NAPI v Minister for Immigration and Multicultural and Indigenous Affairs

submissions of applicantS 4 The applicants advance two submissions. The first is that the RRT erred in relying on what has become known as the doctrine of "effective protection", which has been referred to in Thiyagarajah and subsequent cases. They point out that Thiyagarajah was heavily criticised by the Full Court in NAGV, and its reasoning was found to be erroneous, although the decision was not overruled. The applicants also refer to the recent decision of the Full Court in WAGH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 194 ("WAGH"), particularly at [37]. The applicants submit that the doctrine of effective protection is no answer to the claim that Australia has protection obligations where a person is found to be a "refugee" within the meaning of the Convention and Protocol. They argue that, since they have been found to have a well-founded fear of persecution for Convention reasons in their country of nationality, Australia is obliged under Article 33 of the Convention to protect them from return to a place where their life or freedom is under threat, or refoulement. 5 The applicants' second submission is that even if Israel's Law of Return relieves Australia of its protection obligations towards a Jewish refugee present in Australian territory, there are serious doubts as to whether this Law of Return should be recognised as valid and binding legislation for reasons of Australian public policy. It is said that the Law of Return, as summarised, provides virtually automatic right of entry to Israel, and citizenship of that county, only to persons of Jewish ethnicity or religion. The submission is that, on its face, such a law institutionalises racial discrimination within the meaning of Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination opened for signature 21 December 1965. UNTS 195 (entered into force 4 January 1969), ratified by Australia by operation of s 3(1) of the Racial Discrimination Act 1975 (Cth), because it does not extend the right of entry to persons of other ethnicity or religious belief. More specifically, the submission is that the RRT should have addressed the question as to whether the prima facie racial discrimination inherent in the Israeli Law of Return meant that reliance on it by Australia would be repugnant to basic values enshrined in Australia law by anti-discrimination legislation. 6 For each of the above reasons, it is submitted that the decision of the RRT should be set aside.

Thiyagarajah 7 The facts in Thiyagarajah were that the applicant was a Sri Lankan national who arrived in France in May 1985. France granted him refugee status in November 1988. He entered Australia on 12 December 1994, and, in April 1995, applied for protection visas for himself, his wife and child. A Ministerial delegate determined that he was not entitled to a protection visa on the basis that he fell within Article 1E of the Convention Relating to the Status of Refugees 1951 189 UNTS 150, entered into force 22 April 1954, as amended by the Protocol Relating to the Status of Refugees, 606 UNTS 267, entered into force 4 October 1967 ("the Convention"). Article 1E provides that: "This Convention shall not 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." 8 The RRT affirmed the decision of the delegate. An application was made to this Court for review. The primary Judge set aside the RRT decision on the ground that Article IE did not apply to Mr Thiyagarajah because refugees in France were subject to restrictions, including being prohibited from working in the French Public Service. 9 On appeal to the Full Court, the issue was whether a person who has effective protection in another country, including the right to reside, enter and re-enter, to work in most occupations and apply for citizenship, and who has established residence in that country, is entitled to claim protection from other contracting states under the Convention. In addition to Article 1E, the Full Court in Thiyagarajah directed attention to Article 33 of the Convention which provides: "Article 33 Prohibition of expulsion or return (refoulement)

