30 This is an appeal from a judgment of a single Judge of this Court, the reasons for which judgment are reported in (1999) 166 ALR 348. It is convenient, by way of introduction, to describe the appeal as raising a question as to the construction of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (ATS 1954 No 5), as "amended" by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (ATS 1973 No 37). (The Migration Act 1958 (Cth) ("the Act") speaks of the 1967 Protocol as having "amended" the 1951 Convention (see, for instance, subs 36(2) of the Act, set out in par 38 below), but, for reasons which I will later explain, the Parliament erred when using that terminology. However, until I explain my reasons for that conclusion, I will proceed herein as if the 1967 Protocol did amend the 1951 Convention and describe the 1951 Convention as so amended as "the Convention".)
31 Article 1 of the Convention is headed "Definition of the term 'Refugee'". It provides as follows in Section A thereof:
"A. For the purposes of the present Convention, the term 'refugee' shall apply to any person who:
(1) …
…
(2) 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."
(It will be noticed that the definition which I have just quoted refers in terms to male persons only. Of course, no one would ever suggest, simply because it does not say so in terms, that the definition does not apply to female persons as well as to male persons. However, while not putting out of my mind for present purposes the instinctive ease with which one reads the definition as extending by implication to a class of case to which it does not, in terms, extend, I will, in what follows, simply adopt the terminology actually used in the Convention.)
32 As is apparent from its language, the definition of the term "refugee" in Art 1A(2) of the Convention encompasses the cases both of persons who have a nationality and of persons who do not.
33 As to a person having a nationality, there are a number of conditions in Art 1A(2) which he must satisfy before the term "refugee" applies to him for the purposes of the Convention. It appears to me to be convenient to express them at this stage of these reasons for judgment in the following way: first, he must be outside the country of his nationality; secondly, his being outside that country must be owing to a well-founded fear of being persecuted for a Convention reason; and, thirdly, he must be either unable or unwilling to avail himself of the protection of that country. Further, if, although able to avail himself of that protection, he is unwilling to do so, his unwillingness to do so must also be owing to that fear.
34 It will be obvious that, as to a person not having a nationality, it is necessary to express the conditions which he is required to satisfy under Art 1A(2) before the term "refugee" applies to him for the purposes of the Convention differently from the conditions which are expressed to be required to be satisfied by a person having a nationality before the term "refugee" applies to him for the purposes of the Convention. That Art 1A(2) does, at least by substituting, in the case of a person not having a nationality: first, a reference to his being outside the country of his former habitual residence for the reference made, in the case of a person having a nationality, to his being outside the country of his nationality; and, secondly, a reference to his inability or, owing to a well-founded fear of being persecuted for a Convention reason, unwillingness to return to the country of his former habitual residence for the reference made, in the case of a person having a nationality, to his inability or, owing to a well-founded fear of being persecuted for a Convention reason, unwillingness to avail himself of the protection of the country of his nationality.
35 A question may arise, however, whether Art 1A(2) goes further than making the two substitutions to which I have just referred, by intentionally omitting to include among the conditions which must be satisfied by a person not having a nationality before the term "refugee" applies to him for the purposes of the Convention the functional equivalent of the second of those conditions which I have set out above as being required to be satisfied by a person having a nationality before the term "refugee" applies to him for the purposes of the Convention. That functionally equivalent condition, in the case of a person not having a nationality, is that his being outside the country of his former habitual residence must be owing to a well-founded fear of being persecuted for a Convention reason. (I will often refer to that functionally equivalent condition hereafter in these reasons for judgment as "the disputed condition".)
36 In the matter presently under appeal, the question did arise (and, as will be seen later, not for the first time) whether Art 1A(2) does or does not include the disputed condition. The circumstances in which the question arose may be stated relatively briefly.
37 Mr Viatcheslav Savvin and his wife, Ms Lioubov Savvina, had been, while the Soviet Union remained in existence, Soviet nationals who resided in Latvia, both when Latvia was part of the Soviet Union and later, when it became independent of the Soviet Union. Then, on the collapse of the Soviet Union, they had continued to reside in Latvia, but had become stateless, no longer having Soviet nationality, but not acquiring the nationality either of Latvia or of any of the successor States to the Soviet Union. In 1996, they came to Australia (separately). Shortly after their respective arrivals in Australia, they jointly sought protection visas from the Minister for Immigration and Ethnic Affairs (as the office was then called; now, "Ethnic" is replaced by "Multicultural") ("the Minister").
38 The class of visas known as protection visas is created by subs 36(1) of the Act, while subs 36(2) thereof provides that, "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". Since a necessary condition of Australia's having protection obligations under the Convention to a non-citizen in Australia within the meaning of subs 36(2) of the Act is that that non-citizen be a "refugee" within the meaning of Art 1 of the Convention, questions as to the construction of Art 1A(2) of the Convention may arise in the course of deciding applications for protection visas or, as happened in the present case, in the course of reviewing such decisions judicially.
