Sameh v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 Section 486 of the Migration Act 1958 (Cth) ("the Act") confers upon this Court jurisdiction with respect to "judicially-reviewable decisions". Among the decisions which are reviewable by this Court in the exercise of that jurisdiction are decisions of the Refugee Review Tribunal ("the Tribunal"): see par 475(1)(b) of the Act. 2 In this proceeding, review of a decision of the Tribunal is sought. 3 The decision concerned is one which was made by the Tribunal on 12 February 1999, determining an application for review which had been made to it on 30 November 1998 by Mr Attalah Ali Mohammad Jaber Sameh. The Tribunal's decision affirmed an earlier decision which had been made by a delegate of the Minister for Immigration and Multicultural Affairs ("the delegate" and "the Minister" respectively) on 27 November 1998, determining an application for a protection visa which had been made to the Minister by Mr Sameh on 19 October 1998. The delegate's decision on that application had been one to refuse to grant it. 4 Protection visas are dealt with in s 36 of the Act, which provides as follows: "36(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 non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." (The Refugees Convention referred to in subs 36(2) of the Act is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, while the Refugees Protocol referred to is the Protocol relating to the Status of Refugees done at New York on 31 January 1967: see the relevant definitions in subs 5(1) of the Act. Subsequently in these reasons for judgment, I will refer to the Refugees Convention as amended by the Refugees Protocol simply as "the Convention".) 5 As well as the criterion for a protection visa appearing in subs 36(2) of the Act, additional criteria for a protection visa also appear in Sch 2 to the Migration Regulations (Cth) ("the Regulations"), in a Part headed "Subclass 866--Protection". However, for present purposes, the only relevant criterion is that set out in subs 36(2) of the Act. That criterion (just like those in Sch 2 to the Regulations) applies to decision-making by the Tribunal, just as much as it does to decision-making by the Minister: see subs 415(1) of the Act. 6 A necessary condition for Australia's having protection obligations under the Convention to a non-citizen in Australia is that that non-citizen be a "refugee" within the meaning of Art 1A(2) thereof. That provision defines a "refugee" (relevantly) as a person who, not having a nationality and being outside the country of that person's former habitual residence, is unable or, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unwilling to return to that country. 7 Mr Sameh is a person who has never had a nationality. He is described as a "Bedoon". Apparently, "bedoon" (occasionally spelled in English "bidun" or "bidoon") is the Arabic word for "without" and is used as an abbreviation for the phrases "without nationality" and "without citizenship": see Saket v Minister for Immigration and Multicultural Affairs [1999] FCA 301 (Whitlam J; unreported; 25 March 1999) at par 4. 8 Mr Sameh was born in Kuwait in 1963 and lived there until December 1992, when he was deported to Iraq. He then remained in Iraq until December 1994, when he left for Jordan. For the most part, he then remained in that country until he left for Australia, arriving here in October 1998. 9 Mr Sameh claimed before the Tribunal to be unable or, owing to a well-founded fear of being persecuted in each of those countries for various Convention reasons, unwilling to return to either Jordan, Iraq or Kuwait and therefore to be a "refugee" within the meaning of Art 1A(2) of the Convention. 10 The Tribunal found that Kuwait was a country of former habitual residence for Mr Sameh for the purpose of the definition of "refugee" in Art 1A(2) of the Convention, but considered it unnecessary to decide whether Iraq and Jordan fell into that category as well. The Tribunal also found that Mr Sameh had a well-founded fear of persecution in Kuwait for a Convention reason and was therefore unwilling to return there. (What the Tribunal actually said in its statement of findings and reasons was that Mr Sameh was "not … able to return to Kuwait for fear of persecution" for a Convention reason, but I take it to have meant "not willing" to return for fear of such persecution, rather than "not able" to do so.) On those findings, it follows that Mr Sameh was a "refugee" within the meaning of Art 1A(2) of the Convention. 11 Nevertheless, the Tribunal concluded that Mr Sameh was not a non-citizen in Australia to whom Australia had protection obligations under the Convention. That was, in substance, because of two further findings which it made about Mr Sameh: first, that he had an ability to return to both Jordan and Iraq, "third countries" (in the sense that they were neither Australia nor countries which the Tribunal was satisfied were countries of former habitual residence for him); and, secondly, that, far from any fear which he had of persecution in either of those "third countries" being well-founded, instead, both Jordan and Iraq were third countries in which he would have "effective protection" (in the sense in which that term had been used in a number of decisions of this Court to which I will later make reference). Those "third countries" were therefore both "safe third countries" so far as he was concerned and Australia does not owe protection obligations under the Convention to a person who, even though a "refugee", has a "safe third country" to which that person can go. 12 In reaching the conclusion that Jordan and Iraq were both "safe third countries" so far as Mr Sameh was concerned and that therefore, even though he was a "refugee", he was not a non-citizen in Australia to whom Australia had protection obligations under the Convention, the Tribunal purportedly relied upon the decisions of this Court in: Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 (von Doussa, Moore and Sackville JJ); Minister for Immigration and Multicultural Affairs v Rajendran (Mansfield J; unreported; 4 May 1998), affirmed sub nom Rajendran v Minister for Immigration and Multicultural Affairs (von Doussa, O'Loughlin and Finn JJ; unreported; 4 September 1998); and Minister for Immigration and Multicultural Affairs v Gnanapiragasam (Weinberg J; unreported; 25 September 1998). 