NAGV and NAGW of 2002 v MIMIA [2004] HCATrans 140 (30 April 2004)

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NAGV and NAGW of 2002 v MIMIA [2004] HCATrans 140 (30 April 2004)

Last Updated: 5 May 2004

[2004] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S425 of 2003

B e t w e e n -

NAGV AND NAGW OF 2002

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 APRIL 2004, AT 10.46 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC: If the Court pleases, I appear with my learned friend, MS I. RYAN, for the applicant. (instructed by Craddock Murray Neumann)

MR N.J. WILLIAMS, SC: May it please the Court, I appear for the respondent. (instructed by Clayton Utz)

McHUGH J: Yes, do not sit down, Mr Williams.

MR WILLIAMS: Special leave should be refused for three reasons. First - - -

McHUGH J: Why?

MR WILLIAMS: I was just coming to that.

McHUGH J: You have judge after judge saying the earlier decision in Thiyagarajah is wrong, although they are bound to follow it. It is almost a cry to this Court to intervene to settle the question. You may be right. Surely, it is a case where it just cries out for the grant of special leave.

MR WILLIAMS: There are three reasons why it should not be granted. The first is that the case does not provide a suitable vehicle, in light of the amendment to the provisions with effect from December 1999. Secondly, the decision of the Full Court in Thiyagarajah is, with respect, correct, or at least not attended by sufficient doubt to warrant the grant of special leave. Thirdly, it is a question on a decision of statutory construction which has been applied in at least 11 Full Court decisions and the reasoning in which was expressly adopted by this Court as the fundamental premise of its decision in Thiyagarajah itself.

Turning to the first of those propositions, with effect from December 1999 the legislation was amended in ways that would be highly material to the consideration of the present case. Your Honours, in the bundle of material, have at tab 3 the current form of section 36, running from the bottom of page 18, where your Honours see first that there is some amendment to the form of subsection (2) but, more particularly, that subsection (3) and following have been inserted. Subsection (3) is directly addressed to obliging those who, like the applicant, or like citizens of East Timor who can obtain Portugese nationality simply by applying, to take those steps before seeking Australian protection. That provision would be directly applicable to the consideration of the present case, were it to arise before the Tribunal today, and it would be applicable to any similar case in respect of an application lodged after December 1999.

The scope of section 36(3) has been controversial in the Federal Court, as the decision of the Full Federal Court in WAGH at tab 8 shows. That case, at least in the Full Court, was taken as concerning the scope of section 36(3). A different view of the Tribunal’s reasons was taken by the primary judge, Justice French. But the consideration of section 36(3) is one that has been informed in the reasons in that judgment very strongly by the analysis in Thiyagarajah and the interaction that Justice Lee, at least, thought that the two provisions had.

Now, it is true that it has generally been accepted that section 36(2) continues to have the operation that it was held to have in Thiyagarajah, but like all sections it must be read holistically, and a decision on the proper construction of section 36(2), as it stood prior to December 1999, will be largely of historical interest and will not resolve any controversy as to the proper scope of section 36(3).

The analysis of those two sections has in most of the cases in which it has been debated been analysed as being interconnected and, clearly, they must be construed together. So a decision of this Court in the present case is unlikely to quell any subsisting controversy as to the proper construction of section 36 in its present form. That is the first of the reasons.

The second reason is that, with respect, the decision in Thiyagarajah is correct. The protection obligations to which section 36(2) refers is the surrogate or substitute protection in a wider sense which the Convention provides in place of that of the country of nationality where that protection is absent for a Convention reason. The obligation to accord protection in Australia is the corollary of the non-refoulement obligation in Article 33(1). It arises where expulsion or a refoulement to another country would involve a real risk of Convention persecution in that country, or expulsion to another country where there is such a risk.

Now, the context of section 36 strongly supports the view that it is surrogate or substitute protection in Australia to which the section refers, rather than some other aspect of Convention obligations. The context is this. The primary function of a protection visa is to confer a right to remain in Australia, whether temporarily or permanently, where the sole criterion which the Act imposed at the relevant time for the grant of a visa is the existence of protection obligations. The context clearly suggests that the obligation to permit the person to remain, temporarily or permanently, is the focus of the criterion rather than any other obligation.

The Federal Court and this Court in Thiyagarajah construed the change in language from the previous test of whether a person was a “refugee” as defined in the Convention to a test of whether the person is a person to whom Australia owes protection obligations as importing a change of meaning. The manifest purpose of section 36(2) is to give effect to Australia’s obligations under the Convention, but there is nothing in that section or any other section to suggest that the intention was to impose or confer rights going beyond those conferred by the Convention.

The construction preferred by the Full Court below would have the effect of conferring a right to remain in Australia on any person who fell within the definition of Article 1, including persons who have established rights of permanent residence in another country – like Mr Thiyagarajah, who lived in France for a number of years – pursuant to a grant of refugee status in that other country or, indeed, upon some other basis.