39 Mr Savvin's and Ms Savvina's applications for protection visas were refused by a delegate of the Minister and they both appealed that refusal to the Refugee Review Tribunal ("the Tribunal").
40 On appeal, the Tribunal accepted that, for the purposes of Art 1A(2) of the Convention, Mr Savvin and Ms Savvina were persons not having a nationality whose country of former habitual residence was Latvia. Proceeding, however, on the basis that no claim to refugee status under Art 1A(2) can succeed unless, among other things, the claimant therefor has a well-founded fear of being persecuted for a Convention reason, the Tribunal rejected the claims of Mr Savvin and Ms Savvina to be refugees for the purposes of the Convention. It did so because it was not satisfied that either of them had such fear.
41 (I should perhaps mention here that Mr Savvin and Ms Savvina have two daughters who had also come to Australia in 1996 (separately) and had also jointly sought protection visas, relying on their parents' having made specific claims under the Convention and on their familial relationship to their parents. The daughters' applications necessarily suffered the same fate as did their parents' applications.)
42 Mr Savvin and Ms Savvina (and their daughters) next sought review of the Tribunal's decision in this Court.
43 In the judgment now under appeal, the primary Judge concluded that the Tribunal had committed no reviewable error by finding that neither Mr Savvin nor Ms Savvina had a well-founded fear of being persecuted for a Convention reason: see at 355, [22]. However, the primary Judge construed Art 1A(2) as intentionally omitting to include the disputed condition among the conditions which must be satisfied by a person not having a nationality before the term "refugee" applies to him for the purposes of the Convention. That meant that if Mr Savvin and Ms Savvina had been unable to return to Latvia at the time of the Tribunal's decision, they should, without more, have been treated by it as refugees. According to the primary Judge, the Tribunal had been required to reach, but had failed to reach, a conclusion on that "inability" question (see at 372, [90]) and he therefore set aside the Tribunal's decision and remitted the matter to the Tribunal for further consideration. He intended that, on its further consideration of the matter, the Tribunal would decide the question of Mr Savvin's and Ms Savvina's ability to return to Latvia, the answer to which question would, in all probability, be determinative of their (and their daughters') applications for protection visas.
44 (I say "in all probability", because the primary Judge was also of the view that the Tribunal had been required to reach, but had failed to reach, a conclusion on the question whether Mr Savvin and Ms Savvina had a nationality: see at 349, [3], 356, [24] and 372, [90]. As to that matter, however, the Tribunal had said, in the very first sentence of its statement of findings and reasons, that Mr Savvin and Ms Savvina were "stateless" and had later said, "In accordance with the Convention definition of 'refugee' the applicant's [that is, Mr Savvin's] application must be assessed against his country of former habitual residence. This is Latvia". The Tribunal had taken a similar approach to Ms Savvina's application. Assessment of a refugee claimant's application against the country of his former habitual residence is, of course, only appropriate in the case of a stateless person, a category into which the Tribunal had already explicitly said that Mr Savvin and Ms Savvina fell. Thus, in deciding that the Tribunal had failed to reach a conclusion on the "nationality" question, the primary Judge plainly erred. However, the primary Judge's error in that respect is immaterial for present purposes.)
45 In construing Art 1A(2) as intentionally omitting to include the disputed condition among the conditions which must be satisfied by a person not having a nationality before the term "refugee" applies to him for the purposes of the Convention, the primary Judge was giving effect to what he described as the "natural" meaning of the definition: see for instance, the quotation in the next paragraph of these reasons for judgment.
46 In concluding what that "natural" meaning of the definition was, the primary Judge appears to have been much influenced by the definition's punctuation, in particular, by the presence in it of a semicolon. He first said (relevantly) (at 356, [26]-[27]),
"The definition appears to fall conveniently into two parts, the first (preceding the semicolon) relating to persons having nationality, and the second (following the semicolon) relating to persons not having nationality. If this is so, then the natural meaning is that a person without nationality is a refugee if he or she is outside the country of former habitual residence; and is either:
· unable; or
· owing to 'such fear', unwilling to return to it.
The reference to 'such fear' is to well-founded fear of persecution for a Convention reason."
47 Then (at 361, [47]), he said that "the definition is in two parts - that preceding the semicolon and that following it" (a statement which he repeated in substance at 361, [48]).
48 Next (at 362, [51]), he said,
"I would have thought it beyond argument that the words preceding the semicolon deal with persons having nationality and those following the semicolon deal with persons without nationality. If so, it follows that in order to satisfy the definition, a person without nationality must be outside the country of his former habitual residence (for whatever reason) and either:
· unable to return thereto for any reason; or
· unwilling to return because of well-founded fear of persecution for a Convention reason."
49 Finally, he referred (at 368, [75]) to what he perceived to have been a failure by the author of the Handbook on Procedures and Criteria for Determining Refugee Status ("the Handbook"), published by the Office of the United Nations High Commissioner for Refugees, to,
"… come to grips with the problem of construction which emerges from the location of the words relating to stateless persons after the semicolon and the absence of any repetition of the reference to persecution as a necessary cause of such a person being outside of the country of former habitual residence."
