SZOQQ v Minister for Immigration and Citizenship

JUDGES: FLICK, JAGOT AND BARKER JJ DATE OF ORDER: 23 march 2012 WHERE MADE: SYDNEY

1. The appeal be dismissed.
2. The appellant pay the respondent's costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2084 of 2011

JUDGES: FLICK, JAGOT AND BARKER Jj DATE: 23 march 2012 PLACE: SYDNEY

FLICK J: 1 On 2 September 2010 the Administrative Appeals Tribunal affirmed a decision refusing the now Appellant a Protection (Class XA) visa on the ground that he was not a person to whom Australia owed protection obligations pursuant to s 36(2) of the Migration Act 1958 (Cth) and Article 33(2) of the Convention Relating to the Status of Refugees: Re BHYK and Minister for Immigration and Citizenship [2010] AATA 662. 2 An appeal from that decision has been dismissed: SZOQQ v Minister for Immigration and Citizenship [2011] FCA 1237, 124 ALD 18. On 23 November 2011 a Notice of Appeal was filed from that decision of the primary Judge. 3 This further appeal should also be dismissed.

Section 36 and the Convention 4 Section 36(2) of the Migration Act provides as follows: A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa. Section 5 defines the "Refugees Convention" as meaning "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" (the "Refugees Convention"). That Convention, it has been said, "resolves in a limited fashion the tension between humanitarian concerns for the individual and that aspect of state sovereignty which is concerned with the exclusion of entry by non-citizens …": Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 274 per Gummow J. The Convention has also been described as "a compromise between the interests of the contracting States": Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7 at [94], 209 CLR 533 at 564 to 565. Kirby J there went on to express that compromise as one between the Convention imposing "heavy burdens on 'countries of refuge' in order to secure its humanitarian objectives" and the entitlement of countries "to ensure the integrity of their own communities": [2002] HCA 7 at [94] to [95], 209 CLR 533 at 565. 5 Relevantly for present purposes, the "protection obligations" to which s 36(2) refers are to be found in Article 33 of the Refugees Convention. That Article provides as follows: (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. 6 When construing the terms of a treaty, the treaty itself should be construed in "good faith" and the words given their ordinary meaning. In Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 265, Brennan J there recognised that: … The leading general rule of interpretation of treaties is expressed by Art. 31 of the Vienna Convention on the Law of Treaties: "1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." His Honour subsequently stated that Article 31 "furnishes the most authoritative declaration of the emergent international rules for the interpretation of treaty provisions": Gerhardy v Brown (1985) 159 CLR 70 at 124. 7 And when construing the terms of a statutory provision which seeks to implement a treaty, the statutory provisions should generally be given the same meaning as those terms have in the treaty itself. In Koowarta, immediately before making reference to Article 31, Brennan J observed: … When Parliament chooses to implement a treaty by a statute which uses the same words as the treaty, it is reasonable to assume that Parliament intended to import into municipal law a provision having the same effect as the corresponding provision in the treaty … A statutory provision corresponding with a provision in a treaty which the statute is enacted to implement should be construed by municipal courts in accordance with the meaning to be attributed to the treaty provision in international law … Indeed, to attribute a different meaning to the statute from the meaning which international law attributes to the treaty might be to invalidate the statute in part or in whole, and such a construction of the statute should be avoided … The method of construction of such a statute is therefore the method applicable to the construction of the corresponding words in the treaty. Similarly, in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR at 252 to 253 McHugh J said: First, an interpretation must be in good faith, which flows directly from the rule pacta sunt servanda. Second, the ordinary meaning of the words of the treaty are presumed to be the authentic representation of the parties' intentions. This principle has been described as the "very essence" of a textual approach to treaty interpretation. Third, the ordinary meaning of the words are not to be determined in a vacuum removed from the context of the treaty or its object or purpose: (1997) 190 CLR at 252 to 253. See also: (1997) 190 CLR at 231 per Brennan CJ. 8 There is perhaps a limited ability to have recourse to supplementary materials in order to construe the text of a treaty. Thus, in De L v Director-General, New South Wales Department of Community Services (1996) 187 CLR 640 at 675 to 676 Kirby J has said: Where a treaty is incorporated as part of local law, Australian courts will interpret that law in accordance with the international law governing the interpretation of treaties. The rules were originally governed by international custom. Stimulated by the work of the International Law Commission, the International Court of Justice accepted that its "first duty", when called upon to "interpret and apply the provisions of a treaty", was to "endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur". If, however, the words are "ambiguous or lead to an unreasonable result", the Court held itself entitled to resort to other methods of interpretation seeking to "ascertain what the parties really did mean when they used these words". This approach is now reflected in the Vienna Convention on the Law of Treaties. Those provisions are regularly applied by Australian courts to guide them in a principled and consistent construction of treaties of local significance. This is done as a matter of law and out of comity to ensure that the interpretation of international treaties by Australian courts will, so far as possible, conform to the approach which will be taken by the courts of other countries in relation to the same treaty. Some courts have followed quite a strict rule, akin to that formerly observed by the common law: excluding travaux préparatoires, historical, argumentative and other material and confining attention to the language of the treaty in question. … However, it is probably fair to say that, both before international tribunals and municipal courts, there is now a greater willingness to look to relevant background material, than was formerly the case. In this respect, the practice of international law parallels that of Australian municipal law. By the time cases get before courts of high authority, international and municipal, suggestions of ambiguity or uncertainty tend to be insistent. Even parties which support a construction, based upon the text alone, ordinarily seek to bolster their arguments by reliance on extrinsic material. …

