NBLC v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT WILCOX J: 1 I have had the advantage of reading in draft form the reasons for judgment of Graham J. His Honour has set out the facts of these two appeals and the relevant legislation and extrinsic materials. I need not repeat any of that. 2 As Graham J points out, there are two issues common to both appeals and an additional issue in NBLC. It is convenient for me to say immediately that I agree with Graham J in respect of the first of the common issues. The words 'all possible steps' in s 36(3) of the Migration Act 1948 (Cth) ('the Act') ought to be interpreted as meaning exactly what they say. Especially having regard to the context in which s 36(3) was enacted, as evidenced by the extrinsic materials, it is not possible to conclude that Parliament intended the words to require decision-makers to take into account the consequences to the person of entering or residing in the relevant third country, except as specifically provided in subss (4) and (5) of s 36. If the appellants' argument in relation to s 36(3) were correct, subss (4) and (5) would be otiose. Given that subs (4) commences with the word 'However', and subs (5) with 'Also', those subsections can hardly be regarded as insertions for more abundant caution. 3 However, I differ with Graham J in respect of the second common issue: whether the concept invoked by the word 'persecuted' in s 36(4) is limited to 'persecution', as defined in s 91R of the Act. 4 I find the extrinsic materials equivocal on this issue. As Graham J notes, the Minister's Second Reading Speech contains the sentence: 'The bill will define the fundamental convention term, persecution, as an appropriate test of serious harm.' However, that sentence was used in the context of the following statement of the bill's objective: 'The bill will also stop the refugees' convention being interpreted so broadly that people who were never envisaged to be refugees manage to obtain refugee protection in Australia.' A little later, the Minister said: 'Persecution is a key concept in considering claims for refugee status and it is not defined in either the convention or Australian legislation.' 5 It will be noted that both these passages evince a concern that people are being too readily accepted in Australia as refugees. In that context, it was logical for Parliamentary counsel to frame s 91R in such a manner as notionally to amend Article 1A(2) of the Refugees Convention (the Convention relating to the Status of Refugees) as amended by the Refugees Protocol (together "the Convention"), in relation to the application of the Act and Regulations to a particular person. Article 1A(2) of the Convention is the gateway through which all applicants for refugee recognition must pass. By raising the threshold of what constitutes 'persecution' within the meaning of Article 1A(2), as applied to that person, the amending legislation was achieving the Minister's stated purpose of weeding out unworthy applicants for recognition. However, that purpose has no relevance to s 36(3), a provision that is concerned with people who have already satisfied Article 1A(2), as notionally amended by s 91R, and whose only reason for not being entitled to an Australian visa is that they have a right of residence in another country. 6 Both the primary judge and Graham J have criticised what they call the inelegant drafting of s 91R. However, the defect is not merely one of elegance. Section s 91R(1) would simply be inadequate. In order to achieve the objective assumed by their Honours, it would not be enough notionally to amend Article 1A(2). That is because Article 1A(2) is irrelevant to a determination under s 36(4); the relevant person has already passed through the (s 91R(1) affected) Article 1A(2) gateway. In order to achieve the objective assumed by my colleagues, it would have been necessary for the drafter to reword s 91R(1) in such a way as to relate satisfaction of paras (a), (b) and (c) to any determination of 'persecution' for the purposes of the Act or Regulations. 7 Subsections (3), (4) and (5) of s 36 were inserted into the Act in 1999, some two years before s 91R was added to it. It would not be right to assume that the existence of these subsections was overlooked by Parliamentary counsel or that counsel would have been incapable of framing s 91R(1) in such a manner as to make it apply to an evaluation required for the purposes of s 36(4), if that had been the intention. 8 In s 91R, as in relation to s 36(3), I think Parliament should be taken to have meant what it said. In my opinion, s 91R had no application to the question, under s 36(4), that the Tribunal had under consideration in these cases. It follows that, in treating the word 'persecuted' as being limited by the requirements of s 91R, the Tribunal erred in law. As that error went to the heart of its decision, the error was one that attracts prerogative relief. 9 Having regard to that conclusion, it is not necessary for me to reach a view about the additional issue which arises in NBLC. 10 I would order the issue of writs of prohibition directed to the Minister, prohibiting her from acting upon the Tribunal's decisions, and writs of certiorari and mandamus directed to the Tribunal, quashing each of the Tribunal's decisions and requiring redetermination of the applications for review according to law. The Minister should pay the applicants' costs, both before the primary judge and of the appeals. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.