50 In reaching his conclusion as to the correct construction of Art 1A(2), the primary Judge had not been persuaded that recourse to: either the object and purpose of the Convention, particularly as disclosed by the preparatory work for the 1951 version thereof; the context of the definition, particularly Art 1C(4) of the Convention; or subsequent practice in the application of the Convention, particularly as disclosed by the Handbook; should lead him to construe the definition in a way which contradicted what he considered to be its "natural" meaning: see at 364, [57], 362, [51], 372, [89].
51 At the time at which the primary Judge made his decision, the question whether Art 1A(2) includes the disputed condition had been the subject of consideration in decisions made both by other single Judges of this Court and by English courts and the primary Judge made reference in his reasons for judgment to the existence of all but the earliest of those decisions. Further, since the primary Judge's decision, the question has again been the subject of consideration by a single Judge of this Court. (I note that both the appellant and the respondents on the present appeal were unaware, as am I, of there being any relevant judicial decisions from countries other than Australia and England.)
52 It is convenient to say something now of the judicial decisions existing at the time at which the primary Judge made his decision in which the question whether Art 1A(2) includes the disputed condition had been the subject of consideration, dealing with those decisions, for the most part, in chronological order.
53 The earliest of them was R v Chief Immigration Officer[,] Gatwick Airport[;] ex parte Harjendar Singh [1987] Imm AR 346, a decision of Nolan J of the English Queen's Bench Division, in which his Lordship gave ex tempore reasons for judgment which are not always easy to follow.
54 Mr Singh had applied to quash a decision refusing him leave to enter the United Kingdom. His personal circumstances were relevantly as follows: he had been born in what later became Tanzania while it still remained under British control, but had moved to India before Tanzanian independence. He had then resided in India for many years. He was, however, a citizen neither of India nor of Tanzania. On a particular occasion, he had travelled from India to Dubai on a short business trip and had then sought to return to India, but had been refused re-entry by the Indian authorities. He had then been returned to Dubai, which had also refused him re-entry, and had ultimately been sent to the United Kingdom. It appears that, although he had no factual connection with the United Kingdom, the reason why he had been sent there was simply because he had the status under British law of a "British Protected Person" (presumably, because of his birth in what later became Tanzania while it still remained under British control) and was the holder of a British passport. On his arrival in the United Kingdom, he had sought leave to enter.
55 His primary argument before Nolan J (which was ultimately rejected) appears to have been that his possession of the status under British law of a "British Protected Person" had the effect, according to the rules of public international law, that he had British nationality and that the British authorities had therefore been obliged to give him leave to enter the United Kingdom when he arrived there, even if he otherwise had no entitlement to such leave under British domestic law. The British authorities appear to have resisted that argument by submitting, among other things, that Mr Singh's status was not the equivalent, according to the rules of public international law, of British nationality. That argument appears in turn to have provoked the response by Mr Singh that, on the British authorities' argument, he must therefore be a stateless person, it being common ground that he did not have the nationality of any country other than the United Kingdom. Further, the authorities of India (where, as I have already mentioned, he had resided for many years) had refused to permit him to return to that country. Therefore, the British authorities should have considered when deciding whether to grant him leave to enter the United Kingdom, but had failed to do so, the question whether he was a refugee within the meaning of Art 1A(2) of the Convention. According to Nolan J (at 357),
"This argument of Mr Friel's [that is, Mr Singh's counsel] relating to stateless persons and refugees required recourse to the terms of the Convention itself. It was while the terms of the Convention were being read out by Mr Sankey [that is, the British authorities' counsel] in the course of his reply that the proposition emerged that the applicant was a refugee as defined.
…
… The second part [of the definition in Art 1A(2)] would, on the undisputed facts, govern the case of the applicant, as someone who, not having a nationality, was outside the country of his former habitual residence, namely India, and is unable to return to it…."
It appears that, confronted at a late stage of the proceedings with a fresh argument on Mr Singh's behalf, counsel for the British authorities had not submitted that Art 1A(2) includes the disputed condition, but had merely argued that, while Mr Singh was not in truth a British national, he was to be treated as if he were a British national for the purposes of the Convention, so that Art 1A(2), as it applies to persons not having a nationality, was irrelevant in his circumstances. That argument was rejected by Nolan J, who accordingly referred the matter back to the British authorities to determine whether Mr Singh was a refugee.
56 It is apparent that the circumstances under which Nolan J construed Art 1A(2) of the Convention in its application to persons not having a nationality were such that little assistance is to be gained from his decision on the question whether the definition should be construed as including the disputed condition, nor, as I have already foreshadowed, was his decision relied on or even referred to by the primary Judge in the present matter in his reasons for judgment. (That was not because the primary Judge was unaware of the decision; he was aware of it, it having been referred to in one of the cases to which he referred in his reasons for judgment.)
