N96/11055 [1999] RRTA 801 (30 March 1999)

Catchwords: Effective protection - permanent resident status in Australia

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In accordance with section 431 of the Migration Act 1958 the published version of this decision and reasons for decision was prepared under the direction of the Deputy Registrar and does not contain any statement which may identify the applicant or any relative or dependant of the applicant.

The applicant is a citizen of China (PRC). The applicant applied to the Department of Immigration and Ethnic Affairs for refugee status under the Migration Act 1958 (the Act). As from 1 September 1994 that application was deemed to be an application for a protection visa (Migration Reform Act 1992 s.39). A delegate of the Minister for Immigration refused to grant a protection visa and the applicant applied to the Tribunal for review of the decision.

The Department's records indicate that the applicant has been granted a visa to remain in Australia. This visa is a permanent visa which permits the holder to remain in Australia indefinitely and to travel and re-enter Australia.

In this case, the Department's records also indicate that the applicant has lodged a fee with an application for Australian citizenship. The Department's records indicate that this application "has been recorded as Approved" and will be formally granted once the usual ceremony arrangements have been made.

In late 1998 the Tribunal wrote to the applicant advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone. The applicant was advised that she was entitled to give oral evidence in support of her application and was asked to tell the Tribunal by 19 November 1998 whether or not she wished to do so. The applicant was advised that if she did not respond by that date, it would be assumed that she did not wish to come to a hearing and that a decision could then be made without further notice. The letter was sent to the applicant at her last known address. No response has been received. In these circumstances the Tribunal is satisfied that the Tribunal has discharged its obligation to provide the applicant with the opportunity to give oral evidence before it and that the applicant has effectively declined that opportunity. This matter has therefore been determined on the evidence before the Tribunal. That evidence comprises the Tribunal's files relating to the application, and relevant records obtained from the Department about the applicant.

A criterion for a protection visa is that at the time of the decision the decision-maker is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees: ss.5(1) and 36(2) of the Act. Australia is a party to the Refugees Convention and the Refugees Protocol and, generally speaking, has protection obligations to people who are refugees as defined in them. However, Australia's protection obligations under the Refugees convention and Protocol do not arise if the person has effective protection in a third country.

Article 1A(2) of the Convention defines a refugee as any person who:

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.

This definition has been considered by the High Court in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 and Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 144 ALR 567.

In Guo's case, the Court observed that the Convention definition contains four key elements. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Third, the reason for the persecution must be found in the singling out of one or more of the Convention reasons - race, religion, nationality, membership of a particular social group or political opinion. Fourth, an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country.

Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

The principle of effective protection in a third country was established by the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1998) 151 ALR 685 and applied in Karthigesu Rajendran v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, Mansfield J, 4 May 1998), upheld by the Full Court in Karthigesu Rajendran v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, von Doussa, O'Loughlin, Finn JJ, 4 September 1998), and Minister for Immigration & Multicultural Affairs v Thiagarajah Gnanapiragasam & Ors (unreported, Federal Court of Australia, Weinberg J, 25 September 1998).

Broadly speaking, Australia does not have protection obligations to a person who has been accorded effective protection in a third country. "Effective protection" in this context means protection which will effectively ensure there is not a breach of Article 33 of the Refugees Convention if the person happens to be a refugee. Article 33, which is the principal obligation imposed by the Refugees Convention, prohibits the return of a refugee to the frontiers of territories where his or her life or freedom would be threatened for one of the five Convention reasons. If the return of an applicant to a third country would not expose Australia to a breach of Article 33 then Australia does not owe protection obligations to the applicant, and is not required to determine whether he or she is a "refugee" under Article 1 (Thiyagarajah at 702).

In determining whether an applicant has effective protection in a third country, relevant considerations will usually be: whether the applicant has the right to reside in, enter and re-enter the third country; whether there is a risk that the third country will return the applicant to a country where he or she claims to fear persecution; and whether the applicant has a well-founded fear of persecution in the third country itself.

In Thiyagarajah's case, the applicant had been recognised in France as a refugee and had been accorded effective protection, including a right to reside, enter and re-enter that country. However the operation of Thiyagarajah is not restricted to cases where "effective protection" results from the grant of refugee status. It extends at least to cases where the claimant is entitled to permanent residence and, in time, to become a citizen (Karthigesu Rajendran v Minister for Immigration & Multicultural Affairs per Mansfield J at 14). In certain circumstances, the principle can also apply where an applicant has a right to temporary residence in the third country (Thiagarajah Gnanapiragasam). The fundamental question is whether the applicant's status and legal entitlements in the third country have the consequence that Australia is not obliged to assess the claim to refugee status (Karthigesu Rajendran per Mansfield J at 14) for the reason that there is no real risk that he or she will be returned to a country where his or her life or freedom would be threatened for one of the Convention reasons.

The Tribunal is of the view that the principle in these cases is equally applicable when an applicant has "effective protection", independently of the Refugees Convention, not in a third country but in Australia. If the applicant's status and legal entitlements in Australia are such that there is no real risk that Australia would breach Article 33 of the Convention by returning the applicant to a country where he or she or she had a well-founded fear of being persecuted for a Convention reason, then Australia has no protection obligations in respect of that person. In those circumstances, the Tribunal is not required to assess the claim to refugee status. In determining this issue, relevant considerations will be whether the applicant has the right to reside in, enter and re-enter Australia, and whether there is a risk that Australia will return the applicant to a country where he or she claims to fear persecution. Given that Australia is the country in which the applicant has sought protection from persecution, and has made no claim to fear persecution here, there is clearly no need to consider further to the third consideration which usually arises in these kinds of case - whether the applicant has a well-founded fear of persecution in the "safe third country".

On the basis of the information before it, the Tribunal finds that the applicant was granted a visa in 1998 and that the applicant has applied and been approved for a grant of Australian Citizenship. Section 36(2) of the Act 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". This means that a protection visa can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens, and no visa can be granted to Australian citizens (see ss.4, 29 of the Act).

The Tribunal is satisfied on the evidence before it that the applicant is about to become an Australian citizen.

The applicant claims to have a well-founded fear of being persecuted in China (PRC). However the Tribunal is satisfied that the applicant's legal status and entitlements in Australia are such that there is no risk of her being returned to that country. Whether or not the applicant is a refugee in relation to that country, the Tribunal is satisfied that she has effective protection in Australia by virtue of her Australian visa and impending Australian citizenship.

Whether or not the applicant is a refugee in relation to China (PRC), the Tribunal is satisfied that her status and legal entitlements in Australia are such that there is no real risk that Australia would return the applicant to that country, or indeed to any country where she might have a well-founded fear of being persecuted, in breach Article 33 of the Refugees Convention. The Tribunal is therefore satisfied that the applicant has effective protection in Australia, independently of the Refugees Convention.

As the applicant has effective protection in Australia, it follows that she is not a person to whom Australia has protection obligations under the Refugees Convention. It is therefore unnecessary to consider her substantive claims to refugee status.

The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

The Tribunal affirms the decision not to grant a protection visa.