A Danger to the Community of That Country 9 Section 36(2) in the present proceeding does not, of course, employ the terms used in Article 33(2) of the Refugees Convention. 10 It was nevertheless accepted that the construction and content of the phrase employed in s 36(2), namely "protection obligations", was limited by the construction to be given to Article 33(2) and - in particular - the phrase "a danger to the community …". 11 Article 33(2) identifies two categories of persons who do not have the benefit of Article 33, namely those persons in respect to whom "there are reasonable grounds for regarding" him to be: "a danger to the security of the country in which he is"; or a person: "who, having been convicted by a final judgment or a particularly serious crime, constitutes a danger to the community of that country". It is into the latter category that the Appellant falls. There is no question in the present proceeding but that the Appellant has been convicted of a "particularly serious crime" and no question but that there were "reasonable grounds" for regarding him to be a person who "constitutes a danger to the community". Left outstanding is a question as to whether the qualification as to there being "reasonable grounds" applies to only the former - but not the latter - category of persons. 12 The Appellant, he accepted, was not owed "protection obligations" if Article 33(2) did not require consideration to be given to: the "likely consequences of his being returned to Indonesia against his danger to the Australian community"; and/or the "principle of proportionality", namely whether his being returned to Indonesia "unreasonably impaired [his rights] not to be subjected to persecution or to torture or cruel, inhuman or degrading treatment or punishment". He did not dispute that for the purposes of Article 33(2) he had committed a "serious crime". But, on his approach, it was not sufficient for a finding of fact to be made which was confined to whether he constituted a danger to the Australian community. The failure of the Tribunal to "weigh up" the "consequences" to him of his being returned to Indonesia and its failure to consider whether his rights would be "unreasonably impaired" if he were to be returned were the errors relied upon before the primary Judge. Albeit differently expressed, the same arguments are now advanced on appeal. The primary Judge was also said to have erred in construing Article 33(2) such that "[o]nce the circumstances to which it refers exist Art 33(2) applies automatically; it does not await the exercise of any discretion". However expressed, at the heart of the argument for the Appellant is his contention that Article 33(2) requires consideration to be given to the two matters relied upon before the primary Judge. 13 The primary Judge rejected the construction of Article 33(2) advanced by the now Appellant. The Tribunal had refused to take into account the likely consequences for the now Appellant if he were to be returned. And, in doing so, Her Honour held that the Tribunal committed no error. Her Honour concluded that the there was "no support for the submission that in the context of the Migration Act Art 33(2) should be construed as requiring the balancing exercised advocated by the applicant": [2011] FCA 1237 at [34]. 14 If the ordinary meaning is to be given to the terms of Article 33(2), it is not considered that those terms require any consideration to be given to the risks to be faced by a person upon his return to another country. No balancing exercise is required by those terms. No question arises as to the need to take into account the proportionate risks to a claimant and the risks to the country in which refugee status is sought. The ordinary meaning of the terms of Article 33(2) simply requires an assessment to be made as to whether a person constitutes "a danger to the community of that country". Confined to the terms of that Article, there is no occasion for the exercise of any discretion; all that is called for is a finding of fact. 15 To resist this ordinary meaning of those terms, Counsel for the Appellant essentially advanced two fundamental propositions, namely: s 36(2) and in turn Article 33(2) should be interpreted in a manner so as "not to… abrogate or curtail fundamental human rights or freedoms unless such an intention is clearly manifested by unambiguous language"; and Article 33(2), construed in the context of the Convention as a whole, does not permit of the literal interpretation being advocated by the Respondent Minister. Neither of these propositions, with respect, leads to any different construction. 16 Both of these two propositions are but two ways of expressing the same argument. Both propositions at least have the same starting point. Under consideration is a person who is a "refugee". Article 1 of the Convention, read with the Protocol Relating to the Status of Refugees 1973, defines a refugee as a person who fulfils the following conditions: "... owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." "The object of the Convention", it has been said, "is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality": Applicant A v Minister for Immigration and Ethnic Affairs (1996) 190 CLR at 258 per McHugh J. It has also been recognised that it "is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself": Abebe v Commonwealth of Australia [1999] HCA 14 at [191], 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ. 17 Part of the obligation assumed by Australia is the obligation not to send a refugee back to the country in which persecution is feared. 