57 The next relevant decision was that of the English Court of Appeal in Adan v Secretary of State for the Home Department [1997] 1 WLR 1107. The case was concerned with a question of construction of Art 1A(2) other than the one presently under discussion (on which question it is unnecessary to elaborate for present purposes). However, in the course of dealing with that other question of construction, Simon Brown LJ did make reference to the question of the construction of Art 1A(2) as it applies to persons not having a nationality, saying (at 1117) as he did so, however, "The position, however, with regard to the stateless, is, as I recognise, of only marginal relevance in all this…." His Lordship began his treatment of the matter (at 1114-15) by saying,
"I return, therefore, to article 1A(2) itself. This provision, although already set out in extenso above, I now propose to break down into a series of clauses which for convenience I shall also number. A refugee is someone who: 1(a) owing to well founded fear of being persecuted for [a Convention reason] is outside the country of his nationality, and (b)(i) is unable to avail himself of the protection of that country, or (ii) owing to such fear, is unwilling to avail himself of the protection of that country; or who; 2(a) not having a nationality and being outside the country of his former habitual residence, (b)(i) is unable to return to it, or (ii) owing to a well founded fear of being persecuted for [a Convention reason] is unwilling to return to it."
58 It is convenient to note now that, although the primary Judge in the present matter did not, in construing Art 1A(2), seek to rely in any way on what Simon Brown LJ had said in Adan about the position of persons not having a nationality, the submission was made by the respondents to the present appeal that Simon Brown LJ had afforded to Art 1A(2) the same construction as that later given to it by the primary Judge in the present matter. Reliance was placed in making that submission on what had been said by Simon Brown LJ in the passage which I have just quoted.
59 I reject that submission. I do not understand Simon Brown LJ to have to been attempting to construe Art 1A(2) in the passage which I have just quoted, but merely to have been breaking the definition down into a series of numbered clauses for ease of subsequent reference. That his Lordship was not attempting in the quoted passage to construe Art 1A(2), particularly in so far as it relates to persons not having a nationality, was made clear by certain things said by him subsequently. First, at 1116, his Lordship pointed out that "a discrete difficulty of interpretation arises under article 1A(2)" in relation to the stateless. Then, at 1117, his Lordship made clear what that discrete difficulty of interpretation was, saying,
"So far as the stateless are concerned, … the latter part of article 1A(2) (my clauses 2(a) and 2(b)(i)), construed literally, requires of those presently unable to return home nothing more…. The position, however, with regard to the stateless is, as I recognise, of only marginal relevance in all this and, indeed, as Mr. Pannick [that is, counsel for the Minister] points out, my clause 2(a) has been construed by the Canadians as if in fact it were qualified (as clause 1(a) is) by a requirement to be 'outside' for fear of Convention prosecution [sic]: see the relevant Canadian legislation (enacted no doubt in the light of Canada's construction of the Convention)…."
(I will later make further reference to the Canadian legislation referred to in the passage which I have just quoted.)
60 In light of the passages from his reasons for judgment which I have just quoted, I treat Simon Brown LJ as having taken the same view as the primary Judge afterwards did in the present matter as to the "literal" meaning of Art 1A(2) in relation to persons not having a nationality, but as having not committed himself to construing the definition in accordance with what he considered to be that "literal" meaning. Instead, he recognised the possibility that the construction of the definition contrary to that afterwards adopted by the primary Judge in the present matter, which contrary construction had already been adopted by Canada, was the correct one and intentionally reserved his own position on the question.
61 Before leaving the Court of Appeal's decision in Adan, I should mention two further things about it. First, Simon Brown LJ did not refer in his reasons for judgment to what had earlier been said on the topic by Nolan J in Singh. Secondly, it was submitted by the respondents to the present appeal that, not only had Simon Brown LJ afforded to Art 1A(2) the same construction as that later given to it by the primary Judge in the present matter, but, at 1132 of the report, Hutchison LJ had expressed his agreement with Simon Brown LJ in that respect. It appears that the respondents meant 1123 of the report, rather than 1132, because there is nothing relevant at 1132 of the report. At 1123, however, Hutchison LJ did say that he had read Simon Brown LJ's reasons in draft "and I agree with his conclusions on the issues of law with which he deals". Whether that expression of agreement was intended to extend to Simon Brown LJ's refusal to reach a conclusion on the issue of law presently under consideration is not easy to say. Of course, if it was, it would no more avail the respondents to the present appeal than do the reasons for judgment of Simon Brown LJ themselves.
62 Although to do so now is to depart from strict chronological order, it nevertheless seems convenient to refer at this stage of my discussion of the cases to the decision of the House of Lords on appeal from the Court of Appeal in Adan v Secretary of State for the Home Department, reported in [1999] 1 AC 293. In that case, Lord Lloyd of Berwick delivered the principal speech, Lords Goff of Chieveley (at 301), Nolan (at 312) and Hope of Craighead (also at 312) agreeing with him. (It should be noted that Lord Nolan was the same judge who, as Nolan J, had decided Singh).
