protection obligations
14 The respondent is seeking a protection visa. The circumstances in which Australian law requires a protection visa to be granted are specified in the Act. Section 65 provides that the Minister is to grant a visa "if satisfied" that certain criteria have been met. The section does not allow for Ministerial discretion although there obviously is some leeway for the Minister in reaching the requisite state of satisfaction. The only criterion for the grant of a protection visa that is relevant to this appeal is that in s 36(2) which is that the applicant for the visa must be a non-citizen in Australia to whom Australia has "protection obligations" under the 1951 Geneva Convention relating to the Status of Refugees as amended by the 1967 New York Protocol relating to the Status of Refugees (compendiously, "the Convention"). The Convention imposes obligations on its signatories in favour of "refugees". Article 1A(2) of the Convention defines a refugee as any person who:
"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."
15 The obligations imposed by the Convention are numerous and are conveniently summarised by Lee J in Al-Rahal v Minister for Immigration & Multicultural Affairs [2001] FCA 1141 ("Al-Rahal") at [22]:
"As a Contracting State, Australia has undertaken the obligations imposed on Contracting States by the Convention, being obligations not to discriminate against a refugee (Articles 3, 8, 13, 14, 17, 18, 26, 29); to offer to a refugee welfare services available to a national of that State (Articles 20-24); and to provide for recognition of the standing of a refugee within that Contracting State (Articles 27, 28, 34)."
16 In addition, his Honour mentioned Articles 32 and 33 as being directly concerned with the protection of a refugee from harm. Article 32 is of no concern here for, as his Honour pointed out, Australia did not accept the obligations contained in it. Article 33(1) is relevant and its terms are as follows:
"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."
17 Section 36(3) of the Act, which commenced on 16 December 2000, makes the question of refoulment directly relevant to the interpretation of s 36(2); see [24] below. In a number of cases decided before the introduction of s 36(3), the Court, in reviewing decisions of the Tribunal refusing to grant protection visas, considered whether it would be a breach of Article 33(1) to return a refugee seeking protection in Australia to a country other than his or her country of origin. In the absence of s 36(3), the relevance of this question to the Minister's task in dealing with an application for a protection visa is not immediately apparent. It could be argued that the Minister is not required, and by virtue of s 65 is not entitled, to introduce the consideration of Australia's protection obligations and whether deporting the applicant would be in breach of those protection obligations as another criterion for the grant of a protection visa; see generally the opinion of Lee J in Al-Rahal. On that analysis, the task is to decide if the person is a refugee. If the person is a refugee (assuming always that any other criteria have been met), the Minister must grant the protection visa.
18 This argument raises the question of the correct interpretation of the Act and in particular, the meaning of the term, "protection obligations" used in the section. In Al-Rahal at [22], Lee J stated that, generically, all of the obligations referred to in [15] and [16] above could be described as "protection obligations". Those obligations fall into two categories:
(a) those that prohibit the return or refoulment of a refugee to a country where he or she would be exposed to persecution (in some circumstances, this may lead to the refugee being entitled to remain in Australia); and
(b) those that concern the treatment of refugees within Australia, such as non-discrimination and the provision of welfare services.
19 The phrase, "protection obligations" is not defined in the Act or in the Convention. It is used in s 36(2) in connection with the grant of a protection visa that entitles the grantee to remain in Australia. Given that context, the better view is that the term "protection obligations" refers, not to all of the obligations imposed by the Convention, but to those that are specifically concerned with the right of a refugee to remain in Australia. On that interpretation, it is a proper element of the enquiry mandated by s 36(2) to consider whether Article 33(1) would be breached by refoulment to a third country.
