Minister for Immigration & Multicultural Affairs v Yasouie

6 Where the person has accepted asylum in a third country and become a national of that country the Convention will cease to apply to that person as a result of Article 1C(3) where the person enjoys the protection of the new country. If it were to turn out that, tested as against the new country of nationality, the person came within the definition of "refugee" in Article 1A(2) then Australia would have protection obligations toward that person. In the present case, Article 1C(3) has no application because it is not suggested that the respondents have acquired German nationality. 7 When the issue is whether Australia has protection obligations to a person, Article 33 of the Convention may be said to be the critical article. It deals in Article 33(1) with the question of refoulement. It provides relevantly that: "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."

8 It is explicit in Article 33 that a person is not to be expelled or returned to a country if that person's life or freedom would be threatened for a reason sated in the Article. Presumably, if life or freedom is threatened for a Convention reason in the third country and the person is a refugee in relation to the country of nationality that person is entitled to the protection of this country. 9 The question of the significance of third party residence has been considered by this Court in a number of cases, among which are Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 and Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95. The former case concerned a person (a Sri Lankan Tamil) who had escaped his original country of nationality and had been accepted as a refugee in France, where he had rights and obligations similar to those of a French national but was not recognised as such. He had succeeded at first instance, but on another point. The Minister appealed and Mr Thiyagarajah argued on appeal, in relation to a notice of contention, that he should be entitled to protection in this country. He failed on this point, because he had not shown that the French authorities were ineffective to protect him against persecution in that country. In the latter case, a Sri Lankan Tamil had been granted refugee status in France and had become a French national. He claimed to have been the object of attacks and threats and said that the police were unable to protect him. He failed, ultimately, on the basis that the question was one of fact, not law. 10 I shall return later to what was said in these cases. Suffice it here to say (and it is common ground in the present case), that if "effective protection" is available in a third country, then Australia has no further protection obligations. The question in the present case is what is meant by "effective protection" in this context or, perhaps more accurately, what the standard of effective protection is. 11 It is perhaps unfortunate that the phrase "effective protection" appears in the Tribunal's reasons and indeed many court decisions in the present context. It does not appear at all in the Convention, but is a gloss upon it. That, of itself, is not a problem. What makes the use of the phrase difficult is that it is ambiguous because it poses both the question "how effective" must the protection be and, in any event, the question "protection against what". 12 In the present case Mr Yasouie gave evidence, which was accepted, that six or seven years earlier he had been attacked by a group of drunken people who had said to him that he was a foreigner and should leave. He sustained injuries to his arm as a result of being kicked. He said that he had been beaten up approximately 20 times by Germans and that once, while with his mother, she had been pushed. His neighbours had hurled abuse against them. The last time he had been attacked had been two years earlier. He had complained to the police who said they would investigate, but did no follow up. He was asked by the Tribunal why he said that the authorities could not give him and his mother effective protection. He replied: "if the government says it does, what is the guarantee? If they would attack me, how would I call the police?" 13 Mrs Issavian in her evidence said that she was pushed out of the way and not allowed to get on a bus, or sit on a seat on the bus, because she was a foreigner. She had also been sworn at and spat upon. She spoke of an occasion about a year before the Tribunal hearing where she had been pushed while shopping. 