which the parties have not reached agreement, and instructs the Commission to … work out such arrangements as may be practicable for the implementation of the other objectives of paragraph 11 of General Assembly resolution 194(III), and continue negotiations towards safeguarding the rights, property and interests of the refugees." (Emphasis added). This reference to safeguarding the interests of the refugees reinforces the protective role of UNCCP. 146 By 20 November 1951, Article 1(D) of the Convention had come into effect. However, it had become apparent that UNCCP may not be able to carry out its mandate to protect the Palestinians. In the Tenth Progress Report of UNCCP to the UN General Assembly for the period ended 19 November 1951, it was stated that: "87. The Commission is of the opinion, however, that the present unwillingness of the parties fully to [sic] implement the General Assembly resolutions under which the Commission is operating, as well as the changes which have occurred in Palestine during the past three years, have made it impossible for the Commission to carry out its mandate, and this fact should be taken into consideration in any further approach to the Palestine problem." (Emphasis added) 147 The possibilities envisaged in the second paragraph of Article 1(D) of the Convention, that the protection or assistance may cease, appear to have been realised by the end of 1951. 148 A resolution of the UN General Assembly of 26 January 1952 noted the Tenth Progress Report with regret and considered that UNCCP should continue its efforts to secure the implementation of the resolutions of the General Assembly on Palestine and accordingly should be available to the parties to assist them in reaching agreement on outstanding questions. 149 In a paper presented to an international conference on Palestine refugees at the United Nations Educational, Scientific and Cultural Organisation ("UNESCO") headquarters in Paris on 26 and 27 April 2000 entitled "The Work of the United Nations Conciliation Commission for Palestine" (http://www.un.org/Depts/dpa/ngo/refugees/reanda.htm), a former United Nations official consultant, Ms Laura Reanda, discussed the work of UNCCP and noted, after referring to the establishment of the Commission and its anticipated role in reaching an overall settlement, that: "This role, however, was short-lived although the basic mandate has not been amended. By the early 1960s, following a series of setbacks and some modest achievements, the UNCCP concluded that it could make no progress in finding a way acceptable to the parties for advancing a final settlement and, in particular, resolving the refugee question in accordance with its mandates. Since then, the UNCCP has undertaken no new initiatives and its annual reports to the General Assembly have been purely procedural." (Emphasis added) 150 The author noted that after January 1952, UNCCP had shifted its role towards intensifying its technical program in the hope that it would be possible to improve prospects for peace by bringing about progress in some aspects of the refugees' situation. 151 It appears that the protection of Palestinian refugees originally envisaged by the establishment of UNCCP had ceased to be of any practical substance since late 1951 and that since then, UNCCP has been unable to fulfil its mandate. This view is reinforced by the fact that even as recently as 10 December 2001, the UN General Assembly adopted Resolution 56/52, noting with regret that UNCCP "… has been unable to find a means of achieving progress in the implementation of paragraph 11 of General Assembly resolution 194(III) …". 152 The role and practical demise of UNCCP is outlined in an illuminating paper by Terry M Rempel, entitled: "The United Nations Conciliation Commission for Palestine, Protection, and a Durable Solution for Palestinian Refugees"(http://www.badil.org/Publications/ Briefs/Brief-No_5.html). In that paper the author points out that the ability of UNCCP to provide protection and facilitate a durable solution based on the principle of refugee choice and the framework set down in the original resolution was severely hampered by the internal contradiction of the Commission's mandate. The author notes that, when established, the international community believed that the UN had a unique and special responsibility to Palestine refugees as the refugee flow was a direct result of the UN decision to partition Palestine. The international community was therefore reluctant to submerge the Palestinian refugee case with all other refugee flows or controls. 153 In light of the above material it is important for the Court, when interpreting Article 1(D), to bear in mind the position prevailing as at the date when the Convention was finalised in 1951 when Article 1(D) first took effect. It is a provision inserted to deal with a specific problem arising from the partition of Israel which was designed to give effect to the position prevailing at that time. The history of UNRWA and UNCCP, the two bodies intended to provide assistance and protection to Palestinian refugees bears directly on the interpretation of Article 1(D). 