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[1999] FCA 344
Federal Court of Australia
1998-09-04
Finn JJ, Mansfield J, Weinberg J, Nicholson J
Original judgment source is linked above.
REASONS FOR JUDGMENT (incorporating errata) 1 In this application for review the applicant contends that the Refugee Review Tribunal ("the Tribunal") erred in law in a decision dated 15 December 1998 in either of two respects. The first is that the Tribunal failed to address the question whether the respondents were persons to whom Australia had protection obligations under the Convention in circumstances where the respondents had entered Italy. The second is that the Tribunal failed to consider and ascertain whether or not the respondents would be permitted to re-enter Italy, at least on a temporary basis, thereby enabling their claims to refugee status to be considered or re-considered, in accordance with the Convention, in that country. The references to "the Convention" are references to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 2 These grounds of review find their jurisdictional support in s 476(1)(e) of the Migration Act 1992 (Cth) ("the Act").
Non-refoulement 3 Each of the grounds raises the question of the limits of the application of the ratio of the decision of the Full Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685. That decision has been considered in Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672 and by the Full Court in Rajendran v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia (von Doussa, O'Loughlin and Finn JJ), 4 September 1998) and at first instance by Mansfield J in Rajendran (unreported, Federal Court of Australia, 4 May 1988). More recently the case was further considered by Weinberg J in Gnanapiragasam v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, 25 September 1998, unreported). Each of these decisions provides extensive discussion of issues germane to this case but it is not necessary that they all be repeated here in order that the grounds of review can be properly addressed. On 11 December 1998 special leave was granted to appeal to the High Court in Thiyagarajah. However the leave was granted in respect of part only of the decision on the issue of whether the Federal Court should have remitted the matter to the Tribunal to find the facts applicable to the return of the applicant in that case to France. That is not an issue here. 4 These decisions and the grounds of review making them relevant all concern Art 33 of the Convention, which reads:
Prohibition of expulsion or return ("refoulement")
Applicability where refugee status not granted in third country 9 With reference to item (i) cited by the Full Court in Rajendran from the decision of the Full Court in Thiyagarajah, it was said by Weinberg J in Gnanapiragasam (at 11) that: "The decision of the Full Court in Thiyagarajah does not hold definitively that Art 33 applies in circumstances where there is "effective protection", but without prior refugee status. Nonetheless the combination of scholarly writing upon this subject to which von Doussa J referred, taken together with the decision of the House of Lords in Bugdaycay, and considerations of general principle, all suggest that Art 33 may obviate the need to consider refugee status without such status having previously been accorded to another country." (Emphasis added). In reliance on this view it was contended in support of this application that the Tribunal should have first considered the matters of effective protection raised by the present grounds of review. 10 It is the principal issue in this application whether the principle recognised in Thiyagarajah should extend to the circumstances of the present case or whether those circumstances lie beyond the boundary within which the principle in Thiyagarajah should be applied. 11 The principle in Thiyagarajah is that the prohibition against non‑refoulement is not applicable where a third country has recognised refugee status and provided effective protection. The issue here is where the outer boundaries of the principle are to be chartered and, specifically, whether they extend to include third countries from which the applicant for refugee status might arguably have obtained such status and protection. 12 As par (iii) itself recognises, the principle is applicable where the safe third country has already recognised the person's status as a refugee. In Thiyagarajah the applicant had resided in France for almost ten years, had been granted refugee status which was the equivalent of permanent residence, had a right to apply for citizenship in France and held travel documents entitling him to return to France. In Prathapan the applicant had been granted refugee status in France in 1983 before travelling to Australia in 1994. In Rajendran the applicant had lived in the United Kingdom, the United States, Canada and New Zealand for some 10 years and had permanent residence in New Zealand with travel documents enabling him to return to New Zealand. In Gnanapiragasam the applicant had been living in Germany for some eleven years. In Bugdaycay v Secretary of State for the Home Department [1987] AC 514 the appellant who sought refugee status as against Uganda had lived in Kenya from 1974 to 1979 ( and had a mother, a brother and two sisters in Kenya ); and had again lived in Kenya from June 1982 until entering the United Kingdom in January 1983. Bugdaycay's case is referred to in Thiyagarajah at 698-9. At 698 in Thiyagarajah reference is also made to the decision in Nguyen Tuan Cuong v Director of Immigration [1987] 1 WLR 68. 13 The issue of the need to charter the outer boundaries referred to in par (iii) of the reasoning of the Full Court in Thiyagarajah cited above from Rajendran is also raised by reference to the decision in R v Secretary of State for the Home Department; Ex parte Abdi [1996] 1 WLR 298. That decision was considered by the Full Court in Thiyagarajah at 700. There the applicants were nationals of Somalia, who had been in Spain for three and eight days respectively. The House of Lords upheld a decision that they could be returned to Spain without consideration of the merits of their claims for asylum. However, it is relevant that the legislative scheme established in the United Kingdom by the Asylum and Immigration Appeals Act 1993 (UK) and rules made thereunder, particulars of which are set out in the reasons for decision of the Full Court in Thiyagarajah at 699‑700, has no present parallel in Australia. There it is provided that "if the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status". This is qualified by a further provision that the Secretary of State is required not to remove an asylum applicant without substantive consideration of his claim unless "the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear the persecution and has had an opportunity, at the border or within the territory of a third country, to make contact with that country's authorities in order to seek their protection" or "there is other clear evidence of his admissibility to a third country". It follows that at least in the United Kingdom no substantive consideration is required where the applicant has arrived indirectly and has had an opportunity to make contact within the terms described. 14 In the case of the United Kingdom and of any countries which are members of the European Economic Community there is the question of the degree to which such decisions are influenced by or are the product of the development of the European Economic Community and generally the development of closer relations within European countries: see Thiyagarajah at 699. Whether the United Kingdom primary rule represents a fair share of the burden of refugee reception may also be an issue, albeit of no influence to this present case. Issues of the choice of the country of asylum are nevertheless difficult issues world‑wide, as an examination of the text in James C Hathaway, The Law of Refugee Status (Buttherworths 1991) pp 46‑50 makes apparent. There it is recounted that in Canada there has been an attempt indirectly to incorporate a direct flight rule by impugning the credibility of claimants who do not claim refugee status in other countries of passage or residence, including countries in which they have enjoyed short-term residence. 15 These issues are of more than theoretical or academic interest to the law of Australia. The reason for that is that the geographical situation of Australia is such that it is unlikely any refugee will reach its shores as a result of a direct flight. Examination of the circumstances in which refugee applications reach this Court or the Tribunal would doubtless bear that fact out. If the principle in Thiyagarajah can be applied in all circumstances other than where the applicant for refugee status has arrived in Australia by direct flight, there would be the possibility that decision‑makers would need to consider whether an applicant for refugee status could arguably have sought and attained refugee status and effective protection in one or more of the countries through which passage occurred on the way to Australia. There is a further question as to what is meant by "direct flight", namely, whether a short stay in a third country would be sufficient to invoke the principle in Thiyagarajah. If the principle is to be applied in Australia as narrowly as it was in the United Kingdom in Abdi, a considerable extra burden of time and cost may be imposed on applicants, their counsel and decision-makers including tribunals in investigating whether effective protection might have been available to an applicant for refugee status in a third country with which the applicant had short contact en route to Australia. Statutory Framework 16 The class of visa to which the respondent claims to be entitled is that provided for by s 36 of the Migration Act 1958 (Cth) ("The Act"). Section 36 is in the following terms: "36(1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." Section 31 of the Act authorises the making of regulations which prescribe criteria for a visa or visas of a specified class, including protection visas. Clause 866.221 of Schedule 2 of the Migration Regulations ("clause 866.221") provides that a criteria to be satisfied by the applicant for a protection visa is that at the time of the decision on his or her application: "The Minister was satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention." 17 In Thiyagarajah at 693-694 von Doussa J said to the effect that the question whether an applicant is a refugee pursuant to Art 1A(2) of the Convention as incorporated in Australia's domestic law was not alone determinative of whether Australia owes protection obligations to that applicant. This is because the effect of Art 33 requires consideration. If there is no application of that article against refoulement there will not be a protection obligation even if the applicant might be a refugee within Art 1A(2).
Contentions of parties 18 For the respondent it is contended that the application of the principle in Thiyagarajah only requires consideration of whether an applicant has already obtained "effective protection" of another country. It is further said that consideration of the applicability of the principle only extends as far as cases where the applicant has a "significant connection" with a third country. It is submitted the connection must be more than transitory and that a "fleeting connection" only with a third country in transit to Australia does not mean that the law requires to Tribunal to address the effective protective argument. Thus it is said that the circumstances in Thiyagarajah, Prathapan, Rajendran, Gnanapiragasam, Bugdaycay and Nguyen were all instances where the applicant had a "significant connection" with the relevant country. It is further submitted that the circumstances accepted in Bugdaycay should be distinguished and must be accepted as affected by the Dublin Convention and the Schengen Agreement: cf Thiyagarajah at 699. 19 For the applicant it is said there is no reason for the test to be expressed in such limited terms. Support for this is sought by reference to the citation in Thiyagarajah by the Full Court at 701‑702 of the paper by Professor James Crawford and Patricia Hyndman, "Three Heresies in the Application of the Refugee Convention" (1989) 1 IJRL 155 at 173 where it was said: "Australia is not obliged to entertain a claim to refugee status where the claim might more appropriately and with equal moral force be the responsibility of another signatory to the 1951 Convention, provided that there is no reason to doubt that State will consider the claim to refugee status in accordance with the Convention." Furthermore it is said for the applicant that his case relies on the United Kingdom cases only to the extent they were adopted and applied by the Full Court in Thiyagarajah and other Australian decisions.
Findings and evidence 20 In the present case the relevant findings of fact are not in dispute. The respondents are citizens of Somalia being a mother and her two children. For ease of reference the mother will be referred to as the respondent. The respondent arrived in Australia on 13 March 1998. Another child was born in Australia on 4 May 1998. 21 The respondent lodged an application for a protection visa on 16 March 1998. It was refused by a delegate of the Minister on 6 April 1998. A Tribunal affirmed the delegate's decision on 12 June 1998. On 3 September 1998 the Federal Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. On 15 December 1998 the Tribunal remitted the matter for re-consideration with the direction that the respondent is a person to whom Australia has protection obligations under the Convention. 22 In the course of recounting the "claims and evidence" before it, the Tribunal said: · "A friend of [the respondent's] husband had helped her and the two children travel to Ethiopia, then to Turkey and to Italy where she spent one month. In Italy she met another man who became her 'escort' … the escort 'disembarked' in Singapore … She remembers catching a plane in Rome, going to another European country, disembarking, and getting on another plane to Singapore." · "The applicant claimed that she had travelled to Italy by plane and that she had stayed in Rome for about a month living in a house with many other people. Her experience there was not good, and she had been told by people that she had met that the Italian authorities did not assist refugees and did not give them protection. The Tribunal put to the applicant that this was not true and that the Italian authorities in fact had a special category of visa for Somali people, in recognition of the former association between Italy and Somalia. The applicant said she did not know about this and was only repeating what was told to her." · "The Tribunal put to the applicant that it seemed that she had been on a particular flight that was an Alitalia flight from Rome to Bangkok to Sydney. She denied this and said that she had not travelled via Bangkok, but she had "heard" Singapore, and they had travelled not direct from Rome but another city. The applicant denied that she had spent any significant time in Italy, maintaining that she had been there only about a month, and denied that she had ever sought or been granted a permesso to stay in Italy." When it came to findings the Tribunal said: "The Tribunal is satisfied however, from the [respondent's] evidence given in hearing, that she did not reside in Italy, and did not seek or obtain any form of protection in that country". Grounds of review 23 For the applicant it is submitted that this finding is not determinative of the issues arising in consideration of Article 33 of the Convention. It will be observed that in the course of this evidence the possibility was raised that the respondent had travelled from Somalia to Ethiopia, Turkey, Italy, Thailand and Singapore. On a theoretical application of the test in Thiyagarajah, if the applicant is correct in the case he contends for, the Tribunal would have been required first to consider the application of Art 33 in respect of each of those third countries. 24 However, the application for review does not fall to be resolved on theoretical grounds. In the first place the grounds of review are directed only to the manner in which the Tribunal addressed the evidence in respect of Italy. The grounds as particularised are that the Tribunal erred in law in failing to address the question whether the respondents were persons to whom Australia had protection obligations under the Convention in circumstances where the respondents had entered Italy or erred in law in failing to consider and ascertain whether or not the respondents would be permitted to re-enter Italy, at least on a temporary basis, thereby enabling their claims to refugee status to be considered or reconsidered by that country. It is only necessary for this Court therefore to consider whether the Tribunal erred in law in the nature of the finding which it made in respect of Italy.
Whether Art 33 applicable 25 There are several elements to the question whether the Tribunal erred in law in relation to its findings concerning the respondent and Italy. 26 The first is whether the principle in Thiyagarajah is only applicable where a third country has already recognised the person's status as a refugee and has accorded that person effective protection, including a right to reside, enter and re-enter that country. I agree with Weinberg J in Gnanapiragasam at 11 that the principle is one which may be applicable without such status having previously been accorded to another country. That is consistent with the principle in Art 33. The prohibition in the article is applicable only where the life or freedom of the refugee "would be" threatened on account of a Convention reason. If there is evidence of the attainment of refugee status in the third country being a real possibility, it would not be possible to conclude there would be a threat so that the prohibition in Art 33 would not be applicable. 27 The second is on what basis the obligation of a tribunal or decision-maker to examine the application of Art 33 arises. Apparent options are: 28 (1) In every case as a precondition of proceeding to examine entitlement to refugee status. That, however, would be a perfunctory exercise if there were no evidence of contact with a third country. The real issue is what degree of contact with a third country is required. 29 (2) Where there is a "significant connection" between the applicant for refugee status and the third country, akin to that in Thiyagarajah, Prathapan, Rajendran, Grianapiragasam, Bugdaycay and Nguyen. This is the test which the respondent advances. 30 (3) The existence of an opportunity to seek protection in a third country: cf Immigration Rules (UK) R180K as cited in Thiyagarajah at 700. 31 (4) Transit through a third country. There are infinite variations on these broad range of options: see Goodwin‑Gill, The Refugee in International Law (Second ed, 1996) pp340-344, S Taylor, "Australia's Safe Third Country Provisions" (1996) 15(2) University of Tasmania Law Review (196 at 201). 32 However those options arise in legislative settings. This Court must approach the issue as a court is required to do - namely on the evidence before it. In my view that must mean that the obligation to consider Art 33 (other than merely formally) will arise when the evidence before the court discloses that the nature of the contract with a third country was such that it gives rise to the possibility that effective protection could have been sought in that country. 33 In my opinion there is no basis for imposing a "significant connection" test on to the words of Art 33. The question which arises under the article is whether there would be a threat to the life and freedom of the "refugee" in the third country. If there is evidence of opportunity to attain refugee status there, the prohibition in the article will not be applicable. The need to consider the application of the article should be governed by the evidence in the case. If the evidence discloses an opportunity to attain refugee status in a third country, the Tribunal or decision-maker would be obliged to consider the application of Art 33. The evidence would involve evidence of a close connection with a third country but it could also disclose, for example, generosity in grant of the status by the third country. It is evidence of opportunity to attain the status which should activate consideration of the application of the article. It is unnecessary and inappropriate to seek to define the degree of opportunity which will suffice: each case should be considered on its own circumstances.
Whether Tribunal failed to address the question 34 I do not consider the Tribunal failed to address the question of whether the respondents were persons to whom Australia had protection obligations in circumstances where they had entered Italy. The Tribunal found as a fact they had not resided there and did not seek or obtain any form of protection in that country. To read that finding as omitting a finding on whether the respondents could have attained refugee status there is to read the reasons of the Tribunal "minutely and finely with an eye keenly attuned to the perception of error" - Collector of Customs v Pozzolamic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. The reasons must be understood against the way the applicant's case was conducted. No evidence of any special Italian category of visa for Somali people was brought forward by the applicant. It was the Tribunal which raised the issue of the significance of the time spent by the respondent in Italy. It questioned the respondent closely. It did not make available evidence of the visa system to which it referred. In the face of is own knowledge, the Tribunal concluded there was no issue. In my view the Tribunal can only be understood to have been satisfied that there was not evidence of opportunity such as to raise the applicability of Art 33 or that necessary preconditions to application of the Italian law were not fulfilled.
Whether Tribunal erred in not considering re-entry 35 Once the Tribunal had reached the view that there was no evidence of opportunity such as raised the question of the applicability of Art 33 (that being a finding of fact), it followed it was not under any obligation to proceed to consider the question of re-entry whether on a temporary basis or otherwise. The applicant did not bring to the Tribunal evidence giving rise to that question. There was nothing in the material before the Tribunal to suggest the respondents had any right to return to or re-enter Italy. The Tribunal, having raised the issue based on its knowledge and having concluded the evidence did not reach the level of raising the applicability of Art 33, was under no obligation at law to consider the matter further. Its finding was dispositive of the issue.
Conclusion 36 For these reasons I consider neither ground of review is made out and the application should be dismissed. I certify that the preceding thirty six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.
Solicitor for the Applicant: Australian Government Solicitor
Solicitor for the Respondent: Legal Aid Commission of NSW
Minister For Immigration & Multicultural Affairs
Kabail
(1997) 151 ALR 685
(1998) 156 ALR 672
(1993) 43 FCR 280