WAGH v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction 1 The applicants came to Australia from Colombia under visitor visas in January and July 2000. They live as husband and wife. In March 2000, the female applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. The male applicant made a similar application in July 2000 as a member of his partner's family unit. 2 The applications were refused on 20 July 2001. On 7 August 2001 the applicants applied to the Refugee Review Tribunal (Tribunal) for review of that decision. The Tribunal affirmed the delegate's decision on 5 March 2002. On 23 April 2002, the applicants filed an application for writs of prohibition and certiorari and for related relief in relation to the decision of the Tribunal. Factual History 3 The female applicant is a citizen of Colombia. She was born on 31 March 1964. She came to Australia on 27 January 2000 under a visitor visa issued to her on 19 October 1999. On 7 March 2000 she lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. Her husband arrived in Australia on 20 July 2000, also on a visitor visa issued on 19 October 1999, and on 25 July 2000 made application for a protection visa as a member of the applicant's family unit. Both applicants are engineers by occupation. 4 In a statutory declaration attached to her application, the female applicant said she was born on 31 March 1964. She has a Diploma in Petroleum Engineering from the Foundation University of America in Santa Fe de Bogotá, Colombia and a Masters Degree in Energy and Environment obtained in Ecuador under a program provided by the University of Calgary. From 1988 until 2000 she worked with the Ministry of Mines and Energy in Colombia as an engineer in the General Division of Hydrocarbons. She carried out engineering duties in different areas, including exploration, production, refinement, transport, distribution and marketing of hydrocarbons and their by-products. Her work was directly related to consideration of proposals by foreign or national companies wishing to carry out activities in Colombia. 5 From 20 October 1998, the female applicant held the position of Technical Sub-director of the Subdivision of Hydrocarbons of the Ministry of Mines and Energy. In that capacity, in mid 1998, she participated in a feasibility study for what she described as a "project of exploitation of hydrocarbons". This was a reference to oil or gas exploration and production. The project area lay within a reservation for indigenous people known as the U'wa. At a meeting with representatives of the company, the indigenous community and other interested parties, the female applicant expressed her opposition to the project on the basis that it would directly affect the U'wa and their environment and because they would never recover the land. 6 The female applicant's objections were dismissed by officials. This, she said, was because of the multi-million dollar investments associated with the project and the revenue it would generate for the country and for the investors themselves. Pressure in favour of such developments came from paramilitary groups who saw petroleum exploration as a source of funding to enable them to confront guerrilla groups. Multi-national companies engaged in such activities were provided with protection and in this way the purchase of arms by the paramilitary groups was funded. She said: "Any person tending to be on the side of the indigenous needed communities is diligently converted into an enemy to them (sic)." 7 In March 1999, the female applicant said she visited the proposed project area in the municipality of Cubara. In company with her husband, she was returning from that visit to Bogota and was at the airport in the municipality of Yopal when she was approached by a member of the paramilitary who asked her why she was visiting the area. He said he knew her identity and was aware of her work in the Ministry of Mines and Energy. He told her she should produce a report favourable to the project. Her husband was questioned about the reasons for being in the region. He was told not to visit the region again in the future unless it was an official mission or under authorisation granted by the paramilitary to private visitors. 8 The applicants' flight to Bogota was delayed and while they were waiting the female applicant was further interrogated by the same paramilitary person about her family relationship with her brother, who held a position in the "Superintendence of Surveillance and Private Security". She was told that her brother was an enemy of the paramilitary's cause. She said she was offered the chance to "end the persecution to death that they have started against my brother". She was also told that if she adopted the position favourable to the interests of Occidental Oil (which appears to have been the proponent of the project) the paramilitary would use its influence within the political and financial sectors in the country to have her promoted to a better position within the Ministry. She could also obtain a considerable financial compensation. 9 The female applicant told the director of her department of this approach. The director suggested to her that it would be better for her to go along with the proposition and to make a report in favour of the project. She said she would not accept any kind of pressure to make a change of professional opinion. She decided then to delay her official decision. 