154 Accordingly, when construing the particular language adopted, the need to consider the context and purpose of the provision makes it necessary to address the question whether as at 28 July 1951, when the Convention was done, Palestinians, as a group, were receiving protection from UNCCP. It is apparent from the progress reports of UNCCP that during the period after it was established on 11 December 1948, steps were being taken to carry out its mandate to protect Palestinians. By way of example, in its Seventh Progress Report to the UN General Assembly, for the period May to July 1950, the record discloses: "As indicated in its Sixth Progress Report to the Secretary-General, the Conciliation Commission for Palestine, on 29 March 1950, submitted concrete proposals to the parties for the establishment of a new procedure, combining direct negotiations in mixed committees with mediation by the Commission itself." 155 That Report also repeats the commitment of UNCCP to carry out its mandate as specified in par 11 of UN General Assembly Resolution 194(111) of 11 December 1948. The work of the UNCCP described above can, in my view, properly be characterised as the taking of steps to provide protection to Palestinians. These steps were designed to implement the objectives set out in the UNCCP mandate of December 1948 and lead me to the conclusion that Palestinians as a group were receiving protection under the mandate of UNCCP as at the date of the Convention. 156 One way international bodies implement their mandate is by negotiating for acceptance of measures by states or territories to give effect to their objectives. The setting up of an active mediation process designed to provide protection to Palestinians is, in my view, a way of affording protection. 157 The circumstances in this case and the actions taken by UNCCP to actively pursue the implementation of its objectives support my conclusion that, as at the date of the Convention, it was taking protective measures for the benefit of Palestinians and that they could properly be said to have been receiving the benefit of these efforts. The records indicate that it was not until late 1951, at the earliest, that the UNCCP considered that it would not be able to implement its mandate. Also relevant in this respect is the observation made earlier that, as at 28 July 1951, the framers of the Convention must have been aware of the functions of the United Nations organisations and agencies then in existence, namely UNCCP and UNWRA, which were assigned tasks of protection or assistance in relation to Palestinians.

reasoning on appeal 158 In the case of either paragraph of Article 1(D), the interpretation presents a number of difficulties when attempting to ascertain the meaning and operation of the provision. The expressions which raise the difficulties are emphasised in [117] above. Although the Court is required to give primacy to the text of the particular instrument, the process of interpretation calls for a consideration of the context, object and purpose of the provision. This approach accords with Article 31 of the Vienna Convention on the Law of Treaties (1969) ("Vienna Convention"): see the discussion in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. In that case, the Court considered the approach that should be taken by an Australian court when interpreting instruments of international law. Brennan CJ stated, at 231, that: "In interpreting a treaty, …… 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." (Emphasis added) See also McHugh J at 252-256. 159 The High Court has recently affirmed the approach set out above in Applicant A in the case of Morrison v Peacock [2002] HCA 44. When speaking of Article 31 of the Vienna Convention, the Court said at [16]: "The effect of Art 31 is that, although primacy must be given to the written text of the 1973 Convention, the context, objects and purpose of the treaty must also be considered. The need to give the text primacy in interpretation results from the tendency of multilateral treaties to be the product of compromises by the parties to such treaties. However treaties should be interpreted in a more liberal manner than that ordinarily adopted by a court construing exclusively domestic legislation." (Citations omitted) 160 When considering the context of the Convention the Court is entitled to examine historical documents and other material pertaining to the drafting of the Convention. Ultimately, regard must be had by the Court to the factual matrix. As Lord Simon of Glaisdale stated in Black-Clawson Ltd v Papierwerke [1975] AC 591, at 646, there is no reason: "… why a court of construction of statute should limit itself in ascertaining the matrix of facts more than a court of construction of any other written material … The object is … to ascertain the meaning of the words used …" 161 In this case it is important to keep in mind that at the time the Convention was done, there were two UN agencies in existence and the function of "protection" was given to UNCCP and the function of providing "assistance" was assigned to UNWRA. This factual context is relevant to the interpretation of Article 1(D). There is of course some overlap in the expression "protection" and the expression "assistance" in that protection may qualify as a form of assistance. However, as used in Article 1(D) the word "protection" appears to embrace activities or measures extending beyond the social, educational and other types of assistance assigned to UNWRA. This distinct role assigned to UNCCP must be borne in mind in the interpretation of Article 1(D). 