20 It has been accepted that Australia does not owe protection to a person who has established residence and acquired effective protection in another country ("third country"). In Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 ("Thiyagarajah"), von Doussa J, with whom Moore and Sackville JJ agreed, expressed the principle thus (at 562):
"It is not necessary for the purposes of disposing of this appeal to seek to chart the outer boundaries of the principles of international law which permit a Contracting State to return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status. It is sufficient to conclude that international law does not preclude a Contracting State from taking this course where it is proposed to return the asylum seeker to a third country which has already recognised that person's status as a refugee, and has accorded that person effective protection, including a right to reside, enter and re-enter that country. The expression 'effective protection' is used in the submissions of the Minister in the present appeal. In the context of the obligations arising under the [Convention], the expression means protection which will effectively ensure that there is not a breach of Art 33 if the person happens to be a refugee."
21 The principle in Thiyagarajah is not restricted to cases where the protection available to the protection visa applicant arises from the grant of refugee status, but may also apply where he or she is entitled to permanent residence in the third country; Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526; Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1. In Al-Zafiry v Minister for Immigration & Multicultural Affairs [1999] FCA 443, Emmett J rejected the submission that in referring to "a right to reside, enter and re-enter" in relation to the third country, von Doussa J was intending to refer to a legally enforceable right. His Honour, at [26], interpreted von Doussa J's comments as meaning:
"… that so long as, as a matter of practical reality and fact, the applicant is likely to be given effective protection by being permitted to enter and to live in a third country where he will not be under any risk of being refouled to his original country, that will suffice."
Emmett J's interpretation was adopted by the Full Court in Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 at [42]. In Patto v Minister for Immigration & Multicultural Affairs [2000] FCA 1554 ("Patto") at [37], French J summarised the position developed in these cases (noting that these propositions are not exhaustive):
"One can draw from these cases broad propositions in relation to the protection obligations assumed by Australia under Article 33 of the Convention in its application to persons who travel to Australia from the country in which they fear persecution by a third country in which they have stopped or stayed for a time:
1. Return of the person to the third country will not contravene Article 33 where the person has a right of residence in that country and is not subject to Convention harms therein.
2. Return of the person to the third country will not contravene Article 33, whether or not the person has right of residence in that country, if that country is a party to the Convention and can be expected to honour its obligations thereunder.
3. Return of the person to a third country will not contravene Article 33 notwithstanding that the person has no right of residence in that country and that the country is not a party to the Convention, provided that it can be expected, nevertheless, to afford the person claiming asylum effective protection against threats to his life or freedom for a Convention reason."
22 In judicial pronouncements concerning the concept of "effective protection", there is a common insistence on the necessity to consider the circumstances of each applicant and the practical result of sending that person to the proposed third country. In Thiyagarajah,von Doussa J spoke of the person having "a right to reside, enter and re-enter" (see [20] above), whereas Emmett J in Al- Zafiry spoke of it being "likely" that the applicant would be given effective protection by being permitted to live in the third country.
23 According to the Act, the Minister must consider whether he or she is "satisfied" that Australia owes protection obligations to the applicant. In reaching that state of satisfaction, the Minister considers the applicant's claims, assesses his or her credibility, considers independent evidence concerning the relevant countries and so on. At the end of this process the Minister must weigh all the evidence and make a decision. In weighing the evidence, different minds may make different choices in the process of reaching the prescribed state of satisfaction. In referring to the "likelihood" of the applicant being given effective protection, I understand Emmett J to be focusing on the realities of administrative decision-making. I agree with the comment of R D Nicholson J in Al-Rahal v Minister for Immigration & Multicultural Affairs [2000] FCA 1005 at [29] that the effect of the authorities on this issue:
"…is to abjure any rigid standard based on a check list and to rely on judicial assessment of the practical realities and relevant circumstances in relation to an applicant's position in a third country."
His Honour's decision was affirmed on appeal; see [2001] FCA 1141.
24 It was in the context of the jurisprudence on Article 33(1) that s 65 of the Border Protection Legislation Amendment Act 1999 (Cth) commenced on 16 December 1999. This legislation, among other things, added five new subsections to the existing s 36. The expanded section is as follows: