NAGV v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT FINN J: 1 I agree with the conclusion of Emmett J that the Full Court's decision in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 was wrongly decided for the reasons given by his Honour. The usual consequence of this should be that I refuse to follow Thiyagarajah and I should give effect to "the true intent of the statute": cf John v Federal Commissioner of Taxation (1999) 166 CLR 417 at 439-440. However, such is not a course which I consider is open to an intermediate court of appeal in the very distinctive circumstances in which we find ourselves. 2 Thiyagarajah has been analysed, considered and/or applied in at least ten decisions of the Full Court of this Court: see Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526; Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549; Minister for Immigration and Multicultural Affairs v Kandasamy [2000] FCA 67; Minister for Immigration and Multicultural Affairs v Sameh [2000] FCA 578; Al-Rahal v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 73; Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154; Al Toubi v Minister for Immigration and Multicultural Affairs [2001] FCA 1391; Sivasubramanian v Minister for Immigration and Multicultural Affairs [2002] FCAFC 98; V872/00A v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 268; Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194. The same can be said of much larger number of decisions of this Court at first instance. 3 There is now a developed jurisprudence on "effective protection" which has been shaped, endorsed, and applied in the case law referred to above. That jurisprudence, as Emmett J has noted, has a significance beyond what is now provided for in s 36(3) of the Migration Act 1958 (Cth). 4 Notwithstanding the false foundation on which the jurisprudence is founded, I do not consider that it would be appropriate for this Court now to depart from what hitherto, and in many decisions, has been regarded as settled law. If such a departure is to be made it is for the High Court to make it. For the present the heterodox is to be treated as the orthodox. 5 I would order that the appeal be dismissed. Given my reasons, I would make no order as to costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

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

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

EMMETT J: 6 The appellants are father and son. They are Jewish and are citizens of the Russian Federation. They have a well-founded fear of persecution in Russia for reasons of religion and political opinion, but have been refused asylum by Australia. The reason for refusing asylum is that they would be entitled, under the law of Israel, to enter and settle, in Israel, although they have no wish to go to, or reside in, Israel. This appeal is concerned with judicial review of the administrative decision to refuse asylum.

PROCEDURAL BACKGROUND 7 The appellants arrived in Australia on 17 June 1999. On 16 July 1999, they lodged an application for Protection (Class AZ) visas under the Migration Act 1958 (Cth) ('the Act'). On 3 September 1999, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant protection visas to them and, on 24 September 1999, they applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 1 March 2002, the Tribunal affirmed the decision not to grant protection visas. 8 The appellants applied to the Court for review of the decision of the Tribunal and for orders under s 39B of the Judiciary Act 1903 (Cth). On 27 November 2002, a judge of the Court ordered that the application be dismissed with costs: see NAGV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1456. By notice of appeal filed on 13 December 2002, the appellants appealed from the orders made by the primary judge on 27 November 2002.

STATUTORY ENTITLEMENT TO PROTECTION VISAS 9 Section 29(1) of the Act provides that the Minister may grant to a non-citizen permission to do either or both of the following:

• travel to and enter Australia; · remain in Australia. Such permission is to be known as a 'visa'. Under s 30, a visa to remain in Australia may be a permanent visa or a temporary visa. Section 31 provides that there are to be prescribed classes of visas and also classes of visas provided for by the succeeding sections of the Act.

10 Section 36 of the Act, as presently in force, relevantly provides as follows:

'(1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; … (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 … any country apart from Australia…. (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.' (Emphasis added).

11 Section 45 of the Act provides that a non-citizen who wants a visa must apply for a visa of a particular class. Section 47(1) provides that the Minister must consider a valid application for a visa. Section 65(1) then provides that, after consideration of a valid application for a visa, the Minister:

• if satisfied that certain criteria have been satisfied, is to grant the visa; or · if not so satisfied, is to refuse to grant the visa.

THE 1999 AMENDMENTS 12 The Act was amended, with effect from September 1999, to deal with circumstances similar to those in which the appellants find themselves. Section 36 was amended by the insertion of subs(3) to subs(5), which are set out above. In addition, subdiv AK, comprising s 94M to s 91Q, was inserted into the Act. Section 91M explains that subdiv AK was enacted because the Parliament considered that a non-citizen who could avail himself or herself of protection from a third country, because of a right to re-enter and reside in the third country, should seek protection from the third country instead of applying for a protection visa under the Act. Subdivision AK provides, in essence, that an application for a protection visa made by a non-citizen who has a right to re-enter and reside in another country, being a country that provides protection to persons to whom that country has protection obligations, is deemed not to be a valid application. 13 The amendments were made following the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 ('Thiyagarajah') on which the decision of the primary judge was based. To some extent, the amendments reflect principles espoused by the Full Court in Thiyagarajah. However, the amendments are not applicable to the applications for protection visas made by the appellants, since those applications were made before the commencement of the amendments.

THE TRIBUNAL'S FINDINGS 14 The Tribunal found that the appellants are Russian citizens, that they are Jews and that they are considered to be Jewish in Russia. The Tribunal also found that the appellants have a genuine fear that, if they return to Russia, they will be persecuted because they are Jews and because of the father's political activities and opinions. The Tribunal was not satisfied that the appellants could safely relocate within Russia. The Tribunal was therefore satisfied that there is a real chance that the appellants could suffer persecution should they return to Russia and that their fear that, should they return to Russia they will be persecuted for reasons of their religion and political opinion, is well-founded. 15 However, the Tribunal also made findings concerning Israel's Law of Return and found that that law provides for the right of every Jew to go to Israel as an 'oleh', being a Jew immigrating into Israel. The Tribunal found that, according to par 1 of the Law of Return: 'Every Jew has the right to come to this country as an oleh'. According to par 3, a Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while in Israel, receive an oleh's certificate. 16 The Tribunal was therefore satisfied that, if the appellants had travelled to Israel, they would most probably have been allowed to enter and reside there. The Tribunal was aware of no evidence that if that occurred there would be a risk of their being returned from Israel to Russia. Nor was the Tribunal aware of any evidence that would support a conclusion that the appellants have a well-founded fear of being persecuted in Israel. Accordingly, the Tribunal was satisfied that the appellants would have had the 'effective protection' of Israel, had they travelled to Israel. The Tribunal also found that it is probable that the appellants would still have access to that 'effective protection' if they travelled to Israel now. 17 The Tribunal was satisfied that the appellants have had sufficient opportunity to obtain protection in Israel. Accordingly, the Tribunal concluded that, because the appellants have 'effective protection' in a country other than their country of nationality, they are not persons to whom Australia has protection obligations under the Refugees Convention. A necessary criterion under s 36 of the Act for the grant of protection visas was therefore not satisfied.

THE PRIMARY DECISION 18 In their amended application to the Federal Court of Australia, the appellants relied upon the following grounds for the grant of relief in respect of the decision of the Tribunal: (1) the Tribunal erred in concluding that the appellants have had sufficient opportunity to obtain protection in Israel; (2) the appellants should not have had their claims for protection visas assessed in relation to a country to which they had never been and to which they did not wish to go; (3) the Tribunal erred in failing to assess the supposed absence of Australia's protection obligations solely by reference to s 36(3) of the Act; (4) the operation of s 36 of the Act constitutes an inviolable constraint on the authority and jurisdiction of the Tribunal such that s 474 does not preclude review of the decision; (5) the authority and jurisdiction of the Tribunal did not extend to considering the grant or refusal of a protection visa otherwise than in accordance with the domestic law of Australia, as identified in s 36 of the Act; (6) to the extent that s 474 of the Act purports to preclude review of the decision in the present case it is invalid. 19 The essence of the submission made on behalf of the appellants to the primary judge was that the Tribunal was in error in finding that they would have 'effective protection' in Israel. The appellants submitted that the principle of 'effective protection' does not apply in relation to a country where they have never been, where they have never made any attempt to obtain effective protection and where they do not wish to go. Senior counsel for the appellants contended before the primary judge that the Tribunal was obliged to consider a particular applicant's claims against the country of his or her nationality and that the question of whether the applicant could be removed to a third country without breach of Australia's protection obligations must be considered, not on the basis of speculation, but only in the context of an actual determination in respect of a specific country. Senior counsel for the appellants submitted to the primary judge that that determination requires reference, in an individual case, to the relevant authorities in the third country and that, while the Refugees Convention makes an assumption that a country of an applicant's nationality will accept him or her back, it does not make any such assumption with respect to any third country. 20 The primary judge concluded that the principle of 'effective protection' will be satisfied if an applicant has a connection with a third country in the sense that one can be satisfied that the third country will accord to the applicant effective protection, either because it has already recognised that person's status as a refugee or for some other reason. The fact that the applicant has never been to a third country is of no significance. The primary judge concluded that, since the Tribunal was satisfied that the appellants have a presently existing claim under the law of Israel, it was open to the Tribunal to be satisfied that they would obtain effective protection in Israel and that, accordingly, Australia does not owe them protection obligations. 21 The primary judge held that the principle that Australia does not owe protection obligations to a person who has acquired effective protection in a third country also applied where, as a matter of practical reality, the person is likely to be given effective protection even in the absence of a legally enforceable right to enter and live in a third country. Her Honour held that such a finding constitutes a sufficient 'special connection' with that third country to disentitle an applicant who otherwise satisfies the criterion in s 36(2).

THE APPEAL 22 The issue raised by the appellants on their appeal is whether the Tribunal was correct in holding that, for the purposes of s 36(2) of the Act, Australia did not have protection obligations to the appellants under the Refugees Convention, despite their well-founded fear of persecution in the Russian federation, their country of nationality, because they would probably obtain 'effective protection' in Israel if they were prepared to go there. The appellants also challenged the conclusion of the primary judge that a factual finding by the Tribunal that the appellants are likely to be given effective protection, even in the absence of a legally enforceable right to enter and live in Israel, constituted a sufficient 'special connection' with Israel to disentitle the appellants from the grant of protection visas, notwithstanding that they are 'refugees' for the purposes of the Refugees Convention. 23 The Minister contends that, even if the decision of the Tribunal were erroneous in the manner claimed by the appellants, s 474 of the Act would preclude the grant of any relief since the Tribunal's decision was 'a decision of an administrative character made … under' the Act within the meaning of s 474(2) of the Act. Accordingly, s 474(1) would have the effect that the decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

THE REFUGEES CONVENTION 24 The expression 'protection obligations under the Refugees Convention as amended by the Refugees Protocol', which is used in s 36(2) of the Act in describing criteria for the grant of a protection visa, is not defined in the Act. Its meaning is to be gleaned from the effect of the Refugees Convention, as that expression is defined in the Act. That calls for the identification of Australia's obligations under the Refugees Convention as amended by the Refugees Protocol. It is then necessary to determine which of those obligations are properly characterised as 'protection obligations'. 25 The preamble to the Refugees Convention, as defined in the Act, expresses the wish that all the Contracting States, 'recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent that problem from becoming a cause of tension between States'. Section A(2) of Art 1 of the Refugees Convention was amended by the Refugees Protocol, as that expression is defined in the Act. Section A(2), as amended, relevantly provides that, for the purpose of the Refugees Convention, the term 'refugee' is to apply to 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.' 26 However, Section C of Art 1 provides that the Refugees Convention is to 'cease to apply' to any person falling under the terms of Section A in certain circumstances, including where the person;

• has voluntarily re-availed himself of the protection of the country of his nationality;
• has acquired a new nationality, and enjoys the protection of the country of his new nationality;
• can no longer continue to refuse to avail himself of the protection of the country of his nationality, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist. 27 Sections D, E and F of Art 1 also provide that the Refugees Convention 'shall not apply' to certain persons, including:
• persons who are receiving protection or assistance from certain organs or agencies of the United Nations;

Article 33 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.' Although Art 32 was reserved by Australia, it may be that Art 33 should be construed as regards Australia's obligations only in a manner that would be consistent with Art 32. 34 Article 33 constitutes an obligation of Australia under the Refugees Convention to any person who is a refugee, as that term is defined in the Refugees Convention. The obligation imposed by Art 33 is not to afford asylum or, more specifically, to grant a protection visa. The obligation is entirely negative. That is to say, it is an obligation not to expel or return a refugee to the frontiers of territories where the life or freedom of that person would be threatened for a relevant reason. On the other hand, there is no prohibition on expelling or returning a person to the frontiers of territories where the life or freedom of that person would not be threatened. 35 The Act does not enact the provisions of the Refugees Convention as rules of Australian municipal law. Rather, s 36 simply uses the Refugees Convention as a means for determining the circumstances in which a protection visa is or is not to be granted by the Minister to a non-citizen. Sections 36, 45, 47 and 65 of the Act do not require the Minister to take steps that would satisfy Australia's obligations under the Refugees Convention. They simply identify, by reference to Australia's obligations under the Refugees Convention, the non-citizens to whom the Minister is required to grant protection visas. 36 Thus, it will be necessary, in relation to any applicant for a protection visa, to enquire and ascertain whether Australia has protection obligations to that applicant. Once the Minister is satisfied that the applicant is a person to whom Australia has protection obligations, as that term is to be understood when used in s 36(2) of the Act, that person is entitled to the grant of a protection visa, whether or not the protection obligations imposed on Australia under the Refugees Convention require the grant of asylum or some other benefit falling short of the grant of asylum. 37 Thus, the grant of a protection visa to a non-citizen may well confer on that citizen greater rights than the 'protection obligations' that Australia has under the Refugees Convention would require Australia to confer on that person. However, that is not to the point. Whatever the content of the 'protection obligations' that Australia has under the Refugees Convention, if a non-citizen is a person to whom Australia has such protection obligations, the relevant criterion for the grant of a protection visa is satisfied. 38 Article 32, which was reserved by Australia, imposes an obligation not to expel a refugee lawfully in the territory of a Contracting State. Australia's reservation of that provision means that Australia will not be in breach of its obligations under the Refugees Convention if it expels a refugee lawfully in Australia, so long as it does not do so in breach of Art 33. That is to say, Australia can expel a refugee to the frontiers of any country or territory, other than the frontiers of territories where the life or freedom of that refugee would be threatened on account of one of the matters referred to in Art 33. 39 The Minister contends, however, that, to the extent that Australia has protection obligations under the Refugees Convention, it has such obligations to a person only where it cannot, consistently with its obligations under international law, expel or return that person to a place where the person will have 'effective protection'. That contention as to the construction of s 36(2) involves the implication into the Refugees Convention of an obligation that is certainly not expressed in the Refugees Convention. The Minister's construction means that Art 33 is to be understood as providing that Australia will not expel or return a refugee to the frontiers of any country or territory unless the refugee can enter and reside in that country or territory and will have effective protection there. Thus, so the argument would run, a refugee who has effective protection in a third country, because the refugee can enter and reside in such a place, will not be a person to whom Australia has a protection obligation under the Refugees Convention. But that is not what s 36(2) says. 40 It may be a rule of international law that a country on whose territory a refugee is found will not expel or return that refugee to any country unless the refugee can enter and reside in that country. However, that is not an obligation that Contracting Parties have under the Refugees Convention. Further, having regard to Australia's reservation of Art 32, it is difficult to see how it could be an obligation implied under the Refugees Convention. The obligation of Australia under the Refugees Convention not to return or expel is limited to that arising from Art 33.

41 Article 33 of the Refugees Convention applies only to the expulsion or return of refugees, as that term is defined for the purposes of the Refugees Convention. Section E of Art 1 provides that the Refugees Convention is not to apply to:

'… a person who is recognised 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.' 42 That provision is directed in some measure to the same matter as is addressed is s 36(3). That is to say, Australia will have no protection obligations to a person who has rights and obligations attached to possession of the nationality of the country in which he has taken residence. Indeed, Australia will, of course, have no obligations at all to such a person because the Refugees Convention does not apply to such a person. The effect of Section E, however, is not to change the definition of refugee but to provide that the Convention does not apply to a refugee who falls within Section E. 43 Under s 36(3), as enacted by the 1999 amendment, Australia is, in effect, deemed not to have protection obligations in circumstances where otherwise Australia would have protection obligations. The deeming has effect in relation to a non-citizen 'who has not taken all possible steps to avail himself … of a right to enter and reside in … any country apart from Australia'. The finding made by the Tribunal as to the terms of the Law of Return indicate that the appellants have a right to enter and reside in Israel, assuming that 'the right to come to this country as an oleh' encompasses the right to 'enter and reside in'. Since an oleh appears to be defined as a Jew immigrating to Israel, the Law of Return clearly enough confers the right on every Jew to enter and reside 'in a country apart from Australia', namely, Israel. Accordingly, were s 36(3) of the Act applicable to the appellants, its operation would be that Australia would be taken not to have protection obligations to the appellants since, for whatever reason, they have not 'taken all possible steps' to avail themselves of the rights to enter and reside in Israel. 44 Of course, in circumstances where s 36(3) applies, even if a non-citizen were a person to whom Australia had protection obligations under the Refugees Convention, Australia would be deemed not to have such protection obligations in the circumstances where s 36(3) is satisfied, namely, where the non-citizen has failed to take all reasonable steps to avail himself or herself of a right to enter and reside in any other country apart from Australia, subject to the qualification in s 36(4) that the non-citizen will not have a well-founded fear of persecution in that other country.

THE REASONING IN tHIYAGARAJAH 45 As support for the proposition that Australia does not have protection obligations under the Refugees Convention to a non-citizen who would probably obtain 'effective protection' in a third country if he were prepared to go there, notwithstanding that such non-citizen is a refugee, the Minister relies upon the decision of the Full Court in Thiyagarajah. In Thiyagarajah, the Tribunal found that it could be said confidently that, if sought, the degree of protection normally expected of a government would have been forthcoming for Mr Thiyagarajah in France and that there was no real chance that the authorities of France would be unwilling or unable to provide such protection. von Doussa J, with whom the other members of the Court agreed, concluded, therefore, as follows (at 565): '… As a matter of domestic and international law, Australia does not owe protection obligations to [Mr Thiyagarajah] as he is a person who has effective protection in France which has accorded him refugee status.' 46 The appellants, however, say that:

• Thiyagarajah is wrong and should not be followed;
• alternatively, Thiyagarajah should be limited to a case where the refugee can enter and reside in a country where a refugee's right to do so has already been established by reason of the refugee having been to and resided in that country. 47 The second contention involves drawing a distinction between the circumstances in Thiyagarajah, where Mr Thiyagarajah had already established rights of residence in France, and other circumstances, where there is merely a 'sufficient connection' between a third country and a refugee for the Minister to be satisfied that the refugee will be given 'effective protection' in that country. In the present case the appellants have never been to, and do not wish to go to, Israel, but, because they are Jewish, they would be accorded rights, under Israel's Law of Return, to enter and remain in Israel. 48 The reasoning in Thiyagarajah, which was followed by the primary judge in the present case, involves a conclusion based on the answer to a question posed by von Doussa J. The question was whether, under the Refugees Convention, Australia is obliged not to deport a non-citizen asylum seeker from Australia to the third country from whence he or she came if that person falls within the definition of refugee in Art 1. That, however, is not the question called for by s 36(2). Section 36(2) is concerned only with the question of whether an applicant for a protection visa is a person to whom Australia has 'protection obligations under the Refugees Convention as amended by the Refugees Protocol'. That entails an enquiry as to what obligations Australia has under the Refugees Convention. It is not concerned with some other obligations that might arise under international law. 49 von Doussa J observed in Thiyagarajah that the primary obligations imposed by the Refugees Convention on a Contracting State, in relation to a refugee who seeks asylum, are to be found in Articles 31, 32 and 33 and that Art 33 imposes the principal obligation. However, as his Honour observed, the obligations imposed by Art 33 fall short of creating a right in a refugee to be granted asylum, or a duty on the part of the Contracting State to whom a request for asylum is made, to grant it, even if the refugee's status as such has not been recognised in any other country. 50 von Doussa J did not consider that it was necessary, for the purposes of disposing of the appeal, to seek to chart the outer boundaries of the principles of international law that 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. His Honour considered that it was sufficient to conclude (at 562): '… 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.' 51 von Doussa J recognised that, provided France was able to provide effective protection to Mr Thiyagarajah at the time of the determination of his application, it was not inconsistent with the obligations owed by Australia as a Contracting State to effect his deportation from Australia without considering the substantive merits of a claim to refugee status. Thus, his Honour emphasised that the prohibition imposed by Art 33 is against returning a refugee 'to the frontiers of territories where …'. The territory may be to a country other than the refugee's country of nationality, but the prohibition extends also to a return to the frontiers of the country of nationality. 52 All of that reasoning is perfectly logical and correct, with respect, as far as it goes. That is to say, it leads to the conclusion that it was not a breach of Australia's obligations under the Refugees Convention, or under international law, to return Mr Thiyagarajah to France, where it could be confidently said, if he sought it, the degree of protection normally expected of a government would have been forthcoming, notwithstanding that he might be a refugee with respect to his country of nationality, namely, Sri Lanka. 53 However, s 36(2) does not speak in terms of an obligation under international law to grant asylum. Nor does it speak in terms of an obligation under the Refugees Convention to grant asylum. Rather it speaks simply in terms of 'protection obligations under the Refugees Convention' as amended by the Refugees Protocol. 54 The Convention does not itself impose an obligation on any Contracting State to provide a permanent home or even temporary asylum for a refugee. Nevertheless, Australia has obligations under the Refugees Convention to all refugees and at least some of those obligations can fairly be characterised as 'protection obligations', even though Australia is not necessarily bound under the Refugees Convention to provide all refugees with asylum, either permanent or temporary. 55 The task of the Minister in making a decision under s 65 of the Act, and of the Tribunal on review of the Minister's decision, is to decide if an applicant for a protection visa is a refugee within the meaning of Art 1 of the Refugees Convention. If a person is a refugee, then Australia has obligations to that person under the Refugees Convention. Those obligations will be properly characterised as 'protection obligations' even though they do not extend to granting asylum, either permanent or temporary. 56 By acceding to the Refugees Convention to the extent that it did, Australia undertook the obligations imposed on Contracting States as a matter of international law. However, the Refugees Convention did not thereby become part of the domestic law of Australia. It forms part of the domestic law of Australia only to the extent that parliament has enacted legislation that incorporates the international obligations, in whole or in part, into the domestic law of Australia. That is the starting point of the von Doussa J's reasoning in Thiyagarajah and must be correct. 57 However, under the current regime for dealing with asylum seekers under the Act, the existence of protection obligations under the Refugees Convention is the central criterion that directs the decision of the Minister under s 65. In considering a claim by a person seeking protection from Australia as a Contracting State under the Refugees Convention, the central question for determination is the criterion prescribed by s 36(2), namely, is the applicant a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention. As von Doussa J observed in Thiyagarajah, while that is a question posed by the domestic law of Australia, the content of the question must be gauged by reference to the protection obligations of Australia under the Refugees Convention, as a matter of international law. The words emphasised are critical to the construction of s 36(2). That is to say, the question is: what are the'protection obligations' that Australia has under the Refugees Convention? 58 Some of the obligations of a Contracting State that arise under the Refugees Convention will not apply to every refugee. That is because the obligations are predicated upon differing criteria, such as a refugee being lawfully in the territory of the Contracting State or lawfully staying in the territory of the Contracting State. If the only obligation of Contracting States that can properly be characterised as a 'protection obligation' is derived from Art 33, a Contracting State will have protection obligations under the Refugees Convention to every refugee. 59 On the other hand, if a broader view is taken and an obligation arising under any other Article is to be characterised as a 'protection obligation', certain of the obligations will be owed to an asylum seeker only if that asylum seeker, being a refugee, is lawfully in the Contracting State or lawfully staying in the Contracting State or in some cases lawfully residing in the Contracting State, as the case may be. Article 32, which was reserved by, and is therefore not binding on, Australia, would have fallen into that second category, since it applies only to a refugee lawfully in the territory of a Contracting State. 60 It is clear, however, even on the narrow view, that Australia has protection obligations under the Refugees Convention to certain persons, for so long as those persons satisfy the definition of refugee in Section A of Art 1 and Sections C, D, E or F of Art 1 do not exclude the application of the Refugees Convention. Those protection obligations do not include an obligation to grant asylum in any particular case. However, they include at least the obligations found under Art 31 and Art 33. 61 On the broader view, Australia's protection obligations also include the obligations to be found in all of the Articles of the Refugees Convention. On that view, such obligations continue to any particular person only for so long as the person is lawfully in Australia or is lawfully residing in Australia, or whatever the relevant criterion under the particular article may be. Significantly, Australia's protection obligations would not include the obligation found in Art 32. The fact that Australia may, without being in breach of its obligations under international law or under the Refugees Convention, expel or return a person to a territory or country where he or she will have effective protection does not mean that Australia does not have protection obligations under the Refugees Convention to that person. 62 In Thiyagarajah the attention of von Doussa J was apparently not drawn to the fact that Australia had reserved Art 32. Rather, his Honour's reasoning proceeded on the basis that Australia had the obligation that would arise under Art 32. The reasoning entails a conclusion that, because Australia is not precluded by international law from expelling or returning an applicant for a protection visa, Australia has no protection obligations under the Refugees Convention to that person. That is a non sequitur. As a consequence, the reasoning of the Full Court in Thiyagarajah is defective and is not compelling.