13 (I note that, on 4 March 1998, the Full Court which had decided Thiyagarajah gave supplementary reasons for judgment and made final orders in the matter (unreported) and that, on 11 December 1998, the High Court (McHugh and Kirby JJ) granted special leave to appeal from those final orders: see [1999] 1 Leg Rep SL 2; however, the ground upon which special leave to appeal was granted is of no present relevance.) 14 In reasons for judgment which I gave for a recent decision of mine, Al-Sallal v Minister for Immigration & Multicultural Affairs [1999] FCA 369 (unreported; 8 April 1999), I summarised the facts and reasoning in each of the decisions of this Court to which I have referred in the next preceding paragraph of these reasons for judgment (see pars 12-22 of my earlier reasons for judgment). I need not repeat that summary in these reasons. It is, however, convenient that I should repeat now the conclusion which I considered I was bound to draw from those decisions, in particular, from Thiyagarajah, so far as the "safe third country" concept was concerned. It was that a country could not be a "safe third country" for present purposes unless it was a party to the Convention. 15 Like Mr Sameh, Mr Al-Sallal was a Bedoon who had been born in Kuwait. In Mr Al-Sallal's case, the Tribunal, purportedly relying, as in the present case, upon this Court's decisions in Thiyagarajah, Rajendran and Gnanapiragasam, had found that Jordan was a "safe third country" for him, nonetheless though the Tribunal had (I considered) implicitly found as a fact (correctly) that Jordan was not a party to the Convention. I held (see par 42 of my reasons) that, by reason of the Tribunal's concluding that Jordan was a "safe third country" for Mr Al-Sallal, even though it had found as a fact that Jordan was not a party to the Convention, its decision regarding Mr Al-Sallal had involved an error of law, being an error involving an incorrect application of the law to the facts as found by the Tribunal: see the second limb of par 476(1)(e) of the Act. 16 In the present case, there seems little doubt that the Tribunal again implicitly found as a fact that Jordan was not a party to the Convention, since it explicitly referred in its statement of findings and reasons to the terms of highly reliable evidentiary material which had been before it and which supported that finding. It follows that, if I was correct in Al-Sallal in my reading of the effect of Thiyagarajah, the Tribunal's decision in the present case involved the same legal error as the Tribunal had committed in Al-Sallal, at least so far as the decision in the present case concerned the conclusion that Jordan was a "safe third country" for Mr Sameh. 17 As might be expected (since, as I am aware, the Minister has appealed from my judgment in Al-Sallal), the Minister submitted before me in the present case that I had been wrong in Al-Sallal to give to Thiyagarajah the reading which I had. At the same time, however, his legal representative was gracious enough to say in the course of submissions that the language used in Thiyagarajah had been such that he (the Minister's legal representative) could well understand why I had misread it as I had. Although (he said) I had been wrong in Al-Sallal, I had therefore (he further said) not been clearly wrong. (I suppose it follows from that concession by the Minister that he should not submit to other single Judges of this Court unless and until my decision in Al-Sallal is reversed by a Full Court of this Court (as he apparently assumes it will be) that they should not follow it!) 18 Having carefully considered the matter again in light of the Minister's submissions in the present case, I remain of the view which I expressed in Al-Sallal about the effect of Thiyagarajah. It therefore follows that I conclude that the Tribunal's decision in the present case did involve the same legal error as the one which I identified in Al-Sallal, at least so far as the Tribunal's decision in the present case involved a conclusion that Jordan was a "safe third country" for Mr Sameh. 19 Of course, a legal error by the Tribunal committed in the course of its decision-making will not justify the grant of relief by this Court if that error was an immaterial one and the Tribunal's legal error regarding Jordan would be an immaterial one if the Tribunal made no legal error in its conclusion that Iraq was a "safe third country" for Mr Sameh. I say that because Australia will have no protection obligations under the Convention to a non-citizen in Australia if that non-citizen has at least one "safe third country" to which that non-citizen can go. I therefore turn to consider the Tribunal's treatment of the Iraqi aspect of the matter. 