NAHF v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT THE COURT: 1 The appellant and his family are citizens of Nepal. They arrived in Australia on 12 September 2001 and lodged an application for protection visas under the Migration Act 1958 (Cth). The Minister's delegate refused to grant those visas. The Refugee Review Tribunal affirmed that decision and a Federal Magistrate dismissed an application to review the Tribunal's decision. 2 Section 65(1) of the Migration Act 1958 provides that a protection visa may only be granted if the decision-maker is satisfied that the prescribed criteria for the visa have been satisfied. Section 36(2) provided that a criterion for a protection visa is that the applicant for it is either a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol or a spouse or dependant of such a person. (The reference is to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees). 3 At the time the applications were made s 36(2) was further conditioned by the following subsections: (3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. (4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country. (5) Also, if the non-citizen has a well-founded fear that: (a) a country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion; subsection (3) does not apply in relation to the first-mentioned country." 4 The appellant claimed that he and his family had been subject to harassment by Maoists in Nepal and the Tribunal appears to have accepted this. The Tribunal however found that the appellant and his family could obtain effective protection in India by reason of the Treaty of Peace and Friendship between the two countries which was ratified in July 1950. Pursuant to it each government agreed to grant rights equal to those of its own citizens to the nationals of the other residing in its territory. The Tribunal did not accept that the appellant and his family would be subject to treatment amounting to persecution in India. It found that they would be safe from return to Nepal from India. We take these findings as indicating that the Tribunal accepted the appellant could be removed from Australia to India. 5 This approach raises two questions: whether the principle of effective protection in a safe third country as explained in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, is wrong; and whether a Contracting State to the Refugees Convention is prohibited from returning a person to a country to which they have had no former connexion. The first issue requires consideration of the judgment of a Full Court of this Court in NAGV v Minister for Immigration and Multicultural Affairs (2003) 202 ALR 1, 202 ALR 1, where it was held that Thiyagarajah was wrongly decided. Both issues were raised in the appeal in NAEN v Minister for Immigration and Multicultural Affairs [2004] FCAFC 6 which was heard by the members of this Court. Judgment in that appeal was delivered today. 6 There is another aspect to this appeal. The appeals in NAGV and NAEN did not involve considerations of subsections (3) to (5) of s 36, which was inserted by the Border Protection Legislation Amendment Act 1999 (Cth) on 16 December 1999. The Minister contends that these provisions show that an appeal is futile. 7 The two principal issues in this appeal have been dealt with in NAEN. That judgment follows the reasoning in Thiyagarajah, which it holds to be correct and upholds the finding of the primary judge in NAEN that Art 33 of the Refugees Convention was not conditioned in such a way as to prevent return of an asylum seeker to a country where they had no prior connexion. It follows that this appeal must also be dismissed with costs. It is not necessary to consider the remaining question, as to the operation of the other subsections. The enactment of s 36(3) did not alter the operation of s 36(2): Kola v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 170. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam, Moore and Kiefel.