Semunigus v The Minister for Immigration &

REASONS FOR JUDGMENT 1 This appeal from a decision of the Refugee Review Tribunal ("the Tribunal") rejecting the application of Getachew Semunigus for a protection visa raises two issues. The first, which is speculative in character, invites me to hold that the Tribunal is obliged either as a matter of law (cf s 36(2) of the Migration Act 1958 (Cth) ("the Act")) or as a matter of "substantial justice" (cf s 420(2) of the Act), to apply the procedures contained in the Office of the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status ("the UNHCR Handbook"). The second requires a precise finding as to the point at which it is properly to be said that the Tribunal has given its decision, a late submission of material having been submitted by the applicant to the Tribunal between the respective dates that each party to the appeal claims was the date of the decision. It is accepted by both parties that once the decision was given the Tribunal was functus officio: see Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301. These claims are based on quite distinct factual foundations and will be considered separately.

Issue 1. The UNHCR Handbook 2 The appellant's submissions on this issue are premised on the Tribunal's not having followed the procedures of the UNHCR Handbook. 3 It is contended that as a result of the amendments made to the Act in 1994 introducing s 36(2) into the Act, the description of a criterion for a protection visa so changed as to impliedly incorporate into the four corners of the Act the procedures prescribed in the UNHCR Handbook for determining whether a person is a refugee. 4 Section 36(2) of the Act provides: "(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." It is the Minister who has to be satisfied that this criteria is satisfied: the Act, s 65(1)(a)(ii). The precursors of s 36(2) for their part had described simply as a "refugee" the visa applicant whose status had so to be determined: see eg the prior s 22AA, the legislative history of which was discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 273-275. What brings the various formulae together is that both a person to whom the relevant "protection obligations" are owed and a "refugee" are defined ultimately in Article 1A(2) in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention") as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, to mean: "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 … ." 5 The difference in formulation between referring to a person simply as a "refugee" on the one hand and as a person to whom Australia has "protection obligations" on the other has the effect, so it is submitted, of making a person who is a refugee under the latter formula, a person who is found to be a refugee not only under the definition of the Convention but in accordance with the procedures laid down in the UNHCR Handbook. 6 The reasoning process, as best I can understand it, that produces this somewhat surprising result would seem to be that while the Convention itself ordains no procedures for determining whether a person is a refugee, Australia as a contracting State has by Article 35 of the Convention: "[undertaken] to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention." The UNHCR has promulgated the Handbook in the exercise of its duty of supervision of the application of the Convention and thus Australia is obliged to implement the Handbook and has done so, impliedly, through s 36(2). 7 To bolster this unusual reasoning process, resort is had to the proposition that the Act should be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with established rules of international law: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287-288. Accordingly Australia's obligations under the Convention should be interpreted according to the principles of customary international law, especially as codified in Article 31 of the Vienna Convention on the Law of Treaties: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 239-240, 251 ff and 294-295. The Handbook, it is submitted, embodied "subsequent practice in the application of the [Convention] which establishes the agreement of the parties regarding its interpretation" and this is to be taken into account in its interpretation: Vienna Convention on the Law of Treaties, Article 31(3)(c). 8 There are, in my view, many vices in these submissions. I need, though, only refer to one. Even if the tortured interpretative path I am invited to tread led ultimately to the UNHCR Handbook, it is not possible to regard the Handbook as having or as being intended to have binding force, or as being capable of being given such character notwithstanding its intrinsic lack of such force, because of the provisions of Article 35 of the Convention. 9 The courts have, on many occasions, referred to the Handbook as a guide to which resort may properly be had (with greater or less benefit) by those who are required to determine whether or not a person is a refugee: Applicant A v Minister for Immigration and Multicultural Affairs, at 302; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392; Shahzad Gull Awan v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Davies J, 9 April 1998); and see also Eshetu v Minister for Immigration and Ethnic Affairs (1996) 142 ALR 474 at 485 where Hill J at first instance commented on the "danger of making reference to the Handbook on matters of procedure". I would add the present case rather illustrates the justice of Hill J's comment. The procedures that the applicant seeks to invoke from the Handbook - they relate to "Benefit of the doubt": see UNHCR Handbook paras 203-204; and "Mentally disturbed persons": paras 206-212 - are partially at least, in potential conflict with powers given by the Act: see the Act, s 427(1)(d) (medical examinations). 10 The UNHCR Handbook on its face purports to do no more than provide a source of guidance and assistance to contracting States, the language of the document from the "Foreword" to the "Conclusion" being redolent of this purpose. In furtherance of its purpose, it does attempt by definition and prescription to provide a workable schemata capable of being used in the determination of refugee status. The "Conclusion" to the handbook adequately captures both the purpose and the methodology I have noted. I merely note two paragraphs by way of illustration: "220. In the present Handbook an attempt has been made to define certain guidelines that, in the experience of UNHCR, have proved useful in determining refugee status for the purposes of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. In so doing, particular attention has been paid to the definitions of the term 'refugee' in these two instruments, and to various problems of interpretation arising out of these definitions. It has also been sought to show how these definitions may be applied in concrete cases and to focus attention on various procedural problems arising in regard to the determination of refugee status. … 223. Within the above limits it is hoped that the present Handbook may provide some guidance to those who in their daily work are called upon to determine refugee status." 11 Even if I were to accept all of the steps in the applicant's submissions leading to the UNHCR Handbook - which I do not - it is impossible to conclude that it embodies procedures that are required by the Act (and the applicant only relies on s 36(2) for this) to be observed in connection with the making of a refugee status determination. The UNHCR Handbook does not prescribe mandatory procedures. In any event, s 36(2) does no more than define the type of person who can be an applicant for a protection visa. No different in this from its predecessors, it does not expressly or impliedly define the procedures to be followed in determining whether a particular applicant falls within the definition. Likewise the Tribunal cannot be said to have committed an error of law, as alleged by the applicant, in not taking the procedures of the Handbook into account: see also s 476(3) of the Act. 12 I would also add, though it is unnecessary to express a concluded view on the matter, that Article 35 of the Convention in its undertaking to cooperate seems a most unlikely source for the imposition of a positive obligation to follow a specified procedure for the determination of refugee status. 13 The applicant has sought indirectly to achieve the result of the UNHCR Handbook being in effect binding on the Tribunal by resort to the "substantial justice" limb of s 420(2)(b) of the Act as interpreted by the majority of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. With the Handbook having the status of at best a guide to which resort might be had, this indirect path to its being in effect mandatory is wholly misconceived. 14 This ground of appeal must be rejected. But as a matter of fairness and courtesy to the Tribunal the following should be stated. The Tribunal found that (i) Mr Semunigus had, subjectively, a genuine fear of returning to his home country, Ethiopia; (ii) it acknowledged his psychological state and expressed considerable sympathy for him and for the difficulties that have developed for him; but (iii) it did not accept that the difficulties he had experienced related to "a Convention reason" nor did it accept that there was a real chance of his being persecuted for a Convention reason. 15 Given the indirect route the applicant has invoked to attack the Tribunal's decision, I should also say, though without further elaboration, that not only can I discern no error in the Tribunal's decision - particularly on the issue of "standard of proof": see Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 at 548ff - nor any lack of sensitivity to the applicant's psychological difficulties.