Minister for Immigration & Multicultural Affairs v Ramalingam

Federal Court of Australia|1998-09-25|Before: Weinberg J, Mansfield J, Finn JJ, Lehane J

REASONS FOR JUDGMENT 1 The Minister seeks review of a decision of the Refugee Review Tribunal dated 27 May 1998, by which the Tribunal remitted for reconsideration the respondent's application for a protection visa with the direction that the respondent was a person to whom Australia had protection obligations under the Refugees Convention. The ground of the application is that the decision involved an error of law, being either an incorrect interpretation of the applicable law or an incorrect application of the law to the facts found by it, or both. An additional ground, based on s 476(1) of the Migration Act 1958 (Cth), was not pressed. The error of law alleged by the Minister is that the Tribunal failed to consider whether, even if the respondent were a refugee within the Convention definition (Art 1 of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967), nevertheless he was not in the circumstances a person to whom Australia owed protection obligations (Migration Act s 36(2)) because protection was available to him in Germany, where he had lived for approximately six years.

Background 2 The relevant background (taken from the findings of the Tribunal and, in relation to the duration of the respondent's residence in Germany, based on material before the Tribunal which was uncontested) may be briefly stated. The respondent is a Sri Lankan national. At the time of the hearing before the Tribunal he was aged 33. He is a Tamil from Kottaddi, Jaffna, in the north of Sri Lanka. He had been forced to assist the Liberation Tigers of Tamil Eelam (LTTE) and on two occasions had been detained and ill treated by security forces and police. In 1990 the respondent and his wife left Sri Lanka and travelled to Germany. They arrived there in June 1990. Their children were born there. The respondent and his wife were granted "Aufenthaltserlaubnis" visas (I shall return to the Tribunal's finding about those visas). In 1994 the respondent briefly returned to Sri Lanka in order to assist his brother who had been arrested by the security forces. The respondent himself was again detained and beaten. Having paid bribes for the release of both his brother and himself, he returned to Germany. In April 1996 the respondent travelled to Australia. He arrived in Australia on 7 April and applied for a protection visa on 22 April.

Findings of Tribunal 3 The Tribunal made the following findings about the respondent's rights in relation to Germany: "The applicant stated that both he and his wife had been granted 'aufenthaltswerlaubnis' [sic] visas in Germany. The Tribunal contacted the German consulate in Australia to determine whether this would entitle the applicant to the rights and obligations of a national in Germany. The representative of the Consulate stated that according to German law s 44 I Aus1G, a valid permit to reside in Germany lapses after the holder has been absent from Germany for more than six months. This law does not make any particular reference of [sic] holders of German travel documents, which have been issued on the basis that the person had been recognised as a refugee. Information available from DFAT is that the holders of a Aufenthaltserlaubnis visa have the right to work, have social security and receive an education but do not acquire political rights. The holders of such a visa do not have the rights and obligations of a national. (Cable CE63881). From the available evidence the Tribunal finds that the applicant does not have a right to return to Germany. The visa which he held did not accord him with the rights and obligations of a national, although this is academic as he has no right to return, having been outside Germany for over six months. Therefore his claims must be assessed in relation to the threats that the applicant may face if he is returned to Sri Lanka." 4 The Tribunal concluded, on the material before it, that there was a real chance that the respondent would be persecuted by government security forces in Sri Lanka because he would be perceived to be a supporter or active member of the LTTE. Accordingly, the Tribunal was satisfied that the respondent had a well‑founded fear of persecution for a Convention reason should he return to Sri Lanka and, thus, that he was a person to whom Australia had protection obligations under the Convention.

Submissions on the application; reasoning 5 The Minister's argument was that the Tribunal's reasons demonstrated that it either misunderstood or misapplied the law as to the circumstances in which Australia may, consistently with the Convention, return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status: circumstances in which, accordingly, Australia does not owe the asylum seeker what its domestic law describes as "protection obligations". 6 The international obligations in question arise under Art 33(1) of the Convention, which provides: "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." 7 That obligation does not prevent Australia from returning a person, who may be a refugee, to a third country which will offer the person "effective protection". In Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543, von Doussa J (with whom the other members of the Full Court agreed) said 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 Refugees 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." 8 If the boundaries remain uncharted, some at least of the territory within them has been delineated by subsequent decisions. The decision of particular immediate importance is that of Weinberg J in Minister for Immigration and Multicultural Affairs v Gnanapiragasam (Federal Court of Australia, 25 September 1998, unreported). That case, like this, concerned an asylum seeker who was a Sri Lankan national, had lived for several years in Germany under a visa which conferred rights substantially (perhaps precisely) corresponding with those conferred by the respondent's visa, and had then come to Australia. Like the respondent's, his German visa had, after six months, expired. In relation to that case, the German Vice‑Consul, in a letter to the Department, said that that meant that "the holder's right to return to Germany has expired on that day, too". Further inquiries made by the Department of the German Consulate General elicited the information that the asylum seeker, if he could show that he had employment available to him in Germany, might be able to obtain a visa permitting return to Germany. 9 The finding of the Tribunal in Gnanapiragasam was expressed as follows: "The Tribunal accepts that the applicants do not have any residence rights in Germany and therefore it is necessary to assess the cases in relation to Sri Lanka." 10 That (as the solicitor for the respondent pointed out) contrasts with the finding in this case ("… the Tribunal finds that the applicant does not have a right to return to Germany").Weinberg J said at 21: "While the material before the RRT demonstrates that the respondents have lost their rights to permanent residence in Germany, and are unlikely to regain those rights without being able to establish that, at the very least, there is suitable employment available to the first respondent, it does not follow that the 'effective protection' to which reference was made in Thiyagarajah including a right to reside in, enter and re‑enter Germany is unavailable to them. Those who are admitted as temporary residents may also have rights which provide them with 'effective protection' in a 'safe third country'. Some classes of temporary resident are permitted to find employment. Their rights to leave and re‑enter Germany will be adjudged by European law … If upon further inquiry it emerges that the respondents are not eligible to re‑enter Germany, albeit on a temporary basis, the RRT would no doubt proceed to consider their claims to refugee status under Art 1A(2). There seems little doubt that in such circumstances Art 1E would not exclude any finding which might be made as to refugee status." 11 His Honour added at 22, 23: "The failure by the RRT to consider the possible application of Art 33 of the Convention as rendering it unnecessary for the delegate to have determined the respondents' claim to refugee status constitutes an error of law on its part. That makes it necessary to set aside its decision. The RRT is required to ascertain as clearly as it can whether or not the respondents would be permitted to re‑enter Germany, at least on a temporary basis, thereby enabling their claim to refugee status to be considered by that country. … It seems to me that a right to re‑enter, albeit temporarily, the country in which the claimant has previously lived, together with the right, while proper consideration is given to any claim for refugee status, to leave and re‑enter that country thereafter, renders Art 33 potentially applicable. Australia can then require the claimant to return to that 'safe third country' without the need first to consider his possible refugee status under Art 1A(2). The right to reside temporarily is capable, in any given case, of meeting the 'effective protection' criterion no less than the right to resume permanent residence. That is not to say that a right to return to temporary residence will, of itself, be sufficient in any given case. Art 33 requires that there be 'effective protection' in the third country. Australia must be satisfied that the third country will consider any claim to refugee status in accordance with the Convention, and will not simply refuse entry and, without giving the claim any such consideration, return the claimant to the country from which he came originally. These are all matters which must be addressed with care. They cannot be ignored, or passed over, on the basis of such uncertain material as was before the RRT in this case." 12 In Minister for Immigration and Multicultural Affairs v Kabail [1999] FCA 344, R D Nicholson J considered the circumstances in which an obligation to consider the possible application of Art 33 of the Convention would arise. After considering various possibilities, his Honour said at par 32: "In my view … 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." 13 The Minister's submission was that plainly that possibility arose in this case and equally clearly the Tribunal did not undertake a consideration of the kind described by Weinberg J in Gnanapiragasam. The respondent submitted that the Tribunal had addressed the right question and had made a finding of fact about it: the respondent did not have a right to return to Germany. Gnanapiragasam makes it clear, and it is in any event obvious, that a right of entry is a minimum prerequisite of "effective protection".

14 In my view the Minister's submission must be accepted. The only apparent basis for the finding that the respondent had no right to return to Germany is the statement by a representative of the Consulate (in a letter on the Tribunal's file) that "a German residence permit expires if its holder leaves the country on a permanent basis or leaves the country and does not return within six months". It is true that the letter adds: "In such a case there would be no eligibility to return to Germany". But if the material before the Tribunal in Gnanapiragasam was "uncertain", that before the Tribunal in this case was no less so. In any case, as Gnanapiragasam makes clear, the relevant question is not "does the asylum seeker presently hold a visa permitting re‑entry to a safe third country"? It is, rather, "whether or not the [respondent] would be permitted to re‑enter Germany, at least on a temporary basis …" (Gnanapiragasam at 22) and, if so, what protection will Germany accord him? The Tribunal did not consider those questions. Indeed, the terms of its findings strongly suggest that it was directing itself to Art 1E of the Convention, not Art 33.

Conclusion 15 It follows that the decision of the Tribunal must be set aside and the matter remitted for reconsideration. The Minister's application seeks an order for costs. No such order, however, was explicitly sought in the Minister's submissions. The hearing before the Tribunal took place on 25 February 1998 and its decision is dated 27 May 1998. The area of the law with which the case is concerned is a recently and rapidly developing one. The decision of the Full Court in Thiyagarajah was published on 19 December 1997. But Thiyagarajah did not chart boundaries, and the applicability of the principle stated in that case might well not have been as apparent to the Tribunal when it made its decision as, in the light of more recent cases, it would be now. Mansfield J decided Rajendran v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, unreported) only on 4 May 1998 and that decision was affirmed by the Full Court on 4 September 1998. Gnanapiragasam was decided on 25 September 1998, and Kabail only on 31 March 1999. In those circumstances - though they differ somewhat from the circumstances in which Weinberg J thought it appropriate to make no order for costs in Gnanapiragasam - I think it is appropriate that I make no order as to costs.

Orders 16 The orders of the Court are that:

The decision of the Refugee Review Tribunal dated 27 May 1998 be set aside. 2. The matter be remitted to the Refugee Review Tribunal, differently constituted, to be heard and determined according to law. 3. There be no order as to costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate: Dated: 19 April 1999 Counsel for the Applicant: Mr R R S Tracey QC

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Respondent: McDonells Solicitors

Migration Act 1958(Cth)s 36(2)

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