63 In the course of his speech, Lord Lloyd of Berwick said (at 304) that it was "common ground" between the parties that Art 1A(2) covered four categories of refugee, which categories were as follows (emphasis added):
"(1) nationals who are outside their country owing to a well-founded fear of persecution for a Convention reason, and are unable to avail themselves of the protection of their country; (2) nationals who are outside their country owing to a well-founded fear of persecution for a Convention reason, and, owing to such fear, are unwilling to avail themselves of the protection of their country; (3) non-nationals who are outside the country of their former habitual residence owing to a well-founded fear of persecution for a Convention reason and are unable to return to their country, and (4) non-nationals who are outside the country of their former habitual residence owing to a well-founded fear of persecution for a Convention reason, and, owing to such fear, are unwilling to return to their country."
64 It will be seen that, in expressing as he did the third and fourth categories of refugee under Art 1A(2), Lord Lloyd of Berwick was stating the construction of Art 1A(2) contrary to that afterwards adopted by the primary Judge in the present matter.
65 The primary Judge in the present matter dealt with the recording by his Lordship of the view of Art 1A(2) held in common by the parties in the Adan case by saying (at 359, [38]), "Obviously, no significance can be attributed to his Lordship's having recorded this matter without further comment". However, as I understand his Lordship's speech, he did not merely record the parties' common view of Art 1A(2) without further comment. Having set out what had been common ground between the parties, his Lordship then commented,
"It will be noticed that in each of categories (1) and (2) the asylum-seeker must satisfy two separate tests: what may, for short, be called 'the fear test' and the 'protection test.' In categories (3) and (4) the protection test, for obvious reasons, is couched in different language."
66 In that further comment, his Lordship appears to me to have been making it plain that he accepted as correct the analysis of Art 1A(2) which he had earlier recorded as having been the common view of the parties, including, given his specific reference to the couching in different language of the protection test (but not the fear test) in categories (3) and (4), accepting as correct the parties' analysis of Art 1A(2) in relation to persons not having a nationality.
67 Obviously, his Lordship's apparent acceptance of that analysis of Art 1A(2) in so far as it concerns persons not having a nationality does not carry the same persuasive weight as it would have done had the issue arisen for decision in the case and the contrary position been submitted by one of the parties. Nevertheless, that apparent acceptance does not, merely because of the absence of those circumstances, seem to me to be entirely devoid of such weight, appearing, as it does, in a considered decision made by the ultimate English appellate court.
68 The decision of the House of Lords to which I have just referred is the most recent of the relevant English decisions and I can therefore now sum up as follows my understanding of the development of the English position: in 1987, Nolan J answered the question of construction which arises on this appeal in the same way as the primary Judge in the present matter afterwards did, doing so in circumstances which rendered that answer of so little persuasive force that the primary Judge in the present matter did not consider it helpful to refer to it in his reasons for judgment in support of the construction which he favoured; then, in 1997, Simon Brown LJ intentionally reserved his position on the question, recognising that the construction contrary to that afterwards adopted by the primary Judge in the present matter might be the correct one, as was already considered to be the case by Canada; and, finally, in 1998, the House of Lords adopted a view on the question which was opposed to the construction afterwards adopted by the primary Judge in the present matter, Lord Nolan necessarily resiling, in joining in that adoption, from the answer which he had given to the question eleven years earlier as Nolan J. The House of Lords' view was neither necessary to the decision of the case before it nor reached after argument to the contrary, but is nevertheless entitled to be accorded a certain persuasive weight on the construction question.
69 I turn now to the decisions of single Judges of this Court existing at the time at which the primary Judge made his decision in the present matter in which the question whether Art 1A(2) includes the disputed condition had been the subject of consideration. Unlike the English decisions to which I have just referred, those decisions of single Judges of this Court are notable for their agreement on the question of construction now under consideration. Both of them gave to Art 1A(2) the construction contrary to that afterwards adopted by the primary Judge in the present matter (as has the one relevant decision of a single Judge of this Court made since the decision of the primary Judge in the present matter).
70 The first of those decisions was that of Cooper J in Rishmawi v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 421, which decision was made after the decision of the Court of Appeal, but before the decision of the House of Lords, in Adan.
71 I will begin my discussion of the reasons for judgment of Cooper J by summarising those reasons. I will then immediately discuss in greater detail the first two matters set out in that summary.