10 The female applicant said she subsequently contacted a representative of the U'wa Municipal Council to suggest they ask for the intervention of the Ministry for the Environment with a view to bringing pressure to bear in their favour. That, she said, was exactly what happened. There was a delay of some months until the end of November 1999 when the Ministry of the Environment produced a report adverse to the indigenous people. It was then time finally to issue her own written report with her view of the feasibility of petroleum exploration in the area. She arranged a meeting with her brothers who told her that on 23 October 1999 they had been the victims of an attempted murder when travelling by road from Bogotá to Neiva. Nevertheless, with her husband and her brothers, she decided that she would maintain her position on the proposed project. 11 The applicants then decided to apply for visas to allow them to enter Australia. One of the female applicant's brothers had already made up his mind to leave Colombia as soon as possible and to travel to Australia. She applied for leave, including special leave without pay for sixty days from 25 January 2000. She did this so she would have the opportunity to leave the country and at the end of the special leave lodge her resignation. In order to be able to get out of Colombia she and her husband had to make contact, through a third party known to the family, with an officer who worked in the migration section of the international airport at Bogotá and who, after payment of a substantial sum of money, cooperated in allowing their departure. 12 The female applicant concluded: "Today I am here in Australia applying for protection for my life. I cannot return to my country. My ideological principles in favour of a disadvantaged community, as well as my brother's attitude towards the cooperatives of surveillance and private security "CONVIVIR", made the Paramilitary Groups to take revenge against my brother, against me and against the rest of our family. We have been declared now as one of their many military objectives. If we were unable to obtain the protection we are requesting from the Australian Government, we would be victims of that criminal group and hence, condemned to a sure death." (sic) At the time she made the application her husband was still in hiding somewhere in Colombia trying to find a safe place at which to leave his elderly mother so she would not become an easy target for paramilitaries. 13 Along with her personal statement, the female applicant attached country information relating to Colombia. This included a report of the United Nations High Commissioner for Human Rights. The report was dated 16 March 1999. In the conclusions to that report, the High Commissioner expressed deep concern at the continued violence in Colombia where violations of human rights and breaches of international humanitarian law had increased over the preceding twelve months. Violations of human rights were said to be "serious, gross and systematic". Breaches of international humanitarian law were still being committed on a large scale throughout the country and attacks on the civilian population, killings, hostage-taking, forced displacement and the recruitment of children were on the increase. The High Commissioner also noted with utmost concern the alarming level of impunity regarding violations of human rights and breaches of international human rights law in that country. 14 Also attached to the application was portion of a report of the Inter-American Commissionon Human Rights of the Organisation of American States entitled "Third Report on the Situation of Human Rights in Colombia". The portion accompanying the application was Chapter 10 entitled "The Rights of Indigenous Peoples". The report was produced in 1999. It particularly mentioned the impact of large scale natural resource projects on indigenous lands. 15 The Colombian Constitution provides that: "The exploitation of natural resources in the indigenous territories shall be without detriment to the cultural, social, and economic integrity of the indigenous communities. In the decisions adopted with respect to that exploitation, the government shall encourage the participation of the representatives of the respective communities." The Commission said it had received complaints alleging that provisions regarding natural resources and indigenous territorial rights were not always fully respected. It referred to a petition regarding the rights of the U'wa indigenous community in relation to an oil exploration proposal involving the Colombian State Oil Company, Eco Petrol, and other international oil companies. 16 Other supporting documents included one apparently issued by the U'wa Municipal Council on 20 January 2000. It complained that on 19 January more than 5,000 members of the Colombian Army invaded U'wa national territory in the area of the proposed operation by a multinational company referred to as Occidental. The document ended: "We are making an urgent call to the national and international communities, and to the support groups, to rise and move ahead before this last outrage against the U'wa community, which is threatening our existence and our culture. WE, THE U'WA's ARE NOT GOING TO GIVE UP OUR CULTURAL, HISTORICAL AND MILLENARIAN RIGHTS" The female applicant attached a complaint she had made on 10 December 1999 to the office of the Ombudsman in Bogotá about the death threats which she had received. 17 An application on behalf of the husband to be included in the female applicant's application for a protection visa, as a member of her family unit, was lodged on 25 July 2000. It was supported by statutory declarations to the effect that they were in a de facto marriage relationship. Photographs showing them in family and social settings were enclosed. 18 The applicants both hold visas for entry into the United States of America. These are business/tourist visas which allow entry to the United States for tourism and any other kind of business but exclude work rights. Length of stay is determined by an Immigration Inspector at the port of entry. The maximum stay permitted is six months although application can be made for a further six months. 19 In a letter dated 19 December 2000, in response to a query from the Department of Immigration and Multicultural Affairs, the female applicant explained that she had had an American visa since 1994 as it was necessary for her job in the Ministry of Mines and Energy. She had never thought about seeking protection from the United States. This was because she was opposed to the economic interests of a multi-national American petroleum company whose most important shareholder was the family of President Bush. Furthermore, the United States was considered by international organisations, like Human Rights Watch, to be a country which had sponsored paramilitary groups in Colombia. A lengthier explanation was sent to the Department on 29 December 2000. Also sent was a statement of the Executive Director of the Americas Division of Human Rights Watch given before the Subcommittee on the Western Hemisphere on International Relations. That statement asserted that, in summary, the human rights situation in Colombia remained serious with abuses committed by all sides: "The armed forces, paramilitaries, and guerrillas continue to ignore international humanitarian law and fight this war by mainly attacking civilians, not combatants. For every combatant killed in this war, two civilians die, a situation that appears to be worsening, not improving." 20 The applicants were interviewed by an officer of the department on 29 March 2001. A Spanish interpreter was provided at the interview. There was a delay in the processing of the application as the departmental policy required highest priority be accorded to protection visa applicants residing in detention facilities. Following representations made on behalf of the applicants on 30 May 2001 by the Association for Services to Torture and Trauma Survivors Inc, the department advised on 28 June 2001 that the application was upgraded to "Priority 2" status. 21 On 20 July 2001, an officer of the department wrote to the applicants advising that the applications would be refused. The officer concluded that the applicants were not persons to whom Australia had protection obligations under the Refugees Convention. The substantial reason for this was because, both having valid US visas, they would be permitted to re-enter the United States where they could have access to effective protection. 22 An application for review was lodged with the Tribunal on behalf of the applicants on 7 August 2001. They gave oral evidence before the Tribunal on 17 October 2001. The female applicant provided a statutory declaration to the Tribunal after the hearing and a further written submission with supplementary material. The Conduct of the Tribunal Hearing 23 There was affidavit evidence before the Court in these proceedings about the conduct of the oral hearing. A transcript and tapes of the hearing were exhibited to the affidavit which was not contradicted. The deponent was Anna Copeland, a solicitor and registered migration agent employed at the Southern Communities Advocacy, Legal and Education Service (SCALES) in Rockingham. Ms Copeland speaks Spanish, having spent a year in Argentina as an exchange student and nine months in Spain in 1992. She is godmother to a girl from El Salvador. She has known the girl's family for over ten years and speaks Spanish with them on a regular basis. Ms Copeland represented the applicant and her husband at the Tribunal hearing on 17 October 2001. 24 The Tribunal hearing took place by videoconference. The applicants, the female applicant's brother, Ms Copeland and a witness were present in Perth. The Tribunal member was in Melbourne. 25 According to Ms Copeland, the Tribunal member hardly looked at the applicant throughout the hearing. He regularly looked straight down at his notes when addressing the female applicant or when she was speaking. He would often use hand gestures to interrupt her. His tone was very short and he interrupted both the female applicant and her husband often. 26 Ms Copeland went on in her affidavit to refer to a number of matters which occurred at the hearing: 1. In the middle of the female applicant's explanation of her reasons for departing Colombia the interpreter interrupted her. The Tribunal member then directed her to break up long answers. As a result, much of her initial answer was not interpreted. The member did not request that the interpretation of the female applicant's answer be completed but directed her to continue. The female applicant, not realising that not all of what she had said had been translated, did not understand the context of the next question. When she said this the member, without looking at her, simply repeated the question in the same way offering no further explanation. 2. The female applicant made a correction to her evidence stating that a family meeting was in November not October. The member later ignored the correction and restated the earlier mistaken evidence in a question to the female applicant. 3. The female applicant gave evidence at the hearing about her persecution by paramilitary groups in Colombia. There was also evidence before the Tribunal prior to the hearing concerning the conflict between paramilitary groups and left wing guerrillas. This explained the close links between the military, the police and the paramilitary groups. At the hearing the female applicant explained to the Tribunal member that she did not report the threats against her to the police because she did not trust them due to their close links with the paramilitaries. The member seemed to confuse the paramilitaries with the guerrillas saying "Police and the paramilitary groups have often been in serious combat with each other". The female applicant tried to clarify the position. The member however continued to support his point, but referred to the guerrillas instead of the paramilitaries further indicating confusion between the two groups. When Ms Copeland asked the member for clarification he said "Well I was talking about clampdown on guerrilla groups and paramilitary groups masquerading as guerrilla groups, which is often the case". However when asked, the member was unable to refer to any country information on which he had relied to indicate such masquerading. 4. When the member again raised the issue of lack of protection from police and security forces, the female applicant said the security forces could not protect citizens and suggested that the member ask her brother who was available that day as a witness. However, the member declined to hear from the brother instead allowing him to submit a written statement. 5. The member suggested to the female applicant that she was alleging a conspiracy between her superior and paramilitary groups and in that context asked why she was not just removed from her job. In responding to that question, the female applicant tried to explain that she had not said there was a "conspiracy" or connection between her superior and the paramilitaries. This part of her testimony was not interpreted. She went on to try and explain the nature of the economic interests and therefore the pressure on people in her superior's position. Her response, according to Ms Copeland, was only interpreted from this point. When Ms Copeland tried to point this out she was stopped by the member who asked her to wait until his question had been interpreted. After the translation Ms Copeland tried to point out that some of the testimony had not been translated but the member would not allow her to speak. After some time the member allowed her to make a submission and she explained what she had said. 6. When Ms Copeland attempted to make a further submission, at p 17 of the transcript, this was ignored by the member and when she attempted again to speak at the bottom of p 19 of the transcript, the member cut her off. 7. In the course of the hearing the female applicant was asked when a meeting with her family had taken place. She responded and then, with her head down and thinking aloud, but to herself, corrected that date. She then looked up and said, "excuse me, it was November 2001". The member immediately asked Ms Copeland not to prompt the female applicant. Ms Copeland explained that she had not prompted the female applicant. She said the member had his head down at that time this happened. 8. The member queried why the female applicant's report was so brief, that is four to five pages. The female applicant referred to annexures and registers when giving her explanation. When asked how long these were, she told the member that they were big folders with seismic and geological data and all the technical information. She pointed to a file on the table which was about 2.5 inches thick. Ms Copeland seems to be saying, albeit by reference to later argument, that the member was not looking at the time that she made this gesture. 9. Prior to the hearing, submissions and annexures were submitted on behalf of the applicants, including five separate sources of information concerning the risk of refoulement if the applicants were to arrive in the USA and request protection. The female applicant explained the problems she had when she travelled to the USA asserting that Colombians are stigmatised in the USA and at all entry points. She referred to herself and others being specifically interrogated by immigration officials on the way through the USA to Canada. After the hearing further evidence was submitted explaining the increased difficulties due to the September 11 attacks in the United States. In his reasons for decision, it is said, the member did not refer to any of this evidence instead saying that there was no evidence available to indicate that refusal to permit a visa holder to enter the USA was undertaken capriciously or arbitrarily by the relevant authorities. 10. Ms Copeland also said that the listing of the application before the Tribunal happened unusually quickly for that category of case, ie a "community case". The Tribunal's Reasons for Decision 27 In its discussion of the evidence and its findings the Tribunal focussed first upon the fact that the applicants held visas for entry into the United States which were valid until 14 May 2004 and that they had previously entered the USA using the same visas, albeit on at least one occasion they entered on a comparable visa issued at an earlier date than their current visas. The Tribunal found itself in no doubt that the female applicant and her husband had the capacity to re-enter the USA on their current and valid visas. 28 The Tribunal then considered whether the female applicant could, as a matter of practical reality and fact, have access to effective protection in the USA such that she would not face a real chance of refoulement to Colombia where she claimed to be at risk of persecution for a Convention reason. The Tribunal noted that although the USA is not a signatory to the 1951 Convention Relating to the Status of Refugees, it is a party to the 1967 Protocol and has an established and formalised procedure for allowing applications for asylum to be made at the point of entry to the country or later. It referred to the Annual Report of the Immigration and Naturalisation Service of the USA Department of Justice from 1999 in which it was said, inter alia: "Any alien physically present in the United States or at a port of entry may request asylum in the United States. According to the Refugee Act, current immigration status, whether legal or illegal, is not relevant to an applicant's asylum claim." The report went on to state that aliens could apply for asylum in one of two ways, with an INS Aslum Officer or, if apprehended, with an Immigration Judge as part of a removal hearing. In 1999, 228 Colombians were granted asylum by the INS. Reference was also made to the Australian Department of Foreign Affairs and Trade Country Information Report 476/96 dated 28 May 1996 relating to the grant of asylum in the USA. In that Report it was said: "Asylees (refugees) are granted indefinite asylum status (according to regulations effective 1 October 1990); after one year they are eligible to apply for adjustment to permanent status, which is granted on the basis of one year's residence (If returned to their former country of persecution, this is taken into account in the decision on permanence)." The Tribunal found that the female applicant had a capacity to re-enter the USA where she could access a properly functioning refugee determination process through which a significant number of Colombians and others had obtained refugee status. If she were found to be a refugee in the USA it was apparent that she would not face refoulement to Colombia. The Tribunal then repeated its finding that she and her husband retained a right to enter the USA and said: "Although the applicant claims that she would be at risk of persecution in the USA, as well as in Colombia, because the corporate plans she claims to have thwarted in Colombia impact adversely on a company in which the family of the incumbent USA president has a substantial interest, the USA Constitution provides for an independent judiciary and an effective separation of powers between the executive, legislative and judicial branches of government." 29 The Tribunal then went on to consider the credibility of the female applicant's claims of risk of persecution if returned to Colombia. This consideration was brief. The Tribunal said: "There are several aspects of the applicant's story that leave the Tribunal not satisfied her claims in relation to Colombia are true, including the fact that her employing body approved recreation leave for the purpose of travel abroad despite the applicant's claim that her boss was in collusion with paramilitary groups intent on persecuting her for the recommendation she claims to have made in her report. The applicant has not been able to produce a copy of the alleged report and was vague about some aspects of it. Even if such a report were produced, containing a recommendation that a project not proceed in the area desired by those she claims threatened her, and that such an outcome were to be detrimental to the commercial interests of a company in the USA in which the president's family has an interest, any prospect that the applicant would, as a consequence, encounter consequences in the USA amounting to persecution for a Convention reason is entirely remote, and the Tribunal finds accordingly. Even if the applicant were, somehow, to face pressure in the USA for any Convention reason, she would be able to seek effective protection through institutions such as the police force and the courts." There followed a reference to the issue of the adequacy of state protection and the decision of Hely J in Svecs v Minister for Immigration & Multicultural Affairs [1999] FCA 1507. Thus the non-exhaustive reference to the aspects of her story that left the Tribunal "not satisfied her claims in relation to Colombia are true" supported no more definitive conclusion than that and seemed to have been elided with a consideration of risk in the USA. The Tribunal repeated for the third time its finding that the applicant has a capacity to enter the USA where it held "… as a matter of practical reality and fact, she has access to a refugee determination system that offers effective protection to applicants who are refugees and who do not face any prospect of refoulement to their country of origin". In this circumstance the Tribunal found the female applicant was not owed protection obligations by Australia. It added: "As indicated above, the Tribunal is not persuaded that the applicant has made credible claims in relation to fear of persecution in Colombia. In view of its aforementioned findings, however, on the threshold question of effective protection in a third country, the Tribunal has not found it necessary to record findings and reasons in relation to claims made about Colombia." The Application for Review 30 The application for judicial review of the Tribunal's decision was filed on 23 April 2002 and was expressed to be an application for writs of prohibition and certiorari and for related relief. The application expressly invoked s 39B of the Judiciary Act 1903 (Cth). 