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[2001] FCA 1546
Federal Court of Australia
2001-11-02
Stone J, Hayne JJ, Lee J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision made by the Refugee Review Tribunal ("the Tribunal") on 29 August 2000 affirming a decision of a delegate of the respondent ("the Minister") that a protection visa not be granted to the applicant under the Act. 2 The applicant is a citizen of Iraq. By an unauthorized entry into Australia's "migration zone" the applicant arrived in Australia on 20 December 1999. He was then aged 29. The applicant was taken into "immigration detention" after arrival and has remained there ever since. 3 On 4th May 2000 the applicant completed an application for a protection visa under the Act. The decision of the Minister's delegate to refuse the grant of the visa was made on 18 July 2000. 4 Determination of the outcome of an application for a visa is governed by s 65 of the Act, which provides that if the Minister is satisfied that, inter alia, the criteria prescribed for a visa by the Act or the regulations have been satisfied, the Minister is to grant the visa but if the Minister is not so satisfied the grant of the visa is to be refused. 5 At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa: "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." 6 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967"). The term "protection obligations" is not defined in the Act and is not a term used in the Convention. 7 The Convention is a treaty pursuant to which the "Contracting States" agree to apply the provisions of the Convention to "refugees." Article 1(A) of the Convention provides: "For the purposes of the present Convention, the term "refugee" shall apply to any person who:…(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;…" 8 Exception to, or cessation of, the operation of the Convention is set out in, inter alia, Articles 1(C), (D), (E) and (F). Article 1(C)(3), provides that the Convention shall cease to apply to a person who has acquired a new nationality, and enjoys the protection of the country of his new nationality. Article 1(E) states that the Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attributed to the possession of the nationality of that country. 9 As a Contracting State, Australia has undertaken the obligations imposed on Contracting States by the Convention, save for the obligations set out in Article 32, in respect of which Australia stated a reservation when it acceded to the Convention on 22 January 1954. 10 Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. The obligations so undertaken may come within the ordinary meaning of "protection obligations" but the "protection obligations" to which subs 36(2) may be taken to refer may be the more direct obligations Australia has accepted as a Contracting State not to penalize, or restrict the movement of, a refugee who has entered Australia without authority, having come directly from a territory where the life or freedom of that person was threatened for a Convention reason, and not to expel or return a refugee from Australia to the frontiers of territories where the life or freedom of the refugee would be so threatened. 11 Four days before the applicant arrived in the "migration zone" amendments made to s 36 of the Act by the Border Protection Legislation Amendment Act 1999 (Cth) ("the Border Protection Act") by the insertion of four new subsections ((3), (4), (5), (6) and (7)), came into effect. Those subsections read as follows: "(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. (4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country. (5) Also, if the non-citizen has a well-founded fear that: (a) a country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion; subsection (3) does not apply in relation to the first-mentioned country. (6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country. (7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act." 12 The application for review turns on the construction of s 36 as amended. The relevant facts appear to be as follows. 13 Until March 1996 the applicant, his parents and four siblings resided in Baghdad. A brother of the applicant participated in the Intifada in Al Basra in 1991 and the applicant joined his brother in a demonstration of opposition to the ruling regime in the area of Baghdad in which they resided. When the Intifada failed the applicant and his brother went to stay with their uncle for a week before returning home. 14 In January 1996 the applicant's brother was arrested by security forces and a week later his father was arrested. The father was released after two days but the brother is still imprisoned. When the father returned home he told the applicant to leave the house for his own safety. The applicant went to the home of his grandfather. He was later informed by his mother that the security forces had come to the family home looking for him. The applicant decided to leave Iraq in about March 1996. He obtained a forged passport and travelled to Jordan by bus. He spent about three months in Jordan then went to Syria where he lived for approximately three years. The applicant entered Syria in 1996 under his own name. He was assisted by a man he had met in Jordan who, for the payment of a fee, was able to obtain a security clearance for the applicant and permission to enter Syria. The applicant stated that he decided to leave Syria because he felt that the number of Iraqi security agents infiltrating Syria made it unsafe for him to remain in that country. He left Syria on a false passport in 1999. 