14 The Tribunal then considered the independent country evidence so far as it concerned Germany. It suffices to say that that referred to racial violence in Germany, particularly from right wing extremists and especially in the east of the country (the former East Germany). The high point of racial attacks had been in the early 1990s. Since that time the authorities had taken measures to combat such attacks, although they still occurred. Nevertheless, persons accepted as refugees had in general the same status as citizens, were protected from being returned to their original country of nationality (refoulement) and were entitled to the same fundamental rights as citizens (apart from voting). It was not suggested that Germany had other than an adequate and independent judicial system to deal with human rights abuse cases should they be referred to it. 15 The Tribunal in discussing the problem generally took the view that effective protection would not exist if a refugee could be refouled (Article 33) or had a well-founded fear of persecution in the third country. The Tribunal then turned to consider whether in Germany there was "adequate State protection from serious harm". The Tribunal said: "The Tribunal is satisfied that the applicants have the theoretical rights and obligations of nationals in Germany, on the strength of the above-cited evidence. They have the right to return and reside there, and are protected from refoulement. The Tribunal finds, however, that a combination of factors leave them vulnerable to serious harm in Germany, at the hands of racist extremists. The evidence cited above suggests that state protection of foreigners in Germany has improved since the early 1990s. However, this protection from racial harassment is limited in nature, and there are still serious and violent racist acts in Germany directed against foreigners, refugees and asylum-seekers. The fact that such racist attacks have continued even during the past year suggests that, despite the willingness of the states in which they reside to give them some protection, such protection as is available has failed on certain occasions. Because of the applicants' Iranian nationality, and the particular threat this might pose for them, the Tribunal is not satisfied that they could be protected from serious harm in Germany. Therefore, the Tribunal finds that any return of the applicants to Germany would result in a breach of Article 33. With regard to the applicants' claims with regard to racial harassment and discrimination in Germany, the Tribunal finds that this treatment was sufficiently intimidating and distressing to constitute persecution. The applicants' claims which have been accepted by this Tribunal and the independent evidence cited at pages 10-18 of this decision indicate that there is a real chance they will suffer persecution in Germany at the hands of extremists and racists, by reason of their Iranian and Kurdish ethnicity. There is evidence that the German state may be unable to protect them from this persecution." (emphasis added)

16 The Minister submits that the Tribunal erred in law in coming to the conclusion that it did. In particular, the Minister submits that the Tribunal applied the wrong test in determining whether the German authorities were able to provide protection to the respondents. It is said that the Tribunal applied a test in the nature of a guarantee of protection and in so doing fell into the same error as the Tribunal was found to have made in Minister for Immigration and Multicultural affairs v Tas [2000] FCA 1657 (Beaumont J). For the respondents it was argued that Tas had been wrongly decidedand that I should not follow it. It may be noted that Tas was referred to with approval by Emmett J in Woen v Minister for Immigration and Multicultural Affairs [2000] FCA 1912 and more recently by Hely J in Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 980. 17 At the time the present case was initially argued, all parties regarded the facts as practically indistinguishable from Tas, which at that time was soon to be heard on appeal. It was agreed that the outcome of that appeal would govern the present case. Although I heard argument on the correctness of Tas with the consent of the parties, I stood the matter over for six months, subject to liberty to restore, to await the outcome of the appeal. However, it seems that the appeal in Tas did not proceed and that it is likely that the matter will be settled, having regard to factual matters not presently relevant. 18 The matter was, accordingly, relisted and counsel for the respondents lodged additional submissions based upon what was said by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, judgment in which was delivered on 3 May 2001. The submission now made is that Miah makes clear that the context in which the reasons for decision of the Tribunal were formulated must be considered when determining whether there has been an error of law. That is hardly a controversial proposition. However, it is submitted that when the Tribunal's reasons are seen in context it should be concluded that the Tribunal neither stated nor implied a test of guarantee of protection. The references to protection having failed on certain occasions and to the fact that the German state might be unable to protect the respondents from persecution was, it is submitted, not inconsistent with the respondents having a well-founded fear of persecution, in the sense of one that is real and not far fetched. Miah, it is submitted, proceeded on the basis that the correct test (not by reference to Article 33, which was not in issue, but by reference to the general definition of "refugee") was effective protection, and that encompassed both the state's power to protect and its willingness to protect. It is said that these two elements require that the protection be sufficiently effective to allay a well-founded fear of persecution on the part of an applicant. The