18 Given such considerations, it is perhaps not surprising that some commentators have attempted to construe Article 33 in a manner which requires consideration to be given to the plight of a refugee if returned to the country in which he fears persecution. 19 Reliance was thus sought to be placed upon a joint opinion published by Sir Elihu Lauterpacht and Daniel Bethlehem, 'The Scope and Content of the Principle of Non-Refoulement: Opinion' in Erika Feller, Volka Turk and Frances Nicholas (eds.), Refugee Protection in International Law (2003, Cambridge University Press). Those authors cite the view of Weis (The Refugee Convention at 342, 1951) to the effect that the principle of proportionality has to be observed. After having done so and when addressing "the interpretation and application of the 'danger to the community' exception", Lauterpacht and Bethlehem go on to state: 183. Other elements discussed above in respect of the national security exception that will also apply to the 'danger to the community' exception include the requirement to consider individual circumstances and the requirement of proportionality and the balancing of the interests of the State and the individual concerned. Equally, while the assessment of the danger to the community allows the State of refuge some margin of appreciation, there are limits to its discretion. Indeed, these are more specific than in the case of the national security exception. In particular, the operation of the danger to the community exception requires that the refugee must have been (a) convicted by a final judgment, (b) of a particularly serious crime. Absent these factors, the issue of whether that person poses a future risk to the community of the country concerned does not even arise for consideration. But this view as to "proportionality", it should be noted, is contrary to that expressed by Professor Hathaway in The Rights of Refugees under International Law (2005, Cambridge University Press). The views of other authors were also referred to by Staughton LJ in R v Secretary of State for the Home Department; Ex parte Chahal [1995] 1 WLR 526 at 533 where his Lordship quite understandably observed: I do not find it at all surprising that international lawyers consider the doctrine of proportionality relevant. Despite the literal meaning of article 33, it would seem to me quite wrong that some trivial danger to national security should allow expulsion or return in a case where there was a present threat to the life of the refugee if that took place. Mr Chahal was a Sikh who feared that if he returned to India he was likely to be killed because of his strong religious and political beliefs. Although denied by Mr Chahal, some of the materials before the Court suggested that he was a leading adherent of the more extreme London based faction of the International Sikh Youth Federation. Other materials suggested that he had been involved in planning and directing terrorist attacks in India, the United Kingdom and elsewhere. The claim for asylum failed. Staughton LJ concluded that "the Secretary of State has carried out a balancing exercise, or at least it is not shown that he failed to do so": [1995] 1 WLR at 535. Nolan LJ concluded that it was "impossible for Mr Chahal to maintain that the Secretary of State, when confirming the decision to make the deportation order, had failed to take proper account of the fears expressed for his safety and wellbeing": [1995] 1 WLR at 540. And Neill LJ concluded that "even in a national security case there is a balancing exercise to be carried out" and that there was "sufficient evidence that [the Secretary of State] carried out the necessary balancing exercise": [1995] 1 WLR at 544 to 545. 20 Although the eminence of those expressing such opinions must necessarily be respected, they are not conclusive. It is the terms of Article 33 which must prevail. Notwithstanding the eminence of those who hold a contrary view, the terms of that Article are unambiguous and dictate a conclusion that no "balancing" or "proportionality" is involved in the application of that Article to the facts of a particular case. 21 A detailed analysis of the authorities and the commentary to Article 33 has been undertaken by the Supreme Court of New Zealand in Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289. That analysis and the conclusion is, with respect, persuasive. Their Honours there also looked to (inter alia) "State practice", including the position advanced by the Australian Government in a submission to the United Nations High Commissioner for Refugees titled "Interpreting the Refugees Convention - an Australian Contribution" (2002). The Director of Security had in that proceeding issued a certificate stating that the continued presence in New Zealand of Mr Ahmed Zaoui constituted a threat to national security. The case thus concerned the first category of persons to whom attention was directed by Article 33(2). Mr Zaoui feared that if he were removed to Algeria, his country of nationality, he would be subject to the threat of torture or arbitrary deprivation of his life. In that context the Court concluded: The meaning of art 33.2 [42] We accordingly conclude that the judgment or assessment to be made under art 33.2 is to be made in its own terms, by reference to danger to the security, in this case, of New Zealand, and without any balancing or weighing or proportional reference to the matter dealt with in art 33.1, the threat, were Mr Zaoui to be expelled or returned, to his life or freedom on the proscribed grounds or the more specific rights protected by the New Zealand Bill of Rights Act 1990 read with the International Covenant on Civil and Political Rights and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Paragraph 2 of art 33 of the Refugee Convention states a single standard. … [44] One significant feature of para 2 is the contrast between "danger to the security of [New Zealand]" in its first limb and "danger to the community" in its second, with the second not having a security emphasis but requiring conviction of "a particularly serious crime". Also suggesting a high standard is the consequence of removal to the dangers contemplated by para 1 of art 33. Against those considerations is the wording and drafting history of the provision and its very subject-matter which together indicate that the Executive has a broad power of appreciation of the relevant facts and considerations. [45] … to come within art 33.2, the person in question must be thought on reasonable grounds to pose a serious threat to the security of New Zealand; the threat must be based on objectively reasonable grounds and the threatened harm must be substantial. There is no reason why any different approach should be adopted when Article 33(2) is being applied to persons who have been "convicted by a final judgment of a particularly serious crime". As noted by Lauterpacht and Bethlehem, and so much may be accepted, this phrase itself operates as a restriction upon the exception set forth in Article 33(2). 