15 Having so departed Syria, the applicant claimed that he could not re-enter that country and that he did not know anyone who could help him to return there. 16 In respect of the claims of fear of persecution the Tribunal accepted the applicant as a credible witness and found that his claims and evidence were supported by "independent country information". The Tribunal stated that it was satisfied on the applicant's evidence that he was perceived by Iraqi authorities to be a person opposed to the regime and that if he returned to Iraq he would be arrested, interrogated and tortured. The Tribunal noted that country information recorded that physical torture was usually inflicted by Iraqi security forces during the first period of detention, the "interrogation phase", as a matter of routine. The Tribunal was satisfied, therefore, that there was a real chance the applicant would be subjected to persecution if returned to Iraq. 17 The Tribunal went on to say, however, that it was satisfied that the applicant could return to Syria, and, therefore, that "the applicant has effective protection in Syria and that in accordance with s 36(2) of the Act, Australia does not have protection obligations towards him". 18 As s 36 stood before amendment by the Border Protection Act, the question the Act required, or permitted, the Tribunal to consider under s 36 in conducting a review of the decision of the Minister pursuant to s 414 of the Act, was whether the Tribunal was satisfied that the applicant was a person to whom Australia had "protection obligations" under the Convention. Therefore, but for the amendment, the Tribunal having found that the applicant was a person who had a well-founded fear of being persecuted in Iraq for reason of political opinion and owing to that fear was unwilling to avail himself of the protection of Iraq, it would have been satisfied that the criterion prescribed by s 36 was met. Parliament had not qualified that criterion by committing to the Minister, or the Tribunal, determination of the further question whether a person to whom Australia has "protection obligations" under the Convention could be expelled, or returned, to a third country under the terms of the Convention. 19 It is to be noted, however, that before s 36 was amended, several decisions of this Court had held that in determining whether the criterion prescribed in s 36(2) was met, the Minister, or the Tribunal, could determine whether the applicant had a "right to effective protection in a third country". It is unnecessary to consider the extent to which that doctrine was consistent with the proper construction of s 36(2). (See: Al-Rahal v Minister for Immigration and Multicultural Affairs [2001] FCA 1141 at [24]-[57]). 20 How Australia deals with a person to whom it has "protection obligations" under the Convention, without contravening the terms of the Convention, is a matter for the Executive and Parliament, and may depend upon agreements or understandings Australia may have, or may enter, with other nations for the "refoulement" of a person who is a refugee as defined in the Convention. For example, "Subdivision AI -Safe third countries" (ss 91A‑91F) was inserted in the Act in 1994 to apply to persons "covered" by the "Comprehensive Plan of Action approved by the International Conference on Indo-Chinese Refugees, held at Geneva, Switzerland, from 13 to 14 June 1989" ("the CPA"). The effect of the subdivision was that a person "covered" by the CPA could not make a valid application for a protection visa. That is, no issue could arise as to whether that person was a refugee as defined in the Convention. Parliament did not qualify, or redefine, the criterion prescribed in ss 36(2) for the grant of a visa. 21 When s 36 was amended by the Border Protection Act, the amendments qualified the meaning of the term "protection obligations" in s 36(2) by introducing a deemed limitation thereto.
22 It was not in issue, and, therefore, was assumed in this proceeding that the amendments were consistent with Australia's obligations under international law. The meaning of the words "right to enter and reside in" a third country as used in ss 36(3) has since been considered by a Full Court of this Court. The words mean an existing enforceable right, not a potential right or an expectancy. (See: Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 (FC) per Stone J at [88]).