test as stated by the High Court in Miah was entirely different, so it was submitted, from the test posited by the House of Lords in Horvath v Secretary of State for the Home Department [2000] 3 WLR 379, on which Beaumont J had relied in Tas. 19 For the Minister, it was submitted, that there was nothing in Miah that was of assistance in deciding the present case. The High Court merely applied the principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, as, indeed, it is submitted, did Beaumont J in Tas. Miah merely upheld a finding, made by the Tribunal, that effective protection can exist where a government was not "'totally powerless' to stop violations". However, here it was said, the Tribunal applied too high a standard when finding that failure to protect on "certain occasions" led to a conclusion that there was a failure to protect to an effective standard. 20 Horvath was relied upon by Beamont J, so it was submitted by the Minister, for little more than the proposition that something less than a guarantee of protection is required of a state; a proposition consistent with Prathapan and Miah. Horvath is not, so it was submitted, inconsistent with anything said by the High Court and Beaumont J did not err in following it in Tas. I was urged to do the same. 21 It is necessary, in seeking to decide whether the Tribunal in the present case made an error of law, to consider first the issue which the Tribunal had to decide. For the question whether there has been an error of law in the Tribunal's reasoning inevitably has to be decided by reference to the issue which was before the Tribunal. 22 The starting point for decisions in this Court is that of the Full Court in Thiyagarajah. The leading judgment was that of von Doussa J, with whom Moore and Sackville JJ, in separate concurring judgments, agreed. As already noted, the case was one where the respondent to the appeal had taken up residence in a third country (France). France had, in accordance with its obligations under Article 28 of the Convention, provided the respondent with a travel document. In the circumstances it was found to be not inconsistent with the obligations of Australia as a Contracting State to the Convention to effect deportation from Australia without considering the substantive merits of a claim for refugee status, so long as Article 33 did not oblige Australia not to expel the respondent. 23 von Doussa J pointed to the fact that the language of Article 33 differed from that in the definition of "refugee" in Article 1A(2), a matter that had been discussed in Kaberuka v Canada (Minister of Employment and Immigration) (unreported, Federal Court of Canada, Ottawa, 20 July 1995) and in two decisions of the United States Supreme Court: Immigration and Naturalization Service v Stevic 467 US 407 (1984) and Immigration and Naturalization Service v Cardoza-Fonseca 480 US 421 (1987) which were the subject of discussion by von Doussa J. The difference in language resulted, so each of these cases decided, in a higher standard applying in relation to a decision under Article 33 than would be imposed where the question was whether a person was a refugee under Article 1A(2). Given that the language of Article 33 speaks of a threat to life or freedom, this is not surprising. Modern decisions on the meaning of the expression "well-founded fear of persecution" as it appears in the definition of "refugee" may go so far as to suggest that discrimination alone, at least if State authorised, may involve the possibility of a person being considered to be a refugee, notwithstanding that life or freedom was not at risk: cf Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293. 24 The House of Lords, as von Doussa J pointed out, considered the relationship between Article 1A(2) and Article 33 in R v Secretary of State for the Home Department; Ex parte Sivakumaran [1988] AC 958 and concluded that the same standard should be applied under both Articles. That is to say, their Lordships appear to have been of the view that the language of Article 33 was intended to do no more than oblige a Contracting State not to return a refugee to a place where he is liable to be persecuted for a Convention reason in accordance with the ordinary test required to be applied in considering whether that person would be a refugee in the country of his nationality 25 von Doussa J was of the view that this Court should follow the interpretation adopted by the House of Lords. I am bound by that decision which, I must say, has a common sense approach to it, but ignores the complete change in language from Article 1A(2) which Article 33 adopts. The interpretation may be thought to give weight to the context of the Tribunal's decision and to do so in the light of the object and purpose of the Convention, even if not giving primacy to its language: cf, as to the interpretation of the Convention, the judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 251ff. One might ask whether if those who framed the Convention had intended to say that a person could not be refouled to a country where he would, subject to that not being a country of nationality, be considered under Article 1A(2) to be a refugee in relation to that country, then they could easily have said so, but did not. Strangely, no court has, so far as I am aware, suggested that the definition of refugee in Article 1A(2) should be read by having regard to the language of Article 33, (and the related Article 31, which uses similar language), yet there have been many modern decisions which have interpreted the definition of refugee in a way that would be hard to reconcile with the language of Article 33. 