31 At the commencement of the hearing of the application for review on 7 October 2002, the applicants sought leave to substitute grounds for their application in accordance with a minute which had been filed and served in the Court some two weeks previously. The application was not opposed. The substituted grounds of application, as further amended at the hearing, were as follows: "(1) In concluding that the Applicant had a capacity to enter a third country and access its refugee determination system, and that therefore she was not owed protection obligations by Australia, the Refugee Review Tribunal ("the Tribunal") committed an error of law such as to contravene an inviolable limitation or restraint on the exercise of its jurisdiction. Particulars The Tribunal: (a) failed properly to inquire into the specific circumstances of the Applicant and the practical result of her being sent to the United States of America ("USA"), in particular whether she had an existing enforceable right to enter and reside in that country; (b) took into account and was distracted by false issues, namely: (i) a claimed "sovereign right of governments to control entry into their own countries"; (ii) what were described as "an independent judiciary and an effective separation of powers"; (iii) the fact that the applicant could "seek effective protection". (c) failed accordingly to properly ask the question as to whether, as a matter of practical reality, it was likely that the Applicant would be given effective protection by being permitted to live in the USA. (2) The Tribunal made a decision which is not reasonably capable of reference to the power given to it as a decision-maker. Particulars The particulars pertaining to ground (1) are repeated. (3) The Tribunal did not make a bona fide attempt to exercise its powers. Particulars The Tribunal: (a) erred in misconstruing the Applicant's evidence as to a supposed "collusion" of her boss with paramilitary groups; (b) wrongly concluded that the Applicant was vague as to aspects of her business report and was illogically sceptical as to the Applicant not having kept a copy of the report; (c) erred and misconstrued the evidence before it as to the supposed merging of paramilitary groups and guerrilla groups in Columbia (sic); (d) declined to hear oral evidence from the Applicant's brother on material factual issues, namely limitations on the protection provided by security forces in Colombia and the paramilitary's persecution of the Applicant's brother and associated prospect of persecution of the Applicant; (e) wrongly concluded that the Applicant's advocate had sought to prompt the Applicant regarding the evidence; (f) gave no, or no proper, consideration to the various materials put before it concerning the risk of refoulement were the applicant to request protection in the USA, including: (i) five different reports and sets of materials concerning the processes and procedures for the seeking of asylum in the United States of America; (ii) evidence given by the applicant at the hearing concerning her treatment when she travelled through the USA in 1998; and (iii) further material provided on behalf of the Applicant, after the hearing, of increased difficulty due to the events of 11 September 2001 in the form of a discrete New York Times article and indeed concluded, wrongly, that there was "no evidence available" to indicate that refusals to permit a visa-holder to enter the USA are undertaken capriciously or arbitrarily by the relevant authorities; (g) on numerous occasions interrupted the applicant or her advocate and/or exhibited a demeanour suggestive of a disinterest in the proceedings or a closed mind thereto." These grounds are framed in such a way as to assume that there is only one applicant for review, namely the female applicant, when in fact the application was commenced in the name of both applicants and the designation WAGH given jointly to both. Statutory Framework - Jurisdiction 32 The application in this case is made pursuant to s 39B of the Judiciary Act 1903 (Cth). That provision confers jurisdiction on the Court in respect of matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth (s 39B(1)). It also confers jurisdiction in any matters "… arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter" (s 39B(1A)). Where the relief sought relates to the exercise by a Commonwealth officer of a statutory power or duty the availability of that relief will depend upon whether the officer has acted beyond power or has failed to discharge the duty. 33 The scope of powers under the Migration Act has been substantially expanded by the enactment of the privative clause, s 474, which was discussed at length in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449. That discussion need not be repeated here. The outcome of it is, in substance, that a "privative clause decision" to which s 474 applies is amenable to review in the exercise of the Court's jurisdiction under s 39B only on one or more of the following grounds: 1. The decision lay beyond the constitutional limits of the power relied upon. 2. The decision was not made in good faith. 3. The decision was not reasonably capable of reference to the power given to the decision maker. 4. The decision did not relate to the subject matter of the legislation. 5. The decision was made in breach of inviolable limits imposed upon the exercise of the power by the statute conferring the power. Statutory Framework - The Safe Third Country 34 The statutory framework for the grant of visas and the establishment of criteria for such grants appears in Div 3 of Part 2 of the Act. Section 36, relating specifically to protection visas, provides: "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) 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. (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." Subsections (6) and (7) are not relevant for present purposes. Subsections (3) to (7) inclusive were inserted by the Border Protection Legislation Amendment Act 1999 (Cth). 