22 Such judicial authority as there is in Australia - albeit not directed to the terms of Article 33 - is also supportive of the conclusion reached by the primary Judge. 23 Thus, for example, the learned primary Judge referred to the decision of French J (as His Honour then was) in Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556. That decision did not concern Article 33. Mr Dhayakpa had there been convicted of conspiracy to import heroin into Australia. Article 1F(b) of the Refugees Convention provided that the Convention was not to apply where there were serious reasons for considering that a person had "committed a serious non-political crime outside the country of refuge prior to his admission to that country". The primary question for resolution was where the crime had been committed. In the course of resolving that question, French J rejected an argument that Article 1F "confers upon the potential State of refuge a discretion to determine whether the criminal character of the applicant for refugee status in fact outweighs his or her character as a bona fide refugee and so constitutes a threat to its internal order": 62 FCR at 563. In that context His Honour observed: But once the non-political crime committed outside the country of refuge is properly characterised as "serious" the provisions of the Convention do not apply. There is no obligation under the Convention on the receiving State to weigh up the degree of seriousness of a serious crime against the possible harm to the applicant if returned to the state of origin: (1995) 62 FCR at 563. His Honour went on to observe: The provisions of the Convention are beneficial and are not to be given a narrow construction. The exemption in Art 1F(b), however, is protective of the order and safety of the receiving State. It is not, in my opinion, to be construed so narrowly as to undercut its evident policy. The fact that a crime committed outside the receiving State is an offence against the laws of that State does not take it out of the ordinary meaning of the words of Art 1F(b). Nor does the fact that the crime has subsequently been punished under the law of the receiving State. The operation of the exemption is not punitive. There can be no question of twice punishing a person for the same offence. Rather it is protective of the interests of the receiving State: (1995) 62 FCR at 565. These observations of French J were referred to with approval in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 at 177 by Whitlam J and at 184 by Branson J. Sackville J agreed with both Whitlam and Branson JJ. 24 This approach to the construction of Article 1F was again revisited by a Full Court of this Court in NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326, 126 FCR 453. The Appellant in that case feared persecution if he returned to Iran. He had been involved in heroin trafficking whilst residing in Indonesia. In considering the correct construction of Article 1F(b) Merkel J concluded: [41] The courts in the common law jurisdictions have rejected the views expressed in the UNHCR Handbook and by eminent writers that Art 1F(b) requires a balancing test. Those views appear to be based upon a policy allegedly underlying Art 1F(b) that a person should not be denied the protection of the Refugees Convention unless the seriousness of the crime outweighs the risk of the persecution the person is likely to suffer if he or she is refouled to his or her country of nationality. The difficulty with that view is that the policy underlying Art 1F(b) is to be found in the article's specification of the criterion for exclusion to be the commission of a "serious non-political crime" prior to the person's admission into the intended country of refuge. Thus, the article provides that the commission of such a crime, of itself, is sufficient to exclude the person in question from the protection of the Refugees Convention. In the context of the limited manner in which the Refugees Convention has been incorporated into municipal law in Australia (see Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at 15-16; 187 ALR 574 at 584) the purpose of Art 1F(b) is clear; if a person has committed a serious non-political crime prior to the person's admission into the intended country of refuge he or she is not a person to whom Australia has protection obligations under the Refugees Convention. In determining whether the disqualifying crime is "serious" it is appropriate to have regard to the fact that it must be of such a nature as to result in Australia not having protection obligations to persons who commit such crimes. However, there is no textual or contextual basis for reading into Art 1F(b) an additional requirement of a balancing test nor would such a requirement be justified on the basis that it is giving effect to a purpose or object of Art 1F(b) of the Refugees Convention. Madgwick and Conti agreed with Merkel J. 25 There is no reason why Article 1F(b) should be construed as exclusive of any discretionary consideration and as being "protective of the interests of the receiving State" and Article 33(2) construed in any different manner. Although Article 1F(b) may be regarded as an "entry" provision, and Article 33(2) may be regarded as an "exit" provision, both provisions attempt to themselves effect a balance between the obligations assumed by a contracting State and the obligations owed to a "bona fide refugee". Although there are obvious textual differences between Article 1F and Article 33, and differences as to the circumstances in which each provision operates, both provisions operate as "a coherent and logical