26 The Travaux Preparatoires dealing with Article 33 throw little light on the present point. Lord Goff in R v Secretary of State for the Home Department; Ex parte Sivakumaran [1988] AC 958 suggests that they do, and that they disclose that the non-refoulement provision in Article 33 was intended to apply to all persons determined to be refugees under Article 1 of the Convention. But, since Article 33 is expressed to apply only to refugees and that must mean persons who fall within the definition of that term in Article 1A(2) of the Convention, one hardly has to go to any material outside the Convention to reach that conclusion. That is arguably a different question from whether Article 33, applicable both to the country of nationality and a third country, necessarily means that the reference to life and freedom is really a reference to well-founded fear of persecution. 27 The strongest argument, and in essence it may flow from the view of Lord Goff and that of Lord Keith at 995 in the same case who agreed with the observations of Lord Goff, is that if, generally speaking, Australia is obliged to accept to this country people who are refugees within the meaning of the Convention, it would be strange then to find that it could return these people to a country where they would suffer persecution even if the persecution was not such as to threaten life or freedom but had a different character. 28 The Full Court's interpretation in Thiyagarajah is in accord with the views of Robinson at 161 in Convention Relating to the Status of Refugees: its History, Contents and Interpretatio - A Commentary (1953) New York: Institute of Jewish Affairs. 29 It was held in Thiyagarajah that the Tribunal had not erred in affirming the delegate of the Minister's decision not to grant protection visas where the finding of the Tribunal was that the respondent had no well-founded fear of persecution in the third country because "there [was] no real chance that the French authorities [were] unable or unwilling to provide" protection against what it referred to (by way of elliptical reference to the definition in Article 1A(2)) as "persecutory treatment". It is in this sense that von Doussa J referred to there being "effective protection" available to the respondent in France. A second ground for decision in the case, based on Article 1E, has no relevance to the present case. 30 In the next year another Full Court comprising Burchett, Whitlam and Lindgren JJ decided Prathapan which, as I have already indicated, was distinguishable from Thiyagarajah because the respondent had not merely been granted residency in the third country (again France) but had become a French national. Lindgren J, with whose reasons Burchett and Whitlam JJ agreed in short judgments, in discussing Thiyagarajah took that case as deciding (at least by implication), inter alia, that the test under Article 1A(2) of the Convention was not whether there was a well-founded fear that the country of nationality was unable to "guarantee" protection against persecution. Importantly for present purposes, his Honour expressed the view that Thiyagarajah had been correctly decided and should be followed. Implicitly, and perhaps as well explicitly, at 106 his Honour appears to have approved the view that the fact that the authorities in the third country could not guarantee immunity from persecution would not require the conclusion that there was a well-founded fear of persecution such as to involve a threat to life or freedom as referred to in Article 33. 31 The approach of von Doussa J in Thiyagarajah was adopted by the Full Court (comprising von Doussa, O'Loughlin and Finn JJ) in Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526 at 529, although it perhaps added a qualification which, if correct, could be a problem in the present case in that their Honours suggested that Article 33 might only apply if the third country provided an entitlement to permanent residence and in time the ability to become a citizen to the applicant. Whether that is the case with Germany was not a matter which the Tribunal considered. My own understanding, which is not allowed to intrude into these reasons, is that Germany does not, at least in certain cases where bi-lateral treaties apply (eg Iran), permit a national of a third country to which permanent residence has been granted, to become a citizen of Germany, unless the country of nationality agrees to its citizenship being surrendered. Since that matter was not argued by the parties, I do not propose to explore it further. 