35 Section 36 must be read in light of the Refugees Convention. Article 1A(2) of that Convention defines, as a refugee, 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." Article 1A(2) is to be read with Art 33 which provides: "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." The First Ground of Review - Error of Law Contravening an Inviolable Limitation - Safe Third County 36 By this ground it is asserted that the Tribunal erred in law in its finding that the applicant had an opportunity to enter the United States of America and access that country's refugee determination system and therefore was not owed protection obligations by Australia. 37 The Tribunal's want of satisfaction that the criteria for the grant of a protection visa were met was said to be based upon an erroneous answer to the legal question posed by s 36. Where a condition on a statutory power requires formulation of an opinion or a state of satisfaction it is necessary that the opinion or state of satisfaction be based upon a correct interpretation of the relevant statute. A person exercising a statutory power cannot confer power on himself or herself by misconstruing the statute which is the source of the power - R v Connell; Ex parte Hetton Bellbird Collieries (No 2) (1944) 69 CLR 407; Buck v Bavone (1976) 135 CLR 110; Foley v Padley (1984) 154 CLR 349; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 653-7 (Gummow J). In such a case, it was submitted, the decision made beyond power is not protected from review by s 474. I take this submission to be in effect a contention that the decision to refuse a protection visa based upon a misconstruction of the statutory criterion is not a valid decision and for that reason does not attract the application of s 474. 38 In the present case, however, the Tribunal did not misconstrue the criteria in s 36. It had regard both to that provision and to the scope of Australia's protection obligations as defined and limited by Art 33 of the Convention. 39 The findings of the Tribunal relevant to this ground were: 1. The applicant and her husband had been issued with entry visas for the USA. 2. The visa in each case was for the purposes of business or tourism and authorised a stay of up to six months. 3. The visas are valid until 14 May 2004. 4. The applicant and her husband have entered the USA using the visas. 5. The applicant and her husband have the capacity to re-enter the USA on their current and valid visas. 6. The USA has established and formalised procedures for allowing applications for asylum to be made at the point of entry to that country or later. 7. The applicant and her husband have the capacity and the right to return to the USA where she can access a properly functioning refugee determination process. 8. The prospect that the applicant would face, in the USA, any persecution for a Convention reason is entirely remote. 9. As a matter of practical reality and fact the applicant has access to a refugee determination system in the USA which offers effective protection to applicants who are refugees and who do not face any prospect of refoulement to their country of origin. These findings of fact were open to the Tribunal to make on the evidence. 40 The criticisms of the Tribunal's conclusions on this aspect of its reasons for decision are elusive. The Tribunal, if was said, had failed to ask itself the right question namely: "…whether the applicant herself had an existing enforceable right not only to enter but also to reside in the USA." Absent such a right it was said that it would be a rare circumstance where effective protection would be available in the USA or any other third country. 41 The obligation of non-refoulement is to be found in Art 33 and is imported into the statutory criterion in s 36(2) that the applicant be a person to whom Australia "has protection obligations under the Refugees Convention as amended by the Refugees Protocol". The limits upon the protection obligation generated by Art 33 were discussed in Patto v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 119 at 131, where I essayed the following propositions: 1. Return of the person to a third country will not contravene Art 33 where the person has a right of residence in that country and is not subject to Convention harms therein. 2. Return of the person to the third country will not contravene Art 33, whether or not the person has a right of residence in that country, if that country is a party to the Convention and can be expected to honour its obligations thereunder. 3. Return of a person to a third country will not contravene Art 33 notwithstanding that the person has no right of residence in that country and that the country is not a party to the Convention provided that it can be expected, nevertheless, to afford the person claiming asylum effective protection against threats to his life or freedom for a Convention reason. As I observed in W228 v Minister for Immigration & Multicultural Affairs [2001] FCA 860 at [40], s 36(3), as qualified by ss 36(4) and (5), identifies a subset of circumstances in which the return of a refugee to a third country will not involve a breach of Australia's obligations under Art 33. The propositions in Patto were not intended to be exhaustive. They were cited, with apparent approval, by Tamberlin J (with whom Spender J agreed) in Al-Rahal v Minister for Immigration & Multicultural Affairs (1999) 110 FCR 73 at 97. Tamberlin J also referred in that case to Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 568 and Minister for Immigration & Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 and went on to say: "Consistently with the authorities, the relevant question when determining whether refoulement would result in a breach of Art 33 by Australia is whether as a matter of practical reality there is a real chance that the third country will not accept a refugee and would refoule them to a country where their life or freedom would be at risk for a Convention reason. This is a question of fact and degree. It does not require proof of actual permission, or of a right, to enter that country." 