NAFG v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2003-07-17|Before: Ryan J, Gyles J, Gyles JJ, Gray J

REASONS FOR JUDGMENT GRAY J: 1 This appeal concerns a decision of the Refugee Review Tribunal ("the Tribunal"), made on 18 February 2002, affirming a decision to refuse the appellant a protection visa. The basis for the Tribunal's decision was that the appellant had "effective protection" in India and that therefore Australia did not have protection obligations to him. 2 I have read the reasons for judgment of Ryan J and the separate reasons for judgment of Gyles J in draft form. I differ from their Honours about what should be the result of the appeal. It is only necessary for me to set out shortly the basis on which I do so. 3 At the time when the appellant applied for a protection visa, s 36(2) of the Migration Act 1958 (Cth) ("the Migration Act") expressed the criterion for a protection visa as being that the applicant for the visa was a non-citizen in Australia to whom the Minister was satisfied that Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. The term "Refugees Convention" and the term "Refugees Protocol" were defined in s 5(1) of the Migration Act. The former means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The latter means the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments, taken together, the "Convention". 4 Under various provisions of the Convention, Australia, as one of the parties to the Convention, has obligations of various kinds, usually referred to as protection obligations, to a person who is a "refugee". The term "refugee" is defined in art 1A(2) of the Convention as a 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." 5 In the present case, the Tribunal was satisfied that the appellant was a national of Bangladesh. It did say that it gave him the benefit of the doubt in making this finding, because there was some evidence suggesting that the appellant was a citizen of India. The delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases "the Minister"), whose decision the Tribunal was reviewing, had rejected the application on the basis that the appellant was a citizen of India and did not have a well-founded fear of persecution for a Convention reason if he should return to India. 6 As well as accepting that the appellant was a citizen of Bangladesh, the Tribunal seems to have accepted that he had a well-founded fear of persecution for the reason of his religion, if he should return to Bangladesh. The Tribunal expressed satisfaction that he did have such a fear. It also expressed satisfaction that the appellant had written articles and a book critical of fundamentalist Muslims. It is implicit in the Tribunal's reasons for decision that it took the view that the appellant would be subject to persecution if he should return to Bangladesh. It explained that it had not acted in accordance with requests from the appellant, that it request information from the Indian Government as to whether he was an Indian citizen, partly on the basis that it was possible that the inquiry itself could prejudice the appellant's effective protection. 7 The Tribunal found that the appellant had "effective protection" in India. In doing so, it did not rely on subss (3), (4) and (5) of s 36 of the Migration Act. Although those subsections had been inserted into the Migration Act by the time the Tribunal considered the appellant's case, they did not apply to that case, because his application for a protection visa had preceded the date of operation of the subsections. The Tribunal relied on Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, Rajendran v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 526 and Minister for Immigration & Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1. Those cases are authority for the proposition that Australia does not have protection obligations to a person who could be returned to a "safe third country", which would not return him or her to his or her country of origin, and that the Convention permits Australia so to return such a person without considering his or her need for protection. 8 As Gyles J points out in his reasons for judgment in the present case, the reasoning on which this line of authority rests appears flawed. Article 33 of the Convention, on which the reasoning rests, does not authorise a country party to the Convention to return a person to whom it otherwise owes protection obligations to any other country. Article 33 imposes a negative obligation. It is an obligation not to expel or return a refugee 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." If the only relevant statutory criterion for a protection visa was that Australia had protection obligations to a particular person, it is difficult to see how such a negative obligation could be construed as removing those obligations. It is even more difficult to see how it could be construed as removing the obligation to determine the question whether a particular person was a person to whom Australia had protection obligations. These questions were not argued in the present appeal, however, and I prefer not to express any final view about them in the absence of full argument. 9 I note that art 1E of the Convention operates to deprive a person of refugee status if that person: "is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country." In the present case, the Tribunal did not undertake an inquiry as to whether the appellant fell into that category. 10 Even on the basis that the "safe third country" doctrine was good law, I am of the view that the Tribunal did not apply it correctly in the present case. The appellant's case was that his Indian passport, whilst genuine, had been issued as a result of a transaction in which the appellant paid money to an agent, in order to save his life and escape from the fundamentalists in Bangladesh. Without determining whether this was so, the Tribunal made a finding that the appellant had the right to reside in, to enter and to re-enter India. It did so apparently on the basis that the appellant had entered India on three occasions without difficulty with his Indian passport. The Tribunal then found that there had been no attempt to return the appellant from India to Bangladesh. Apparently on this basis, it was not satisfied that there was a real chance that India would return the appellant to Bangladesh. 11 In Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332 (2001) 116 FCR 154, the Full Court held that the right to enter and reside, required by s 36(3) of the Migration Act, in order to deny protection obligations to a person, was an enforceable right. The existence of a valid, current visa, authorising its holder to enter a particular country, may give rise to such a right. At [58] - [59], Stone J, with whom the other two members of the Court agreed on this point, said: "A right may be 'enforceable' even though it can be revoked without notice and even without reasons. For example, the Minister has extensive powers, listed in s 116 of the Act, to cancel visas. While that visa is extant, however, the non-citizen has, in my opinion, an enforceable right, namely the right not to be prevented from entering Australia. The non-citizen would be entitled to enforce his or her right of entry against, for example, an officious immigration officer who purported to deny entry despite the non-citizen having a valid visa for entry. Undoubtedly the extent of the Minister's power may, as a practical matter, make the enforceability of the right appear illusory. This reflects the vulnerability of the right but does not, in my view, cast doubt on its existence. The analysis may well be different if, at the time the application for a protection visa is under consideration, the circumstances which permitted the grant of the right no longer exist or the factors warranting its revocation are established. Whether or not there could be said to be a right to enter the relevant country in such a case would depend on all the circumstances of that case. However, as this is not an issue in this proceeding, it is unnecessary to consider the point further." 12 In Suntharajah v Minister for Immigration & Multicultural Affairs [2001] FCA 1391 at [17], I said with reference to this passage from Applicant C: "The reservation that her Honour expressed about visas as enforceable rights is important to the present case. In my view, before it is possible to be satisfied that a person has a right to enter and reside in another country, where the possession of a current visa is the right asserted, it is necessary to examine the nature of that visa, the circumstances in which it was granted and whether the factors warranting its revocation exist. A visa cannot be said to afford a right to enter and reside in a country if it is bound to be revoked as soon as its holder attempts to make use of it by entering the country." 13 In Suntharajah, the applicant had a student visa, which on its face entitled him to re-enter the United Kingdom, where he had studied previously. His case was that he abandoned his course of study and left the United Kingdom, so that he was liable to have his student visa cancelled by the British authorities as soon as he attempted to return. The Tribunal had made no finding on that question. I held that the Tribunal had made an error of law by not considering that case. 14 In the present case, in my view, the Tribunal was bound to consider a number of matters before it could determine that India was a safe third country for the appellant. It was bound to make a finding on the appellant's allegations that he had obtained his passport illegally. If it found that he had done so, it was required to make a finding as to the chances of this illegality coming to the notice of the Indian authorities, and their possible reaction to it. If it found that the reaction of the Indian authorities would have been to cancel the appellant's passport, on the ground that it had not been issued to a citizen of India, the Tribunal would then have had to consider whether the Indian authorities would return the appellant to Bangladesh. It would have to consider that question on the basis that the appellant would be in India, without any document entitling him to be so, unless it were to find that India would grant him some right to remain even if it stripped him of his corruptly obtained passport. The question whether India is a party to the Convention would have been relevant to the question of compulsory return to Bangladesh. 15 The Tribunal did not deal with this chain of issues at all. It did not determine the first of the issues. In my view, even accepting the authorities on which the Tribunal relied, it could not make a valid finding that India was a "safe third country" for the appellant without addressing those issues. To do so involved a failure to address the claim made by the appellant, which the Tribunal was bound to do as part of its obligation to review the decision of the delegate of the Minister, imposed by s 414(1) of the Migration Act. The Tribunal failed to exercise the function imparted to it. It asked itself a wrong question and ignored relevant material. Its decision was thereby flawed by reason of jurisdictional error. See Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ, with whom Gleeson CJ expressed agreement, and Craig v South Australia (1995) 184 CLR 163 at 179. As a result, the decision cannot be regarded as a decision made under the Migration Act and falls outside the definition of "privative clause decision" in s 474(2). It is therefore not protected from the exercise of the jurisdiction given to this Court by s 39B of the Judiciary Act 1903 (Cth). 16 For these reasons, the learned primary judge was in error in holding that the decision did fall within that definition and in holding that s 474(1) of the Migration Act required the appellant's application before her to be dismissed. I would allow the appeal, set aside the judgment and orders of the learned primary judge and substitute orders having the effect of setting aside the Tribunal's decision, remitting the matter to the Tribunal to be determined according to law and ordering the Minister to pay the appellant's costs of the proceeding at first instance. I would also order the Minister to pay the appellant's costs of the appeal. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

The factual and procedural history of the appeal. 17 The appellant claims to be a citizen of Bangladesh. He arrived in Australia on 3 April 1999, and on 6 April 1999he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (the Act). On 27 April 1999 a delegate of the respondent refused that application, and the appellant appealed to the Refugee Review Tribunal ("the Tribunal"). On 18 February 2002 the Tribunal upheld the decision of the delegate. The appellant now appeals from an order of the primary judge, on 16 July 2002, upholding the Tribunal's decision. 18 The appellant claims that he is a Buddhist and that Muslim fundamentalists in Bangladesh had tried on numerous occasions to kill him there as he had written articles and a book criticising Islam. Accordingly, he claimed to have a well-founded fear of persecution for reasons of religion if he were returned to Bangladesh. 19 The appellant possesses a Bangladeshi passport issued in 1990. He claims that when he first applied for a Bangladeshi passport in the early 1990s, he could not obtain one, as he could not procure a "no objection" certificate from his local police station. With the aid of contacts he obtained a passport in a different name and went to Japan. On his return to Bangladesh, he claims, fundamentalists again attempted to kill him, prompting him to cross illegally into India. 20 The appellant travelled to Australia in 1999 on an Indian passport issued in 1996. He states that he paid money to an "agent" to obtain the Indian passport. It appears to have been the appellant's evidence that this "agent" or "broker" was a document forger and criminal, as he stated that the persons who had assisted him in obtaining his Indian passport threatened him upon his return to India, demanding money because it was known that the appellant was not an Indian citizen and could therefore be caused trouble if the demands were not met. Additionally, the appellant claimed that, if he returned to India on a false document, he might be suspected of being a terrorist. 21 The evidence before the Tribunal was that the appellant had travelled extensively on the Indian passport. In 1996, he spent a month in each of England and Norway. He travelled to Korea in 1997 and 1998, spending a total of eleven months there. In 1998 and 1999 he spent ten months in Thailand. He was also in New Zealand for a month immediately before coming to Australia in 1999. The appellant has used the Indian passport to leave and re-enter India on three occasions, and has spent a total of seven months in India in the course of those visits. 22 There was evidence before the Tribunal from a departmental "Document Examiner" who had examined both passports. In her opinion, the Indian passport was genuine, while the Bangladeshi passport, although basically authentic, showed signs of photo substitution. After it had received the opinion of the document examiner, the Tribunal, by letter dated 13 December 2001, advised the appellant as follows: 'The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The information is as follows: The member advises that you should consider the following matters prior to the hearing. The member may conclude that you are an Indian national. This may be in the context of your having dual nationality in India and Bangladesh. If the member does so conclude he would need to be satisfied that you have a well founded fear of persecution in each country of nationality in order for your application to succeed. The member is not yet satisfied that there is evidence that Buddhists are generally at risk of persecution in Bangladesh. The member also notes that you have been absent from Bangladesh for ten years. It is not yet apparent to the member why you would be at risk of persecution there. The member confirms that you are free to provide written submissions as well as to attend the interview and give evidence. Enclosed is a Minute dated 24 October 2001 from the Document Examination Unit of DIMIA. This information is relevant because the Minute is evidence supportive of a conclusion that the Applicant has Indian citizenship. It casts doubt on his claim to Bangladeshi citizenship. You are invited to comment on this information. Your comments are to be given at an interview between you and the Tribunal Member reviewing your case.' 23 That invitation elicited a response dated 12 January 2002 which commenced with these paragraphs; 'This is my response to all the questions raised with regards to the issues of · Suspected Indian Nationality · Evidence of Bangladesh Nationality · Evidence of Persecution in Bangladesh · Being out of Bangladesh for ten years · Reported Authenticity of Indian Passport · Reported Authenticity of Bangladesh Passport in the last letter from the Tribunal in December 2001

Question of Indian Nationality As stated previously, I emphasise that I am not an Indian National; I do not hold dual citizenship. I am a Bangladesh citizen. I do not have Indian birth certificate nor Indian School certificates nor my name is in the Indian Voters list. I would like the Tribunal to verify this with the Indian authorities. I obtained the Indian Passport by paying money to an agent to save my life and escape from the Bangladesh fundamentalists. Also submitted is a recent (Dec 2001 - Jan 2002) Indian news paper article which describes that India is considering giving Dual Citizenship, confirming that dual citizenship was not possible in India in the past.' 24 By the same letter the appellant referred to a passport, birth certificate, school certificates, newspaper articles, books and photographs as well as a statutory declaration and testimonials tending to establish his Bangladeshi nationality. He then referred to evidence, including photographs, on which he relied as supporting his claim to have a well-founded fear of persecution if he were returned to Bangladesh. His absences from Bangladesh and the issue of the two passports were explained as follows: '4. Out of Bangladesh for ten years. It is claimed I was out of Bangladesh for ten years. This is not accurate or true or rather it is a misunderstanding. I left Bangladesh with a Bangladesh Passport in 1990 because of the problems I faced back home and returned to Bangladesh in 1995 because the passport was about to expire. After 3 months, again because of the threat on my life, this time much more intense, I left Bangladesh again. Since then I never went back to Bangladesh. Though in total I am away for about 10 years from my home country, there was a break in it and both times I had to leave because of the persecution (threat and sufferings) caused by the fundamentalists. Details are given in my previous submission.
Indian Passport This was obtained through an agent. The name and Date of birth on this passport are correct. The photo was taken in Thailand as a Buddhist monk. The type of robe seen in the passport photo is slightly different from the type used in Bangladesh, which appears in the photo of Bangladesh passport. I was desperate to get out of Bangladesh at any cost to save my life and therefore I resorted to obtaining an Indian passport through an agent, which was the best option I had at that time. I do not know of the genuineness of the Indian passport but it certainly saved my life. The truth is that I am a Bangladesh national; I am never an Indian national; neither do I have or had dual nationality at any time in my life.
Bangladesh passport Bangladesh passport I had is a genuine passport. But I used different name, as a Buddhist monk (Thero-usually given to monks). This name was given to me by the chief priest of the Buddhist seminary/temple where I was a disciple. The photo is taken as a monk with the usual robe. This I had to do to disguise my self and move out of Bangladesh. The photo or any thing else in this passport was never changed. I gave the same passport to the Thailand and Japan embassies in Dakha and Bangkok respectively to get the respective visas. I humbly request the tribunal to verify this with these embassies. They each took photocopy of the passport and copies of the same photographs that appear in the passport. I totally deny the findings that this Bangladesh passport is tampered in any way. I think you have assumed that it is tampered because of the fact that the passport is issued with a monk's photograph and that a monk's robe is not my usual attire. This passport was issued in my area, Chittagong; my father's name given there (Usha Kanti) is correct. He is the only Usha Kanti in that area.' 25 The Tribunal summarised as follows the appellant's evidence as to why he had sought asylum in Australia as opposed to one of the other countries through which he had travelled; '… … On his evidence he had fled Bangladesh in 1995, fearing persecution. Since 1996 he had been in India, England, Norway, Korea, Thailand, and New Zealand. The Applicant states that he had never had the opportunity to apply for protection in those countries. The person who had obtained his Indian passport for him was always with him. This person always had the Applicant's passport and ticket. The Applicant never had documentation of his own to enable him to seek protection. In Korea he had been on a student visa. He had been told he would eventually be granted permanent residence. This fell through when another student made accusations against the Applicant, so the Applicant left. In New Zealand the Applicant raised his problems with a Sri Lankan Buddhist monk. The monk told the Applicant he should not apply for protection as this may cause their hosts in New Zealand to cease sponsoring Bangladeshis. The Applicant then states that he contacted his family. The family suggested that he telephone a family friend in Australia. The Applicant did so. This friend told the Applicant what a good country Australia was and suggested that he seeks protection here. The Applicant travelled to Australia, and with his friend's assistance, applied for protection within three days.' 26 The Tribunal's reasons for its decision were expressed in the following terms: '… I note that the Applicant travelled to Australia on an apparently genuine Indian passport issued in his own name. He had travelled extensively on that passport for some years. He later produced a Bangladeshi passport in a similar name. The Document examiner gave her opinion that this passport showed evidence of photo substitution. The Bangladeshi passport was used to travel to Japan and Thailand in the 1990s. This travel is consistent with the Applicant's evidence that at about that time he left Bangladesh and went to Japan because the fundamentalist Muslims had threatened him. He stated that he returned to Bangladesh and when he realised that he would continue to have problems with in [sic] Bangladesh he travelled to India where he obtained a passport. It is of course more than possible that the Applicant is an Indian citizen who has fabricated his claims to Bangladeshi nationality and to fearing persecution there. He may have arranged for his photograph to be substituted on someone else's Bangladeshi passport. I note that the Applicant denies this. He has invited the Tribunal to check with the Indian government to establish if he is an Indian national. The Applicant produced documents and photographs that he states are evidence that he is a Bangladeshi national who wrote articles and books critical of fundamentalist Muslims there. Giving the Applicant the benefit of some doubt I am satisfied that he is or was a Bangladeshi national. I am satisfied that he did write articles and a book critical of the fundamentalist Muslims. I am satisfied that he did fear that he would be persecuted if he returned to Bangladesh. I note that the Applicant's Bangladeshi passport does not appear to have been used since his Indian passport was issued in 1996. I note that since 1996 the Applicant travelled on an Indian passport issued in his name. I note the Applicant's claim that he obtained the Indian passport illegally. I also note the opinion of the Document Examiner that it is a genuine Indian passport. I note that he has used that passport to enter and depart India on three occasions and to travel to the United Kingdom, Norway, Korea, Thailand, New Zealand and Australia. I note that the Applicant did nothing to seek protection in the United Kingdom, Norway, Korea or Thailand. This despite his evidence that he had fled persecution in 1995 and that he did not consider that he had protection in India. I note the Applicant's explanation that he could not apply for protection because others always held his documents. I found his evidence on this point unconvincing. I am satisfied that the Applicant did not seek protection in between 1996 and his arrival in Australia in 1999 because he did not need it. He had been issued with an Indian passport that was accepted wherever he went. He was able to enter and depart India. He was not persecuted in India. He was not apparently in any danger of being returned from India to Bangladesh. I note that, generally speaking, Australia will not have protection obligations under the Refugees Convention where an applicant for refugee status has 'effective protection' in a country other than that person's country of nationality, that is in a third country. Effective protection means protection which will effectively ensure that Australia is not in breach of its obligations under Article 33 of the Refugees Convention if the person happens to be a refugee. Article 33 requires that a Contracting State must not expel or return a refugee to the frontiers of territories where his or her life or freedom would be threatened for one of the five Convention reasons. In determining whether an applicant for refugee status has "effective protection" in this sense, the courts have held that it is relevant to consider whether the person has the right to reside in, to enter and to re-enter the third country, whether there is a real chance that the third country will return the person to his or her country of nationality without giving proper consideration to the person's claims for refugee status, and whether the person has a well-founded fear of being persecuted for a Convention reason in the third country in question. It is not necessary that the person must have been recognised as a refugee by the third country, nor is it necessary that the person have permanent residence in the third country: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543; Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526; and Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1. I am satisfied that the Applicant has the right to reside in, to enter and to re-enter India. I note that he has done so on three occasions without difficulty. I am satisfied that he will be able to do so again in the future. There has been no attempt to return the Applicant from India to Bangladesh. I am not satisfied that there is a real chance that India will return the Applicant to Bangladesh. I note that the Applicant claims to fear exposure or other harm from the broker or agent who he claims arranged his passport. I see no reasons to conclude that these persons would be aware of any return to India by the Applicant. The Applicant also claims that he is at risk of being suspected of being a terrorist in India or coming to other unspecified harm. I note again that he has been able to re-enter and depart on his apparently genuine Indian passport on three occasions. He has not come to any harm in India. The Applicant's actions in returning to India on three occasions do not support his claim that he genuinely fears harm there. I am not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention reason in India. I am satisfied that the Applicant has "effective protection" in India. I am satisfied, therefore, that Australia does not have protection obligations to the Applicant under the Refugees Convention. I did not request information from the Indian government as to whether the Applicant is an Indian citizen. I did not consider that a negative answer would have altered my conclusion that the Applicant has effective protection in India. That is, even if the Applicant is not a citizen, he has been given effective protection by and in India. It is also possible that the inquiry itself could prejudice the Applicant's effective protection.' 27 On the basis that the appellant would enjoy effective protection in India, the Tribunal refused his application. On the application for review to this Court, the learned primary Judge held that the Tribunal's decision was a "privative clause decision" within the meaning of s 474(2) of the Act. Her Honour continued: '….. As the recent decision of the Full Court of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 makes clear, a privative clause decision will be valid if the exercise of the decision maker's power was not in breach of an inviolable limitation or restraint on that power and if the three conditions identified by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615 are satisfied. Those conditions are: (a) the decision maker is required to have made a "bona fide attempt to exercise its power"; (b) the decision "relates to the subject matter of the legislation"; and (c) the decision is reasonably capable of reference to the power given to the decision-maker. No question arises in this case of any allegedly inviolable limitation or restraint on the power of the Tribunal. The applicant, who was legally represented before the Court, argued that the decision of the Tribunal was tainted by scepticism in the Tribunal as to the applicant's claimed Bangladeshi nationality and by a failure by the Tribunal to give appropriate weight to the fact that the applicant, as a citizen of Bangladesh, must have obtained his Indian papers fraudulently. However, these complaints, even if they could be substantiated, fall short, in my view, of establishing that the Tribunal did not make a bona fide attempt to exercise its power, that the decision of the Tribunal does not relate to the subject matter of the Act or that the decision of the Tribunal is not reasonably capable of reference to the power given by the Act to the Tribunal. Despite entertaining some doubt about the claims made by the applicant, the Tribunal gave consideration to his claim to be entitled to a protection visa on the basis that he was a citizen of Bangladesh who would suffer persecution if he returned to Bangladesh. I see no reason to conclude that it did not act bona fide in doing so. In any event had the Tribunal taken the only other view open to it as to the applicant's nationality, namely that he was Indian, a Tribunal decision adverse to him was virtually inevitable. Section 474(1) of the Act requires, in these circumstances, that the application be dismissed. The application is dismissed with costs.' 28 Mr Justin Smith of Counsel, who appeared on the appeal for the respondent Minister, conceded that, in the light of the recent judgment of the High Court in Plaintiffs S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, the approach taken by the learned primary Judge in reliance on NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) ALR 449 was incorrect. 29 That concession makes it necessary for this Court to examine for itself whether the Tribunal in the present case has made an error of law amounting to a failure to exercise its jurisdiction or an excess of jurisdiction. The error suggested by Mr Gnanakaran, who appeared for the appellant, is that the Tribunal misdirected itself in relation to the question of whether the appellant had effective protection from a third country, India, so as to relieve Australia of the obligations which it would otherwise have to him under the Convention Relating to the Status of Refugees 1951 done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees 1967 done at New York on 31 January 1967 ("the Convention").

The concept of third country protection. 30 The concept of effective protection in a third country has been extensively discussed by von Doussa J as a member of a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543. In that case, the respondent had been recognised as a refugee in France which had issued him with a travel document in accordance with Art. 28 of the Convention. By way of explaining the phrase "effective protection", von Doussa J observed, at 562; 'It is not necessary for the purposes of disposing of this appeal to seek to chart the outer boundaries of the principles of international law which permit a Contracting State to return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status. It is sufficient to conclude that international law does not preclude a Contracting State from taking this course where it is proposed to return the asylum seeker to a third country which has already recognised that person's status as a refugee, and has accorded that person effective protection, including a right to reside, enter and re-enter that country. The expression 'effective protection' is used in the submissions of the minister in the present appeal. In the context of the obligations arising under the Refugees Convention, the expression means protection which will effectively ensure that there is not a breach of Art 33 if the person happens to be a refugee.' 31 Article 33 of the Convention, it should be noted, provides: '1. 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. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.' 32 His Honour returned to Art 33 at 565 of his reasons in Thiyagarajah where he said: 'In the present case the possible application of Art 33 was not in terms referred to by the RRT, nor was any issue concerning the Article raised before the primary judge. However, the question of fact whether France was able to provide effective protection to the respondent was raised in the context of the conclusion of the RRT that there was an implied proviso to Art 1E to the effect that Art 1E could not apply if there were evidence of a failure of protection in the country of residence. The finding of fact made by the RRT (set out earlier in these reasons) was that it can confidently be said that, if sought, the degree of protection normally expected of a government would have been forthcoming and that 'there is no real chance that the French authorities are unable or unwilling to provide such protection'. The RRT, in the passages from its decision set out earlier in these reasons, embarked on an inquiry whether the respondent was in need of protection 'because of persecutory treatment' in the country in which he had earlier sought refuge. In context, the RRT was using the expression "persecutory treatment" as a reference to the notion of persecution contained in Art 1A (2). The RRT's express finding of fact was in answer to this inquiry. The finding of fact was reached after referring to a passage from Hathaway, p 125, which reads: "In so far as it is established that meaningful national protection is available to the claimant, a fear of persecution cannot be said to exist."' 33 There followed a discussion of the effect of treatment of aliens in the third country which differs from that accorded by that country to its own nationals. His Honour then proceeded to consider an issue raised by the respondent's notice of contention, observing at 566: 'The remaining issue concerns the respondent's notice of contention. Emmett J found that there was no error of law involved in the RRT's finding that there was no real chance that the French authorities are unable or unwilling to provide the degree of protection normally expected of a government. The notice of contention argues that his Honour erred in failing to find that in the circumstances of the case the respondent's failure to seek the protection of the French authorities for fear of retaliation by the LTTE should not disentitle him from protection according to the Refugees Convention. On the respondent's behalf it was submitted that "protection" in the relevant sense must be taken to mean the prevention of harm. A meaning based on the general nature of a State's law enforcement and judicial systems, which the respondent submits the RRT adopted, does not, so it is argued, address the question as to whether a well-founded fear of persecution exists for a particular individual. The respondent's complaint is, in essence, that even if he had sought protection from the French authorities, they could not have "guaranteed" his safety. It was submitted that the RRT failed to consider whether there was a real chance that such protection as the authorities could provide might not prevent harm to the respondent and his family and this failure resulted in a mis-application of the test whether there was a well-founded fear of persecution based on a real chance of failure of State protection. The submissions raised on the notice of contention in substance seek to re-agitate questions of fact. The RRT dealt with the evidence before it which the respondent argued should lead to a finding that there was a real chance that the authorities in France would not extend to the respondent the degree of protection which would be extended to French nationals and would not provide a level of protection sufficient to remove a real chance of persecution in France by the LTTE. Even accepting that the respondent held a genuine fear in that respect, the fear had to be a well-founded one. It was clearly open to the RRT to find, as it did, that there was no real chance, as a matter of objective fact, upon which the respondent's genuine belief could be "well-founded".' 34 In Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1, Weinberg J considered whether Germany was a "safe third country" which could provide "effective protection" for the respondents notwithstanding that they had not acquired permanent residence in Germany. His Honour rephrased the question as follows, at 13; 'The question to be addressed, therefore, is whether Germany, which is of course a signatory to the Convention, is a country in which the life or freedom of the respondents would not be threatened (within the meaning of Art 33) and the Government of which would not send the respondents elsewhere in a manner contrary to the principles of the Convention.' 35 In the course of answering that question, his Honour observed, at 18; 'It cannot be assumed, however, that merely because the respondents are unlikely now to be accorded permanent resident status in Germany they cannot therefore re-enter that country at all. They have a long established connection with that country, and the fifth respondent was born there. Temporary residence status may not, in fact, be precluded notwithstanding the somewhat uncertain terms in which the letters provided by the Consulate General in Melbourne are couched. Nor should it be assumed that the respondents would be denied the "effective protection" of that country were they to be permitted to re-enter as temporary residents while their claim to refugee status was considered. It should not be assumed that Germany would do other than comply fully with its obligations under the Convention in this regard.' 36 His Honour then went on to point out, also at 18; 'It seems to me that a right to re-enter, albeit temporarily, the country in which the claimant has previously lived, together with the right, while proper consideration is given to any claim for refugee status, to leave and re-enter that country thereafter, renders Art 33 potentially applicable. Australia can then require the claimant to return to that "safe third country" without the need first to consider his possible refugee status under Art 1A(2). The right to reside temporarily is capable, in any given case, of meeting the "effective protection" criterion no less than the right to resume permanent residence.' 37 In Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526 another Full Court of this Court (von Doussa, O'Loughlin and Finn JJ) considered the position of a Sri Lankan applicant for a protection visa who had been granted permanent residence in New Zealand and had then travelled to the United States and Canada where he had lived for some years. After extensive references to Thiyagarajah, the Full Court continued, at 529; 'The trial judge in this matter concluded, correctly in our view, that where an applicant for a protection visa has already secured rights and entitlements in a third country the operation of Thiyagarajah ought not be restricted to cases where those rights and obligations result from that country's grant of refugee status to that person. His Honour concluded that it should extend at least to cases where the visa applicant is entitled to permanent residence, and, in time, to become a citizen, and has been accorded that "effective protection" referred to in Thiyagarajah in proposition (iii) above, by the third country to which it is proposed to return the applicant. And in light of the Tribunal's findings his Honour concluded that New Zealand offered such entitlements and protection and that, in consequence, the principles of international law did not preclude Australia as a Contracting State from returning Mr Rajendran to New Zealand.' 38 In Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154 another Full Court of this Court (Gray, Lee and Stone JJ) emphasised the need for consideration of the circumstances of each applicant and the practical result of sending him or her to the proposed third country. As Stone J observed, at 161 [22]; 'In judicial pronouncements concerning the concept of "effective protection", there is a common insistence on the necessity to consider the circumstances of each applicant and the practical result of sending that person to the proposed third country. In Thiyagarajah,von Doussa J spoke of the person having "a right to reside, enter and re-enter" (see [20] above), whereas Emmett J in Al- Zafiry spoke of it being "likely" that the applicant would be given effective protection by being permitted to live in the third country.' 39 In V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408 Allsop J summarised in these terms, at 411, the evidence in relation to the attitude to Iraqi nationals taken by the postulated "safe" third country, Syria; '… … In Syria, which he had entered legally, the applicant could obtain accommodation, employment, access to health services and free education. Iraq does not have a "security presence" in Syria, which I take to mean that Iraqi police and agents were not able to operate in Syria. There had been no normalisation of the relationship between Iraq and Syria. Iraqi asylum seekers in Syria are not returned to Iraq. There was no evidence of likely normalisation of the Iraqi/Syrian relationship in the future. There was no evidence that the applicant had a well-founded fear of persecution for a Convention reason in Syria. The Tribunal was satisfied that the applicant had effective protection in Syria while he was in Syria. The Tribunal also examined the applicant's capacity to return to Syria. It will be necessary to return to this later, but it is necessary to appreciate what the Tribunal found about this, because at the heart of the Tribunal's decision was the finding that the applicant was able to return to Syria where he would have effective protection from persecution and from where there was no likelihood of his being returned to Iraq. The findings by the Tribunal about this were as follows. Iraqis can enter Syria if sponsored by a family member, friend or one of the Iraqi opposition parties operating in Syria. A document evidencing the sponsorship, and security clearance, is sent to the border entry point. Once permission to enter is granted, Iraqis can enter with or without passports and are permitted to remain indefinitely without a residence permit, unless they involve themselves in illegal activities. Within Syria, Iraqis have access to free education and health services and are able to rent accommodation and engage in employment and business. The Tribunal said the following on page 26 of the decision: "The independent evidence indicates that having previously arranged to enter Syria in this manner, [the applicant], who has travelled in and out of Syria on a number of occasions, has a sufficiently strong connection to be able to arrange to do so again. On the evidence before me, once [the applicant] again organised sponsorship, he would be able to obtain accommodation as he has in the past. He would be able to engage in employment. He would have access to free education and health services. In addition, and most significantly he would not be at risk of being returned to Iraq unless he became involved in illegal activities. There is no evidence before me to suggest that [the applicant] engaged in illegal activities whilst he was in Syria previously. Moreover, the independent evidence does not suggest that trumped up charges are brought against Iraqis in Syria as a pretext for deporting them to Iraq. In my view, as [the applicant] does not have a history of engaging in illegal activities in Syria, the chance that he would do so if he returned to Syria is remote. I am therefore of the view that the chance [the applicant] would be deported to Iraq if he returned to Syria is also remote. [The applicant] stated that he was afraid of Iraqi intelligence services in Syria. However, I accept the independent evidence before me that Iraq does not have a security presence in Iraq [sic Syria]. I also accept the independent evidence before me that indicates that there has been no normalisation of the relationship between Iraq and Syria to the extent that Iraqi asylum seekers are being returned to Iraq. The evidence before me does not suggest that there is likely to be any such normalisation of their relationship in the reasonably foreseeable future. If, at some time in the future, the situation between Iraq and Syria changed, it would be open to [the applicant] to approach UNHCR for protection."' 40 Allsop J then expressed his understanding of what is required of the Tribunal when, for the purpose of evaluating the protection likely to be afforded to an applicant by a postulated safe third country, it comes to evaluate circumstances like those summarised in the passage just quoted. His Honour said, at 427; 'In these circumstances one would need to understand whether, upon expulsion to or return to the country in question, that person could gain entry, that is one would need to understand whether that person could be returned to that country and if entry could be gained and return could be effected, whether that person would be safe in the relevant sense.' 41 V856/OOA was one of five cases considered together on appeal by a Full Court (Black CJ, Hill and Tamberlin JJ) in V872/00A v Minister for Immigration & Multicultural Affairs (2002) 190 ALR 268. Each of the appellants in those appeals was an Iraqi national who had resided in Syria for a time before travelling to Indonesia and thence by boat to Australia. The time of residence in Syria ranged from twenty-nine days in the case of one appellant to fifteen years in the case of another. The decision under review in relation to each appellant had been taken by the Tribunal differently constituted, but each member of the Tribunal had made a finding based on a review of "country information" which Tamberlin J summarised as follows, at 277 [46]: '… In each case the Tribunal found, on the basis of review of the country information, that Iraqi nationals can enter, or return to Syria if they are sponsored for a security clearance. They did not need a visa. A security clearance for re-entry might be refused if a person had a criminal record. Iraqi nationals might be sponsored by a family member, a friend, or one of the Iraqi opposition parties operating in Syria. The Tribunal found that the authorities would send the security clearance to the nominated point of entry. The Tribunal found that once they were in Syria, the status of an Iraqi was no different from that of other Arabs, who could remain in the country indefinitely without a residence permit. They could work with a permit, but it was found that the authorities tended to turn a blind eye to employment or conduct of small businesses without a permit, and such persons could access free health and education services. There was a finding in each case that they were unlikely to be expelled unless they contravened the law, in which case a deportation order must be issued by a court.' His Honour then referred to specific findings in relation to each appellant. The first had a genuine Iraqi passport or identification card and could return to Syria in reliance on sponsorship from a previous sponsor or from a cousin resident in Syria. The findings in relation to each of the remaining appellants, as summarised by Tamberlin J at 278 [47] were: · 'V856/00A - the Tribunal found that the applicant had entered Syria through sponsorship arranged by a Syrian contact, and had left Syria legally. Prior to his departure for Australia, he had travelled in and out of Syria on a number of occasions. The Tribunal therefore concluded that the applicant would be able to re-enter Syria, and, once there, to reside in Syria indefinitely. · V872/00A - The Tribunal found that the applicant had a strong connection with Syria, and departed legally, and therefore "will be able to re-enter Syria to resume effective protection there". · V900/00A - The Tribunal found that the applicant entered Syria on a genuine Iraqi Identification card prior to 1994, registered and studied at a national university, and had no criminal record in Syria. Further, the applicant applied for, and was granted, a Syrian police clearance document from Australia, and was likely to have contacts in Syria who could sponsor him into that country. On these bases the Tribunal found that he could return to Syria. · V903/00A - the Tribunal found that the applicant entered Syria legally using genuine documentation including a security clearance issued by Syrian authorities while he was still in Iraq, and that he was permitted to remain there. The Tribunal did not identify the person who had sponsored the applicant's entry into Syria, but concluded that the applicant could still be sponsored to return to Syria by that person or party and could thus arrange legal entry into the country as he did previously.' 42 The question for the Full Court in V872/00A was whether Art 33 of the Convention imposed a requirement that an applicant have a legally enforceable right to enter and reside in the third country before it can be said that Australia does not owe protection obligations to that applicant. Each member of the Full Court answered that question in the negative. In doing so, the Chief Justice noted, at 269 [6] that a negative answer was required by the majority decision of the Full Court in Al-Rahal v Minister for Immigration & Multicultural Affairs (2001) 110 FCR 73; 184 ALR 698 which authority '… must prevail and be followed by this present Full Court unless we are persuaded that it is plainly wrong. I am far from persuaded that it is.' 43 Hill J concluded at 276 [39]: '39. It may well be that there is little if any difference between the approach I would adopt to the question whether a person might be deported to a safe third country notwithstanding that the person had no legal right to be admitted to that country and the test applied in this country in determining whether a person has a well-founded fear of persecution in the country of nationality. Whether or not this is so, given the significance of the issue to the asylum seeker and the obvious importance to Australia of its international obligations and responsibilities, the Tribunal will need to be comfortably satisfied that the applicant, with no legal right to enter a safe third country, will be granted admission there before it will be satisfied that the person who it believes will practically be granted admission is for that reason not a person to whom Australia owes protection obligations. 40. For these reasons I cannot say that the decision in Al-Rahal which rejected the need for a third country to admit an asylum seeker as of right before Australia's protection obligations would cease and accepted instead a test which looked at the practical reality of the case, was "clearly wrong". It follows, in my mind, that this differently constituted Full Court should follow it.'

The contentions of the parties on appeal. 44 In the light of the observation quoted from Applicant C at [38] above, it was submitted on behalf of the appellant that the Tribunal in the present case had failed to collect or have regard to material or evidence in the nature of "country information" going to the attitude of the Indian authorities to the repatriation of Bangladeshi nationals. Nor, it was complained, had there been any investigation of the consequences for a Bangladeshi who is found in India with an illicitly or corruptly obtained Indian passport. 45 The detailed examination by the Tribunal in V856/00A, discussed at [39] to [40] above, of the applicant's right to enter and remain in Syria, how he would be treated there and the absence of activity in Syria by Iraqi security agents was contrasted with what was said to be a cursory and deficient examination by the present Tribunal of the appellant's right to re-enter India and whether India was likely to refoule him to Bangladesh. Those deficiencies, it was submitted, led to the conclusion that the Tribunal had rendered itself unable to be satisfied that India, as a "safe" third country would afford the appellant protection against the persecution of which he had a well-founded fear if he were returned to Bangladesh. In that sense, the Tribunal was said to have been guilty of jurisdictional error. 46 It was also contended on behalf of the appellant, in the alternative as I understood it, that the Tribunal had, in fact, concluded that the appellant was an Indian national. That conclusion was said to have coloured its approach to the question of effective protection from India as a third country or to have led it to approach that question with a closed mind. 47 Mr Smith for the Minister relied principally on the judgment of a Full Court of this Court (Whitlam, Sackville and Kiefel JJ) in Kola v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 170. In that case the Full Court at [63] distilled the following propositions from a number of authorities on third country protection including Thiyagarajah and Applicant C discussed above: · 'Australia does not owe protection obligations to a person who has established residence and acquired effective protection (in the sense of protection that ensuring there is no breach of Art 33 of the Convention) in a third country. … … · This principle does not apply only to the case where the person has a legally enforceable right to enter and reside in a third country. It is enough that, as a matter of practical reality and fact, the person is likely to be given effective protection in the third country by being permitted to enter and live there and is neither at risk of being refouled to his or her original country, nor of his or her life or freedom being threatened on account of race, religion, nationality, membership of a particular social group or political opinion. … … · In determining the likelihood of the person being afforded effective protection, it is necessary to abjure any rigid standard and rely on a judicial assessment of the practical realities and circumstances relevant to that person's position. … … · The enactment of s 36(3) of the Migration Act has not changed the operation of s 36(2) and, in particular, the operation of the effective protection principle: … Accordingly, … Australia does not owe protection obligations under the Convention to: "(a) a person who can, as a practical matter, obtain effective protection in a third country; or (b) to a person who has not taken all possible steps to avail himself or herself of a legally enforceable right to enter and reside in a third country."' (Section 36(3) is irrelevant for present purposes as the amendment which inserted that sub-section came into operation after the appellant had applied for a protection visa.)

Reasoning on the appeal. 48 It will be recalled that the Tribunal expressed itself as "satisfied that the applicant has the right to reside in and to re-enter India." In its context, that meant no more than that the appellant, as a matter of practical reality, can enter and re-enter India without interference by, or attracting adverse attention from, officials in that country. This interpretation is borne out by the statement in the Tribunal's reasons immediately after that just quoted that; 'I note that he has done so [ie enter India] on three occasions without difficulty. I am satisfied that he will be able to do so again in the future.' The phrase "a right to re-enter" was used by Weinberg J in the extract from Gnanapiragasam quoted at [35] above. However, it is clear from the reasoning of the Full Court in Kola that the existence of the so-called "right" does not depend on an applicant's ability to invoke some enforceable provision of the law of the third country which entitles the applicant to re-enter and reside in that country. Of course, acceptance of evidence from an expert in foreign law, or gleaned from text books or statutes, is one way of establishing the requisite right. Another way might involve evidence from a consular official or diplomatic representative of the third country. Whether the third country is a party to the Convention may also be relevant to an assessment of the risk of that country's refouling an applicant to his or her country of nationality. However, the answer to that question is not determinative of whether there is a "right" to re-enter and remain in the third country. In Anavaratham v Minister for Immigration and Multicultural Affairs [2001] FCA 903 (17 July 2001) I observed at [24]; 'The status of India as a non-signatory to the Convention was a piece of evidence or an existing fact relevant to the ultimate question of fact, which, I consider, the Tribunal correctly posed for itself, but was not determinative of that question. The failure of the Tribunal to refer to that anterior fact does not entail that it ignored it. The inference is, at least, equally open that the Tribunal considered India's status as a non-signatory to the Convention but did not regard it as outweighing the positive indications which it identified in the passages quoted at [5] and [6] above that the applicant was likely to be given effective protection if returned to India.' The conclusion in Anavaratham was affirmed on appeal by a Full Court; [2002] FCAFC 22 (13 February 2002). 49 In this case, what was relied on was the applicant's possession of an authentic Indian passport, his use of it to enter India on three previous occasions and his apparently undisturbed residence in India after each of those entries. What evidence is accepted by the Tribunal as establishing a fact relevant to a matter which it has to determine is a matter for the Tribunal provided that it does not rely on evidence which is not probative of the matter in question. 50 The questions which the Tribunal was required, in the context of this case, to determine were whether the appellant had a right, as a matter of practical reality, to re-enter India and whether, once in India, he would be at risk of refoulement to Bangladesh without proper evaluation of his claim to be a refugee from that country. The Tribunal chose to answer those questions adversely to the appellant by attaching weight to his possession of an Indian passport and his three previous unchallenged entries to, and periods of residence in, India. 51 It is true that the Tribunal's reasons do not reveal that it examined "country information" or undertook any other enquiries with a view to establishing what is the current Indian policy or attitude in relation to the repatriation of Bangladeshi refugees. However, that omission may be explained by the Tribunal's inclusion of the appellant in a special class of persons who had fled Bangladesh and become possessed of authentic Indian passports. There is no suggestion that the appellant himself adduced evidence going to the attitude of the Indian authorities to persons in that special class, or generally to Bangladeshi nationals claiming to be refugees. His concentration was on what he said was the likely revelation to the Indian authorities that his Indian passport had been corruptly obtained. The Tribunal discounted that risk because it considered it unlikely that the corrupt agents or brokers who procured the passport would be aware of the appellant's return to India if that were to occur. 52 The Tribunal also explained at the end of the passage quoted at [26] above why it had declined to make enquiries about the appellant of the Indian Government. Although the explanation is somewhat elliptical, it seems to assert that an enquiry if sufficiently general not to attract specific attention to the appellant would not illuminate the question of whether he would receive effective protection if he were again to return to India. On the other hand, if the enquiry had disclosed all of the facts asserted by the appellant, including his possession of a corruptly obtained Indian passport, it would unacceptably increase the risk to the appellant of refoulement to Bangladesh compared with that to which he would be exposed if he were to seek to re-enter India unremarked. The latter risk the Tribunal found as a fact not to be significant or "real". 53 Against that background, I am unable to conclude that the Tribunal asked itself a wrong question or failed to take into account a relevant consideration. The only apparently relevant consideration which it did not mention was that India is not a Convention country. However, I draw from the emphasis on the appellant's past experiences in India an inference, similar to that drawn in Anavaratham quoted at [48] above, that India's status as a non-signatory to the Convention could not have affected the Tribunal's assessment of the risk to him of refoulement to Bangladesh. Accordingly, I am unable to impute to the Tribunal any jurisdictional error in the sense in which that expression has been used in the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiffs S157/2002 v Commonwealth of Australia (supra). 54 It follows from the view just expressed that the Tribunal properly answered the correct question in a way reasonably open to it when it found that the appellant would receive effective protection in India. That conclusion in turn negates the appellant's contention that the Tribunal's approach to the question was impermissibly coloured or otherwise influenced by a finding (which it disavowed) that the appellant was actually an Indian national.

Conclusion 55 For the reasons which I have explained, the appellant in my view has failed to sustain either of his attacks on the decision of the Tribunal. I would therefore dismiss the appeal with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT GYLES J: 56 I have had the benefit of reading the judgment of Ryan J in draft. This relieves me of the necessity to set out the issues and how they arise. I agree that the appeal ought to be dismissed, with costs. 57 The Refugee Review Tribunal ("the Tribunal") acted upon the basis that: '… generally speaking, Australia will not have protection obligations under the Refugees Convention where an applicant for refugee status has "effective protection" in a country other than that person's country of nationality, that is in a third country.' The conclusion of the Tribunal was as follows: 'I am satisfied that the Applicant has "effective protection" in India. I am satisfied, therefore, that Australia does not have protection obligations to the applicant under the Refugees Convention.' This was based upon the finding that: 'I am satisfied that the Applicant has the right to reside in, to enter and to re-enter India.' 58 The reasons of Ryan J demonstrate that the Tribunal asked itself the right question according to the line of authority to which his Honour refers. Those authorities establish that whether there is effective protection in a third country is a practical question of fact and degree. Minds could no doubt differ about whether the Tribunal arrived at the correct answer to that question in the present case. The result may be surprising. However, Sackville J in NAEN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 216 at [45] analysed the reasoning of French J in Patto v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 119 in a manner which is consistent with the decision of the Tribunal in the present case. It should be borne in mind that virtually the only reliable facts in the case were that the appellant was in possession of a genuine Indian passport, which he had utilised on various occasions to enter and remain in India. Even if it were concluded that the Tribunal arrived at the wrong answer to the (right) question, all that would be established would be an error of fact and degree within jurisdiction. On any view, this would not amount to error of the kind required to avoid the operation of s 474 of the Migration Act 1958 (Cth) ("the Act"). 59 Any surprise as to the result in this case of the application of the test laid down by present authority would not be alone. The same could be said, for example, of the decisions of Tribunals which were affirmed in NAGV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1456, in NAEN and in V872/00A v Minister for Immigration & Multicultural Affairs (2002) 190 ALR 268. That is the inevitable result of the adoption of a broad and imprecise test of fact and degree which is not found in the legislation. This, to my mind, indicates that the test should be reconsidered. We were not invited to depart from the line of authority referred to by Ryan J and applied by the Tribunal, and no ground of appeal was directed to that issue. This is not surprising in view of the state of the authorities at the time of the appeal. 60 The statutory regime which governs this case is that which applied at the time of the decisions in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 and Al-Rahal v Minister for Immigration & Multicultural Affairs (2001)110 FCR 73. If the minority view of Lee J in Al-Rahal is correct, the approach of the Tribunal in this matter was fundamentally flawed, to the disadvantage of this appellant. Shortly before argument on this appeal a special leave application in relation to the decision in V872/00A was referred to the Full Court of the High Court for argument as if on appeal. It is likely that the proper construction of s 36 of the Act will be reconsidered during that argument. I do not regard what was said by Gleeson CJ, McHugh, Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at 349-350 as precluding that reconsideration, particularly in view of the subsequent amendments to the Act. It is possible that the opinion of Lee J in Al-Rahal will be held to be correct. In my opinion, the differences between the statutory regime applicable here and that to be considered by the High Court are not critical to the point at issue. Subsequently to the argument on this appeal, another Full Court was invited to reconsider the construction of s 36 when hearing an appeal from the decision in NAGV of 2002. That decision has now been delivered (NAGV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 144). Emmett J concludes that Thiyagarajah was wrongly decided, and each of Finn J and Conti J agree with that conclusion. Emmett J declined to follow Thiyagarajah. Finn J and Conti J elected (as it was put by Finn J) to treat the heterodox as the orthodox for the present. 61 I agree with the substance of the opinion of Emmett J. I will briefly explain my reasons for doing so, subject to the caveat that the issue was not argued in this appeal. The criterion laid down by s 36(2) of the Act to qualify for a protection visa is satisfaction that the applicant is a non-citizen to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol ("the Convention"). The primary protection obligation under the Convention is that provided by Article 33(1), which is in the following terms: '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.' (emphasis added) 62 The obligation is expressed to be owed to "a refugee", a term which is defined in Article 1 of the Convention. Article 33 does not qualify or have any operation in relation to Article 1 but, rather, defines the protection obligation which is owed to the refugee. In my opinion, it follows that the question which should have been posed in order to satisfy the criterion laid down by s 36(2) of the Act was whether the applicant was a refugee as defined in Article 1 of the Convention. If the answer to that question is yes, then that criterion for a protection visa is satisfied. Put another way, whether protection obligations under the Convention are owed to a person is not to be judged by the content of the obligations which will be owed if the person qualifies. 63 The Act does not directly incorporate the Convention into domestic law, and, in particular, does not so incorporate the protection obligation in Article 33. Indeed, the Act goes beyond the Convention by providing for the right to stay in Australia upon receipt of a protection visa. In other words, ultimately the protection obligations owed to a refugee are those expressly provided for by the Act. At the relevant time, the question of protection in a safe third country was only relevant under the Act in relation to subdiv AI of Div 3 of Pt 2 of the Act. The reason for that subdivision is set out in s 91A as follows: '91A Reason for Subdivision This Subdivision is enacted because the Parliament considers that certain non-citizens … [including those] in relation to whom there is a safe third country, should not be allowed to apply for a protection visa or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.' 64 The definition of "refugee" in Article 1A(2) of the Convention deals with both persons with nationality and those without (stateless persons). There is no suggestion that the appellant is in the latter category. On this view, he therefore had to satisfy the Minister (and the Tribunal on review) that he was outside the country of his nationality and, for the appropriate reason, was unwilling to avail himself of the protection of that country. In the present case, the appellant claimed Bangladeshi nationality and claimed that he was unable or unwilling to avail himself of the protection of that country because of his fear of persecution for a reason within Article 1A(2). In my opinion, it was those claims which had to be judged in order to determine whether he was a "refugee" and therefore entitled to protection. Those questions were not addressed as such by the Tribunal as it was diverted into the issue of third country protection. If (as seems likely on the findings which were made) a favourable answer had been given, there may have been an issue as to the application of subdiv AI. If the same issue arose under the present regime, a question might also arise as to application of subdiv AK of Div 2 of Pt 3 of the Act, which is headed "Non-citizens with access to protection from third countries". I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate: Dated: 17 July 2003 Solicitor for the Applicant: Mr P Gnana-Karan of Gnana-Karan Solicitors

Migration Act 1958(Cth)ss 36, 474

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