20 It is the fact, as was acknowledged before me by the Minister, that, like Jordan, Iraq is not a party to the Convention. (For current information as to those States which are parties to the Convention, see the source mentioned in par 27 of my reasons for judgment in Al-Sallal.) However, unlike the situation regarding Jordan, the Tribunal did not betray in its statement of findings and reasons an awareness that Iraq was not a party to the Convention. Nor does there appear to have been any evidentiary material before the Tribunal specifically addressing the issue whether Iraq was a party to the Convention. (Mr Sameh did submit to me that certain evidentiary material before the Tribunal, to which he pointed, had specifically addressed that issue, but that submission was wrong; the evidence pointed to by him had not been about the Convention, but rather about two other Conventions, the Convention relating to the Status of Stateless Persons (1954) and the Convention on the Reduction of Statelessness (1961).) 21 It therefore follows that the Tribunal is unlikely to have committed in the present case the same error regarding Iraq as it did regarding Jordan, that of concluding that Iraq was a "safe third country" for Mr Sameh, nonetheless though having found (albeit implicitly) that it was not a party to the Convention. However, assuming the correctness of my decision in Al-Sallal, it is apparent that the Tribunal committed some reviewable error regarding Iraq, even if not the same one which it committed regarding Jordan. In par 42 of my reasons for judgment in Al-Sallal, I identified proleptically two candidates for what that reviewable error was. For instance, because the question whether or not a country is a party to the Convention is a material question of fact when the Tribunal is deciding whether that country is a "safe third country", par 430(1)(c) of the Act required the Tribunal to set out its findings on that question in its statement of findings and reasons. Doing so was a procedure that was required by the Act to be observed in connection with the making of the Tribunal's decision, within the meaning of par 476(1)(a) of the Act. That procedure was not observed by the Tribunal in the present case so far as Iraq was concerned, meaning that the ground of review in par 476(1)(a) was made out. Further, if the Tribunal, although it did not say so, did implicitly find mistakenly that Iraq was a party to the Convention, then it based its decision on the existence of a particular fact which did not exist and for the existence of which fact there was no supporting evidentiary material before it: see par 476(1)(g) of the Act, read together with par 476(4)(b) thereof. The Tribunal must have committed at least the first and possibly the second of those two reviewable errors regarding Iraq. 22 It thus follows that the decision of the Tribunal in the present case must be set aside and Mr Sameh's application to the Tribunal be referred back to it for further consideration. In those circumstances, there is no need for me to deal with the other grounds upon which Mr Sameh sought review of the Tribunal's decision. 23 Before, however, I conclude these reasons, there is one other matter to which I wish to refer, although it is not necessary to do so for the purpose of resolving Mr Sameh's application for review. It is a matter to which I referred in Al-Sallal, which, as I have already mentioned, is under appeal to a Full Court of this Court. I assume that the Minister will appeal from my judgment in the present matter as well and that his appeal may be heard together with his appeal in Al-Sallal. In those circumstances, it seems to me appropriate to mention the matter in these reasons for judgment. 24 In Al-Sallal, I referred at par 16 of my reasons to the fact that the Court in Thiyagarajah had taken the view that North American courts had wrongly construed Art 33(1) of the Convention. I then speculated as to the consequence of such a view for Canada's and America's being "safe third countries" so far as Australia is concerned. I said, "In construing the obligation imposed by Art 33(1), von Doussa J (at 564-65) rejected as erroneous decisions both of a single Judge of the Canadian Federal Court and of the American Supreme Court, in so far as those decisions would support a conclusion that the well-foundedness of the refugee's fear has to be determined for Art 33(1) purposes by the application of a stricter test (from the refugee's point of view) than the "real chance" test…. It would seem to follow from von Doussa J's rejection of the approach of the Canadian and American courts that neither Canada nor the United States can be a "safe third country" for present purposes so far as Australia is concerned. That is because a claimant for refugee status in Australia sent to either of those countries would, if a refugee, be at risk of being refouled by that country, in breach of Art 33(1) (on its proper construction), to a territory as to which the claimant had a well-founded fear of persecution for a Convention reason." 25 After handing down my judgment in Al-Sallal on 8 April 1999, I became aware of an unreported judgment which had been handed down by the English Court of Appeal (Evans, Thorpe and Buxton LJJ) on 25 March 1999 in the matter of R v Home Secretary; Ex parte Gashi. The reasons for judgment in that matter in turn alerted me to the existence of two earlier decisions of that Court, Kerrouche v Home Secretary [1997] Imm AR 610 (Lord Woolf MR and Roch and Henry LJJ) and Iyadurai v Home Secretary [1998] Imm AR 470 (Lord Woolf MR and Auld and Buxton LJJ). Those three decisions take a different approach than the one which I had had in mind when writing the passage which I have just quoted from my reasons in Al-Sallal. For that reason, I consider that I should say something of those cases herein. 26 Kerrouche was an Algerian national who claimed in England to be outside Algeria owing to a well-founded fear of being persecuted in that country for a Convention reason and to be unwilling therefore to avail himself of the protection of that country. If that claim was established, he was a "refugee" within the meaning of Art 1A(2) of the Convention. However, Rule 345 of the Immigration Rules made under the Asylum and Immigration Appeals Act 1993 provided, in effect, that Kerrouche's claim to refugee status did not need to be considered if there was a safe third country to which he could be sent. Such safe third country was defined relevantly as one which would not refoule him "in a manner contrary to the principles of the Convention". The English authorities concluded that Kerrouche could be sent to France and that it would not refoule him in a manner contrary to the principles of the Convention. They therefore decided not to consider his claim to refugee status. Kerrouche challenged that decision. 27 Two provisions of the Convention were relevant to the determination of Kerrouche's challenge, Art 33(1) and Art 1F(b), and I set them out now. Article 33(1) of the Convention provides, "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." Article 1F(b) provides, "The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: … (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee…. 28 In rejecting Kerrouche's challenge, Lord Woolf MR, with whom Roch and Henry LJJ agreed (see at 618), said (at 614-15), "Mr Andrew Nicol QC, on behalf of the appellant, contends that the special adjudicator was wrong to reject the appellant's appeal because France would not be a safe third country although it is a signatory to the Convention. One reason for this is the interpretation which he submits the French authorities place upon article 1 F(b) of the Convention. The House of Lords has recently considered what should be the proper approach of the courts in this country to the construction of that article in T v Secretary of State for the Home Department [1996] AC 742. In that case Lord Lloyd, in a speech with which the majority of the House of Lords agreed, stated that for the purposes of article 1 F(b) 'a crime will only regarded as a political offence if the relationship between the Act and the effect on the government is sufficiently close'. Mr Nicol submits that in France a narrower interpretation of what is a political crime would be adopted by the French authorities, which would result in article 1 F(b) being given wider effect in France than in this country. It is important to note that a third country will not be a safe country if it is a country which would send the asylum seeker elsewhere contrary to the 'principles of the Convention and Protocol'. Although it is desirable that the approach to the interpretation of the Convention and Protocol should be the same in all countries which are signatories, this is not a realistic expectation in the absence of some supranational court which is capable of giving authoritative interpretations to the provisions of the Convention and Protocol which are binding on the signatory countries. Absent such a body the fact that a particular country adopts an approach to the Convention which involves a difference in emphasis in the interpretation of one or more provisions from that which would be adopted under English law does not necessarily involve that country being regarded as one which does not adhere to the principles of the Convention and Protocol when, as in the case of France, it contends that it does do so. Mr Nicol submits that because the decision to return the appellant is being made by this country, if an interpretation is adopted by a third country which is more restrictive than that which is adopted in this country, then that is not a safe country to which the applicant for asylum can be returned. This is not the position. The difference in an approach to the interpretation of the Convention and Protocol has to be of such significance that it can be said that in making a decision affecting the position of a particular applicant for asylum, the third country would not be applying the principles of the Convention. For this to be the position, the third country's approach would have to be outside the range of tolerance which one signatory country, as a matter of comity, is expected to extend to another. While it is highly desirable that there should be a harmonised approach to the interpretation of international documents such as the Convention, until that harmonisation is achieved, one signatory must allow another signatory a margin of appreciation before treating that other country as being one which did not fulfil its obligations to adhere to the principles of the Convention. Mr Nicol submitted that his approach did not involve criticising the approach of the third country. It was sufficient for his purposes merely to satisfy the court that the French approach was one which was more restrictive so far as the appellant is concerned than the approach which would be adopted here. However the consequence of this approach would be to make the ability of the Secretary of State to remove to a safe third country much less effective than the Convention intended it to be. It would require the Secretary of State and special adjudicators to become deeply involved in a comparative analysis of the law of the different signatories to the Convention…. Unless the interpretation adopted by the 'safe country' was sufficiently different from that in English law to be outside the range of possible interpretations the difference need not concern the authorities in this country." 