system": Hathaway at 344. It was there concluded: In cases that fall under Art. 33(2), the asylum country is authorized to expel or return even refugees who face the risk of extremely serious forms of persecution. Its standard of proof, however, is more exacting than that set by Art. 1(F)(b). As described in more detail below, the criminality branch of Art. 33(2) requires conviction by a final judgment of a particularly serious crime, rather than simply "serious reasons for considering" that a person may be a criminal. Also, it is not enough that the crime committed has been "serious," but it must rather be "particularly serious." Beyond this, there must also be a determination that the offender "constitutes a danger to the community." So construed, Art. 1(F)(b) and Art. 33(2) form a coherent and logical system. A person is denied refugee status under Art. 1(F)(b) if admission as a refugee would result in the protection of an individual who has not expiated serious criminal acts. While this may appear harsh, it is the only means available to ensure that refugee law does not benefit fugitives from justice. Because ordinary crimes cannot normally be prosecuted in other than the country where they were committed, any response short of the exclusion of common law criminals from the refugee protection system (and consequential amenability to deportation) would undermine international comity in the fight against crime. 26 Both Article 1F and Article 33 are concerned with resolving the "compromise" referred to by Kirby J in Singh and in preserving to the country in which refuge is sought an ability to exclude certain persons. When addressing the "compromise" reflected by the Refugees Convention, Kirby J went on to say in Singh: [95] On the other hand, countries of refuge are usually entitled to ensure the integrity of their own communities. In the case of serious crimes, such countries are normally entitled to exclude persons convicted of, or suspected of complicity in, such crimes. This is because such involvement may indicate, to some degree at least, the possibility of future risk to the community of the country of refuge. Without such entitlement in defined extreme cases, there would be a risk that the protective objectives of the Convention might be undermined by strong popular and political resentment. Upon this theory, it is beyond the purposes of the Convention to oblige countries of refuge to receive, and provide safe haven for, persons in respect of whom there are serious reasons for considering that they have committed, relevantly, "a serious non-political crime". [96] Thus, the exclusions in Art 1F of the Convention are to be construed as constituting part of the compromise under which "countries of refuge" will hold themselves bound by international law (and municipal law giving it effect) to afford protection to refugees, but not in cases where such an obligation would be intolerable. [97] By inference, then, this exception from "refugee" status reflects the recognition of an obligation to receive and protect at least some serious criminals if their crimes were "political" in character. That obligation is doubtless explained, in turn, by the context in which the Convention was written in the mid-twentieth century. That was a time, in many countries (including India itself), where some persons seeking refuge did so after committing serious crimes of a political character, but for objectives that they viewed as justified and even noble. Such objectives included the claims of subject and colonial peoples to self-determination. In many, perhaps most, such cases those persons might not be welcomed with "open arms" by local officials and their communities.

Conclusions 27 There is thus no reason not to give the terms of Article 33(2) their ordinary meaning. Once a person falls within its terms, there is no requirement to undertake any "balancing" of the consequences to an individual upon being removed from Australia. 28 Subject to expressing the above observations, concurrence is otherwise expressed with the reasons of Jagot and Barker JJ. 29 The conclusion of the primary Judge is clearly correct. The appeal should be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate: Dated: 23 March 2012 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2084 of 2011

JUDGES: FLICK, JAGOT AND BARKER JJ DATE: 23 march 2012 PLACE: SYDNEY

The Appeal 30 This is an appeal against an order of the primary judge dismissing an application for review of a decision of the Administrative Appeals Tribunal (the AAT) for jurisdictional error (SZOQQ v Minister for Immigration and Citizenship (2011) 124 ALD 18; [2011] FCA 1237). 31 The primary judge decided that the approach of the AAT to the relevant statutory provision, s 36(2) of the Migration Act 1958 (Cth) (the Migration Act), insofar as it required Art 33 of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention) to be applied, was correct. As the primary judge explained at [5]: Section 36 of the Migration Act sets out the criteria for the grant of a protection visa. In particular s 36(2)(a) provides that a criterion is that the applicant is "a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". Those obligations are found in Art 33 of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees which states: (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. [Emphasis added] 32 The AAT decided that, the appellant having been convicted by a final judgment of a particularly serious crime, the question whether the appellant was a danger to the community within the meaning of Art 33(2) was to be answered without considering the relationship between that danger and the danger or risk of harm to which the appellant might be subjected on his expulsion from Australia and return to Indonesia (see BHYK and Minister for Immigration and Citizenship [2010] AATA 662). According to the appellant, the primary judge should have found that Art 33(2) required the AAT to: - (i) weigh up and balance the likely consequences of returning the appellant to Indonesia against his danger to the Australian community, and (ii) apply the principle of proportionality, in that it unreasonably impaired the rights of the appellant not to be subjected to persecution or to torture or cruel, inhuman or degrading treatment or punishment upon his return to Indonesia.

Primary Judge's Reasons 33 The primary judge noted the following: (1) "Section 91U(1) of the Migration Act provides that a reference in Art 33(2) of the Refugees Convention to a "particularly serious crime" includes a reference to "a serious Australian offence (as defined by subsection (2))". Given the length of his sentence for manslaughter, the applicant conceded before the Tribunal that he had been convicted of "a particularly serious crime" within the meaning of Art 33(2). Therefore the Tribunal held that the question before it was whether the applicant constitutes a danger to the Australian community" (at [14]). (2) "Before the Tribunal the parties agreed that the test of whether the applicant is a danger to the Australian community is that expressed by Deputy President Tamberlin in WKCG v Minister for Immigration and Citizenship [2009] AATA 512 [(WKCG)]… Applying the test as articulated by the Deputy President the Tribunal concluded that it was "comfortably satisfied" that the applicant poses "a real or significant risk or possibility of harm to one or more members of the Australian community" (at [15] - [16]). (3) "It should be noted that the applicant does not challenge the finding that he would constitute a danger to the Australian community. His complaint is that the likelihood and severity of this danger should have been weighed against the severity of the likely consequences to him of being returned to Indonesia. In essence, the balancing exercise referred to in ground 1 and the proportionality principle or test in ground 2 raise the same issue" (at [19]). (4) "In Australia, subject to any direction to the contrary in a relevant statute, treaties are interpreted in accordance with Art 31 of the Vienna Convention on the Law of Treaties: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 [(Applicant A)] at 252 per McHugh J. Art 31(1) provides that: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose" (at [22]). (5) "Ultimately the support or disapproval of commentators cannot substitute for a proper consideration of the relevant provisions of the Migration Act and the Convention provisions which are incorporated by reference into the Migration Act. The issue here is the proper construction of Art 33(2) of the Refugee Convention which is incorporated into the Migration Act by s 36. The comments to which Mr Poynder referred provide no support for the submission that in the context of the Migration Act Art 33(2) should be construed as requiring the balancing exercise advocated by the applicant" (at [34]). (6) "Mr Kennett, senior counsel for the first respondent made a number of cogent and persuasive submissions as to why there is no textual basis for an argument that a balancing exercise is required in the application of Art 33(2). I accept those submissions…" (at [35]). (7) In respect of s 501J of the Migration Act (which provides in s 501J(1) that "[i]f the Minister thinks that it is in the public interest to do so, the Minister may set aside an AAT protection visa decision and substitute another decision that is more favourable to the applicant in the review, whether or not the Administrative Appeals Tribunal had the power to make that other decision"): [t]he discretion that s 501J reposes in the Minister supports the first respondent's construction of the Act and the Convention. The section is not predicated on the result reached by the Tribunal being a consequence of error. It recognises that it may be in the public interest for there to be a result different from that dictated by a correct interpretation of the statute. In considering whether to exercise the power granted by s 501J in circumstances such as the present, the Minister would necessarily engage in the balancing exercise that the applicant asserts is required under Art 33(2). As such the structure of the Act is consistent with the intention to reserve this issue for the Minister to decide on the basis of public interest. This fact that the Minister has in the words of counsel for the applicant, "an unenforceable discretion to allow the person to stay" is not a reason for holding that the decision maker must take into account the consequences of deportation (at [40]). (8) "I have concluded that the Tribunal was correct in not considering the likely consequences of its decision for the applicant. In my view it would have been an error for it to do so. It follows that the applicant's submissions based on a claim of Wednesbury unreasonableness must be rejected. The Tribunal's statement that this is a matter for the Minister is correct" (at [42]).