42 In a Full Court decision given about a month after Al-Rahal, namely Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332, Stone J, with whom Gray and Lee JJ agreed, referred to a number of cases dealing with s 36(3), including S115/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 540 (Finn J), Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 (Mansfield J), Bitani v Minister for Immigration & Multicultural Affairs [2001] FCA 631, W228 v Minister for Immigration & Multicultural Affairs [2001] FCA 860 (French J) and V1043/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 910 (Allsop J), and said, referring both to s 36 and the operation of Art 33: "The combination of the amendments to s 36 and the doctrine of effective protection leads to this position. 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 county; or (b) 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." 43 More recently in Kola v Minister for Immigration & Multicultural Affairs [2002] FCACFC 59, which was heard together with the appeal in Bitani v Minister for Immigration & Multicultural Affairs, the Full Court, at [63], identified the following propositions as emerging 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 from ensuring there is no breach of Art 33 of the Convention) in a third country… * This principle does not apply 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… * 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… * 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 at [37]. Accordingly, as was said in Minister v Applicant C, at [65], Australia does not owe protection under the Convention to…". 44 Having regard to the findings made by the Tribunal in this case and its conclusions upon them, I do not consider that it has failed to ask itself the right question in relation to the application of the criterion in s 36(2) having regard to the combined operation of s 36 and the terms of Art 33 of the Convention incorporated by reference into the notion of "protection obligation" referred to in s 36(2). 45 On the Tribunal's findings, if Australia were to remove the applicants to the United States, for which they have entry visas, they would be able , upon entry, to apply for asylum in accordance with the processes identified by the Tribunal. The Tribunal, it is to be noted, did not find that the applicants had passed through the United States on the way to this country. The fact that an applicant for a protection visa has not passed through a safe third country does not mean that removal to that country would breach the limited non-refoulement obligation imposed by Art 33. It is a fact that the applicants have visas to enter the USA. That gives them no right to reside there but the Tribunal has found as a matter of fact, in respect of the female applicant, that: "If the applicant were found to be a refugee in the USA it is apparent that she would not face refoulement to Colombia." The Tribunal has not limited itself to s 36(3) and the qualifying subsections for it referred expressly to Art 33 and its exposition in Patto and Al Rahal as well as the combined effect of the Article and s 36 expounded in Applicant C. 46 The observation could be made that the non-refoulement obligation under Art 33 would not, on this reasoning, be breached if an applicant were removed to any country, of the Minister's choice, in which the applicant could apply for protection as a refugee. That would be consistent with the third proposition which I essayed in Patto. There would seem, however, to be considerable practical difficulties in the path of such a course where the relevant applicant lacks a visa and absent any agreement by the third country to receive the applicant. Those practical considerations are not applicable in the present case. 47 For the preceding reasons, the question whether review based upon an error in the construction of s 36 would have been permissible having regard to the enactment of s 474, does not have to be considered. I would, however, leave open the possibility that a misconstruction of the criteria under s 36 could constitute a failure to undertake the function conferred on the Tribunal by the Act which could have the effect of vitiating a decision made in the purported exercise of that function - see Turcan v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 at 461-462 (Black CJ), 132 (Wilcox J), 599 (French J). Decision Not Reasonably Capable of Reference to the Decision-maker's Power 48 This ground relied upon the same particulars as the first ground relating to s 36. No separate submissions were made on it. There is no substance in the ground. Want of Good Faith on the Part of the Tribunal 49 It was submitted for the applicant that absence of bona fides could be identified and proven upon a consideration of the Tribunal's reasons as a whole and also by reference to "the procedures, language and tone of the hearing undertaken by the RRT itself". It was asserted, on the basis of Ms Copeland's affidavit, that there was "a considerable accumulation of circumstances" which in this case reflected a want of genuineness on the part of the Tribunal member. The specific matters relied upon in this respect were: