VHAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

Section 36(3) 6 Article 33(1) of the Convention Relating to the Status of Refugees ("Refugees' Convention") done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("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." 7 The Convention forms part of the domestic law of Australia only to the extent that Parliament has enacted legislation that incorporates it into domestic law: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 551-552. The relevant legislative framework is found in s 36 of the Act, which provides: "(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; or (b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa. Protection obligations (3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. (4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country. (5) Also, if the non-citizen has a well-founded fear that: (a) a country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion; subsection (3) does not apply in relation to the first-mentioned country. Determining nationality (6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country." 8 Subdivision AK headed "Non-citizens with access to protection from third countries" does not apply to the applicant as the applicant is not a national of two or more countries (s 91N(1)) nor has the Minister made a declaration in relation to Eritrea: see s 91N(2)(c). Subsections 36(3)-(5) were introduced by the Border Protection Legislation Amendment Act 1999 (Cth), which commenced on 16 December 1999. The applicant lodged his application for a protection visa on 23 December 1999. 9 Prior to the enactment of subs 36(3)-(5) it was well established that under Australian law Australia does not owe protection obligations to persons who are able to acquire effective protection from persecution for a Convention reason in a third country and are not at risk of being sent from that country to the country where the person fears being persecuted. The principle of effective protection has continued to be applied notwithstanding the enactment of s 36(3). The relevant principles were summarised by the Full Court in Kola v Minister For Immigration & Multicultural Affairs [2002] FCAFC 59 at [63] ("Kola"), as follows: "The following propositions relevant to the present case emerge from the authorities: • Australia does not owe protection obligations to a person who has established residence and acquired effective protection (in the sense of protection that ensuring there is no breach of Art 33 of the Convention) in a third country: Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, at 562, per von Doussa J (with whom Moore and Sackville JJ agreed); Minister v Applicant C[(2001) 116 FCR 154] at [20], per Stone J. • This principle does not apply only to the case where the person has a legally enforceable right to enter and reside in a third country. It is enough that, as a matter of practical reality and fact, the person is likely to be given effective protection in the third country by being permitted to enter and live there and is neither at risk of being refouled to his or her original country, nor of his or her life or freedom being threatened on account of race, religion, nationality, membership of a particular social group or political opinion: Al-Zafiry v Minister [[1999] FCA 443] at [26], per Emmett J, approved in Minister v Al-Sallal, [(1999) 94 FCR 549] at 558, per curiam; Patto v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 119, at [37], per French J, cited with approval in Minister v Applicant C, at [21], per Stone J. • In determining the likelihood of the person being afforded effective protection, it is necessary to abjure any rigid standard and rely on a judicial assessment of the practical realities and circumstances relevant to that person's position: Al-Rahal v Minister (at first instance) [[2000] FCA 1005] at [29], approved in Minister v Applicant C, at [23], per Stone J. • The enactment of s 36(3) of the Migration Act has not changed the operation of s 36(2) and, in particular, the operation of the effective protection principle: Minister v Applicant C, at [63]-[64], per Stone J, approving the views expressed by the primary Judge in the present case: Kola[[2002] FCA 265] at [37]. Accordingly, as was said in Minister v Applicant C, at [65], Australia does not owe protection obligations under the Convention to: '(a) a person who can, as a practical matter, obtain effective protection in a third country; or (b) to a person who has not taken all possible steps to avail himself or herself of a legally enforceable right to enter and reside in a third country.'" 10 The authorities have generally interpreted s 36(3) as requiring that there be a legally enforceable right to enter and reside in a third country: see Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154 at 169-172.

Reasoning 11 The applicant contends that the Tribunal purported to apply s 36(3) yet actually and incorrectly applied the effective protection principle. The applicant submitted that the Tribunal purported to arrive at its findings in relation to s 36(3) on the basis of the applicant's "access" to Eritrean citizenship without considering or determining whether he had a legally enforceable right to such citizenship and, as a consequence, to enter or reside in Eritrea. 12 The Tribunal, in its reasons, referred to subs 36(3)-(5) as "[r]elevant to the Applicant's situation". In assessing the applicant's claim, the Tribunal noted that "[t]he question of the Applicant's current nationality and access to another is an important consideration for this determination." In the context of assessing the applicant's access to Eritrean nationality the Tribunal stated that "the Migration Act requires that a person seeking protection under the Refugees Convention be assessed against all relevant countries into which he has a right to enter and reside." Although the Tribunal accepted that the applicant would find it difficult to settle in Eritrea it stated that "Eritrea has not denied the in-comers a right of entry. It has not pushed them back over the border." 13 After assessing certain country information and the applicant's claim to be a Jehovah's Witness the Tribunal concluded that the applicant "has access to Eritrean citizenship and is able to enter and reside in that country." The sparseness of the Tribunal's reasoning concerning that conclusion and its failure to expressly address whether the applicant had not taken all possible steps to avail himself of any legally enforceable right to enter and reside in Eritrea afford some support for the applicant's complaint that the Tribunal failed to address the questions it was required to address under s 36(3) of the Act. 14 However, in its reasons the Tribunal noted that it had before it the Department's file. That file contains the delegate's decision which sets out the Eritrean Nationality Proclamation of 1992, which provides: "2. Nationality by Birth 1) Any person born to a father or mother of Eritrean origin in Eritrea or abroad is an Eritrean national by birth … 4) Any person who is an Eritrean by origin or birth shall, upon application, be given a certificate of nationality by the Department of Internal Affairs. 5) Any person who is an Eritrean by birth, resides abroad and possesses foreign nationality shall apply to the Department of Internal Affairs if he wishes to officially renounce his foreign nationality and acquire Eritrean nationality or wishes, after providing adequate justification to have his Eritrean nationality accepted while maintaining his foreign nationality." 15 In her decision the delegate stated that the applicant was born in Eritrea, had a right to enter and reside in Eritrea and that country information was to the effect that Eritreans in the applicant's position "have their right to [Eritrean] nationality recognised without any difficulty." The delegate found that the applicant would have his right to Eritrean nationality recognised but, as he had not taken all possible steps to avail himself of his right to enter and reside in Eritrea, he is not owed protection obligations "according to section 36 of the Act." The delegate then considered subs 36(4) and (5) of the Act and concluded that the applicant had effective protection in Eritrea "which includes a right to enter and reside in that country" and Eritrea will not return the applicant to Ethiopia. 16 The applicant was represented by Victoria Legal Aid in his application to the Tribunal to review the delegate's decision. His written submission and statutory declaration to the Tribunal specifically challenged the delegate's conclusion that no protection obligation was owed to the applicant because he could "seek safety" in Eritrea. However, the basis put forward for the challenge was that the applicant would be refused entry into Eritrea, or persecuted if he entered Eritrea, as he is a practising Jehovah's Witness, a matter the delegate did not inquire into. The transcript of the hearing before the Tribunal was not before the Court but the Tribunal's reasons for decision do not suggest that there was any departure at the hearing from the manner in which the applicant had outlined his claim concerning Eritrea in his submission and statutory declaration. 17 Thus, before the Tribunal the only basis put forward by the applicant for not having access to Eritrean citizenship and for not having a right to enter and reside in Eritrea was that he was a practising Jehovah's Witness. The Tribunal considered the case put by the applicant and accepted that Eritreans who were Jehovah's Witnesses were persecuted and denied basic human rights in Eritrea and, as a consequence, it was likely that the applicant would be denied residence or admission into Eritrea should it be known he was a practising member of that faith. However, the Tribunal did not accept the applicant's claim that he was a practising Jehovah's Witness and found that he was not a member of that religious group when he was in Ethiopia or in Australia. 18 It is well established that an inquisitorial tribunal, such as the Administrative Appeals Tribunal and the Refugee Review Tribunal, is entitled to be guided by the issues the applicant or any other "party" chooses to put before it for its consideration and to have regard to the case put. As was said by the Full Court in Grant v Repatriation Commission [1999] FCA 1629 at [17] - [18]: "The AAT is entitled to be guided by the issues that the parties choose to put before it for its consideration (Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Repatriation Commission v Hughes (1991) 23 ALD 270 at 274 and Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 487-489) and is entitled to have regard to the case put (Noble v Repatriation Commission [1997] FCA 1159 at 16). In Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 Brennan J said of the inquisitorial procedure of the AAT: 'Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it...The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.' An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the 'case' articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at [23] and Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15])." See also Chief Executive Officer of Customs v AMI Toyota Ltd (2000) 102 FCR 578 at 592-593. 