32 Thereafter, in Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549, another Full Court considered Thiyagarajah, although in a different context, namely, whether there was a real chance that the third country (in that case, a non-Convention country) would return the applicant to the country of nationality. The actual decision in the case was that whether the third country was a party to the Convention was not determinative, particularly as not all countries honour their international obligations, and that effective protection against refoulement to the country of nationality could be available in a country like the United States which was not a party to the Convention. It cannot be said that this decision in any way threw doubt on Thiyagarajah so far as that case interpreted the test in Article 33 as being identical to the test for determining whether a person is a refugee in Article 1A(2). 33 Other decisions to which I have been referred appear to follow Thiyagarajah on the point discussed above and include Sivaneeswaran v Minister for Immigration and Multicultural Affairs [2000] FCA 322 and Tharmalingam v Minister for Immigration and Multicultural Affairs [1999] FCA 1180. See too V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018 (per Allsop J). 34 It follows, and this is accepted by the Minister, that the issues before the Tribunal (and they arose under Article 33 of the Convention) were whether in Germany there was effective protection against refoulement and, more relevantly for present purposes, whether there was effective protection in that country in the sense that, if the applicant for a protection visa was a national there, the applicant would be regarded as qualifying as a refugee in relation to that country because he or she had a well-founded fear of persecution for a Convention reason. 35 It is necessary to turn now to the issues on which the parties are really in dispute. The first of these, as I have already indicated, is whether the Tribunal erred in law in applying a test that the effective protection of which the cases speak required a guarantee of protection from persecution. It is clear enough from Prathapan that the concept of "effective protection" does not involve a guarantee of protection. No country in the world could probably guarantee 100% protection to its nationals, let alone to those whom it might admit to permanent residence because they are within the definition of "refugee" in the Convention. Given what is said to have happened in Cabramatta, an outer western Sydney suburb, over the past few years it is likely, at least in that area, that Australia could not in the recent past have guaranteed protection, either to Australian citizens, or those who were merely refugees given asylum. 36 I accept, without question, that the reasons of a decision maker must both be construed by reference to the context in which they appear and not be scrutinised with an eye attuned to error: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ citing Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. The only question is whether the passage set out earlier in para 15, looked at in this way, went so far as to require a guarantee of protection against persecution for a Convention reason or whether, properly construed, it did not. I do not think that I can merely decide the issue by following Beaumont J in Tas (unless clearly wrong) only because much of the language in the passage which was the subject of attack was identical to that used by the Tribunal in Tas (not surprisingly when it is appreciated that the Tribunal member was the same in both cases). The Court must look at the reasons overall, and in the light of the facts which the Tribunal found. But considering the matter independently, I think that the Minister is correct to conclude that the Tribunal applied too high a standard; a standard of guarantee of non-persecution, rather than the lesser standard to be applied in what one may refer to as the "well-founded fear" cases, namely, what has come to be referred to as the "real chance" test. 37 There are matters which point either way. In favour of the respondents it can be said that the Tribunal found the respondents "vulnerable" to harm and expressed its conclusion in terms of a "real chance that they [would] suffer persecution in Germany". In favour of the Minister, however, are two significant comments, which form the underlying reasons for reaching the conclusion that the Tribunal applied too high a standard. The first is that the Tribunal found that protection against racist attacks had failed "on certain occasions". The finding is, of itself, neutral. The Tribunal then continued by finding that it was not satisfied that the applicants before it (the respondents in the present appeal) "could be protected from serious harm" (emphasis added). Again that is arguably a neutral matter, for it may represent no more than a finding that the German government did not have the ability to prevent persecution for a Convention reason. On any view of the matter, the Tribunal needed to find whether it did have that ability and, if so, whether it was willing to prevent persecution. But it is the last finding, in conjunction with the other two findings which leads to the conclusion that the wrong standard was applied, and that is the comment (obviously regarded as relevant by the Tribunal and scarcely to be regarded as but a throw away line) that there was "evidence that the German state may be unable to protect" (emphasis added) the applicants from persecution. Implicit in the statement is the proposition that the Tribunal was of the view that the respondents would only succeed if they showed, as the Tribunal thought they did show, that protection from serious harm was not guaranteed to them. The true question for the Tribunal was not that. It was whether the German State was willing and able to protect them. 38 In coming to this view I am, however, fortified by the reasons of Beaumont J in Tas. While the facts of the case differed, at least in detail, the passage under scrutiny did not. Hence I would, while acknowledging that difference, act in comity with the decision of Beaumont J. Far from being clearly wrong it is, with respect, right. 39 That brings me to the second point raised in the appeal, namely, whether the learned primary Judge erred in adopting a wrong test, essentially by following Horvath, rather than applying the test in Miah. 40 In Miah, as I have already observed, the High Court spoke in terms of a distinction between the state's power to protect those within its borders and its willingness to do so. Both were elements of effective protection. In Horvath, the applicant was a Roma who claimed to fear persecution in Slovakia by skinheads and claimed that the Slovak police failed to protect Roma from such persecution. The issue in the case was the role which state protection against persecution played in the concept of "well-founded fear of persecution". It was held (Lord Lloyd of Berwick dissenting) that state failure to provide sufficient protection was an essential element of persecution and accordingly that an applicant to succeed in a case where the harm came from sources unconnected with the state, had to show either that the state was unable or that it was unwilling to provide protection. 41 Two comments may be made about the decision. The first is that the case makes it clear that no guarantee of protection is required (see at 388 in the judgment of Lord Hope of Craighead, with whom Lord Browne-Wilkinson and Lord Hobhouse of Woodborough agreed, and per Lord Clyde at 398 with whom Lord Browne-Wilkinson also agreed). In the latter passage his Lordship said, speaking of the level of protection required: "The use of words like 'sufficiency' or 'effectiveness', both of which may be seen as relative, does not provide a precise solution. Certainly no one would be entitled to an absolutely guaranteed immunity. That would be beyond any realistic practical expectation." 42 Later Lord Clyde referred with approval to the following passage from Stuart-Smith LJ in the Court of Appeal in Horvath: "In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders." His Lordship then added the following comment: "And in relation to the matter of unwillingness he pointed out that inefficiency and incompetence is not the same as unwillingness, that there may be various sound reasons why criminals may not be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the state is unwilling to afford protection. 'It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy.' The formulation does not claim to be exhaustive or comprehensive, but it seems to me to give helpful guidance."

43 Beaumont J cited Horvath, as I read his Honour's judgment, really for the proposition that the Convention required no guarantee of protection. There could be no inconsistency on that point between the judgment in Horvath and that in Miah. Further, so far as Horvath is relied upon for its discussion of the dual requirement of ability to protect and willingness to protect, it still is not, in my opinion, inconsistent with anything the High Court has said, whether in Miah or for that matter any recent case. Further, the following passage from the reasons of Lord Clyde emphasises the point that the Tribunal in the present case must have erred in law in applying a wrong test in the passage to which I have referred. His Lordship said at 403: "The sufficiency of state protection is not measured by the existence of a real risk of an abuse of rights but by the availability of a system for the protection of the citizen and a reasonable willingness by the state to operate it."

44 It may be said here that the Tribunal seems to have concentrated merely on the existence of a risk of harm from bashing from skinheads and other racists, without regard to the question whether there was the availability of a system for the protection of the citizen and residents together with a reasonable willingness on the part of the State to operate it. 45 Finally, it is hard to see why that statement is in any way at odds with Miah which in almost identical language makes clear that there are two elements to be considered where effective protection is at issue, namely, power and willingness. The decisions in the two cases are not in conflict. 46 In my view the application should be allowed, the decision of the Tribunal set aside, and the matter remitted to a Tribunal differently constituted for decision in accordance with law. The respondents must pay the Minister's costs of the application.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Solicitor for the Applicant: Australian Government Solicitor

Date of Hearing: 7 March and 30 July 2001