The Refugee Convention does not impose such an obligation, and the judgment of Justice von Doussa in Thiyagarajah analyses the relevant provisions. There is no basis in the legislation for inferring that Parliament intended to go further than the implementation of the Convention obligations, especially not to the extraordinary degree to which the judgment below would suggest. Any person who had - - -

McHUGH J: Well, there are problems about both views, are there not? Part of the problem about Thiyagarajah is that it assumes an obligation not to deport is the precise corollary of the positive protection obligations. On the other hand, Justice Emmett’s approach seems to assume that all refugees within the Convention definition and the exclusions in Article 1 are non-citizens to whom protection obligations are owed for the purpose of section 36(2). There are difficulties with that view and there seem to me to be difficulties with the view that was expressed in Thiyagarajah. But given what is happening in the Federal Court, why is it not a proper case for the grant of special leave by this Court?

MR WILLIAMS: Well, for two reasons. First, in respect of the view that Justice Emmett expounds, that view is inconsistent with other provisions of the Act, which, in fairness to their Honours, were not canvassed in argument or submissions. Section 500 is one such provision, which is at tab 1, page 7 of the bundle. If your Honours see section 500(1) dealing with:

Applications may be made to the Administrative Appeals Tribunal for review of:

. . .

(c) a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2) –

Now, if Justice Emmett’s construction is correct, Australia owes obligations to any person who is a refugee as defined in Article 1, but section 500(1)(c) says that a protection visa can be refused on that ground to such a person.

McHUGH J: Yes.

MR WILLIAMS: There are two other provisions to the same effect. On page 13, section 502(1)(iii), which again refers to those same articles and contemplates that a person can be refused a protection visa based on the ground in Article 33(2). Now, that is directly inconsistent with Justice Emmett’s reasoning that a person who falls within Article 1 is, by reason of that fact alone, entitled to a protection visa.

The second reason why, in answer to your Honour the presiding judge, special leave should be refused notwithstanding the comments that have been made below, it is not, with respect, a case of judgment after judgment to this effect. There has been a consistent line of authority in the Federal Court with dissents from Justice Lee in Al-Rahal and a difference of opinion from Thiyagarajah expressed by his Honour in WAGH, but until this case the line of authority was entirely consistent in the Full Federal Court – 10 Full Federal Court decisions in which Thiyagarajah had been adopted and applied. In this case their Honours - - -

McHUGH J: Justice Finn sets them out at paragraph 2 of his judgment.

MR WILLIAMS: Since then there has been one decision in which the correctness of Thiyagarajah was neither in issue in the proceeding, nor was it argued. That is the case of NAFG in which Justice Gyles made observations about the correctness of Thiyagarajah. Since then there has been a further decision, that in NAEN, which is at the last tab in the bundle, in which all of the provisions, including section 500 and following, were debated – this is NAEN v The Minister at tab 9, a decision of 13 February 2004, in which their Honours had before them the correct version of the Treaty and their attention was drawn to all of the relevant provisions, including 500 and following, and their Honours unanimously adopted the Thiyagarajah orthodoxy, notwithstanding the difference of view or the dissenting judgment of Justice Emmett in NAGV.

So in a formal sense there is not division in the court below. Thiyagarajah has consistently been followed, including in the case before your Honours. So it is not a case in which in any formal sense there is division. There is expression of a different view in one case, admittedly, by all three judges, but it is not a case in which there is a conflicting line of authority or any suggestion that any judge or any Full Court of the Federal Court will do other than follow the Thiyagarajah line of decisions.

I should take your Honours to the decision of this Court in Thiyagarajah, which is at tab 5, in order to indicate the extent of this Court’s endorsement of the correctness of the reasoning in Thiyagarajah. Your Honours will be aware that it concerned the form of the orders that should be made, but at page 52 at paragraph 14 in the last sentence:

The Full Court did not approach the matter as turning upon the application of Art 1E. Rather, it dealt with the matter on the footing that it was unnecessary to determine the scope of Art 1E, if, in any event, Australia did not owe the respondent protection obligations. The Full Court held that on the facts found by the Tribunal and because, in terms of Art 33 of the Convention, Australia was not seeking to expel or to return the respondent to the frontiers of the territory where his life or freedom would be threatened, he was not a person to whom Australia owed protection obligations.

Then after summarising that view in paragraph 15, in paragraph 16:

In the Full Court, von Doussa J correctly emphasised two aspects of the case –

The first I can pass over for present purposes and go to the penultimate line on the page:

The second aspect was that, under the legislation, the inquiry was not confined (as it had been under earlier legislation) to the question whether the asylum seeker had the “status” of a “refugee”. Even were the respondent a refugee, he was not a person to whom Australia had protection obligations if Art 33 applied.

So the Court has not stated simply that the Full Court below reached this conclusion and it was not disputed in the High Court. The Court has expressly approved this key aspect of the reason and then reading the ratio of the case as narrowly as it can be read, going to page 62 – sorry, these are the numbers down the bottom right-hand side:

But here the application for review should have been dismissed because the alleged error of law by the Tribunal in reaching its decision had not been made out.

Now, that is a plain reference back to the reasoning to which I have just taken your Honours, that Justice von Doussa had correctly emphasised two aspects of the case and that there was, therefore, no error of law. So not only is it a case in which there has been a consistent line of decisions in the Federal Court, but it has been expressly adopted by this Court. Your Honours, those are our submissions.

McHUGH J: Yes. We need not call on you, Mr Basten. There will be a grant of special leave in this case.

AT 11.04 AM THE MATTER WAS CONCLUDED