CAN THIYAGARAJAH BE DISTINGUISHED? 63 The decision in Thiyagarajah was given in December 1997. It is fair to say that quite a number of cases have been decided on the basis of the correctness of that decision, and subsequent decisions of the Full Court based on it. Ordinarily, certainty in the administration of justice would compel a subsequent Full Court to follow an earlier Full Court decision that would bind the decision in the subsequent case unless the earlier decision is clearly erroneous. The question is whether Thiyagarajah is so clearly erroneous that it should not be followed, assuming that it cannot be distinguished on the basis contended for by the appellants. 64 In his written submissions to the Full Court in Thiyagarajah, the Minister posed the question raised by the appeal as whether a person, who has effective protection in another country and who has established residence in that country, is entitled to claim protection from other Contracting States under the Refugees Convention. The Minister submitted that the questions arose in two ways: (a) whether, as the Tribunal found, Section E of Art 1 applied; and (b) whether, independently of Section E, the protection obligations under the Refugees Convention apply to a person who has established residence and acquired effective protection as a refugee in another country. von Doussa J held that Section E did not apply to Mr Thiyagarajah. His Honour observed that the Minister's written submissions focussed upon that question and said very little about the second contention. Indeed, the second contention was not even advanced at first instance. Nevertheless, von Doussa J proceeded to consider the second contention first, despite the fact that it was not developed fully in the Minister's written submissions (see at 551). 65 The appellants contend in the present case that Thiyagarajah should be distinguished It is significant that the question posed by the Minister in Thiyagarajah was whether the protection obligations under the Refugees Convention apply to a person who has established residence and acquired effective protection as a refugee in another country. Quite clearly, that is not the present case, where the appellants have not established residence in Israel, have not been to Israel and have no wish either to establish a residence in or to go to Israel. Nevertheless, subsequent decisions of the Court have extended the principle formulated in Thiyagarajah in ways that the Minister seeks to support. 66 Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154 ('Applicant C') involved a citizen of Iraq who arrived in Australia by boat from Indonesia. On a review of a decision by the Minister's delegate to refuse a protection visa, the Tribunal found that Australia had no obligation to grant the Iraqi a protection visa because he could obtain effective protection in Syria. Stone J (with whom Gray J and Lee J agreed) considered (at 161[21]) that the principle in Thiyagarajah was not restricted to cases where the protection available to a refugee arises from the grant of refugee status by another country, but will also apply where the refugee is entitled to permanent residence in the third country. The Tribunal in the case of Applicant C was satisfied that the Iraqi refugee would be able to re-enter Syria through an Iraqi opposition group that had previously sponsored him and that, upon re-entry to Syria, he would be able to reside there on an indefinite basis and would not be at risk of being refouled to Iraq (see at 163[30]). 67 The observations of von Doussa J in Thiyagarajah have been interpreted subsequently by a Full Court as meaning that, so long as, as a matter of practical reality and fact, an applicant is likely to be given effective protection by being permitted to enter and being refouled to his original country, that will suffice: Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 at 558[42] and Applicant C at 161[21]-[23]). 68 While the decisions of the Full Court to date have been concerned with circumstances where a refugee applying for a protection visa has already been accepted and established residence in a third country on some basis or another, the reasoning in the cases does not appear to be founded upon a finding that an applicant has already been to, and been allowed some basis for remaining in, a third country. The rationale behind the reasoning is that Australia will not have any protection obligation in relation to a person who has available to him or her a capacity to go to a third country where, as a matter of practical reality and fact, the person is likely to be given effective protection by being permitted to enter and live in that third country and will not be under any risk of being refouled to a country where he or she would be under a threat of persecution. 69 However, Full Courts have not been unanimous as to the principle. In Al-Rahal v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 73 ('Al-Rahal'), Lee J disagreed with the majority in the circumstances of that case. Lee J considered that, where a third country has already accepted an obligation to protect a person who is an applicant for a protection visa and, in consequence, the applicant has correlative rights arising out of that obligation, namely a right to reside in that country and a right to have issued to him or her travel documents that permit departure from the re-entry into that country, then Australia will have no protection obligations under the Refugees Convention. However, his Honour considered that, unless those obligations and rights exist at the time of the application for a protection visa is determined, Australia will have 'protection obligations' to the applicant if that person is a refugee (see at 91[56]-[57]).

70 The applicant in Al-Rahal was an Iraqi citizen who had moved to Syria and had lived there for some years. While the applicant in that case was permitted to remain in Syria, Syria did not accord to him the rights and benefits that would be required in order to satisfy the obligations of a Contracting State under the Refugees Convention. Indeed, Syria is not a Contracting State. Thus, Lee J, in dissent, appears to have taken the view that effective protection was not available in a third country unless the third country had accepted an obligation to protect a person, in consequence of which that person had the right to reside in that country and to have issued travel documents that permit departure from and entry into the country. If that is truly a rationale for distinction, it would apply in the present case. However, the majority in Al-Rahal rejected that rationale.

71 In any event, the decisions of the Full Court to which reference has just been made are clearly founded upon the reasoning of von Doussa J in Thiyagarajah. If that reasoning is to be accepted and followed, it is difficult to conclude that the decision in Thiyagarajah should be distinguished for the purposes of the circumstances presently under consideration. The finding of the Tribunal in the present case is that the appellants, if they choose to avail themselves of the opportunity, will most probably be allowed to enter and reside in Israel. That is a finding that, because there is sufficient 'special connection' between the appellants and Israel, by reason of Israel's Law of Return, the appellants have available to them 'effective protection', as described by von Doussa J in Thiyagarajah, as explained by the Full Court in Al-Sallal. There is no basis for distinguishing Thiyagarajah if it is to be accepted as correct.

72 I am satisfied that Thiyagarajah was wrongly decided. Further, Thiyagarajah was concerned with circumstances in which Mr Thiyagarajah had elected to claim protection in France and had been given protection in France, albeit protection that did not exclude the operation of the Refugees Convention under Section E. Mr Thiyagarajah might be thought to have had a change of heart. That is not the case with the appellants. The question is whether this Court should treat Thiyagarajah as decisive of the present case. In that regard, it is significant that von Doussa J appears to have reached his conclusion under a misapprehension as to the effect of the Refugees Convention.

73 A considerable jurisprudence has developed following the decision in Thiyagarajah. That jurisprudence has developed on the assumption that Thiyagarajah was correctly decided. While Thiyagarajah went to the High Court, it did so on a clearly procedural ground. The High Court did not consider the arguments upon which the substantive decision was based.

74 The occasions upon which the departure from previous authorities is warranted are infrequent and exceptional. Since appeals to the High Court are now only by special leave, the Full Court will, in many instances, be the court of last resort for practical purposes. In those circumstances, it would be inappropriate that a Full Court of the Federal Court regarded itself as strictly bound by a previous decision. In cases where an appeal is not available or is not taken to the High Court, rigid adherence to precedent is likely, on occasion, to perpetuate error without significantly increasing the corresponding advantage of certainty: see Nguyen v Nguyen (1990) 169 CLR 245 at 269-270. A differently constituted Full Court would decline to follow the decision of another Full Court, however, if it concluded that the previous decision was clearly erroneous. It would be wrong to do so merely because the matter was one on which minds might differ: Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 560[29].

75 To some extent, the significance of the reasoning in Thiyagarajah has been diminished by subsequent amendment to the Act. Thus, the introduction of s 36(3) to s 36(5) and of subdiv AK have adopted as the municipal law of Australia qualifications on the operation of s 36(2) along the lines suggested judicially in Thiyagarajah. On the other hand, in Applicant C, the Full Court was not disposed to the view that the amendments codify the qualification of s 36(2) that was accepted in Thiyagarajah: see Applicant C at 171[63] and 172[64]. Thus, in Applicant C, the Court concluded (at 172[65]) that the combination of the amendments to s 36 and 'the doctrine of effective protection' leads to the position that Australia does not owe protection obligations under the Refugees Convention to:

(a) a person who can, as a practical matter, obtain effective protection in a third country; (b) a person who has not taken all steps to avail himself or herself of a legally enforceable right to enter and reside in a third country. 76 The first is based on Thiyagarajah, as developed in subsequent jurisprudence. The second is based on s 36(3). If those observations are to stand, there is still considerable work for Thiyagarajah to do, irrespective of the amendments to s 36 and the insertion of subdiv AK.

77 It may be, therefore, that it is more likely that the High Court would entertain favourably a special leave application in a case such as this, or a similar case, in order to consider the correctness of Thiyagarajah. Nevertheless, it is not possible to predict with certainty that leave would be granted. If leave is not granted and Thiyagarajah is in fact wrong, grave injustice could be done to the appellants because of the application of an incorrect principle. In the circumstances, I have concluded, with some trepidation, that Thiyagarajah should not be treated as decisive of the present case.

78 The Minister says that, even if Thiyagarajah is wrong or is distinguishable, s 474 would preclude any interference by the Court with the decision of the Tribunal, because it is a decision of an administrative character made under the Act.

79 A provision such as s 474 is to be interpreted as meaning that no decision that is in fact given by the Tribunal would be invalidated on the ground that the Tribunal has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the Act, provided always that the Tribunal's decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the Act and that it is reasonably capable of reference to the power given to the Tribunal: R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 614-615. The expression 'reasonably capable of reference to the power given to [the Tribunal]'signifies that it must 'not on its fact go beyond … power': R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 418. Thus, a provision such as s 474 cannot protect against a failure to make a decision required by the Act or against a decision that, on its face, exceeds jurisdiction: Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at 41[57]. Such principles are rules of construction allowing for the reconciliation of apparently conflicting statutory provisions.

80 The meaning of a privative clause such as s 474 is to be ascertained from its terms. If that meaning appears to conflict with a provision pursuant to which some action has been taken or some decision made, its effect will depend on the outcome of the reconciliation of s 474 with that other provision: Plaintiff S157 (at 41[60]). Where there is inconsistency between s 474 and other provisions of the Act, the inconsistency is to be resolved by reading the two provisions together and giving effect to each. Section 474 is to be taken into account in ascertaining what the apparent restriction or restraint actually signifies in order to determine whether the situation is one in which relief of the sort referred to in s 474(1) will be available: Plaintiff S157 (at 42[61]).

81 A provision such as s 474 is to be construed as meaning that the 'protection' that it purports to afford will be inapplicable unless the three provisos referred to in R v Hickman are satisfied. To ascertain what 'protection' s 474 purports to afford, it is necessary to have regard to the terms of that section: Plaintiff S157 (at 42[64]). It may be that, by reference to the words of s 474, some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of a decision. However, that is a matter that can only be determined by reference to the requirement in issue in the particular case.

82 The requirement in issue in the present case is the requirement contained in s 65(1)(a) of the Act that, if the Minister, having considered the valid application for visas made by the appellants, is satisfied as to the matters referred to in s 65(1)(a) of the Act, then the Minister is to grant the visas. The same requirement applies to the Tribunal on review of the decision of the Minister's delegate. The only matter in question was whether the Tribunal was satisfied that the appellants are persons to whom the Tribunal was satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. That is the criterion stated by s 36(2)(a) of the Act. If there is an apparent conflict between the provision of the Act that imposes that requirement, namely s 65 on the one hand, and s 474 on the other hand, a process of reconciliation is necessary in order to determine whether that requirement of s 65 is essential to the validity of the decision of the Tribunal.

83 Section 474 cannot be read in isolation from the definition of 'privative clause decision' in s 474(2). That definition confines the expression 'privative clause decision'to'a decision made, proposed to be made, or required to be made … under [the Act]'. When regard is had to that fact, the words of s 474(2) are not apt to refer either to decisions purportedly made under the Act or to decisions of the kind that might be made under the Act. If the words were to be so construed, provisions of s 474(1) would be in conflict with the Constitution and, thus, invalid. They would confer authority on the Tribunal to determine conclusively the limits of its own jurisdiction and, thus, at least to some extent, to exercise judicial power of the Commonwealth: Plaintiff S157 (at 45[75]).

84 Once s 474 is construed as being constitutionally valid, the expression 'decision … made under [the Act]' must be read so as to refer to decisions that involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. An administrative decision that involves jurisdictional error is no decision at all on the part of the Tribunal. In such a case, the decision of the Tribunal cannot properly be described as a decision made under the Act and would, therefore, not fall within s 474(2).