72 I summarise those reasons in the following way: first, construed literally, Art 1A(2) of the Convention does not include the disputed condition; secondly, the Vienna Convention on the Law of Treaties done at Vienna on 23 May 1969 (ATS 1974 No 2) ("the Vienna Convention") is, however, applicable in the construction of Art 1A(2) of the Convention; thirdly, in accordance with the Vienna Convention, Art 1A(2) should not be construed literally if a literal construction would defeat the object and purpose of the Convention or be inconsistent with the context in which Art 1A(2) appears; fourthly, the object and purpose of the Convention may be inferred from its preparatory work; fifthly, the preparatory work for the 1951 version of the Convention discloses an intention both that stateless persons not be treated in Art 1A(2) more favourably than persons with a nationality and that that provision not have the effect that sanctuary may be provided for persons who do not have a well-founded fear of persecution for a Convention reason; sixthly, Art 1C(4) of the Convention is part of the context in which Art 1A(2) appears; seventhly, the language of Art 1C(4) reinforces the conclusion that, in order to be a "refugee" under Art 1A(2) for the purposes of the Convention, not only persons having a nationality, but also persons not having a nationality, must be outside their relevant country (whether of nationality or of former habitual residence) owing to a well-founded fear of being persecuted for a Convention reason; and, finally, Art 1A(2) is therefore not to be construed literally, but, in accordance with the object and purpose of the Convention as disclosed by the preparatory work for the 1951 version thereof and with the context in which Art 1A(2) appears, is to be construed as including the disputed condition.
73 (I should note now that I have not included in my summary of the reasons for judgment of Cooper J reliance by him on the terms of the Handbook, since, on my reading of his Honour's reasons, although he referred to the Handbook, he did not ultimately rely on it in support of his construction of Art 1A(2) as including the disputed condition. Others, however, including the primary Judge in the present matter, have construed the reasons of Cooper J differently. I will therefore discuss below what the primary Judge in the present matter said about the Handbook in his reasons for judgment.)
74 It will be seen from the summary which I have just given of his reasons for judgment that Cooper J, like the primary Judge in the present matter, began the process of construing Art 1A(2) by attributing to it a "natural" or "literal" meaning which did not include the disputed condition. Where Cooper J differed from the primary Judge in the present matter was, of course, in concluding that, for the reasons which he gave, Art 1A(2) should not be construed in accordance with that "natural" or "literal" meaning. Like the primary Judge in the present matter, Cooper J appears to have been much influenced in reaching a conclusion that, literally speaking, Art 1A(2) did not include the disputed condition by the presence in the provision of the semicolon.
75 However, it appears to me that a real question arises whether Art 1A(2) does in fact have the natural or literal meaning which has thus far been attributed to it in the cases. As to that question, for reasons which I will now give, I do not attribute to the presence in Art 1A(2) of the semicolon the significance which has thus far been attributed to it. Further, giving to the semicolon that significance which I consider appropriate and construing Art 1A(2) accordingly, it appears to me that the preferable view is that, on the natural or literal meaning of Art 1A(2), it does include the disputed condition.
76 I begin by pointing out that, in the construction of legal instruments, there existed in earlier times a hesitant attitude on the part of the judiciary to the use of punctuation marks as a constructional aid.
77 A case which is representative of that earlier attitude, at least so far as the construction of domestic legislation by national courts was concerned, is President &c of the Shire of Charlton v Ruse (1912) 14 CLR 220. In that case, Sir Samuel Griffith, with whom Barton J relevantly agreed (at 227), began his reasons for judgment by saying (at 222), "The principal question debated in this case may be called the question of a semicolon". Later, Sir Samuel said (at 225) that punctuation marks, "which may be due to a printer's or proof reader's error, ought not to control the sense if the meaning is otherwise tolerably clear", while Isaacs J said (at 229) that it was generally "unsafe to allow" punctuation marks "to govern the construction" of statutory provisions. Consistent with those expressions of attitude, the High Court in Charlton ignored the presence of a semicolon in the statutory provision the construction of which was there under consideration.
78 However, the earlier attitude to which I have just referred appears to me by no means to have been limited to national courts construing domestic legislation; I infer that it extended also to international courts construing international agreements.
79 In Peter Pázmány University v Czechoslovakia, PCIJ (1933) Series A/B, No 61, p. 208, the Permanent Court of International Justice was concerned, not with the punctuation of an international agreement, but rather with the related matter of its paragraphing. The Court was there called on to construe subpar 2 of par 3 of a protocol to the Treaty of Trianon of 1920, which subparagraph was expressed as an exception. The question was whether the subparagraph was to be construed as an exception to all of the other provisions of the protocol or, as was submitted by Czechoslovakia, was to be construed merely to be an exception to subpar 1 of par 3 of the protocol. The Court said that, for a number of reasons, it was unable to accept the Czechoslovak submission. The first reason which it gave (at 247) was that, "It appears difficult to attach such momentous consequences to the system of numbering employed - especially as that system may, according to the information given by the Parties, have been merely accidental…." I infer that the Court would have taken a similar attitude to a punctuation issue.
80 However, at the present day, the hesitant judicial attitude to the use of punctuation marks as a constructional aid suggested by the Charlton and Peter Pázmány University cases is on the wane, certainly so far as the construction of domestic legislation by national courts is concerned. For instance, in Re Collins; Ex parte Hockings (1989) 167 CLR 522 at 525, Toohey and McHugh JJ said in joint reasons for judgment that there was "no reason" why a comma used after certain words in a statutory provision "should be discarded or thought to serve no purpose in the construction of" the provision concerned. Earlier, in Hanlon v The Law Society [1981] AC 124 at 198, Lord Lowry had said,
"I consider that not to take account of punctuation disregards the reality that literate people, such as Parliamentary draftsmen, punctuate what they write, if not identically, at least in accordance with grammatical principles. Why should not other literate people, such as judges, look at the punctuation in order to interpret the meaning of the legislation as accepted by Parliament?"
81 I see no reason not to adopt a similar attitude at the present day to the punctuation of international agreements.
82 It is therefore not because I take the view that one should ignore the existence of the semicolon in construing Art 1A(2) of the Convention that I reject the correctness of the view earlier expressed in the cases as to the natural or literal meaning of that definition. It is because, even giving the semicolon its full weight as a constructional aid, I take the view that, in accordance with accepted grammatical principles, the semicolon does not do the work of dividing the definition into two independent parts, as has thus far been concluded.
83 The use of semicolons is discussed by Quirk and others in their authoritative work, A Comprehensive Grammar of the English Language (1985) (note the work's use by Mason CJ and Brennan, Gaudron and McHugh JJ in Chew v The Queen (1992) 173 CLR 626 at 630-31 and its use by Gaudron J in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 362). The authors point out (at 1622) that, typically, the semicolon is used as a replacement for the word "and", in order to show that "two independent clauses are regarded as being sufficiently related to belong to one sentence". They further point out, however (at 1623), that the use of a semicolon may sometimes be followed by the use of the word "and", "but" or "or". As to the use of the semicolon in the latter circumstances, they say (emphasis added),
"Such a use (in effect, replacing a comma) is chiefly found in rather formal writing and in sentences whose complexity already involves the use of one or more commas and whose major divisions call for a hierarchically superior punctuation mark if the reader is not to be momentarily puzzled or misled."
84 Once it is recognised that the semicolon in Art 1A(2), preceding, as it does, the use of the word "or", has the effect, according to accepted grammatical principles, merely of a comma, rather than that of showing that what follows it is an independent clause, then it appears to me that,
"… the problem of construction which emerges from the location of the words relating to stateless persons after the semicolon and the absence of any repetition of the reference to persecution as a necessary cause of such a person being outside of the country of former habitual residence …"
(to quote (again) something said by the primary Judge in the present matter), is to be resolved in a manner different from that in which it has thus far been resolved in the cases.
85 When one reads the words which relate to stateless persons in the later part of Art 1A(2) as being part of one complete clause, rather than as comprising in themselves an independent clause, then I consider that the appropriate way to approach their construction is as follows: it is apparent that those words describe a person whose circumstances are to be contrasted with those of the person described in the earlier part of the clause. So much is apparent from the first six of those words, "or who, not having a nationality". However, not only do the words in the later part of Art 1A(2) describe a person of contrasting circumstances to the person described in the earlier part of the clause. They also suggest naturally a particular point in the description of the first person's circumstances at which the reader is to begin to mark that contrast of circumstances. That point in the description of the first person's circumstances is at the words, "is outside the country of his nationality" and not earlier. That that is the particular point in the description of the first person's circumstances at which the reader is to begin to mark the contrast of circumstances is demonstrated by the use in the later part of Art 1A(2) of the words, "or who, not having a nationality and being outside the country of his former habitual residence, is …" The form of words which I have just quoted, beginning the contrast of circumstances between the two classes of person part way through the description of the first person's circumstances, avoids the necessity, in what is already a very long clause, to repeat, so far as a stateless person is concerned, the phrase, "Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion", which opens the clause. That opening phrase is instead taken to be impliedly applicable to a stateless person simply by reason of the form of words used in relation to such a person in the later part of the clause.
86 I find the reading which I have just given to Art 1A(2) to be an entirely satisfying one linguistically and I therefore consider that that reading, rather than the reading given to the provision both by Cooper J and by the primary Judge in the present matter (heavily influenced as that reading appears to have been in both cases by an erroneous view as to the effect of the presence in the provision of the semicolon), represents its true "natural" meaning.
87 Having now concluded my discussion in detail of the first of the matters set out in my summary of the reasons for judgment of Cooper J, I turn to the second of those matters.
88 Accepting that the natural meaning of Art 1A(2) is as I have expressed it above to be, namely, that it includes the disputed condition, the question next arises as to the Court's obligation to look beyond the text of Art 1A(2) in order to determine whether that natural meaning of the provision represents the construction which should be given to it. As I have already made plain above, Cooper J began the process of construing Art 1A(2) with a natural meaning which did not include the disputed condition, but ended it with a construction which did include it. As I have also already made plain above, he did so because he considered that he was obliged by the Vienna Convention to look beyond the text of Art 1A(2) in order to arrive at its correct construction: see at 422F, 424F, 428D and 429B. (It is noteworthy that, while, given his starting point, Cooper J treated what he found outside the text of Art 1A(2) as requiring departure from the natural meaning of that text in construing the provision, such things, provided they were appropriately relied on by him, would instead confirm the natural meaning which I attribute to the text.)