23 When the Tribunal stated that it was satisfied that the applicant has "effective protection in Syria" and that the applicant is not a person to whom Australia has "protection obligations" as required by s 36(2), the Tribunal purported to apply its understanding of the meaning of s 36(3) to facts as found, and it concluded that Australia does not have "protection obligations" to the applicant by reason of such an application of s 36(3). 24 Counsel for the Minister submitted that if the Tribunal had misinterpreted, or misapplied, the terms of s 36(3), that was a circumstance of no consequence because the Tribunal was able to determine whether the applicant satisfied the criterion prescribed in s 36(2) by having regard to "existing case law principles" without resorting to the terms of s 36(3). It was submitted that the Tribunal should be taken to have so acted. 25 Reduced to its essential terms the submission on behalf of the Minister was that notwithstanding that under ss 36(3) only a person who has an enforceable right to enter and reside in a third country is excluded from qualifying for the grant of a protection visa under s 36(2), the terms of s 36(2) may also exclude a person who does not have such a right, the parameters of that exclusion not being defined by Parliament and being left to judicial exegesis. The effect of the submission is that s 36(3) is otiose in that it does not apply to any circumstance not already covered by s 36(2). 26 For the reasons set out above I am of the opinion that the proper construction of s 36 as it now stands, leaves no room for the application of a "doctrine of effective protection" as part of the operation of s 36(2). In any event even if my conclusion in that regard is in error it would be a "rare" circumstance indeed where the Tribunal could fail to be satisfied under s 36(2) if the exclusionary provisions of s 36(3) do not apply to an applicant who is a refugee under the Convention. (See: Minister for Immigration and Multicultural Affairs v Applicant C per Stone J at [64]). That circumstance does not arise in this case. 27 Furthermore, the Tribunal did not state that it so understood the law. The Tribunal did not determine that, irrespective of the operation of s 36(3), the applicant is not a person to whom Australia has "protection obligations" as required by s 36(2). 28 The Tribunal understood that it was making a determination under s 36(2) by having regard to the terms of s 36(3). The Tribunal set out its understanding of the question it was required to address under s 36 as follows: "The applicant resided in Syria for three and a half years and the Tribunal has considered whether the applicant has effective protection in Syria. In relation to this, the Tribunal is obliged to consider whether the applicant has taken all possible steps to avail himself of a right to enter and reside in Syria, whether on a temporary or a permanent basis. The Tribunal is further required to consider whether the applicant has a well-founded fear of being persecuted in Syria or of being refouled to Iraq by the Syrian authorities." (Emphasis in original). 29 The words used above were identical with those used by the Tribunal, and considered by Carr J, in Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 (at [21]). As Carr J said, it was quite clear that the Tribunal had considered "the matter of effective protection", by the application of s 36(2) as qualified by ss (3), (4) and (5). 30 The Tribunal found that the applicant would be able to arrange to re-enter Syria "with the assistance of an invitation from his close friends". As set out in Minister for Immigration and Multicultural Affairs v Applicant C, s 36 does not operate upon a conclusion that an applicant for a protection visa may take steps to seek re-entry to a third country. There has to be a conclusion that the applicant has a present right to enter that country and reside there. 31 Whatever the meaning of right may be in s 36(3) it is more than an opportunity to seek the favourable exercise of a discretion. It must mean, at least, a degree of certainty in an applicant's circumstances that arises out of an entitlement exercisable by the applicant. Such a construction is consistent with the obligations Australia has undertaken as a Contracting State under the Convention. 32 The Tribunal based its decision that the grant of a visa be refused, on the conclusion that the applicant could make some arrangement to re-enter Syria, not on a finding that the applicant had an enforceable right to enter Syria. In doing so the Tribunal understood that it was applying the law set out in s 36(3) of the Act. That was an error of law by the Tribunal within the meaning of s 476(1)(e) and a fatal flaw in the decision it made (See: Minister for Immigration and Multicultural Affairs v Applicant C per Stone J at [88]-[89]). 33 Before the Tribunal could find that s 36(3) applied, it had to determine whether the applicant had an enforceable right to re-enter Syria. That was not the question asked by the Tribunal and, accordingly, ground for review under s 476(1)(b), (c) or (e) has been established. (See: Minister for Immigration and Multicultural Affairs v Yusuf [2001] 180 ALR 1 per McHugh, Gummow and Hayne JJ at [82]-[85]). 34 It is not apparent that re-determination of the application would be futile and an order for review should be granted accordingly. On the material presented it is unlikely that the Tribunal could find that s 36(3) applies to the applicant's circumstances. If the Tribunal were satisfied that upon entry into Syria in 1996 the applicant obtained a legally enforceable right to leave, re‑enter and reside in that country, the Tribunal would have to consider whether the applicant retained any right to re-enter and reside in Syria after the applicant left Syria on a false document in breach of Syrian law. 35 Once again the Court has been assisted by pro bono counsel who accepted instructions to represent the applicant pursuant to O 80 of the Federal Court Rules. An order should be made for the payment of the applicant's costs to allow counsel to recover fees pursuant to O 80 r 9. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee J.
Associate: Dated: 2 November 2001 Pro Bono Counsel for the Applicant: E. M. Corboy
Solicitor for the Respondent: Australian Government Solicitor
Date of Judgment: 2 November 2001
"N1045/00A"
Minister for Immigration & Multicultural Affairs