85 A jurisdictional error in that context would include a failure to discharge imperative duties and a failure to observe inviolable limitations or restraints: Plaintiff S157 (at 45[76]). It will be necessary, therefore, to engage in a reconciliation process in order to determine whether the failure to observe the requirement of s 65 constitutes an error that has resulted in a failure to exercise jurisdiction on the part of the Tribunal. The effect of s 474 is to require an examination of limitations and restraints found in the Act. There will then follow the necessity to determine whether the decision of the Tribunal does or does not involve jurisdictional error: Plaintiff S157 (at 46[77]-[78]).

86 Section 65 is not a mere procedural requirement in relation to the making of a decision as to whether or not the appellants should be granted protection visas. It is the pivotal requirement of the Act in relation to protection visas. Because of the erroneous view that it took of the meaning of s 36(2)(a), the Tribunal did not turn its mind to the question about which it has to be satisfied. The failure to observe the requirements of s 65 is, in substance, the failure to exercise the jurisdiction conferred by the Act. The purported decision of the Tribunal was not a decision made under the Act. It follows that the Tribunal's decision is not a privative clause decision as defined in s 474(2) and s 474(1) has no application to the decision.

87 When the appeal was called on for hearing, Mr Stephen Rothman SC sought leave to be heard on behalf of Mr Jeremy Jones, in his capacity as president of the Executive Council of Australian Jewry ('the Council'), a spokesbody for the Australian Jewish community. Mr Jones was variously referred to as intervener and amicus curiae. It had been foreshadowed to the parties and to the Court that such application would be made in order to advance arguments to the effect that the determination of the Tribunal was in some way inconsistent with the provisions of the Racial Discrimination Act 1975 (Cth). That question was not raised before the primary judge and was not foreshadowed as a ground or argument in written submissions filed on behalf of the appellants. Senior counsel for the appellants indicated that the appellants would consent to Mr Rothman being permitted to advance arguments but made no submissions in support of Mr Rothman's application. The Minister opposed the granting of leave to Mr Rothman to be heard.

88 In circumstances where an asylum seeker is unrepresented or where it might appear that, even though represented, not all relevant arguments are likely to be advanced on behalf of the asylum seeker, the Court would be grateful for any assistance given by an amicus curiae. However, this is not such a case. The appellants are represented by very eminent senior counsel, who has a great deal of experience in the areas of law raised by the appeal.

89 It is clear that senior counsel for the appellants was aware of the arguments sought to be put by Mr Rothman. The written submissions of the parties to the appeal referred to a decision of Sackville J in NAEN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 216, in which the possible application of the Racial Discrimination Act was argued unsuccessfully. Notice of appeal from the decision of Sackville J as been filed and it is likely that that appeal will be heard in the August sittings of the Court. One of the grounds of appeal involves the Racial Discrimination Act.

90 There is no evidence that Mr Jones or the Council had any legal interest in the outcome of the appellants' application for protection visas, although they may have a broader interest in the law in so far as it affects Jewish people. Further, the Racial Discrimination Act would have only marginal significance, if any, in the present proceeding. For those reasons, the Court declined to hear Mr Rothman.

91 The appeal should be upheld. The orders of the primary judge should be set aside. In lieu of those orders, there should be orders that the decision of the Tribunal be set aside and the matter be remitted to be reconsidered according to law. In the light of my conclusions, I would order the Minister to pay the costs of the appellants before the primary judge and on appeal. However, I have read the reasons of Finn and Conti JJ in draft. Having regard to the conclusions reached by their Honours that the appeal should be dismissed, I agree that there should be no order as to the costs of the appeal.

I certify that the preceding eighty six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

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

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT CONTI J: 92 As with Finn J, I would also agree with Emmett J that the Full Court's decision in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 was wrongly decided, for the reasons given by Emmett J. However, I would prefer to adopt the approach taken by Finn J, for the reasons Finn J has given at [4] of his Honour's Reasons for Judgment. 93 Moreover I would take the opportunity of expressing my agreement with the additional observations by Emmett J made as to the Tribunal's decision not being a privative clause decision within s 474(2) of the Act, and with his Honour's reasons for so doing. I would agree that the Tribunal's decision in the present context constituted jurisdictional error, and therefore no decision at all, consistently with the High Court's decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. 94 That is not of course to say, with respect to other members of the Federal Court who have already held or indicated otherwise, that all of the categories of jurisdictional error postulated in Craig v State of South Australia (1995) 184 CLR 163 at 179 are open to review decisions of the Refugee Review Tribunal and Migration Review Tribunal. With respect to the judges of this Court who have recently said otherwise since Plaintiff S157, I remain of the view, as I postulated in Koulaxazov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 75 at [72], that s 474 of the Act operates to deny review by this Court, in circumstances where the three Hickman provisoes are satisfied, and where there has been neither a failure to discharge an imperative duty or to observe an inviolable limitation or restraint. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate: Dated: 27 June 2003 Counsel for the Appellants: J Basten QC with I Ryan

Counsel for the Respondent: N Williams SC with J Smith

Solicitor for the Respondent: Clayton Utz

Counsel for Mr Jeremy Jones (on the intervener): S C Rothman SC with D D Knoll

Date of Hearing: 12 May 2003

Date of Final Submissions: 21 May 2003

Date of Judgment: 27 June 2003