89 In proceeding on the basis that it was the Vienna Convention which obliged him to look beyond the text of Art 1A(2) in order to arrive at its correct construction, Cooper J erred, although such error was an immaterial one.
90 The Vienna Convention is not applicable in the construction of the Convention, since Art 4 of the Vienna Convention renders that Convention applicable only to "treaties which are concluded by States after the entry into force of the present Convention with regard to such States". The Vienna Convention entered into force generally (and also with regard to Australia) as late as 27 January 1980 (Australian Treaty List ("ATL"), ATS 1989 No 38, p. 518), but the Refugees Convention of 1951 had entered into force generally (and also with regard to Australia) on 22 April 1954 (ATL, p. 445), while the Refugees Protocol of 1967 had entered into force generally on 4 October 1967 and with regard to Australia particularly on 13 December 1973 (ATL, p. 507). In those circumstances, neither the 1951 Convention nor the 1967 Protocol can be said to have been "concluded" by Australia after the entry into force of the Vienna Convention with regard to Australia (or with regard to any other State, for that matter), whatever meaning may be given to the term "concluded" in Art 4 of the Vienna Convention. (For a discussion of the meaning of that term in Art 4, see Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595 at 622, n 106 (Deane, Dawson, Toohey and Gaudron JJ)).
91 However, even though the Vienna Convention is not applicable in the construction of the Convention, still the Vienna Convention "constitutes an authoritative statement of customary international law" (see Victrawl at 622), including the customary public international law of the interpretation of treaties, and it was those rules of customary public international law, rather than the Vienna Convention itself, which obliged Cooper J to look beyond the text of Art 1A(2) in order to arrive at its correct construction. (At the same time, however, I should say that it is, no doubt, because the Vienna Convention does constitute an authoritative statement of the customary public international law rules for the interpretation of treaties that its relevant provisions relating to the interpretation of treaties are referred to on occasions in Australian courts as if they were applicable in construing the Convention: see, for example, various of the sets of reasons for judgment in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, but note that at 277, n 189, Gummow J, having set out the appropriate rules of interpretation of the Convention, said, "These rules of interpretation are applicable both under customary international law and as it is now stated in the Vienna Convention on the Law of Treaties".)
92 I turn now to the second of the two decisions of single Judges of this Court existing at the time at which the primary Judge made his decision in the present matter which gave to Art 1A(2) the construction contrary to that afterwards adopted by the primary Judge in the present matter. I can deal with that decision briefly. It was Haris v Minister for Immigration and Multicultural Affairs (Moore J; unreported; 12 February 1998). Like Rishmawi, it was a decision made after the decision of the Court of Appeal, but before the decision of the House of Lords, in Adan. The primary Judge in the present matter (at 356, [28]) described Moore J as having, in Haris, "adopted the reasoning of Cooper J", although it should, perhaps, be added that Moore J had expressed himself (at 5) as doing so because "I am not satisfied that Cooper J's judgment is obviously incorrect". In so proceeding, Moore J had been acting in accordance with the approach usually taken, as a matter of comity, by single Judges of this Court to the decisions of other single Judges of this Court, namely, that such earlier decisions, when considered to be applicable, are followed unless also considered to have been plainly wrongly made.
93 As well as referring to Rishmawi and Haris, I should also mention now one more case heard by a single Judge of this Court which was concluded before the decision presently under appeal, namely, Al-Anezi v Minister for Immigration and Multicultural Affairs. In that case, Lehane J delivered two sets of reasons for judgment, which sets of reasons must be read together: see [1999] FCA 355 (unreported; 1 April 1999) and [1999] FCA 556 (unreported; 5 May 1999).
94 In the present matter, the primary Judge said (at 356, [28]) that, in Al-Anezi, "Lehane J referred to Rishmawi, but did not rely upon its correctness in reaching his decision. See his Honour's supplementary reasons for judgment at [1999] FCA 556". It is true that in his second set of reasons for judgment in Al-Anezi, Lehane J did say (at [3]) that, "… the conclusion which I reached [in my first set of reasons for judgment] does not depend upon the correctness of the view expressed by Cooper J". However, Lehane J was there speaking about a view expressed by Cooper J in Rishmawi on a particular question different from the question whether Art 1A(2) includes the disputed condition (on which particular question it is not necessary to elaborate for present purposes). On the other hand, in his first set of reasons for judgment, Lehane J had quoted (at [19]) the following statement which had been made by Cooper J in Rishmawi,
"[I]t is apparent that the object of the Convention was to treat uniformly persons seeking refugee status, so far as was possible, whether or not those persons had a nationality. This equality of treatment is seen in the equation of country of nationality with country of former habitual residence and in the inability or unwillingness to obtain the protection of the country of nationality with the inability or unwillingness to return to the country of former habitual residence. And finally, the object of the draft Convention was to provide sanctuary to persons who had a well founded fear of persecution for a Convention reason and not for any other reason."