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 judgment of a particularly serious crime, constitutes a danger to the community of that country." 10 The Full Court allowed the appeal, and one of the reasons given was that under Article 33, Australia did not owe protection obligations to Mr Thiyagarajah, as he was a person who had effective protection in France, which had accorded him refugee status. 11 In his reasons, von Doussa J said at 556: "Even if the applicant might continue to fulfil the definition of refugee in Art 1A(2) and otherwise be a refugee as defined in Art 1, there remain two further questions concerning the obligations of Australia, as a Contracting State under the Refugees Convention. It would appear that these questions have not yet been considered by the courts in Australia, probably because the mechanism by which the Act offered protection before the 1992 amendment directed primary attention to whether the asylum seeker had the status of a refugee. The first question is whether Australia is under an obligation to assess the refugee status of a non-citizen who has come to Australia from a third country which has recognised that person as having the status of a refugee under the Refugees Convention. One of the consequences of being recognised as a refugee by a third country is that the applicant will probably have travelled to Australia on travel documents issued by that county pursuant to Art 28 of the Refugees Convention. In accordance with the requirements of the schedule to the Refugees Convention the travel documents should contain a right of re-entry to the third country. This was so in the present case. The second question is related to the first. It is 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." 12 His Honour referred to the terms of Article 32 of the Convention, which relates to expulsion. It relevantly provides: "1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. …" 13 Considering Art 32, his Honour said: "In relation to Art 32, the present respondent entered Australia lawfully on an entry permit valid for three months. Although this is not an issue that was explored either in earlier hearings or on the appeal, it seems that his application for a protection visa - his claim for asylum - was made after the expiry of the permit so that he may not then have been lawfully in Australia, in which event Art 32 could have no application. If Art 32 were to apply, Australia would have an obligation to extend due process of law. The mechanism for extending due process is to be found in the Migration Act. Moreover Art 32 is to be read with Art 33." 14 After reviewing the provision of the Convention, the authorities and commentaries, his Honour said 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 refugee." (Emphasis added) 15 In NAGV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1456, Stone J, at first instance, confirmed the application of the effective protection principle enunciated in Thiyagarajah in relation to a Jewish Russian father and his son, whom the RRT accepted had a well-founded fear of persecution for Convention reasons, and were therefore "refugees". 16 In NAEN, which involved substantially similar facts, Sackville J concluded that in his opinion, no basis had been shown for holding that Stone J's decision to apply Thiyagarajah in NAGV or the subsequent line of Full Court authority that develops that reasoning, was clearly wrong, and therefore proposed to follow her Honour's decision. 17 In NAEN, his Honour pointed to "some troubling consequences" which may flow from the proposition that Art 33 of the Convention is not infringed where an asylum seeker is removed from a country of refuge to a third country offering effective protection, notwithstanding that the asylum seeker has no prior connection with the third country, and may not wish to reside there: see [74]. His Honour commented that one of the consequences of the effective protection principle is the possibility that every application might be scrutinised by the migration authorities of the country of refugee to ascertain whether there is any country in the world that might provide effective protection to an applicant. 18 The decision in Thiyagarajah is, however, in my view, consistent with the underlying purpose of the Convention, which is to ensure that refugees are not exposed to persecution for a Convention reason. Where a refugee can be sent to a third country in respect of which it has been determined that no such risk exists, then the purpose of the Convention is satisfied. The Convention and Protocol are directed to providing protection to persons in danger of persecution. It is not directed to enable applicants to select the most desirable country in which to reside from an economic or social viewpoint. 19 The judgment of Stone J in NAGV at first instancewent on appeal to the Full Court: see (2003) 202 ALR 1. The three members of the NAGV Full Court, Finn, Emmett and Conti JJ, in reasons delivered subsequent to the decision of Sackville J in NAEN, concluded that the decision of the Full Court in Thiyagarajah was wrong for reasons expounded by Emmett J. Finn and Conti JJ, however, considered that because there was a developed jurisprudence in this Court on "effective protection", which had been applied and extended in numerous cases, it was not appropriate for a Full Court to depart from what has come to be regarded as settled law, despite the false foundation on which such jurisprudence was founded. Emmett J differed as to this approach, and considered that the orders of the primary judge should be set aside on the basis that Thiyagarajah was clearly wrong, that it was not distinguishable, and that it ought not to be followed, notwithstanding the development of extensive jurisprudence based on the assumption that Thiyagarajah was correctly decided. 20 The applicants submit that I should not apply the Full Court decision in NAGV,but should follow what is said to be the reasoning of the Full Court comprised of Lee, Hill and Carr JJ, in the subsequent decision of WAGH delivered on 27 August 2003. That decision, in my view, is distinguishable from the present in that it turned on the construction of s 36(3) of the Act. That section does not apply in the circumstances of the present case, having regard to the date on which the present applicants entered Australia, which was prior to the commencement of the operation of s 36(3). All members of the Court in WAGH agreed that the RRT had wrongly construed s 36(3). 21 The applicants referred me to the observation of Lee J at [37] that: "The ordinary principles of statutory construction do not allow the words used by Parliament to be supplemented by judicial insertion of implied provisions such as a doctrine of 'effective protection' … The doctrine enunciated and applied to the construction of s 36(2), namely, that protection obligations do not arise under the Convention when 'as a matter of practical reality or fact a person is likely to receive 'effective protection' from the third country, … would seem to infringe that rule. Furthermore, the doctrine so described is of uncertain dimension, the limits thereof being left to be developed by judicial elucidation." 22 As I read the above observation, his Honour is referring to the view taken by the majority in Al-Sallal at [42], in which his Honour dissented. Al-Sallal effectively extended the principle applied by the Full Court in Thiyagarajah. 23 In considering the applicant's submission, it is necessary to bear in mind the remarks of Lee J in WAGH at [27], where his Honour said that it was unnecessary to consider whether Thiyagarajah or the considerable jurisprudence developed thereafter, was correctly decided. His Honour referred to the Full Court decision in NAGV without further comment. 24 As a primary Judge I am clearly bound to apply the decision of the Full Court in NAGV. I do not find any support for the applicant's submission in the reasoning of the Full Court in WAGH that requires that I should do otherwise. 25 The next submission for the applicants is that the RRT failed to consider whether it should have taken into account the argument that the Israeli Law of Return is discriminatory, and contrary to Australian public policy, and should therefore not be given any weight in an assessment of Australia's protection obligations. I do not consider that there is any substance in this argument. I disagree with the proposition that, on the face of it, the Israeli law could be seen to institutionalise racial discrimination because it only benefits persons of Jewish ethnicity or belief. In my view, it was proper for the RRT to consider the law of Israel as enacted by the Sovereign State of Israel, and to apply the Convention provisions in the light of that law. It is irrelevant whether the Law of Return might be considered racially discriminatory by the standards of another nation. Furthermore, it is not appropriate to resort to Australian domestic law or policy in order to characterise the law of a sovereign foreign nation dealing with admission to its territory. 26 I am bound by the Full Court decision in NAGV and must apply that Court's reasoning in the present case because the circumstances are in my view indistinguishable. I therefore dismiss this application. In view of the current conflicting state of the Full Court decisions in relation to the subject of "effective protection", I make no order as to costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Solicitor for the Respondent: Australian Government Solicitor