162 The first question which arises in construing Article 1(D) is what is meant by "persons" in the first paragraph of the Article. This could possibly be a reference to an individual or to a group of persons, namely "Palestinians". Some light is thrown on the meaning of the expression by the reference in the second paragraph to "such persons" in the context of their position being definitively settled in accordance with the relevant resolution adopted by the General Assembly of the United Nations. It is inappropriate to speak of an individual's situation being "definitively settled" in the context of a UN resolution. The expression must refer to a group. The language strongly supports the view that the reference is to a group of persons, namely "Palestinians" and not to individuals. There is no justification for giving a different meaning to the word "persons" in the two paragraphs. 163 A second difficulty which arises concerns the expression "at present receiving from organs or agencies". The question is whether this is a reference to the date of the Convention when Article 1(D) began operation (namely 28 July 1951) or whether it is an ambulatory reference to the position from time to time with respect to receiving protection or assistance. The better view, in my opinion, is that the expression is to be interpreted as at 28 July 1951 because the first paragraph proposes to exclude Palestinians who do not need protection or assistance because they were then receiving those benefits from UN agencies. However, it was foreseen that those agencies, namely UNWRA and UNCPP, might cease to provide such assistance or protection and if this occurred Palestinians would be entitled to the benefits of the Convention. This explains the wording of the second paragraph: see L Takkenberg, The Status of Pakistan Refugees in International Law Clarendon Press, Oxford, 1998 and J Hathaway, The Law of Refugee Status, Butterworths, Toronto, 1991. 164 The reference to persons (ie Palestinians as a group) "receiving protection or assistance" on its face and on an ordinary reading would indicate actually receiving rather than an entitlement to receive as contended for by the appellant. The language is plain and there is no basis in the words used or in the historical background for inserting a presumed reference to groups who may be "entitled" to receive protection or assistance but which are not in fact receiving either. To give effect to the appellant's submission is to require the deletion of the words used and to insert into the provision another concept, namely an "entitlement to receive". 165 Once the view is taken that the word "persons" refers to Palestinians as a group rather than to individual Palestinians the distinction sought to be made between receiving and being entitled to receive largely disappears. If the "group" receives protection or assistance then all persons who compromise that group must be taken to be receiving assistance or protection even though an individual member is not actually receiving that assistance. 166 The next important expression in the first paragraph is the reference to "protection or assistance" and whether the disjunctive expression "or" must be read as "and", for the reasons which Carr J has accepted. When regard is had to the circumstance that as at 28 July 1951 it must have been known to those drafting and entering into the Convention that there were two agencies of the United Nations other than the United Nations High Commission for Refugees ("UNHCR") mandated to provide protection or assistance, it seems reasonable to construe the expression "protection or assistance" in the disjunctive, rather than in the conjunctive. In this respect, I respectfully disagree with the construction placed on these words by Carr J, namely that the expression "or" is to be read in a conjunctive sense. 167 The latter interpretation is contrary to the language of the Convention and does not take account of the circumstance that as at 1951 UNRWA was providing assistance and UNCCP, a distinct UN agency, was mandated to provide protection. Municipal Courts should be slow to adopt a departure from the language agreed upon in the absence of a broad international consensus. When interpreting the Convention, it must be kept in mind that each provision is negotiated in detail. The background material indicates that this occurred in the present instance. Thus in order to justify a departure from the ordinary meaning of the language finally chosen, it is necessary to have a powerful context to justify such a step. In the present case, substantial alterations of the language would be required to give the disjunctive word "or" a different meaning in each paragraph of Article 1(D). The language can be given a reasonable meaning without any alteration. Moreover, it is important to note that the other official version of the Convention is in French, and the French version of Article 1(D) clearly expresses the concept of protection or assistance in the disjunctive form, in both paragraphs. 168 The reference in Article 1(D) to "organs or agencies" of the United Nations, in the plural, indicates that it was contemplated there was more than one organ or agency to provide those benefits and that such protection or assistance might cease in the foreseeable future for reasons which may not have been contemplated as at 28 July 1951. This explains the reference in the second paragraph to ceasing for any reason. In fact, the position at that time was that UNRWA was providing assistance and UNCCP was charged with the function of providing protection to persons in the sense of repatriation for Palestinians and the protection of their property rights. The position which has developed, as appears from the extensive documentation referred to above, is that as from late 1951, UNWRA provided assistance but never provided protection and that after 1951 it became apparent that UNCCP was unable to provide any effective protection to Palestinians, and its protection could therefore be said to have "ceased" within the meaning of the second paragraph of Article 1(D). However, notwithstanding the weighty documentary evidence before the Court on appeal indicating that protection has ceased, because such a conclusion involves a finding of fact as to cessation of protection, the matter should be referred back to the Tribunal for determination. 169 Having regard to the conclusions expressed above, in my view, the first paragraph of article 1(D) should be applied in the following way. Palestinians as a group were as at 28 July 1951, protected by UNCPP and assisted by UNWRA and therefore could be described as "at present receiving protection or assistance". Therefore the Convention did not apply in this case by reason of the first paragraph of Article 1(D). 170 Having reached this decision as to the operation of the first paragraph it is then necessary to consider the operation of the second paragraph. The words "such protection or assistance has ceased for any reason" in that paragraph must be read by reference to the first paragraph. Consistently with the conclusion that the expression protection "or" assistance in the first paragraph must be read in the disjunctive, the same expression in the second paragraph should also be read in the disjunctive sense. The expression "persons" in the second paragraph should also be read consistently with the first paragraph to mean a group, namely "Palestinians". 171 The documents relating to UNCPP, referred to above, strongly indicate that since 1951 protection has ceased to be available because UNCPP has been unable to perform its mandate. Accordingly, if protection has ceased, the respondent would be entitled to the benefit of the Convention, that is to say, to have his application for refugee status determined according to the Convention definition in Article 1(A). The Convention operates to protect "refugees" and therefore to obtain protection an applicant must be found to be "a refugee", within the meaning of the Convention. The respondent in this case has been found to be a refugee and no challenge has been made to that finding. 172 A further question in relation to the second paragraph is the meaning of the expression "ipso facto" being entitled to the benefit of the Convention. I agree with the conclusion of Carr J in Jaber that the better view is that the expression "ipso facto" does not require a conclusion that upon cessation of protection or assistance, an applicant becomes automatically entitled to protection as a "refugee" without satisfying the definition of "refugee" under the Convention. Essentially, the protection of the Convention is provided in Article 33 which refers to a "refugee". The entitlement of a refugee is not to be sent to a country where he or she would be persecuted for a Convention reason. In this case because the respondent has established that he is a "refugee" within the definition, it follows that if he comes within the second paragraph he is entitled to the protection of the Convention. 173 In my opinion for the above reasons, the Tribunal erred in its interpretation of Article 1(D) in a number of respects. First, it treated the expression "persons" as referring to individuals, rather than the group, which is "Palestinians". Second, it interpreted the expression "at present receiving" as referring to the present time, rather than 28 July 1951. Third, it treated the disjunctive expression "or" as meaning "and". Fourth, it treated UNWRA as having the function of protection as well as assistance. Fifth, it did not consider the existence or functions of UNCCP and whether those functions had ceased after 1951 with respect to protection. These are important errors of principle and approach and the matter must be remitted for consideration. 174 It follows also that the primary Judge erred in concluding that the Tribunal decision should not be set aside, although it must be pointed out that the above questions and the extensive documentation furnished to the Court on appeal were not raised with or provided to the primary Judge so that his Honour did not have an opportunity to consider all aspects of the case as finally presented. 175 I have read in draft form the judgment of Moore J and I substantially agree with his Honour's reasoning and conclusions. The appropriate orders, in my opinion, are that the appeal be allowed, the orders of the primary Judge be set aside, the application to the Federal Court for review is granted, and the decision of the Tribunal is set aside. The matter is remitted to the Tribunal for determination in accordance with these reasons by the member who made the decision, the subject of the appeal, so far as this is practicable. The respondent should pay the costs of the appellant of the appeal and at first instance. This is a case where it is appropriate to give a Certificate under s 6 of the Federal Court Proceedings (Costs) Act 1981 (Cth). I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate: Dated: 8 November 2002 Counsel for the Applicant: L Price

Solicitor for the Applicant: Australian Government Solicitor

Federal Court Proceedings (Costs) Act 1981(Cth)

The applicable principles of interpretation. 14 There is no dispute as to the applicable principles to be adopted in interpreting the Convention and those rules apply, notwithstanding that the Convention relevantly is incorporated into the Migration Act, being domestic legislation. These are set out in the judgment of McHugh J in Applicant A v Minister for Immigration and Ethic Affairs (1996-7) 190 CLR 225 at 239-240. As his Honour there points out and by reference to Article 31 of the Vienna Convention on the Law of Treaties 1969 which sets out the general rule, the starting point is the text of the treaty. Article 31 declares: "(1) 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 the light of its objects and purpose. …" 15 The effect of Article 31 was recently stated by the full Court of the High Court, Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ, in Morrison v Peacock [2002] HCA 44 at [16] to be: "that, although primacy must be given to the written text of the … Convention, the context, objects and purpose of the treaty must also be considered. The need to give the text primacy in interpretation results from the tendency of multilateral treaties to be the product of compromises by the parties to such treaties. However, treaties should be interpreted in a more liberal manner than that ordinarily adopted by a court construing exclusively domestic legislation." 16 Hence, technical principles of common law construction are to be disregarded. Rather interpretation is to proceed on broad principles of general acceptation (see per Lord Wilberforce in Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141 at 152). Context, object and purpose will all be relevant. A literal construction which would defeat the object and purpose of the Treaty is to be eschewed. In cases such as the present the context may need recourse to be had to the history which led up to the ratification of the Treaty and its coming into effect. And, it may be added, if any provision of a Treaty arose as a result of compromise, it was Article 1(D) of the Convention. 17 It is accepted that in the interpretation of Treaties regard may be had to the traveaux preparatoires - including the debates of delegates charged with the drafting of a Treaty. They are what Article 32 of the Vienna Convention describes as "supplementary means of interpretation".

The construction of Article 1(D) 18 Almost every element of Article 1(D) is pregnant with ambiguity. So much is apparent, not only from the different views which have been expressed by Judges of this Court at first instance, but also from the different approaches that have been adopted in Courts or Tribunals around the world. These different international approaches are summarised in the amicus curiae brief with which we have been provided and which was prepared by Associate Professor Akram of the Boston University School of Law and Professor Goodwin-Gill, Professor of International Refugee Law and Rubin Director of Research at Wolfson College of the University of Oxford in connection with an appeal before the Board of Immigration Appeals in Falls Church, Virginia. There is also a useful discussion of some of the international material by Takkenberg in "The Status of Palestinian Refugees in International Law", Clarendon Press, 1998. The divergent views in Australia are sufficiently illustrated by judgments in this country, including that of the learned primary Judge in the present case. 19 An interpretation of the Article different to that taken by the learned primary Judge was favoured by Heerey J in Abou-Loughod v Minister for Immigration and Multicultural Affairs [2001] FCA 825. In that case his Honour held that Article 1(D) applied to present day Palestinians so long as they were entitled to protection and assistance from UNRWA, whether or not actually receiving those benefits. Further the Article excluded not only those living in Palestine but those who had left and who sought asylum abroad. His Honour's decision was appealed from but the Court on appeal did not find it necessary to consider the correctness of his Honour's interpretation of Article 1(D). 20 Carr J in three decisions, Kouraim v Minister for Immigration and Multicultural Affairs [2001] FCA 1824, Jaber v Minister for Immigration and Multicultural Affairs [2001] FCA 1878 and Al-Khateeb v Minister for Immigration and Multicultural Affairs [2002] FCA 7 adopted a different interpretation. His Honour made the following points:

The words "are at present receiving" referred to persons currently receiving and did not refer back to the date of signing the Convention or its coming into operation.
The word "or" in the phrase "protection or assistance" should be read as "and" so that a Palestinian receiving assistance but not protection would not be excluded from the Convention by Article 1(D).
The word "receiving" should, as Heerey J had held, be construed to mean, "entitled to receive".
The second paragraph of Article 1(D) should be construed so that so long as a person had ceased to receive the protection and assistance of UNRWA, even by the act of removing himself or herself from the Middle East and seeking asylum in Australia that person would be entitled to qualify as a refugee under the Convention.

Does the Court have jurisdiction to find facts concerning UNCCP and UNWRA. 70 It can be accepted as trite law that in proceedings for judicial review the Court conducting the review is bound by the factual findings of the Tribunal, except, at least, where the making of the findings represented an error of law, for example where the fact finding was perverse. A wrong finding of fact is not an error of law: Waterford v Commonwealth (1987) 163 CLR 54 per Brennan J at 77; R v District Court; Ex parte White (1966) 116 CLR 644 per Menzies J at 654. Where the application is for judicial review of a decision of the Refugee Review Tribunal the only grounds of review are those set out in s 476 of the Act, with the consequence that s 476(e) restricts a review where there is an error of law only to such errors as involve either an incorrect interpretation of the applicable law, or an incorrect application of the law to the facts as found by the person who made the decision. 71 There is authority in the House of Lords in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 that an appeal court may look itself at factual matters where they are part of the general background necessary to the construction of an Act, that is to say, part of the factual matrix which needs to be considered in construing a statute. The case concerned the ability of the House of Lords to look at a report of a committee established to report on the law concerning reciprocal enforcement of foreign judgments as a prelude to the passing of the Foreign Judgments (Reciprocal Enforcement) Act 1933. It was held that the Court could do so for the report was evidence of the general factual and legal situation forming the background to the legislation, that is to say, the state of the law as it was believed to be. The actual decision in that case has been followed in Australia by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 and in this Court in Re Maurice's Application; Ex parte Attorney-General for the Northern Territory (1987) 18 FCR 163 at 171 where Beaumont J commented that there was nothing novel in a Court considering the "matrix of facts" in construing a statute. 72 I do not doubt that it is open to this court in construing the Convention to have regard, for example, to the historical events which gave rise to the Palestinian refugee crisis or, for that matter, to evidence showing the existence of agencies of the United Nations which at or around the time the Convention was drafted and ratified provided protection or assistance to Palestinians. The problem is how far the Court may go in this regard. I think that it is clear that the question whether a particular agency of the United Nations had ceased to provide protection or assistance would not fall within the narrow class of case where this Court might look at surrounding circumstances. That is a factual matter for the Tribunal to decide. But equally I think it is a factual matter for the Tribunal to determine whether there ever was an agency of the United Nations which provided protection. As I have pointed out on more than one occasion in these reasons, it is clear from a perusal of the materials we have been given that UNWRA never provided protection to Palestinians. There was clearly no material before the Tribunal which suggested it did. But as presently advised this Court is bound to accept the Tribunal's finding, notwithstanding that the finding does not accord with the real facts as they are understood throughout the world. However, I agree with Moore J that in not considering whether any other agency of the United Nations provided protection the Tribunal erred in law since it may well have been the case that UNCCP did at some time provide protection and that it ceased to do so at a later time. 73 I am therefore in agreement with Tamberlin and Moore J that the matter should be remitted to the Tribunal for further consideration. I agree that the matter should be heard by the same Tribunal member as heard the original application for review. In that rehearing the Tribunal will have the advantage of considering the large amount of materials available to us or otherwise available through the United Nations. The Tribunal will then be able to consider whether UNCCP or any other agency (and nothing suggests that there was any other agency) provided protection to Palestinians at the time the Convention was entered into and whether if it did that protection ceased to be provided. If the Tribunal is of the view that UNCCP did provide protection to Palestinians at that time but has since ceased to provide protection then it would follow from the Tribunal's findings that the applicant would be entitled to a protection visa. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (18)

Cited By (7)