The Case on Appeal 34 The appellant submitted that Art 33(2) is an expulsion or exit provision. The person is first recognised as having a well-founded fear of being persecuted for one of the five "Convention reasons" under Art 1A(2) in which event the non-refoulement obligation in Art 33(1) comes into affect subject to the exit provision in Art 33(1). This is to be contrasted with Art 1F which is an entry provision. As such, decisions in respect of Art 1F, insofar as the primary judge relied upon them, are not directly on point. 35 The appellant noted that there is a divergence of judicial and academic opinion about Art 33(2). 36 According to the appellant, the decision of Staughton LJ in R v Home Department State Secretary; ex parte Chahal [1995] 1 WLR 526 at 533 supports the appellant. His Lordship said: The major issue is whether the threat to life or freedom in art 33(1) has to be balanced against the danger to the security of the country in art 33(2). Mr Beloff QC, for the Secretary of State, argues that on the plain wording of the article a refugee may be expelled or returned even to a country where his life or freedom would be threatened, and that no balancing exercise is necessary; expulsion or return is permitted even where the threat to life or freedom is much more serious than the danger to the security of the country. International writers take a different view. Thus Nehemiah Robinson Commentary on the Convention relating to the Status of Refugees (1953) p 164 refers to the travaux préparatoires, which showed that there might be cases where the danger to a refugee 'outweighed' the menace to public security. Goodwin-Gill The Refugee in International Law p 96 says that 'the application of Article 33(2) ought always to involve the question of proportionality'. Dr Plender's International Migration Law (2nd edn, 1988) says: 'the principle of proportionality operates.' I do not find it at all surprising that international lawyers consider the doctrine of proportionality relevant. Despite the literal meaning of art 33, it would seem to me quite wrong that some trivial danger to national security should allow expulsion or return in a case where there was a present threat to the life of the refugee if that took place. 37 The appellant acknowledged that the decision in Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289 (Zaoui) at [42] supports the contrary view. The Supreme Court of New Zealand concluded that: …the judgment or assessment to be made under art 33.2 is to be made in its own terms, by reference to danger to the security, in this case, of New Zealand, and without any balancing or weighing or proportional reference to the matter dealt with in art 33.1, the threat, were Mr Zaoui to be expelled or returned, to his life or freedom on the proscribed grounds or the more specific rights protected by the New Zealand Bill of Rights Act 1990 read with the International Covenant on Civil and Political Rights and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Paragraph 2 of art 33 of the Refugee Convention states a single standard. 38 The appellant submitted that the primary judge erred in requiring a "textual basis" (at [35]) in Art 33(2) for the balancing exercise for the following reasons. 39 First, it is to be inferred that Parliament does not intend to curtail fundamental human rights unless such an intention is manifested by unambiguous language (for example, Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2). The non-refoulement principle involves a fundamental human right (A v Minister for Immigration [1999] FCA 227 at [5]). The language of Art 33(1) and (2) is not unambiguous. 40 Second, it has been recognised that international treaties incorporated into domestic law must be construed in a more liberal manner than domestic legislation (Applicant A). A liberal construction of Art 33(2) supports the inference of the balance exercise. 41 Third, the objects, scope and purpose of the Refugees Convention also support this approach. As McHugh J said in Applicant A at 257: "[w]hen the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group". 42 Fourth, in the context of other human rights, the balancing approach has been adopted (for example, Applicant A at 258). 43 The appellant, accordingly, submitted that: … the principle of non-refoulement in Article 33(1) and its qualification in Article 33(2) must be read in a proportionate relationship with each other; to do otherwise would give rise to a risk that the fundamental protection provided by Article 33(1) may be evaded by the phrase, "danger to the community" which can be given an elastic meaning without requiring any thought to the consequences of return for the refugee.

Discussion 44 The difficulty for the appellant is that, in common with the primary judge, we consider that the relevant principles of construction indicate that the AAT's approach was correct. 45 As the respondent submitted, the starting point is s 36(2) of the Migration Act. The section provides (insofar as relevant in s 36(2)(a)): (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. 46 Under s 65(1) of the Migration Act, if satisfied of the required matters, the Minister is to grant a protection visa and, if not so satisfied, is to refuse to grant a protection visa. In other words, the Minister is vested with a fact-finding function but not a discretion. In the respondent's words, "once the existence or absence of such obligations is determined to the satisfaction of the decision-maker, consequences follow under s 65. There is no room for any exercise of discretionary judgment which would involve weighing the interests of the visa applicant against other considerations". 47 Further, and again as the respondent submitted, s 36(2) is a provision conferring rights. The principle against construing domestic legislation so as not to curtail fundamental rights has no scope to operate given the terms of s 36(2). The proper analysis is that s 36(2) incorporates into domestic law the Refugees Convention to the extent the Parliament considered fit - namely, to the extent that "Australia has protection obligations…". To start from the proposition that the Refugees Convention protects refugees against refoulement and to infer that s 36(2) must operate to protect against refoulement is incorrect. 48 We thus agree with the respondent that the issue is whether Australia has protection obligations to the appellant under the Refugees Convention. 