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).