29 Turning now to Iyadurai's Case, Iyadurai was a Sri Lankan national who claimed refugee status in England, but with whose claim the authorities decided not to deal, relying on the terms of the Asylum and Immigration Act 1996 (the successor to the Act applicable at the time Kerrouche had been decided). Under the 1996 Act, the authorities could refuse to deal with Iyadurai's claim only if the authorities were of the opinion that he could be sent to (relevantly) Germany and Germany would not refoule him "otherwise than in accordance with the Convention": see s 2(2)(c) of that Act (set out at 472 of the report). Obviously, the English authorities were of that opinion. Iyadurai challenged the authorities' decision, attacking their ability to hold the opinion which they did about Germany. The attack was based upon what were said to be different approaches in Germany and in England to the question of when a fear of persecution for a Convention reason could be said to be "well-founded" within the meaning of Art 1A(2) of the Convention, with Germany adopting an approach less favourable to refugee claimants than England. 30 The Court unanimously rejected Iyadurai's challenge. Its approach in doing so was broadly similar to that which it had taken in Kerrouche, although the legal position had been affected by the fact that s 2(2)(c) of the 1996 Act was cast in terms of the administrator's opinion as to the third country's future conduct, rather than being cast objectively, as in Rule 345 (as that Rule had provided under the 1993 Act). However, leaving that difference aside, Lord Woolf MR said (at 476), for instance, "It is only if the meaning placed on the convention by the other municipal court is clearly inconsistent with its international meaning, that the courts in this country are entitled to conclude that the approach of the other municipal court involves a contravention of the convention." Buxton LJ said (at 483), "… it is very difficult to see, in connection with the Convention, how the issue of whether a particular answer, particularly an answer given by the courts of another country, is 'right' can be determined in a municipal court. This … problem was addressed by this court in Kerrouche v Secretary of State for the Home Department [1997] Imm AR 610. That case was decided on the procedure adopted before the 1996 Act came into force, and therefore took the form of an application for judicial review of the decision of a special adjudicator who had dismissed an appeal against a decision of the Secretary of State to remove to France, as a safe third country, a fugitive from Algeria. The objection raised to France in that capacity was that France took a narrower view of what constituted a political crime, under article 1F(b) of the Convention, than had the courts of this country in, in particular, T v Secretary of State for the Home Department [1996] AC 742. This court did not agree that that factor was decisive in determining whether the third country in question was safe in terms of the Convention…. … In my view, … Kerrouche is authority for, and binds us as to, the following propositions. 1. It is not possible for a national court to determine a single interpretation of the Convention that binds all other countries. 2. The question for the English jurisdiction, in a case where the likely conduct of a court in a third country is in issue, is whether the decisions of that court will be contrary to the terms of the Convention. 3. That question is not determined simply by asking whether the decision of the court in the third country would, on the same set of facts, be the same as the decision of the English court." 31 Turning now to Gashi's Case, it was, like Iyadurai, a case under the 1996 legislation. It involved a Yugoslav national, an ethnic Albanian from Kosovo, with whose claim to refugee status the authorities had decided not to deal, because he could be sent to Germany. Although Gashi's challenge to the authorities' decision succeeded on other grounds, to the extent to which he sought to challenge that decision on the basis that the German courts construed the Convention in a way less favourable to refugee claimants than did English courts, his challenge was rejected and the approach in Iyadurai reaffirmed. Buxton LJ said (at p 5 of the print) that a number of propositions were established as governing the courts' review of the Secretary of State's exercise of his powers under s 2(2) of the 1996 Act. One of those (at p 6 of the print) was, "When considering whether there is a real risk of the third country acting in breach of the Convention, the legal rules and procedures of that country are not to be examined in over-technical terms, and the examination must recognise that there may legitimately be differing approaches to the broad terms of the Convention in different signatory countries." Iyadurai was relied upon as the foundation for that proposition. 32 Buxton LJ then applied that proposition to reject arguments by Gashi which had been based upon an alleged harsher treatment (from the point of view of refugee claimants) by German courts than English courts of two matters under the Convention, one described as "cumulative persecution" and the other as "internal flight" (see p 7 of the print). 33 It is, of course, unnecessary for me to express any opinion for the purpose of the present case on the correctness of the approach of the English Court of Appeal in the three cases which I have mentioned above, but acceptance of that approach would presumably mean that the speculation in which I engaged about Canada and America at par 16 of my reasons in Al-Salal would be rejected. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. Associate: Date: 30 June 1999 Counsel for the Applicant: Mr C Colborne Solicitor for the Applicant: Craddock Murray & Neumann Solicitor for the Applicant: Australian Government Solicitor Date of Hearing: 10 May 1999 Date of Judgment: 30 June 1999