19 In the present case the case put by the applicant and the issue raised by the evidence and material concerned whether the applicant would be denied his right to citizenship of Eritrea and his right to enter and reside in Eritrea because he was a Jehovah's Witness. That case and issue was addressed and decided adversely to the applicant because the Tribunal did not accept that he was a Jehovah's Witness. The Tribunal referred to the delegate's finding "that the Applicant had the right to enter and reside in Eritrea and that he had not taken all possible steps to avail himself of this right". Because no claim was made or issue raised before the delegate that the applicant was a Jehovah's Witness no issue was raised before the Tribunal as to whether the delegate had erred in arriving at that finding. Rather, the Tribunal proceeded on the basis, which appeared to be common ground, that the applicant's right to enter and remain in Eritrea depended upon whether he was a Jehovah's Witness. 20 In S115/00A v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 561 Finn J observed that it is important for the Tribunal to properly identify whether it is relying on s 36(3) or the effective protection principle, as they embody differing tests. At 567 [24] his Honour stated: "For my own part, I do not consider that one can properly conclude either that the tribunal separately considered the application both of s 36(3) and of the effective protection principle, or that it correctly comprehended the differing scope and application of the two. They have been seamlessly mixed with, in my view, s 36(3) ultimately being applied as in effect a crystallisation of the effective protection principle. In light of the tribunal's own appreciation of the potential application of s 36(3) to the applicant (as expressed early in its reasons) and to the language of the last three paragraphs of the tribunal's reasons (set out above), I am not satisfied that the tribunal did other than apply s 36(3) to the applicant. It directed itself to, and answered, the questions raised by s 36(3), (4) and (5). And it erred in its failure to appreciate that the 'right' referred to in s 36(3) was a 'legally enforceable right'." 21 A fair reading of the Tribunal's reasons discloses that it applied s 36(3) and in doing so directed itself to, and determined, the issue raised by the material and evidence in respect of that subsection when it concluded that the applicant had access to Eritrean citizenship and had a right to enter and reside in Eritrea. There is no proper basis for concluding that the Tribunal failed to appreciate that the "right" to which it was referring must be a "legally enforceable right." Of course, it would have been preferable for the Tribunal to express its findings in the terms set out in s 36(3), as did the delegate, but it was not suggested by the applicant that he had taken any steps to avail himself of the right the Tribunal found that he had to enter and reside in Eritrea. 22 Accordingly, the Tribunal did not err in determining the case put by the applicant, which was the case raised by the evidence and material, in the manner it did. I would add that the Tribunal's findings in relation to the applicant's claim to be a practising Jehovah's Witness were based on the Tribunal's view of his credibility and those findings were open on the material and evidence before it. The Tribunal provided a rational basis for not accepting the claim and relied upon material which was logically probative of the issue it was determining: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552, 559. 23 The applicant also made two further criticisms of the Tribunal's decision. The first was that the Tribunal failed to consider his claim, which was set out by the Tribunal, that those who went to Eritrea "were often checked at the border and then sent to camps in Eritrea from where it was difficult to re-establish their lives." The applicant contends that that would amount to "serious harm" under s 91R(2)(a) of the Act. The Tribunal's findings that the applicant had a right to enter and reside in Eritrea, and that any personal difficulties he would face in Eritrea were not Convention based, constitute an implicit rejection of that claim. 24 The second criticism was that the Tribunal, in making the statement that the applicant "was still a relatively senior civil servant", should have considered whether that posed an additional risk to that borne by other Eritrean born Ethiopians entering Eritrea. However, the Tribunal made findings that the applicant "does not belong to any of the political groups cited in reports of political repression" and that "he would be of negative political interest to the regime." Those findings of fact, which were open to the Tribunal on the evidence and material before it, constitute an implicit rejection of any claim that the applicant's senior civil servant status might give rise to a risk of political persecution. In any event, the applicant did not claim his former employment would lead to persecution for a Convention reason. 25 I would add that even if, contrary to my view, the two further criticisms of the Tribunal's decision had any substance I doubt that either would amount to jurisdictional error for the purposes of s 39B of the Judiciary Act 1903 (Cth). 26 While the applicant has been found not to be entitled to the grant of a protection visa it is appropriate to note the Tribunal's concerns about the applicant's personal position were he to be returned to Eritrea. The concerns arose from the following facts, which were stated by the Tribunal. The applicant, who is now 60 years old, has not been to Eritrea since he was a child. He has no members of his immediate family living in Eritrea but he has children living in Australia. His wife and some of his children are in Ethiopia, however, he cannot return there. His age and deteriorating health are likely to make it difficult for him to relocate to Eritrea. Plainly, those facts would be relevant to any application the appellant might make to the Minister for Immigration and Multicultural and Indigenous Affairs under s 417 of the Act. 27 For the reasons set out above the application is to be dismissed and the applicant is to pay the respondent's costs of and incidental to the application. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel J.

Associate: Dated: 29 April 2003 Counsel for the Applicant: Mrs J Batrouney SC with Mr R Heath

Solicitor for the Applicant: Fernandez Canda Gerkens