49 Consistent with the submissions of the respondent, we see the language of Art 33(2), construed in the context of the Refugees Convention as a whole, as intractable. The ordinary meaning of Art 33(2) (subject to one matter) is clear. The benefit of the duty against refoulement in Art 33(1) cannot be claimed by a refugee if the circumstances specified in Art 33(2) are present. The structure and text of the provisions do not permit any balancing exercise. It may be accepted that there is one potential ambiguity in the circumstances specified in Art 33(2), namely, whether the requirement for reasonable grounds qualifies both of the circumstances (danger to the security of the country and danger to the community) or only the first of them. In resolving that question, the principle that a more liberal construction than might be applied to domestic legislation may have scope to apply. But resolution of that question does not assist the appellant. The AAT relied on the second consideration, danger to the community. Even if "reasonable grounds" must exist for the finding of danger to the community, as a matter of its ordinary meaning in context, the reasonable grounds concern the danger to the community and not any countervailing danger to the refugee by reason of expulsion of return. Insofar as it might be relevant to say so, both the ordinary meaning of Art 33(2) and the specification of the objective requirement for conviction by a final judgment for a particularly serious crime (as defined in s 91U), speak against the "reasonable grounds" requirement qualifying the second consideration. 50 Nor does the presence of s 91U assist the appellant. The appellant relied on the definition of "particularly serious crime" in s 91U as distinguishing the Australian legislation from that considered in New Zealand in Zaoui where "particularly serious crime" had not been defined in the domestic legislation. The appellant submitted that the definition of "particularly serious crime" supports the submission that there is a spectrum of seriousness including dangers to the community which might be classed as low-risk, at least compared to the risk of harm to which the refugee may be subjected on expulsion. Section 91U(1) and (2) define "particularly serious crime" as a crime involving an offence against Australian law (as relevant) which: (i) involves violence against a person; or (ii) is a serious drug offence; or (iii) involves serious damage to property; or (iv) is an offence against section 197A or 197B (offences relating to immigration detention); and (a) …is punishable by: (i) imprisonment for life; or (ii) imprisonment for a fixed term of not less than 3 years; or (iii) imprisonment for a maximum term of not less than 3 years. 51 The appellant relied on the property damage and immigration offence provisions as indicating that a relatively minor level of danger to the community could nevertheless satisfy the definition of "particularly serious crime". 52 The problems with this argument are two fold. First, mere damage to property is insufficient. There must be "serious" damage to property before the offence may be classed as "particularly serious crime". Second, ss 197A and 197B of the Migration Act have a very limited scope. Section 197A makes it an offence to escape from immigration detention. Section 197B makes it an offence for a detainee to manufacture, possess, use or distribute a weapon. The plank in the appellant's argument which depends on "particularly serious crime" extending to relatively low-level offences is not supported by the terms of s 91U. Second, it is not enough that a refugee be finally convicted of a "particularly serious crime" before the refugee loses the protection against refoulement in Art 33(1). In addition, the relevant decision-maker must find that the refugee, having been so convicted, constitutes a danger to the community. The test for such danger, accepted in this case before the AAT, was that expressed in WKCG at [25] of "real or significant risk or possibility of harm to one or more members of the Australian community", it not being necessary to establish "a probability of a real and immediate danger of present harm". The correctness of that test was not in issue in the appeal. Whatever the correct test, the relevant point for present purposes is that the requirement exists and is additional to the finding of conviction of a particularly serious crime. 53 Section 501J(1) of the Migration Act, as the primary judge found, presents another problem for the appellant. Considered in the statutory scheme as a whole, it supports a construction which recognises that balancing exercises as advocated by the appellant are provided for in s 501J(1) and not s 36(2). It is true that the Minister has no duty to invoke s 5091J(1) but that is the point. The Parliament has struck the balance to be applied in the very terms of s 36(2) which operates to the extent that Australia has protection obligations under the Refugees Convention. 54 One more observation should be made. The fact that the domestic legislation of New Zealand left the meaning of "particularly serious crime" undefined does not assist the appellant. The reasoning in Zaoui, in our view, is compelling. The Supreme Court considered the plain meaning and purpose of Art 33(1) and (2) at [25] - [27]. Their Honours said: [25] … According to their ordinary meaning, the two provisions operate in sequence. They are not related in any proportionate or balancing way. The second, if satisfied in its own terms, defeats the prohibition in the first. … [27] That distinct sequential reading, based as it is on the ordinary meaning of the terms of the two paragraphs of art 33 and their purpose, is supported by a consideration of what the proportionality or sliding scale proposition would require. The decision maker would have to measure against one another two matters which are very difficult to relate: the level of threat to the life or liberty of an individual, on the one side, and, on the other, the level of reasonably perceived danger to the security of the state. While the law may sometimes appear to require such weighing, such an interpretation is to be avoided unless it is plainly called for. 55 Their Honours considered the context of the provisions and concluded that (at [28]): The sequential reading is also supported by the interpretation given to related provisions of the Convention, part of the context in which art 33 is to be read. Article 1A contains the basic definition of a refugee - persons who, owing to a well-founded fear of being persecuted for the proscribed reasons, are outside their country of nationality and are unable or, owing to such fear, unwilling to avail themselves of the protection of that country. As mentioned, that definition, applicable at the stage of entry, is understandably paralleled by the prohibition on compulsory exit stated in art 33. And, as with that provision relating to exit, the entry obligation is subject to limits: under art 1F(b), the Convention does not protect persons with respect to whom there are serious reasons for considering that, among other things, they have committed serious non-political crimes outside their country of refuge before their admission as refugees. 56 They dealt thereafter with State practice, relevant rules of international law, the drafting history of the Refugees Convention, and cases and commentaries. On analysis of all considerations none persuaded the Supreme Court of New Zealand to the view the appellant advocates in the present case. 57 We are satisfied that the primary judge reached the correct decision in respect of the proper construction of the relevant provisions. It follows that the appeal must be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jagot and Barker.