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High Court of Australia Transcripts |
Last Updated: 1 September 2004
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Sydney No S187 of 2004
B e t w e e n -
NAGV AND NAGW OF 2002
Appellants
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY
J
HAYNE J
CALLINAN J
HEYDON
J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 1 SEPTEMBER 2004, AT 10.19 AM
Copyright in the High Court of Australia
MR J. BASTEN, QC: If the Court pleases, I appear with my learned friends, MR J.A. GIBSON and MS I. RYAN, for the appellants. (instructed by Craddock Murray Neumann)
MR N.J.WILLIAMS, SC: May it please the Court, I appear with MR S.B. LLOYD for the respondent. (instructed by Clayton Utz)
GLEESON CJ: Yes, Mr Basten.
MR BASTEN: If your Honours please, the starting point - - -
KIRBY J: Mr Basten, can I just ask a procedural point at the outset. I think the application was under section 39B of the Judiciary Act, was it not? Is there a need to have the Tribunal as a party to the proceedings? We had this matter before us recently in Adelaide.
MR BASTEN: We did, your Honour.
KIRBY J: And there is a view that unless you do you do not have the properly constituted proceedings or a matter that is susceptible to the orders. We took a procedural course which solved the problem, but I just noticed that it arises again.
MR BASTEN: It does, your Honour, and I think the same course would need to be followed. I apologise for not picking that point up. I looked at it in relation to next week’s matter but not this week. I think I would need to seek leave to - - -
GUMMOW J: It is based on 75(v) ultimately, and you have to have the party on the record I suppose if you do not agree with them.
MR BASTEN: Yes, I accept that, your Honour.
KIRBY J: I just raised it so that we could get it out of the way at the outset.
MR BASTEN: Well, I am not sure whether Mr Williams is familiar with the orders but I would seek leave to join the Tribunal as a party for the purposes of the proceedings.
GLEESON CJ: Do you have any attitude to that, Mr Williams?
MR WILLIAMS: I am sorry, I do not have instructions to act for the Tribunal but, of course, I do not - - -
GLEESON CJ: I asked if you had any attitude in relation to the application that is being made?
MR WILLIAMS: It is not opposed.
GLEESON CJ: Thank you, we would make that order.
MR WILLIAMS: If the Court pleases.
GLEESON CJ: Yes, Mr Basten.
MR BASTEN:
Your Honours, the starting point of the applicants’ case is
section 36(2) of the Migration Act, which is in Reprint 7 at
the relevant time and is set out at page 26 of the appellants’ bundle
of materials. The test - -
-
GUMMOW J: Which is the correct reprint?
MR BASTEN: Reprint 7, your Honour.
GUMMOW J: Thank you.
MR BASTEN:
The test which is referred to in that provision has as a criterion for the
grant of a protection visa that the person must be:
(a) a non-citizen in Australia to whom . . . Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol –
The questions which arise in this case from
that test are: what are the protection obligations to which the section refers,
and how,
for the purposes of section 75 of the Act, does the Minister
properly identify to whom they are owed? Section 65 is set out at
page
28 of the bundle of materials.
KIRBY J: Could you just tell me what of the additional words that have been added to the section since – do they throw any light on the questions before us?
MR BASTEN: We would say not, your Honour. They appear in the bundle in the latest reprint at page 36, I am told. Yes, thank you. In substance, or at least on one view, the addition of subsections (3) through to (7), or at least (3) to (5), in part seeks to codify the result of the decision in Thiyagarajah to which I will be taking your Honours shortly. They do not apply to the present application because they are - - -
KIRBY J: I realise that, but I wondered if you remembered that theory of construction that where Parliament is taken to have accepted an interpretation, courts will themselves accept that interpretation. Is there anything that we can draw from the fact that Parliament has proceeded in the way it has, or not?
MR BASTEN: The proposition that we seek to put, your Honour, is that we are dealing with a statutory test that once it became apparent that it was appropriate to vary or the Parliament considered it appropriate to vary the statutory test, it made the necessary variation. It can, of course, vary what are the criteria for grounds of a protection visa or any other visa. It is not bound by the Convention or anything else, but until Parliament so acts the courts are required to apply the test which has been enacted by the Parliament in the form at which it was at the relevant time.
Perhaps I should say one or two other things about it. I think in Al-Kateb his Honour Justice Gummow had something to say about the construction of 36(3) and the point was – and it is one which, with respect, we accept – that where it refers to a right to enter and reside it is referring to a right in the true Hohfeldian sense of a right with a correlative obligation on the part of the country against whom the right can properly be exercised.
I will come to it in a moment, but that is an approach which would not be on all fours with the principle adopted by the Full Court of the Federal Court prior to the inclusion of this provision in the Act. So that it is not on all fours with the principle - - -
CALLINAN J: Has there not be a recent case here discussing the extent to which you can look at amendments subsequent to the actual events the subject of proceedings? I took the view that you could look at subsequent amendments but I was in a minority on that. I think I referred to a view taken by Justice Dawson. It is fairly recent.
MR BASTEN: Yes.
GUMMOW J: In Hunter Resources.
MR BASTEN: Yes, Hunter Resources. That may well be so, your Honour, I am sorry, I had forgotten that line of authority. Perhaps I should just - - -
KIRBY J: In one sense it may help you in that the amendments have a particularity and specificity which the Act did not originally contain and it might be said that Parliament has clarified an ambiguity which remains for the future, but which remains in this particular case.
MR BASTEN: Yes, we go one step further, your Honour. We say there was no ambiguity. Parliament to the extent that it has acted has changed the criteria which are to be applied.
KIRBY J: Well, I would like to agree with you, Mr Basten, but I do not think we would be here if there were not any ambiguity. I know you urge that there is no ambiguity but the fact is we have had judges in the Federal Court saying that the earlier decision is absolutely wrong, and we have ten Full Benches that have applied it and hundreds of single judges who have done so and so it is hard to say there is no ambiguity.
MR BASTEN: It places close attention to the statutory criteria. It might suggest that the ambiguity is less obvious than was previously thought.
KIRBY J: In the end, and I will not say any more about this, it may be that an important question, at least for me, in resolving the uncertainty which is presented by the case, is what are the criteria by which you resolve that uncertainty in the context of the implementation of an international convention which is designed to protect basic human rights?
MR BASTEN: I understand the point your Honour is making and I will come back to that if I may in a moment. I did want to say something about the lines of authority in the Federal Court, although I will do so as succinctly as possible.
Could I just say this by way of clarifying the legal propositions which we seek to make. If our construction argument is correct, then it would appear to us that there has been an addressing of the correct issue but the addition of a further question by the Tribunal which led it to an incorrect approach. It therefore failed to answer the correct question. That is an invalidating error according to the principles which were accepted in The Minister v SGLB (2004) 78 ALJR 992.
I need perhaps not take your Honours to the paragraphs which we have referred to in the written reasons apart from the first paragraph where your Honour the Chief Justice agrees with Justices Gummow and Hayne. The paragraphs are [50], [51] and [54] applying the principles enunciated by Justices Gaudron and Kirby in Applicants S134, but we do not understand that that issue is in contention.
KIRBY J: Was it not raised in the special leave hearing? I thought there was, but anyway it is not raised before us.
MR BASTEN: I do not think so, your Honour.
KIRBY J: I did not see it.
MR BASTEN: It was certainly raised before the Full Court. There was an issue about how section 474 was said to operate, but I do not think any issue is now said to arise out of that provision.
KIRBY J: I thought I read that Mr Williams, in that desperate foray when Justice McHugh got him on his feet, raised three objections and one of them was this point, but we can pass it by if it is not before us.
MR BASTEN: I do not recall that, your Honour, but I probably was not concentrating sufficiently if that is so. Firstly, in relation to the question about what are the protection obligations, it has often been said, and your Honours Justices McHugh and Gummow so said in Khawar’s Case, to which I will return, at paragraph 44, that the Convention contains no specific obligation requiring a contracting State to grant refuge. We accept and adopt that principle.
The central obligations are those contained in Articles 31 through to 33 and, particularly, it is sufficient to focus for present purposes on Article 33, the non-refoulement obligation which is set out at page 64 of our bundle of materials.
GUMMOW J: Article 32.1 says “shall not expel a refugee lawfully in their territory”. Article 33.1 simply says shall “not . . . expel a refugee”. Is there any point in the distinction?
MR BASTEN: Your Honour, it is not a matter we have addressed in the written submissions. The commentary on the two articles suggests, firstly, that Article 33 is not limited in any way by the lawfulness of the attendance of the person within the territory; it is therefore broader. The reference to being lawfully in the territory in Article 32.1 has been understood in international law to refer to somebody who has residence there. In other words, it only applies to somebody who has more than temporarily arrived without any right to remain. It is generally accepted that the two provisions are complementary and both need to be satisfied.
GUMMOW J: Can we have a reference to that commentary in due course?
MR BASTEN: Yes, it is referred to by Dr Goodwin-Gill in The Refugee in International Law, 2nd edition. There is a discussion at pages 151 to 152 of non-refoulement and expulsion. There is another passage – Mr Williams tells me it is at 308, that is so. There is a passage which commences at the bottom of 307 and goes over to 308.
KIRBY J: What do they establish?
MR BASTEN: They establish the interrelationship of Articles 32 and 33 in terms of the principles I was just enunciating, really, that Article 32 is limited to those who are more than temporally present in a country.
GUMMOW J: And a lot of refugees from the Bolshevik regime who were well established in European countries were sent back to comrade Stalin, even though they were resident there.
MR BASTEN: Yes.
GUMMOW J: That would be picked up by 32.1, I suppose.
MR BASTEN: And probably 33 as well. That is so. The other aspect of 32 is that it imposes procedural constraints on expulsion. As your Honour will see, in 32.1 it refers to a particular set of grounds, namely, national security or public order, so those are limited grounds, and sub-articles 2 and 3 impose procedural constraints. There is an issue as to whether those procedural constraints also apply to Article 33, but it is not, perhaps, an issue I need to address today.
Your Honours, on the basis that the Convention does not impose an obligation to grant refuge, the statutory scheme of the Migration Act providing for the grant of a protection visa is properly identified as Australia’s mechanism, the mechanism chosen by the Parliament for giving effect to the obligations contained in the Convention. It is not properly characterised, we would say, in the terms identified by the respondent in her submissions at paragraph 10 as a corollary of the non-refoulement obligation. It is a mechanism to give effect to it and that, indeed, is how the government characterised it in the explanatory memorandum which is set out by our learned friends at paragraph 13.
May I then turn to the question of what is involved in the concept of protection and for that purpose may I adopt the discussion which occurred in the judgments in Khawar’s Case [2002] HCA 14; 210 CLR 1, particularly - - -
KIRBY J: Is it necessary for you to first get through the gateway of showing that when the case came to this Court, which is said to be the source of all these problems in the Federal Court, there is at least some language in the judgments in this Court which suggest that the view that has been adopted in the Federal Court was not disapproved and, indeed, there is a little sentence that might suggest that it was approved and if it is then that is a hurdle for you to overcome if this Court has already passed on it.
MR BASTEN: Yes.
KIRBY J: I think that the respondent really relies on that and, therefore, do we not really logically have to start with whether the issue is determined?
MR BASTEN: Well, I am happy to deal with that, your Honour. I am not sure - - -
KIRBY J: You take it in your own time, but you will have to come to that hurdle at some time.
MR BASTEN: Yes, I accept that.
KIRBY J: Because there is a passage which at least suggests - - -
MR BASTEN: It is 199 CLR 343 at paragraph 16 - - -
KIRBY J: Yes.
MR BASTEN: The issue - and I do not know that the respondent puts it any higher than this - which arose in that case was one of the propriety of the orders which sought to refer the matter back to the Tribunal in the absence of any nullifying error and because of what had happened subsequently, namely the passage of time and the expiry of the French right of return, carte de resident, the issue, therefore, which came before this Court was not whether the Full Court had applied the correct principles in considering lawfulness or otherwise of the Tribunal’s decision. That simply was not in issue.
So that I acknowledge that what is said at paragraph 16 provides some support for the view that the Full Court dealt with it according to correct principles, but that simply was not an issue before this Court nor was it argued so that at the highest that is a dictum commenting on a matter which was not argued. Now, I accept that it obviously has such weight as the Court would wish to give it having heard the argument we seek to present today, but it is not a matter which requires the reopening, we would say, of that decision.
GLEESON CJ: Now, you were in the course of giving us a reference to Khawar.
MR BASTEN: I was, your Honour. In your Honour’s judgment at paragraph 17 there is the commencement of a discussion of the nature of protection and in substance it is the protection which is provided by a country of nationality as – and this appears at the bottom of the page in paragraph 19 – “as the primary protector of fundamental rights and freedoms”, that is, of its citizens.
Without taking your Honours through the analysis, at
paragraph 21 your Honour the Chief Justice noted the distinction
between diplomatic
or consular protection and the protection granted to an
individual at home, internal protection. Then at paragraph 24
your Honour
said:
When a national of another country applies, under the Act, for a “protection visa”, claiming that Australia “has protection obligations” under the Convention, and contends that his or her case falls within Art 1A(2), unwillingness to seek the diplomatic protection of the country of nationality may be self-evident.
And so on. We respectfully adopt the approach which is contained in those paragraphs.
Then in the joint judgment of
your Honours Justice McHugh and Gummow there is reference to the
statutory and Convention provisions
at paragraphs 41 through to 42. There
is then an assessment of the nature of the obligations, in 42, which are imposed
upon contracting
States, other than an obligation to grant asylum or a right to
settle. That is the first sentence. Your Honours go through the
various
chapters of the Convention, which I do not seek to do now. At paragraph 43
your Honours noted the significance of Chapter
V and Article 33 in
particular. Then at 44 your Honours said:
Although none of the provisions in Ch V gives to refugees a right to enter the territory of a Contracting State, in conjunction they provide some measure of protection.
Then at paragraph 45 your Honours make the point that
the Act did not seek to enact into municipal law the terms of the Convention,
but:
In providing for protection visas whereby persons may either or both travel to and enter Australia, or remain in this country, the Act focuses upon the definition in Art 1 of the Convention as the criterion of operation of the protection visa system.
Secondly, the drawing of the definition of “refugee” into municipal law itself involves the construction of that definition and that in turn may require attention to the text, scope and purpose of the Convention as a whole. In particular, it would be erroneous to construe the passage set out above . . . in isolation –
With respect, we adopt that approach and say that if one applies
that approach in relation to the Convention, one comes to the conclusion
that
the protection obligations may well commence with a consideration of
Article 33 and section 1A. That, of course, is not the
end of the
analysis. When one goes to Article 1A, which is at page 54 of the
bundle, one finds that Article 1 is headed “Definition
of the Term
‘Refugee’”. Article 1A then says that:
For the purposes of the present Convention, the term “refugee” shall apply to any person –
and then the well-known definition in sub-article (2). Properly understood, we would take it that the whole of the Article constitutes a definition of the term; if not, it does not matter. Article 1C, for example, talks about the Convention ceasing to apply to a person. Article 1D says “This Convention shall not apply to persons”. Article 1E, “This Convention shall not apply to a person”. So that the reference to protection obligations within the Convention is obviously excluded in relation to a person who falls within any of those exclusionary clauses in Article 1.
GLEESON CJ: This question in its application to Jewish refugees must have arisen time and again in other jurisdictions. What authority is there on it outside Australia?
MR BASTEN: If the same approach had been adopted as was adopted in this case, that would be so, your Honour.
KIRBY J: It would depend on their legislation. They may not express their legislation in terms of having protection obligations. That is said to be the source of the problem in Australia.
MR BASTEN: Yes, that is so. That may be part of the explanation. In fact, it has only arisen incidentally, I think, in two cases which we have identified, neither of which really illuminate the point which is now sought to be made.
KIRBY J: It is a very curious outcome if the respondent’s argument is correct because it means that although this Convention was substantially the historical product of the affront to the Jewish people before the Second World War, because they can always go back to Israel, or have that legal right, that they are one group to whom Australia would presumably never owe – unless there is some special reason why they cannot go to Israel, would never owe a protection obligation and, presumably, similarly, would never owe an obligation to Arab peoples because they can go back to Syria, which is a very curious outcome, but most curious in the case of the Jewish people because of the history of this Convention which was substantially in response to their suffering.
MR BASTEN: Yes. Although he was a member of the Full Court in Thiyagarajah, Justice Sackville had realised by the time of NAEN v The Minister [2003] FCA 216, 19 March 2003, that that was, in fact, what his Honour described as “an exquisite irony” at paragraph 74 in that judgment. He made four comments, all of which are significant in terms of what your Honour Justice Kirby is putting to me.
His Honour noted that the law of return appears to have been enacted before the Convention, so that if this construction is right the Jews were never entitled to the benefit of the Convention in the way that it is operating in this case. He described that as “an exquisite irony”. It may be that it was an irony which suggests there might have been a flaw in the legal reasoning which led to the conclusion. He was not in a position to go so far sitting alone.
KIRBY J: But can you answer better the Chief Justice’s question, because if it is true of our legislation, why has it not arisen in other countries? Is their legislation different? Do they express it in terms of “is a refugee within the Convention”, in which event you do not have this suggested added problem?
MR BASTEN: Your Honours, the legislation in relation to Canada, the United States and the United Kingdom, for example, is in quite a different form and a different form in each case, so that it may be that the precise question has not arisen. We do not know why, as a matter of practice, it would not have arisen. One might say that there are plenty of Jewish people who have left Russia, the Ukraine and similar countries, with anti-Semitic elements.
KIRBY J: Allegedly 800,000 settled from Russia in Israel.
MR BASTEN: Of course, but I am saying there are many who have gone elsewhere around the world too and have received refuge in various ways. It is simply an issue which no other country appears to have addressed in the same way. While I am with NAEN, the second point that Justice Sackville makes in that paragraph - - -
KIRBY J: Which paragraph is it, I am sorry?
MR BASTEN: It is 74 at the end of the judgment when he
is considering the consequences of the result which the state of the law had
created.
Apart from the point your Honour Justice Kirby raised, he
noted that he had asked counsel whether it would be open for the Tribunal
to
make inquiry of a person who “had a Jewish-sounding name” as to
whether or not he was Jewish, and he says at the end
of that second
point:
The implications of this, to put it mildly, are not pleasant.
One is getting close to a yellow star test. And then he
notes, as your Honour did, in the next point that Arabs may fall within the
same circumstances as Jews.
KIRBY J: I think we will need, if I can say so, in response to the question that the Chief Justice asked, to know what the law of the other countries is, because what is alleged to be your hurdle is the protection obligation in the Australian statute, and that may not be present in the statutes of the United Kingdom and other major countries of refuge.
MR BASTEN: Yes.
KIRBY J: And was it the provision earlier when the decision was made by the Minister in Australia, before the present system was introduced?
MR BASTEN: Your Honour, in substance, yes. The point I was seeking to draw from the discussion of protection in Khawar’s Case was that one is ultimately led back by this current test to the question whether a person is a refugee within the definition. Could I just finish what I was - - -
KIRBY J: Well you want to lead us back there, but Mr Williams says you do not get there unless you have the protection obligation.
MR BASTEN: I am coming to that, your Honour, but, I am sorry, no. I am seeking to rebut that point, because Khawar is authority for the approach which says that in order to determine what are the protection obligations, one goes to articles such as 32, 33. One finds that they apply to refugees, subject to some exceptions. That takes one immediately back to the question of who is a refugee, which takes one back to Article 1A, subject to the exceptions in C, D, E, F.
KIRBY J: As I understand the respondent’s argument, it is that that is necessary but not sufficient. You have to show those obligations exist, but then, on top of that, you have to show that Australia owes the protection obligation because that is what our Parliament has enacted.
MR BASTEN: Yes. That is so, but I do not know that that causes me a difficulty in this case. The concessions that I make to the approach which the Minister seeks to adopt is that one is not limited to Articles 1A(2) in determining who is refugee, and section 36 must also take into account the exclusion in Article 33.2, namely, those persons who may otherwise be refugees who are, because they have been convicted of serious crimes, a danger to the community. So there are some people undoubtedly who might otherwise be called refugees, properly, who will not obtain the protection obligations in Article 33. So that it is not entirely true to say that one is taken back to the question, “Who is a refugee?”, but it is pretty true and in this case it is true. There is no relevant exception which anybody suggests is relevant.
The point I was seeking to come to in answer to your Honour Justice Kirby is that that was substantially the test which has applied for many years in Australia and the history of that test is set out in a footnote to our friends’ submissions, footnote 19, where the various forms of the terminology adopted by the Migration Act going back at least 15 years are set out. It may be a bit longer than that – it may be 24 years, I think.
The main change which has occurred, in substance, has been that the Minister no longer makes a separate determination as to whether someone is a refugee before determining whether they get a protection visa. That procedural step has been removed. Of course, now that we no longer simply ask, “Are you a refugee?”, there may be some cases where people who are refugees will no longer get protection visas because of the exceptions to which I have referred, including in Article 33.2. But subject to those qualifications, we say, with respect, what is required by section 36(2) is the exercise which is spelled out in the judgments in Khawar’s Case and that is the exercise which we require under our law, regardless of the fact that the Convention itself does not impose any obligation to grant refuge. The Parliament has conferred that right.
Your Honour asked in relation to other places. I might,
with leave, provide the Court perhaps with some sets of provisions but in
Thiyagarajah 80 FCR 543 itself, this is the Full Court decision
where we say the wrong question was formulated and answered, if
your Honours go to page 559F,
there is set out there the relevant
English provision at least as in force at that time. It is a little while since
I looked at
it and I am not sure whether it is still in that form, but
your Honour will see that at the top of page 560 two rules are set out
which say in rather broad terms, for example:
“180D. The Secretary of State may decide not to consider the substance –
and so on. In other words, there are
specific provisions which allow certain things to be dealt with in particular
ways in other
jurisdictions so that at the end of the day it may well be that
these analogous statutory schemes do not assist greatly in resolving
the
statutory construction question which is at the heart of this
case.
HAYNE J: But does it come to this, that the construction against you is that Australia owes protection obligations only to those to whom other countries do not owe protection obligations to which they will give effect?
MR BASTEN: Yes, I think that is right, your Honour. The difficulty with that is that either it assumes that no other contracting States obey whatever obligations may be conferred on people under the Convention or else there will be a perpetual system of orbiting asylum seekers which is one of the matters which, of course, considerable effort has gone into in international terms in recent years to avoid.
Let it be said that everybody is conscious of the fact that there is in the Convention a significant lacuna. There is no attempt within the terms of the Convention to determine who has primary responsibility for addressing claims or who should address claims first. Most of the international instruments which have come into force in recent times have been designed to allocate those responsibilities between groups of countries. The Dublin and Schengen Agreements deal with that in relation to the European Union generally and there are similar agreements in Africa and in the Central American countries which seek to deal with who is going to be the person with primary responsibility for dealing with these questions.
Your Honours, in my friend’s bundle of materials
there is an article included – copied, I think, by
Dr Savitri Taylor
taken from [1996] UTasLawRw 9; (1996) 15 University of Tasmania
Law Review 196 and we respectfully adopt what she says at the foot of
203 to 204, the last paragraph on 203:
It can be seen that there is no consensus among States as to the criteria to be used in allocating responsibility for considering a given asylum seeker’s case and providing protection if need be. However, there is consensus on one point: the fact that a third country has primary or, at least, a greater responsibility for providing protection to a particular asylum seeker does not relieve the State within whose territory the asylum seeker happens to be of its own non-refoulement obligation towards that asylum seeker.
There is a description of why she comes to that
conclusion. We respectfully say that it is a conclusion which is correct
and - -
-
KIRBY J: But does that help you? As I understand it, here the risk is not return to Russia but return or removal to Israel.
MR BASTEN: Can I come to that, your Honour? But immediately one says that - - -
KIRBY J: Because, in a sense, the policy argument against your construction is that this is an exceptional and heavy burden on States and that it should not be just at the behest of people who have rights to go elsewhere to come to the one that suits them best and that they prefer to come to. That is the sort of argument to the contrary, that if they have a right somewhere else, well, that is where they should go and not pick and choose and say, “Well, Australia looks a sunny country, it wins a lot of medals in the Games and that is where I would like to end up”.
MR BASTEN: Your Honour, that is the argument that is put against us. The fallacy in that argument is that it assumes the Convention has anything to say about where people can or should go. The Convention is silent on that point.
CALLINAN J: Is that right? What about Article 31 when it talks about people “coming directly from a territory”? That is probably the only thing, I think, but nobody ever seems to comment on that. Practically nobody who reaches Australia comes here directly, if by “directly” is meant does not pass over or through any intervening countries.
MR BASTEN: Yes, that is no doubt true. We do not get a lot of refugees from - - -
CALLINAN J: Indonesia.
MR BASTEN: Indonesia is a possibility. I was going to say New Zealand.
CALLINAN J: Or New Zealand.
MR BASTEN: Yes. But Indonesia is certainly a possibility. There have been many, many refugee asylum seekers from Indonesia who have come here. They would probably be the exception though to what your Honour is putting.
KIRBY J: And from Timor Leste.
CALLINAN J: Practically nobody else comes here directly.
MR BASTEN: No, that is so. I have two comments, I suppose, on what your Honour is putting to me. One is that, yes, that is an example of the Convention imposing rights or granting rights only in relation to particular categories of people and, of course, those rights will only apply to those particular persons. The other aspect of it arises from the way in which Australia has dealt with those to whom it will grant protection visas. That is the point I come back to time and again and probably too often.
Section 36(2) does not sit on its own in the Migration Act. There are provisions which relate to what are called safe third countries. In other words, the Parliament has decided that sometimes it does not want to let people in and it does not even want people to make application for protection visas. Your Honours, there are a number of provisions which go to that point.
In relation to the Act as it was in force at the time of this decision, at page 29 of the bundle we have set out Part 2 Division 3(AI) which deals with safe third countries and excludes from the protection visa regime people who come from these countries. Now, that was addressed to a specific problem which the Parliament saw a need to deal with.
CALLINAN J: What sections are they?
MR
BASTEN: I am so sorry, 91A and following, at 29 of the bundle but it is in
Reprint 7. If your Honour sees 91B, in the definition there is
a
reference to:
CPA means the Comprehensive Plan of Action approved by the International Conference on Indo-Chinese Refugees –
The
problem which gave rise to this subdivision was that people who had been through
assessment in accordance with this international
arrangement and who had failed
to qualify as refugees, I think according to UNHCR applied program, were coming
to Australia and seeking
to be reassessed here. Obviously, the Parliament
decided that it could, without danger of breaching its non-refoulement
obligations,
simply exclude those people from the whole scheme of making
application for visas. So that issue, when it was identified, was addressed,
and we point out in the written submissions that there have been subsequent
amendments to the Act which deal with other situations
of the kind
your Honour is putting to me.
GUMMOW J: Now, the protection obligation we are talking about is the non-refoulement obligation, is it?
MR BASTEN: That is the primary one, we would accept that your Honour, but it is not limited to that. Many of the obligations which are conferred under Chapters II, III and IV only arise in relation to refugees who have, in effect, been allowed to stay as residents in the country. So if one is looking at whether the person is to be allowed to stay, the primary obligations will be 31 to 33.
GUMMOW J: So if your client were returned or expelled to the frontiers of Israel, there would not be a breach of the refoulement obligation, would there?
MR BASTEN: That is right, but the very way of expressing that, we say, assumes precisely the obligation which engages the operation of 36(2), namely, that there is a non-refoulement obligation which applies to this person which needs to be addressed. To say that the obligation will not be breached is to concede the existence of the obligation.
GUMMOW J: I do not understand that textually, in terms of Article 33.
MR BASTEN: I accept what your Honour is putting to me, but I say in terms of section 36(2), the first and the only question in relation to the criteria for a protection visa is whether there is a non-refoulement obligation which arises under Article 33 in relation to this person.
GUMMOW J: Depends on what you mean by non-refoulement obligation.
MR BASTEN: It does, but I am happy to accept the way your Honour put it. What happened in this case – perhaps I should - - -
GUMMOW J: You may be right. It does say “to the frontiers of territories”.
MR BASTEN: I am accepting that. That is right, it does not mean return to a country. What the Tribunal accepted in this case was that the appellants could not be returned to the frontiers, as it were, of Russia because they had a well-founded fear of persecution in relation to that state. In other words, Australia had a non-refoulement obligation. The fact that it would not be breached by sending them somewhere else, be it Nauru, Israel or the Antarctic, does not mean that the obligation did not exist. These were people who were held to be owed the obligation. Your Honour, that appears at page 99 at line 15, where the ultimate finding - - -
GUMMOW J: I know, but we have to
look at the text:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories –
You say it is enough that if the individual were returned to
the frontiers of one territory where there will be these threats, that
is enough
to trigger a refoulement obligation, albeit only in relation to that country.
But that does not matter, because you read
Article 33.1 as if it were
“to the frontier of any territory”.
MR BASTEN: That is so, but I put it slightly differently, your Honour. I say that the question whether Australia owes an obligation at all under Article 33.1 in relation to individual X depends on whether individual X is a refugee. If he or she is a refugee – that is the term used in 33.1 – because of satisfaction of Article 1A, a non-refoulement obligation is owed and that is sufficient. That answers the - - -
GUMMOW J: Yes, but what do you mean by non-refoulement obligation?
MR BASTEN: The obligation not to return them to the frontiers of a territory – sorry. If they are a refugee, then they have a well-founded fear of persecution in their country of nationality or habitual residence - - -
GUMMOW J: Article 33.1 postulates that they are a refugee, but adds something else.
MR BASTEN: It does, but that does not - - -
GUMMOW J: The question is, what is the something else? You say it is refoulement obligation.
MR BASTEN: I say it does not really matter what it is, because it is a protection obligation. It is an obligation which is imposed on the contracting state in whose territory the refugee is found. It could be to give them breakfast. It is a protection obligation.
GLEESON CJ: Is that expression “protection obligation” found in the Convention? The phrase, I mean.
MR BASTEN: No, not as a phrase, your Honour.
GLEESON CJ: Is it a term peculiar to the Australian legislation?
MR BASTEN: Yes, your Honour. It may be found in executive committee rulings of the UNHCR - - -
GUMMOW J: Is it not in the travaux?
MR BASTEN: It may well be, your Honour.
GLEESON CJ: I would just be interested to know its provenance, because your argument, as I understand it, is that it is common ground that Australia has an obligation not to send this person back to Russia. Cadit quaestio.
MR BASTEN: Yes. All I was seeking to say about the nature of protection obligations was that that was, we would say correctly, the analysis which was undertaken in Khawar’s Case. That was how the Court looked at this question of what was a protection obligation under section 36(2), because it needed to identify a relevant protection obligation in the case of harm feared from a non-state agent in that case.
KIRBY J: But you have to be a bit careful picking up Khawar’s Case, because we were not there dealing with this statutory phrase in the context of a case where it was said it did not bite. Because though there was that part of the protection obligation which is essential, there was missing the ingredient that relieved Australia from that obligation in this particular case, because of the Israeli right of return.
MR BASTEN: Your Honour, I accept that this is a different question, but the question is where in the statutory scheme does that relief appear? If the Parliament wishes to relieve Australia of any obligation to grant protection visas – its own obligation, its own statutory obligation – that relief should be found in the statute. There are provisions in the statute which provide that relief. There are now sections 36(3) to (5), which provide relief in some circumstances. There were not then. There are the safe third country provisions. My point is simply that the question is not different to the question that was asked in Khawar; it is the construction of 36(2). Whatever may be raised as a matter of international law obligation or circumstances which may not breach an obligation under international law is not a relevant issue in this case.
KIRBY J: Does it come down to this, that you say that to try to make that phrase “has protection obligations” do the work of excluding an obligation in this case is to try and squeeze too much blood out of that particular stone – that if Parliament is going to cut back on the primary obligations that are imposed by the Refugee Convention, with its very great international importance and personal necessity, then that has to be done in more explicit terms, and it can be done, as can be shown by the other provisions that you have referred to, and, at the time of this particular application, it had not been done in respect of persons in the category of the appellant.
MR BASTEN: That is so, and - - -
KIRBY J: That gets back to that question of how the Court has said it will construe this Convention. I mean, there are passages - I think Justice Gummow and Justice Hayne said something in one of the earlier that we looked at as to how you approach the giving effect to this Convention, given its very important protective obligations, and Australia’s duties under it which we have freely accepted.
MR BASTEN: Yes. If one goes to Thiyagarajah’s Case - - -
GUMMOW J: Just before you do that, Mr Basten, if the answer is to say this individual cannot be returned to the borders of the Russian Federation because there would be those threats referred to in 33.1, what is the point of saying there is anything extra? By definition that is so, that is why this person is a refugee in the first place. What is added by this concept of refoulement?
MR BASTEN: The concept of non-refoulement?
GUMMOW J: Yes.
MR BASTEN: I am not sure that that is the concept of non-refoulement. That is where the obligation not to return comes.
GUMMOW J: But if you say it is enough to show the Russian’s problem to generate the protection obligation, even though the individual could be returned elsewhere without any problem.
MR BASTEN: Sent elsewhere.
GUMMOW J: Yes. What is going on?
MR BASTEN: Any individual could probably be sent elsewhere if other countries were willing to comply with their obligations under the Convention. It reduces the Convention to an empty shell.
GLEESON CJ: Or is it just the lacuna to which you earlier referred?
MR BASTEN: The lacuna arises in relation to where primary responsibility lies, but not sole responsibility. That was my point about Dr Taylor. She says there is consensus that if you find the refugee in your territory, then you have to undertake whatever responsibilities you have under the Convention or you will be in breach of it, but - - -
KIRBY J: She does not quite say that. She says that if you find them in your territory you cannot send them back to the place where they have the fear of persecution.
MR BASTEN: That is right.
KIRBY J: And that is not in contest here, so her passage does not really bite on the issue which we have to consider.
MR BASTEN: It does, with respect, your Honour, because the fact that Australia concedes that it cannot send the person to Russia is a concession that they owe a protection obligation to that person. The fact that they can deal with the person otherwise than by sending them to Russia is not the question which is raised by 36(2). The question raised by 36(2) is do we owe protection obligations? If that answer is yes, 65 says that person has a statutory entitlement to a visa of the kind identified in 36.
GUMMOW J: It may be that – it is not an unknown phenomenon – those drafting this Convention simply decided to leave this problem because they could not possibly have reached any agreement about it.
MR BASTEN: That may very well be so, your Honour. There may be two answers to it.
GUMMOW J: But it is not really a lacuna; it is a conscious lacuna.
MR BASTEN: It may be a conscious lacuna, I accept that. The other answer may be that, of course, when it was originally drafted it related to people who were already outside and, therefore, there may have been thought to be no real issue as to who was to assess them because they had already fled and it was only after - - -
KIRBY J: There was a very hot issue about the duties of neighbouring States which are close to the sources of refugees and - - -
MR BASTEN: Yes. There is now.
KIRBY J: And I think there would have been then, would there not?
MR BASTEN: I think that is right. I was going to say the other part of the answer was that there is plenty of material which supports the proposition that there was no consensus on the right to a grant of refuge. That is why the Convention does not contain an obligation to grant refuge. That is perhaps a slightly different matter from the question of who should assess but - - -
GUMMOW J: It is related to it though.
MR BASTEN: - - - it is related to it.
HAYNE J: But if there is no obligation to receive – and that seems to be accepted – the regulation of expulsion takes on significance, as, for example, expulsion of a person who has known political opinion to a country where political opinions of that kind would not be welcomed, a problem that might be thought to have been present to the mind of those drafting it at the time when at least some sort of world is divided in two.
MR BASTEN: Indeed, but I think what your Honour is putting to me is that for those persons who fall within those categories who are already within a territory then there is at least implicitly an obligation not to remove them by expulsion wherever they may go.
HAYNE J: Or is it that you do not have to take these people in, but if you are going to expel them, which you may, you may not expel them, for example, to the borders of Poland at that time if they feared persecution in one or the other Warsaw Pact countries.
MR BASTEN: Yes.
McHUGH J: Mr Basten, Article 33 and Article 32 both assume a power on a contracting State to expel or return and it places a prohibition on the expulsion or return. Now, what is the source of the assumption of those articles concerning the power of expulsion or return? Is it a provision under the Convention or is it a matter that arises out of the sovereignty of a nation?
MR BASTEN: It is the latter, I think, your Honour. It is a concession that this Convention does not intrude on the sovereignty of a nation to determine who may or may not enter and stay within its boundaries, and I think the travaux support that answer, your Honour. That was what was accepted, so it is the concession to sovereignty. That really though is my point. That is a matter for Australia. Australia does not have to grant refugee status or protection visas. The Parliament has, in the exercise of its sovereignty, accepted that we will do so.
McHUGH J: I understand that, but it does lead to this circular sort of argument in a sense that Article 33 does impinge on your sovereignty, in one sense.
MR BASTEN: Yes. To a limited extent,
not to the complete extent. That is so. No, I do not disagree with that, I am
sorry, I did not mean
to go so far as to disagree with that proposition. There
is an intrusion, undoubtedly. Could I go to Thiyagarajah’s Case
80 FCR 543 at 556 because it is in this passage, at C to E, where
we say the court enunciated a question other than the statutory question.
After
reference to Chan, Justice von Doussa says at just under
line C, starting at the end of the line:
The first question is whether Australia is under an obligation to assess the refugee status of a non-citizen who has come to Australia from a third country which has recognised that person as having the status of a refugee –
Then in the next paragraph:
The second question is related to the first. It is whether under the Refugees Convention, Australia is obliged not to deport a non-citizen asylum seeker from Australia to the third country from whence he or she came if that person falls within the definition of “refugee” in Art 1.
Each of those questions is asked in terms of
obligations under the Convention. Neither of the questions is asked by
reference to
the Migration Act. The answer to the first question does
not depend on international law; it depends upon whether a valid application has
been made
for a visa of which that is a criterion. If a valid application has
been made under section 45, or whichever section it is, then
the answer is
Australia must determine whether the criteria are fulfilled.
GLEESON CJ: You can understand why they look to the Convention because the phrase in 36(2) is “protection obligations under the Refugees Convention”.
MR BASTEN: Yes, I understand that. Yes, your Honour. That is the second question I think, but the answer to that requires one to look at the Convention but it does not ask one to look at whether the obligation will be breached in a particular case. The question is: does the obligation arise? And that is the question which they do not ask themselves, although the answer to it was given, namely, that the Tribunal had assumed that there was an obligation and that France was a safe third country to which the person could be sent.
GLEESON CJ: Am I right in thinking that the concept of “obligation” in section 36(2) is international obligation under the Convention?
MR BASTEN: In one sense, yes, your Honour.
GLEESON CJ: And that section 36(2) requires you to consider whether Australia has an international obligation under the Refugees Convention that is properly described as a protection obligation to a particular non-citizen?
MR BASTEN: Yes, subject to the qualification that one ends up with the same internal/external dichotomy which arises in relation to the concept of protection more generally. In other words, the obligation which Australia has under the Convention in a strict sense, I suppose, is an obligation owed to other States, not to an individual, but section 36(2) envisages that the obligation is owed to an individual who is an applicant for a visa.
GUMMOW J: It translates the international and municipal in that way.
MR BASTEN: Yes, it does, indeed.
GUMMOW J: But your opponent does seem to fix upon this notion of breach that there would not be a breach of this obligation by returning to Israel, therefore, there is no protection obligation.
MR BASTEN: Yes.
GUMMOW J: You say that is a non sequitur.
MR BASTEN: We say that is a non sequitur.
McHUGH J: The point is that given the assumptions that section 36 makes and, indeed, it enacts, Article 33 has nothing whatever to do with this class of case at all, has it, because it does not impose any obligation at all. It is a prohibition on a power.
MR BASTEN: It is a prohibition. Yes, it is a prohibition on a power.
McHUGH J: And it does not impose any obligation. Why do you concede it imposes an obligation, except internationally?
MR BASTEN: Only in this sense, your Honour, that what is – I am really going back to that discussion in Khawar which puts it better than I could, but the concept of protection clearly has reference to those obligations a state has to its citizens or nationals in relation to their fundamental rights. Where a state has abandoned a citizen there is what has been described as surrogate protection available under the Convention from the international community which is engaged in relation to a person within the territory of a state in terms of the obligations which one finds in Chapters 2 to 5 of the Convention.
McHUGH J: But the protection obligation must be owed
to the non-citizen. That is what 36 talks about, that a person is:
a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations - - -
MR BASTEN: Under the Convention.
McHUGH J: I just do not see at the moment how Article 33 says anything about an obligation to a non-citizen. I do not see how it reduces the obligation.
MR BASTEN: Or how it reduces to an obligation, perhaps. One could formulate it in the terms that the state is precluded from exercising its power by doing that which is prohibited and that the individual who is a refugee has a right to stop the state exercising the power in the way which is precluded.
McHUGH J: That is a negative obligation.
MR BASTEN: It is undoubtedly a negative obligation, your Honour, and that is one of the points we seek to make that there is no positive obligation contained in Article 33. It is entirely a negative obligation. It is a form of preclusion of the operation of a power which would otherwise exist in a sovereign state.
McHUGH J: That means, does it not, that once you get away from any question of returning to a territory where the person is threatened Article 33 has nothing to say about the case.
MR BASTEN: No, it has something to say.
McHUGH J: I was saying that in your favour.
MR BASTEN: Yes, I understand what – in a sense that is right, your Honour, but it continues to operate, it continues to preclude, it will not be breached in the circumstance your Honour is envisaging.
CALLINAN J: Mr Basten, was Article 33 – Article 33 refers to “expel or return”.
MR BASTEN: Yes.
CALLINAN J: Now, this is not a case of expulsion because expulsion is really defined by Article 32 which talks about a person who is a threat to “national security or public order”. It seems to be quite a specific term. This is not a case of expulsion.
MR BASTEN: No.
CALLINAN J: How can you return somebody to a country in which that person has never lived or has never even resided in briefly. The word “return”, it seems to me, may be the key to it. If you say somebody can go to Israel that is not returning them to a country or territory, it is sending them to a country - - -
MR BASTEN: Yes, it is.
CALLINAN J: Why is not that the end of the matter, assuming that Article 33 applies?
MR BASTEN: In relation to Article 33. Well, I understand that point, your Honour.
CALLINAN J: Well, is there anything else? What else is there?
MR BASTEN: One is left with the finding that in relation to a person who falls within the protections of the Convention, the only assessment which is required under Article 1A is whether they have a well-founded fear - - -
CALLINAN J: Well, you have a finding and that is not disputed.
MR BASTEN: That is right, yes.
CALLINAN J: No doubt that it is a well-founded fear, Australia therefore owes a protection obligation, subject to anything else in the Act or in the Convention. There is nothing in the Act, is there? The Convention only speaks relevantly of returning the person and “return” means going back to where you came from, does it not?
MR BASTEN: Well, it may be that that is right, and it may be that Justice McHugh is making a similar point to me. I do not necessarily wish to be arguing with him - - -
CALLINAN J: Is it an oversimplification? If it is, tell me.
GLEESON CJ: Your embarrassment with the matter is, is it not, that there is nothing in the Convention that is a relevant obligation except Article 33. The Convention, as you began by telling us, does not oblige you to take people in.
MR BASTEN: No.
GLEESON CJ: What it obliges you to do is not send them back.
MR BASTEN: Yes.
GLEESON CJ: And if there is no question of sending them back that arises, then there is no obligation.
McHUGH J: That is the problem, is it not? By the drafting of the Act.
HAYNE J: “To whom” instead of “in respect of whom.” The use of the expression, “to whom,” rather than the expression “in respect of whom”, is presenting the problem. I suspect some drafter thought, “Oh, let’s simplify it down to ‘to’”.
MR BASTEN: Well, if that is so, your Honour, it does not necessarily mean that one asks a different question. It means that one is asking a question - - -
HAYNE J: But the hypothesis for your argument appears to come perilously close to saying that Australia may have international obligations but it has no obligation “to” an individual who claims to be a refugee; it has obligations to other nation states “in respect of” such persons. That may then lead you on to an argument that says to give effective work to 36(2) “to whom” is to be read as at least equivalent to “in respect of whom” Australia owes to other nation states, parties to the treaty, obligations.
MR BASTEN: Yes, and, with respect, that would be consistent with the analysis which has been adopted in other cases, uniformly, one would think. Otherwise, there will be nobody who falls within section 36(2). But having said that, I am not seeking to make it more complex in the sense that your Honour Justice Callinan puts to me. All I am saying is that the obligation not to return remains and it is a form of a protection obligation. The fact that the government does not wish to act in contravention of it and that it can do a lot of things which would not be in contravention of it is, we say, beside the point. As long as there is an obligation not to return because the person is a refugee, that is a person who falls within 36(2), who is entitled to a protection visa, subject, as your Honour says, to the statutory exception clauses.
GUMMOW J: Is Article 16.1 a protection obligation? It seems to me your client is utilising that in this very litigation.
MR BASTEN: In a sense, all of these articles are protection obligations because they reflect the obligations which a country of a nationality would normally have to its citizens. We never put out case on the basis of Article 33 alone, nor do we do so now. Article 16 is certainly one of them, your Honour, yes.
GLEESON CJ: I think you mentioned earlier, however – and I presume you are doing this by way of partial answer to the reasoning of Justice Emmett in the court below – that a lot of these other provisions seem to assume that the person has been received into the community.
MR BASTEN: I did not use that phrase in relation to these articles. That they are here present in the country is one thing, your Honour; that they have a form of residence I put in relation to Article 32 on the basis of the commentary about that article. There is different terminology used in different articles. Some is only attracted where a person is lawfully in the country – that seems to be what your Honour is describing as accepted in the community, as it were – but that does not apply generally.
GLEESON CJ: Had you finished what you were taking us to in Thiyagarajah in Justice von Doussa’s judgment?
MR BASTEN: Yes, I have, your Honour.
CALLINAN J: I see in that case, Justice von Doussa said to return an asylum seeker to a third country. His Honour just assumed that return could apply to a country in which the person had never had residence.
MR BASTEN: That was not that case, of course, and - - -
CALLINAN J: No, but his Honour’s discussion - - -
MR BASTEN: This may be the first case where that question arises because most, if not all, of the other cases are people who have gone through a country and have come on to Australia in the way that your Honour was describing and of which your Honour put to me about transiting and flying over, but people - - -
CALLINAN J: That point is not taken here.
MR BASTEN: No.
CALLINAN J: I cannot think of any case in which it has been taken.
MR BASTEN: No, I think
that is right, your Honour. What has happened, if I might put it in this
way, is that the test developed from Thiyagarajah has become –
and this appears at page 140 of the appeal book in paragraph 67 of the
judgment below. Justice Emmett said:
The observations of von Doussa J in Thiyagarajah have been interpreted subsequently by a Full Court as meaning that, so long as, as a matter of practical reality and fact, an applicant is likely to be given effective protection by being permitted to enter and being refouled –
“not being refouled” I think it should be –
to his original country, that will suffice.
So the question is whether that test of practical reality in fact, as a basis upon which someone might go to another country, is an appropriate statement of a principle which was previously determined by reference to Article 1E of the Convention in substance. Article 1E makes an exception for people who have settled and been given the rights equivalent to those of a national in another country.
This test is one which really casts the decision-makers adrift on a sea with uncertain and somewhat arbitrary formulations, and it is done to meet a perceived policy difficulty which, until the amendments to 36 by way of additional subsections (3) to (5), the Parliament had not perceived a need to address.
One of the problems which that gives rise to – and this is in partial answer to your Honour Justice Kirby’s question to me, namely, that “Australia is a sunny country” – is that there is no attempt to deal with why a person may have come to one place rather than another. That is an irrelevant question. At page 58 of the appeal book, for example, there is a letter from one of the appellants to the delegate of the Minister explaining, one might think with some care and rationality, why it is that the family chose not to go to Israel.
Your Honours will see in paragraph 2 that only the father was a Jew. He was concerned that his wife, son and daughter would not be recognised as Jews. He was concerned about religious intolerance. He was concerned about his son, who is a pacifist, being drafted into an army to fight a war in which he did not believe. Those are not “this is a sunny country” type considerations.
KIRBY J: Yes, but we have to consider the proposition on the basis of the general application.
MR BASTEN: One has to consider whether the test which the Full Court has enunciated is an appropriate test in applying a principle which we say is a wrong principle, in any event, in terms of statutory construction. The test has no terminology in the Act to justify its existence, certainly not its approach.
May I just note that the Tribunal dealt with that argument at page 102 of the appeal book where it simply said at line 25 the considerations – and they were those set out to which I have referred, plus those set out at page 91, line 35 in the summary given by the Tribunal of the evidence – lines 33 to 43, I should say. Those considerations were only relevant if they meant that the applicants would have a well-founded fear of persecution in Israel. No question of reasonableness or otherwise of the choice arose. That is an extraordinary proposition because, if I might just illustrate it in this way, the courts have been perplexed by questions relating to internal movement within a country where a person is subject to persecution in one region but not another.
We
have given your Honours a copy of an extract from Randhawa v The Minister
52 FCR 436 and at 441 in the judgment of
Chief Justice Black – and I might say this is an authority
which is now well established in terms
of principle in this country –
at D to E the Chief Justice refers to what is:
known variously as the internal protection principle, the relocation principle . . . and the internal flight alternative –
There is an extract then from Professor Hathaway which gives
some examples of where that may arise. Over the page at 442 there is
an extract
from the UNHCR handbook. At B to C at the end of the quotation it is noted
that:
a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.”
That approach, his Honour says, has been adopted in the English case there referred to. There is a reasonableness test. That is the test which has been adopted in Australia at page 442E.
And if your Honours go over to the top of page 443, the Chief Justice summarises the principle, namely, if it is not reasonable in the circumstances to expect a person who has a well-founded fear to relocate, they may yet be a refugee.
GLEESON CJ: What, if anything, does the United Nations handbook say about the kind of problem with which we are concerned?
MR BASTEN: The handbook itself – I am sorry, I should check it. Might I come back to your Honour on that?
GLEESON CJ: Yes. When I asked you earlier what other nations have had to say about this sort of problem, and you said, “Well, they deal with it differently in relation to the legislation”, that answers the question from the point of view of municipal law, but what does international law have to say about this question of the capacity of a refugee to select the place of refuge and not to be sent away because there are safe third countries?
MR BASTEN: That was the point of my reference to Dr Taylor’s passage, your Honour, and I perhaps should have indicated that that is the issue which she discusses preceding the quotation at the bottom of 203 to 204. That is the issue which has been dealt with by way of international agreements between countries, because the Convention makes no provision for any refusal to accept responsibility - - -
GLEESON CJ: And because there is no customary international law on the point.
MR BASTEN: There may be customary international law on the point being developed by the international conventions. Your Honours will see there is an extract, also provided by the respondents, from Lauterpacht and Bethlehem, which does discuss the question of how international provisions are developing. The commentators go some way towards suggesting that international principles are developing to the extent even that they say one can largely disregard the qualifications in Article 33 in relation to the grounds.
GLEESON CJ: But it would be very surprising if the commentators had overlooked the position of the Jews.
MR BASTEN: My point, your Honour, was that nobody has taken this point in relation to Jews that I am aware of. Nobody has thought that they did not owe protection obligations to Jews because they could go to Israel.
GLEESON CJ: And the commentators have not dealt with that?
MR BASTEN: Not to my knowledge, your Honour. Not to my knowledge.
KIRBY J: Or Arabs in relation to Syria - - -
MR BASTEN: Precisely.
KIRBY J: - - - or, formerly, Irish in relation to the island of Ireland. There was formerly a provision for anybody who was born on the island of Ireland to go back to Ireland.
MR BASTEN: Yes. The consensus that Dr Taylor refers to is that even if somebody has a greater responsibility, the state within whose territory the asylum-seeker happens to be is not relieved of its own non-refoulement obligations. That, as we would understand it, is a fair assessment of the international commentary, so that the issue, in a sense, does not arise. The issue arises as a matter of good administrative practice, because the countries who get the most refugees – and they are sometimes the places of first port of call, especially with mass exoduses – have huge burdens cast upon them. They may also be other countries that are seen as desirable. What has been done in relation to that is to seek to address the problem by separate international instruments. That was the point I was seeking to make. Nobody - - -
KIRBY J: And by specific provisions in the nation states’ enactments.
MR BASTEN: Indeed, but nobody, and I will be corrected if this is wrong, has suggested that a contracting state within whose territory an asylum seeker is found is somehow relieved of its obligations for the reasons your Honour is positing.
HAYNE J: The author refers to some piece entitled UNHCR, ‘The Concept of “Protection Elsewhere”’ in notes 24 and 32. Is there any joy to be had in that piece?
MR BASTEN: I can give your Honour the piece. It is a comment on a proposition being put forward by the UK Government. I do not think it takes the matter very much further than that but I can certainly provide your Honours with copies of that.
McHUGH J: I thought from recollection that the handbook said that you were not bound to take an asylum seeker if they have already been granted asylum in another country or if there is substantial evidence of an entitlement to go to another country.
MR BASTEN: I am not sure about the latter, your Honour, because as I understand it, there is no UNHCR document, committee ruling or otherwise which accepts that a person who has not been the subject of consideration previously in any country should not be properly considered, so that this case would not on any view of it be within the principle your Honour is stating. We come back to the point though, your Honour, that we do not seek to argue that the Convention expressly imposes any obligation to grant refuge.
McHUGH J: What is it then?
MR BASTEN: That is a matter of customary law or something. It is not within the Convention. We have dealt with it by section 36.
McHUGH J: There is an executive committee which has made various recommendations or conclusions, are they not called? Does that throw any light on it? The executive committee of the - - -
MR BASTEN: It does deal with those situations. There is an executive committee resolution No 15 of 1979 which deals with the question of - it is described as refugees without an asylum country. I can provide a copy of that, your Honour. It is in Goodwin-Gill at pages 475 to 477, 2nd edition. Perhaps I should say that much of the UNHCR’s work is devoted to resolving these problems which are not addressed by the Convention. They have been obviously concerned with the difficulties in knowing who should have responsibility and how to attain a fair allocation of responsibility for considering whether a person is a refugee and should be granted refuge within state A rather than state B.
KIRBY J: Are there not a large number of people who are seeking refuge in the United Kingdom who are kept in some camp in France? One reads about this.
MR BASTEN: Yes.
KIRBY J: As well as that, I think Germany also had something in its constitution about the right of Germans to return to Germany, this right of return is not all that uncommon. On this theory, all such people are excluded from Australia’s protection obligations. It may be that ultimately your best point is that Australia can do this but it has to do it very clearly because it is derogating from the prima facie operation of the International Refugees Convention and it has not done it clearly in 36(2).
MR BASTEN: Yes, we put it a bit more strongly than that, but we say it has not done it at all, but what your Honour says is correct.
KIRBY J: You could read – obviously very clever people in the Federal Court have read into “Australia has a protection obligation” a negative implication that there is no protection obligation if you can be given protection somewhere else in the world.
MR BASTEN: Yes.
KIRBY J: It is the passing the buck theory.
MR BASTEN: I have dealt with our response to that – I am sorry, I do not mean to suggest that there is no rational argument to the contrary. I should not be saying that.
GLEESON CJ: Thiyagarajah was a case, was it not, where the man in question had actually applied for and been granted refugee status in France and had made a home there and then he decided he would prefer to be in Australia.
MR BASTEN: Yes. He had a claim against France. It was not an irrational question. But, yes, that is true.
GLEESON CJ: Your argument, of course, invites us to hold that Thiyagarajah was wrongly decided. Do you have an alternative argument that it is distinguishable?
MR BASTEN: Yes.
GLEESON CJ: And what is the basis of the distinction by reference to section 36(2)?
MR BASTEN: The way we say one should properly approach that case is to say, firstly, that there is an obligation on Australia under the Convention not to send the man back to the frontiers of the territories where he has a relevant fear, namely, Sri Lanka. The Convention is prima facie engaged. The question as to whether or not it is disengaged can be answered by reference to Article 1E. Mr Thiyagarajah was a person who was entitled to citizenship in France. Whether that affects how one answers Article 1E is an interesting question. It was not one which ultimately the Federal Court needed to consider in detail.
That would be a structured and appropriate way of dealing with the problem that was raised in that case, and that is how it was dealt with by Justice Emmett. That was how it was dealt with in Barzideh and Nagalingam, I think, the cases that are also referred to prior to the Full Court’s approach in Thiyagarajah. Article 1E was the basis on which one asked, “Is the Convention no longer applicable?”
GLEESON CJ: The actual outcome in Thiyagarajah is not necessarily surprising.
MR BASTEN: No.
GLEESON CJ: It is the implications of the reasoning.
MR BASTEN: Yes, that is so. That is the point I was seeking to put.
KIRBY J: When you said that was how Justice Emmett decided that, that is at first instance in - - -
MR BASTEN: Yes, in Thiyagarajah itself, that is right.
KIRBY J: So Justice Emmett has been consistent throughout - - -
MR BASTEN: Others have not - - -
KIRBY J: - - - with his own view, which may yet prevail.
MR BASTEN: I do not think one can even say that, your Honour, because the practical reality test can be found in the decision which his Honour gave in Al-Zafiry, applying the Full Court’s reasoning.
KIRBY J: Well, sitting as a primary judge he would be duty bound to do that. When he got into the Full Court he felt entitled to express what he thought was the correct view.
MR BASTEN: That is so. I am not being critical.
KIRBY J: Has there been any discussion of this line of cases in the Federal Court in literature about refugee law?
MR BASTEN: Yes.
KIRBY J: Is that helpful? Does that throw any light on the matter from the point of view of international law or the Convention?
MR BASTEN: Yes. I think it is mainly from the point of view of international law that – that is Dr Taylor’s article really, and she is not the only one, but the one to which I took your Honours in the bundle provided by my friends – it is an assessment of whether the Migration Act provisions in their current form comply with Australia’s international obligations, and that is what the general thesis of the articles is: do they comply and, if not, how can they be - - -
KIRBY J: Well, that is not raised by this case - - -
MR BASTEN: That is not raised by this case.
KIRBY J: - - - because this is the Act as it formerly stood.
MR BASTEN: That is so.
KIRBY J: So that is a problem for another day.
MR BASTEN: It is, but I think all I am seeking to say is that that is the main line of discussion in the interesting article.
KIRBY J: Is it relevant to this extent, that your thesis is consistent with Australia’s obligations under international law and you assert that the thesis of the respondent is not conforming to Australia’s obligations under the Refugees Convention?
MR BASTEN: It is relevant - - -
KIRBY J: And if that is so, given that the Act – our Act, the Migration Act – followed the Convention and was designed to give effect to Convention purposes, conformably with general principle we would construe the Act, and, in particular, if there were any ambiguity or uncertainty, so as to fulfil Australia’s obligations.
MR BASTEN: Indeed.
GLEESON CJ: I would like to understand that a little better than I do. By reference to the text of the Convention, which is the provision of the Convention that obliges Australia to enact legislation that would require it to give a visa to somebody in the position of the present appellant?
MR BASTEN: There is no part of the Convention which imposes that obligation on Australia. As a contracting state, Australia accepts certain obligations; it then determines the mechanism by which they are to be given effect. The question is not whether the mechanism is good or bad, but whether, if there is ambiguity in the effect of the mechanism, one adopts a construction which is consistent with those obligations or otherwise.
GLEESON CJ: But do you suggest that there is a provision of the Convention which would oblige Australia to enact legislation under which it could grant a visa to the appellant?
MR BASTEN: No, that is the mechanism obligation. That is a matter within Australia’s own choice and sovereignty. So my only question is whether, that having being done in section 36, if there is ambiguity in how section 36 operates, one is entitled to look to the Convention and the international obligations Australia has accepted under it to see if one construction gives effect to those obligations more truly than another.
GLEESON CJ: That is the basic step that this Convention stopped and deliberately stopped short of taking. It did not say, “You have to receive these people”. It said, “You cannot send them back”.
MR BASTEN: That is so, and we have said in 36 that the way that we will give effect to those obligations is to provide a protection visa except in the cases which we have dealt with otherwise, including our 36(3), which might have covered Thiyagarajah’s very circumstances. One would think that it did - - -
GUMMOW J: We have imposed upon ourselves an obligation to receive.
McHUGH J: That is just what I was going to say. It seems to me that section 36 has imposed an obligation, whatever - - -
MR BASTEN: In combination with 65.
McHUGH J: Yes. Whatever the Convention intended seems to me to have been overcome by 36. It has imposed an obligation on Australia to receive, and that is why I am really puzzled about where this power to expel or return comes from, in a sense, because 33 assumed that power existed and there was no obligation to receive, but 36 – its language seems to indicate to me that the country has imposed an obligation on itself. If it has, where do you get the power under 33 to return or expel? That is what I have a problem with.
MR BASTEN: One does not. I think that is our primary point. But that turns on the operation of 36. It is a very short point, in one way. Could I just say this, that although your Honours are putting to me that a different view has been taken in the Full Court – Thiyagarajah I have dealt with – I have said what we say the error is, and it is not focusing on 36 but on the Convention. A different view was taken in a number of cases – perhaps I can simply take your Honours to two of them. One was NAFG (2003) 75 ALD 456, [2003] FCAFC 152, and there were two cases both in the same volume of the ALDs - - -
GLEESON CJ: It is also in the Australian Law Reports, I think.
MR BASTEN: It is,
your Honour, yes. It is in [2003] FCAFC 152; 200 ALR 252. I am sorry. The discussion to
which I sought to refer your Honours – and I will not read it –
is at paragraphs [59]
through to [64] in the judgment of
Justice Gyles, where he refers to what he describes as a “surprising
result”, and
says:
The same could be said, for example, of the decisions of tribunals which were affirmed in NAGV –
That, of course, was by the
majority –
That is the inevitable result of the adoption of a broad and imprecise test of fact and degree which is not found in the legislation. This, to my mind, indicates that the test should be reconsidered.
And then in
the next paragraph he refers to the minority view of Justice Lee in
Al-Rahal and says that if that is right, the decision was fundamentally
flawed. He deals with this Court’s comments in the following
paragraph in
Thiyagarajah. He says at paragraph [61] he agrees “with the
substance of the opinion of Emmett J” and at [62] he says, after
reference
to Article 33:
The obligation is expressed to be owed to “a refugee”, a term which is defined in Art 1 of the Convention. Article 33 does not qualify or have any operation in relation to Art 1 but, rather, defines the protection obligation which is owed to the refugee –
adopting
the statutory word –
In my opinion, it follows that the question which should have been posed in order to satisfy the criterion laid down by s 36(2) of the Act was whether the applicant was a refugee as defined in Art 1 of the Convention. If the answer to that question is yes, then that criterion for a protection visa is satisfied. Put another way, whether protection obligations under the Convention are owed to a person is not to be judged by the content of the obligations which will be owed if the person qualifies.
And his Honour
makes a similar statement in the middle of [64] after Article
1A(2).
GLEESON CJ: Do you support that?
MR BASTEN: Yes, your Honour, and without going back to Al-Rahal - - -
GUMMOW J: I do not understand paragraph [62] at the moment. That is not correct. The first sentence of [62] is not correct.
MR BASTEN: He is referring to Article 33.
GUMMOW J: No, the obligation - - -
MR BASTEN:
is expressed to be owed to “a refugee” - - -
GUMMOW J: Yes,
and then you go back to [61] at the top of the page:
The criterion . . . is a non-citizen to whom Australia has protection obligations - - -
MR BASTEN:
Yes.
GUMMOW J: The latter part seems to drop out.
MR BASTEN: He then identifies - - -
GUMMOW J: It has dropped out by the end of [62]. He has to be construing the Act.
MR BASTEN: Sorry?
GUMMOW J: He has to be construing section 36(2).
MR BASTEN: That is what he is seeking to do.
He does it by reference to Article 33 as a relevant obligation and asks to
whom is it owed. That
is how I read it and, your Honour, there is also a
discussion in another case in WAGH v Minister [2003] FCAFC 194; (2003) 75 ALD 651, a
decision of the Full Court and I simply seek to refer your Honours to three
passages in Justice Lee’s judgment. At paragraph
[7], he deals
with the term “protection obligations”. He says it:
is not used in the Convention and is not defined in the Act.
He is dealing with a case where section 36(3) has
an operation but that is discussed later. He then identifies how he understands
the expression to operate in its statutory context. This is not new ground and
I will not read your Honours the passage. It goes
right through to the end
of paragraph [14]. At paragraphs [23] to [27] he analyses how the
“doctrine”, as he correctly
calls it in [23], of effective
protection had come to be applied. He refers back to his own comments in
Al-Rahal which he summarises conveniently in those paragraphs and then at
paragraph [28] he notes section 36(3) resolves the issue in the
present
statutory context. That we do not entirely accept for the reasons that
I indicated before. It seems to be a more limited provision
than that which has
been derived from Thiyagarajah and his Honour goes on to discuss the
operation of 36(3) in the passage through to paragraph [32] and I think
what he says there
is, with respect, consistent with your Honour
Justice Gummow’s reasoning in, I think I said Al-Kateb before,
I should have said Minister v Al-Khafaji (2004) HCA 38 at
paragraphs [18] to [20] where your Honour gave a similar analysis of
the operation of section 36(3).
Your Honour, the only other matter which I wanted to touch upon was the question of relief. If our primary argument is correct then the finding made by the Tribunal at page 19, line 15, to which I have taken your Honours, that the appellants had a well-founded fear in respect of their country of nationality, that being the only country in question under the Convention, it followed that there was, we say, a circumstance where protection obligations were owed. The Articles of the Convention are thus engaged.
Whether Australia could avoid breaching its protection obligations by sending the appellants elsewhere is not the question identified in section 36(2). The Tribunal asked the correct question and answered it favourably to the appellants. It then asked itself a different and irrelevant question which led to the wrong conclusion. Once one excises the irrelevant aspect the findings are that the appellants are entitled to protection visas and we say that as in Chen Shi Hai the relief should reflect that circumstance and we refer to the discussion in Chen Shi Hai 201 CLR 201 - - -
KIRBY J: This depends on the Federal Court’s powers, vis-à-vis, the Tribunal, does it not?
MR BASTEN: It does. If your Honours recall what
was said there at paragraph 41 at page 306 of 201 CLR, after
reference to Guo’s Case, the joint judgment then sets out
section 36(2) in substantially the present form, the form relevant for the
present inquiry, and
continues:
That sub-section directs an object of inquiry. However, s 65(1) provides that, if the Minister is satisfied that the criteria prescribed by the Act and regulations for a particular class of visa are satisfied . . . the Minister” is to grant the visa” and, if not so satisfied, “is to refuse to grant the visa”. Thus, although the Minister’s satisfaction . . . is still required, s 65(1) imposes an obligation to grant a visa –
Then, in similar circumstances where there had been an
additional criterion improperly imposed at the bottom of the page in
paragraph
42, the last three lines, the Court says:
French J was correct to hold that the Tribunal erred in failing to reach it or, in terms of s 65 of the Act, in failing to be satisfied that the appellant fell within the Convention definition of “refugee”. That being so, s 481(1)(b) authorised the remitter of the matter to the Tribunal with a direction that it be dealt with on the basis that the appellant is entitled to refugee status.
HAYNE J: Now, if this is 39B territory - - -
MR BASTEN: It is.
HAYNE J: - - -why are you entitled to more than certiorari to quash and mandamus to the Tribunal because is there not a difficulty buried within all this presented by the change in law?
MR BASTEN: We say no, your Honour. We deal with this at paragraphs 7.2 to 7.3 of the written submissions. We provided your Honours with a copy of section 481 in the form it was in at the time of Chen’s Case - - -
GUMMOW J: I am sorry, which paragraph in the submissions?
MR BASTEN: The last page, your Honour, 7.2 to 7.3.
GUMMOW J: Yes, I see.
MR BASTEN: We suggest that the relief available in the Federal Court was not more limited than the relief available under 481. In other words, relief could be granted under section 22 as well as section 39B, reading them together, which imposed a condition in the form that Justice French articulated it in Chen and that this Court would have the same power by virtue of section 37 of the Judiciary Act because it has the powers of the court below.
We might refer in that context, and we have not given it to your Honours, Nicol v Allyacht Spars [1988] HCA 48; (1988) 165 CLR 306. It was the case at 312 where the Court accepted that a power to grant interest on a debt could be imported from the Queensland legislation even though the judgment was not backdated, which I think was the other part of the relief sought there.
GUMMOW J: You say this is an Ipec-type case, do you not?
MR BASTEN: Yes.
GUMMOW J: There was an order absolute for mandamus on one branch of the Ipec Case to grant the licence.
MR BASTEN: Yes, that is so.
HAYNE J: What account, if any, is to be taken of the intervening change in law?
MR BASTEN: None. It does not apply and would not apply if the matter went back. The application was made before the change. On the thesis that the error has not been fully dealt with, no further application is made.
KIRBY J: But what is the answer to Justice Hayne’s question? If we are setting aside and quashing a decision, which is the proper remedy, it seems to me – I mean, I understand why you are trying to cling on to findings which were favourable, and that is a natural thing, but in terms of principle, even Justice Emmett, though he was not dealing with it apparently under section 39B, at 147, paragraph 91 simply said return it to them to reconsider according to law. That is the orthodox thing to do. Why should we be struggling to do more than the orthodox thing, which is to issue the constitutional writ and leave it to the Tribunal to get it right the second time?
MR BASTEN: Because they got it right the first time, your Honour.
KIRBY J: Yes, but they did not, otherwise you would not be here.
MR BASTEN: I am sorry, that was glib. It is the same in substance as Chen’s Case.
KIRBY J: Part of it was, but constitutional writs go to orders.
MR BASTEN: I understand that.
KIRBY J: Their order was wrong, on your submission. Therefore, all the writ does is quash it.
MR BASTEN: And it can be remitted, we say, subject to a condition, namely that the Tribunal give effect to the satisfaction which it had formed properly.
KIRBY J: We had a case like this – I think it was that case of the Russian applicant – where there were some favourable findings and where this was invited in order to gain the benefit of very favourable factual findings that had been made. I am not sure that the Court took the course that you are suggesting, which in a sense would require us to dissect the decision, though our order is to quash the orders of the Tribunal and, as it were, to uphold particular factual findings which - - -
MR BASTEN: They are not particular factual findings; they are the findings which on this argument satisfy the statutory test and were expressly made. That is Chen’s Case. Chen added the malignity or motivation - - -
GUMMOW J: The reference in
Ipec, which I think has to be looked at, is [1965] HCA 27; 113 CLR 177 at 188
in Justice Kitto’s judgment. It has been referred to often since,
but he talks about:
since on the view I take of the facts the Director-General is now under an absolute duty to issue a charter licence, a duty which is unqualified by any discretionary judgment still remaining to be exercised . . . the tenor of the writ should be to command that that duty be performed.
That may not be this case.
MR BASTEN: It may not be, your Honour, but we are not suggesting that one goes that far. All that the Tribunal would order is that this person fulfilled the criterion in 36(2). There are other criteria which are theoretically - - -
HAYNE J: That is not the Tribunal’s task. The Tribunal’s task is to affirm or overturn the delegate’s decision.
MR BASTEN: That is true.
KIRBY J: And that decision belongs to the Tribunal, not to a court in constitutional or judicial review.
MR BASTEN: I understand that, your Honour. It is only the question about whether the satisfaction of the relevant statutory criteria having been expressly reached, as in Chen’s Case, one can send it back for the direction that the Tribunal act in accordance with the finding which it has made. That was what happened in Chen. That was what this Court said Justice French correctly did – unanimously, I think. I think your Honour was party to that too. There was no variation to the order that Justice French made in that regard. So, as we would understand it, the question - - -
KIRBY J: But that was dismissing – you see, there was a dismissal in Chen, was there not?
MR BASTEN: No.
KIRBY J: The actual order,
which is at paragraph 43, is:
The appeal should be allowed . . . the orders of the Full Court set aside and, in lieu thereof, the appeal to that court should be dismissed –
That is an easy thing for this Court to do.
GUMMOW J: The point was that Justice French got it right and the Full Court had got it wrong. The effect of what we did was to restore Justice French.
MR BASTEN: That is right.
KIRBY J: But the problem here is that Justice Stone, on your submission, got it wrong - - -
MR BASTEN: She did.
KIRBY J: - - - and therefore we cannot simply restore her Honour. You are wanting us to get down into the engine room and the bowels of the ship and deal with what the Tribunal has to do, when the whole theory of judicial and constitutional review is simply to quash and leave it to the administrator.
MR BASTEN: But, with respect, your Honour, if Justice French had the power to deal with it in that way, all I am seeking to say is that this Court has that power.
GUMMOW J: In a mandamus application.
MR BASTEN: I have to deal with two points. One is that it is no longer 481(1), it is a mandamus application and I accept that it is not simply affirming what was done by the primary judge. But the latter point at least does not go to the power of this Court, if I am otherwise right, to make an order in the form that Justice French made it.
KIRBY J: And that comes, you say, from 37.
MR BASTEN: That comes from 37 picking up the powers of the Federal Court which, when one reads sections 39B and 22 together, would go to allowing the Court to grant relief which set aside the Tribunal’s decision and remitted the matter to the Tribunal with a direction in the terms that we have articulated in 7.1.
GUMMOW J: Unless you achieve this, Mr Basten, you have achieved a Pyrrhic victory, have you not?
MR BASTEN: I am so sorry, your Honour?
GUMMOW J: Unless you achieve this sort of relief, you have achieved a Pyrrhic victory, because the new section would cause a real problem for you.
MR BASTEN: No, it would not, your Honour. The application which will go back to the Tribunal is the application which was made prior to the new section coming into operation. The new section does not operate in relation to applications made – not determined, made – before it was introduced. That is not the purpose at all.
GUMMOW J: The Act that introduced it specifically says that, does it?
MR BASTEN: Yes.
KIRBY J: Is the form of the order that the Tribunal then proceed to exercise its jurisdiction and power, removing from the former exercise the consideration of the right of the appellant to go to Israel?
MR BASTEN: Yes, in substance. We have dealt with it in 7.1 of paragraph 3. That was the formulation we proposed. That is the effect.
KIRBY J: Yes, I read that and I saw that you conceded that Chen Shi Hai was not exactly in point.
MR BASTEN: I did not mean to, your Honour, except for the concession that it is a different statutory scheme with which we are dealing. I need to say that the present statutory scheme allows the referral back and we say it is similar to that which those of your Honours who needed to address relief in Al-Kateb – your Honour the Chief Justice and your Honours Justice Gummow and Justice Kirby – found in section 39B, namely, a power to impose conditions on the form of relief incidental to the relief required. We say it is a similar power. If one needs to, one can go to section 22 of the Federal Court Act as well.
GLEESON CJ: Just before you sit down, can I take you back to your alternative argument, which is that Thiyagarajah can be distinguished.
MR BASTEN: Yes.
GLEESON CJ: As I understand the reasoning of Justice von Doussa, or part of his reasoning in Thiyagarajah, he said that this being a case in which the applicant for a visa had come to Australia from France and had a right to re-enter France – indeed, had a right to apply for French citizenship – no Article 33 question arose, because there was no question of returning him to Sri Lanka, and there had been a finding by the Tribunal that there was no possibility that France would return him to Sri Lanka.
MR BASTEN: Yes.
GLEESON CJ: So Justice von Doussa said, “There is no question of return that is alive in this case, therefore Article 33 does not apply, therefore there are no protection obligations”. Is that a possibly valid approach?
MR BASTEN: We would say no, your Honour. I may
not have the passage your Honour is referring to, but at 563C to D
his Honour deals with something
in similar terms and says after reference
to Singh:
it was not inconsistent with the obligations owed by Australia as a Contracting State to effect his deportation from Australia –
and so
on.
GLEESON CJ: I was looking at a passage where he
said:
The RRT has found as a fact that effective protection is available to the respondent in France, and that there is no real chance that the French authorities are unable or unwilling to provide such protection . . . It determines adversely to the respondent the question whether there was any potential for Art 33 to have application - - -
MR BASTEN: Yes. We
say that his Honour has, in fact, applied Article 33 in coming to that
conclusion. It is only by seeing whether the protection
obligation will be
breached by the proposed conduct that he comes to that conclusion. One cannot
ask, “Will this conduct breach
the protection obligation?”, if it
does not exist. Therefore, his conclusion is premised on the basis that there
is a protection
obligation, albeit one that will not be breached if the man was
sent back to France. If there was a protection obligation, then
section 36
is satisfied.
HAYNE J: It appears to be reading 36(2) as identifying persons to whom Australia must extend protection in order to protect them from persecution, which is a radically different concept, you say, from the expression contained.
MR BASTEN: Yes, that is so. If the Court pleases.
GLEESON CJ: Thank you, Mr Basten. Yes,
Mr Williams.
MR WILLIAMS: Your Honours, there are
five reasons why the construction of section 36 for which the appellants
contend should be rejected. The
first is that is does not reflect the purpose
of section 36. The purpose of creating a class of permission to remain in
and re-enter
Australia conditioned on the existence of protection obligations is
to give effect to Australia’s Convention obligations to
permit persons to
remain in Australia, limited though those obligations may be.
HAYNE J: There is an “only” that is missing in that proposition which is essential to it. The proposition you advance depends for its relevance and validity for your argument to inserting the word “only”. The “only” purpose of 36 is to give effect to whatever was the extent of the obligations. Why do we take that step?
MR WILLIAMS: The argument is sufficiently met with the point primary. What a visa does is to give a permission to remain in Australia and re-enter Australia. That is what a protection visa does. Only a person in Australia can apply. The effect that it has is to give those rights. The protection obligations to which section 36 refers are therefore the obligations to protect a person by permitting them to remain at least temporarily in Australia. That is what the grant of the visa – the permission to remain in Australia gives domestic effect to.
McHUGH J: Yes, but that fastens on the nature of the visa. It says nothing about the adjectival clause “to whom . . . Australia has protection obligations”. That is the critical question, is it not?
MR WILLIAMS: Yes, and it is the one which, with respect, the appellants’ argument does not grapple. What are the obligations? The obligations are those that arise by reason of the prohibition on direct and indirect refoulement in Article 33, the obligation in limited circumstances to permit a person to remain in Australia.
CALLINAN J: And not to expel or not to return.
MR WILLIAMS: That is so. This is an expulsion - - -
CALLINAN J: Well, it is not expulsion, is it?
MR WILLIAMS: Expulsion, yes, your Honour.
CALLINAN J: But is not expulsion defined really effectively by Article 32?
MR WILLIAMS: No, your Honour, with respect. Articles 32 and 33 look in quite different directions in that respect. First, Article 32 is in the limited circumstances in which it is engaged, and it is common ground that Article 32 has a limited scope.
CALLINAN J: It applies only to people who are threats to national security or public order, is that not right?
MR WILLIAMS: It applies only to persons who are lawfully in the territory, and that means we take from our friend’s argument permanently resident, in effect.
CALLINAN J: Why does it have to be? Well, let us assume that is right.
MR WILLIAMS: But moving on from that, what it then applies to is that where the article is engaged, the person can be expelled anywhere, including to a - - -
CALLINAN J: But is not the article only engaged if a person is a threat to national security or public order and, for argument’s sake for present purposes, is lawfully in the territory?
MR WILLIAMS: Yes, the exception is only engaged where the person is a threat of that kind, but where the exception is engaged, the person can be expelled to anywhere, including to the boundaries of a territory, the frontiers of a territory where the person’s life or liberty - - -
CALLINAN J: This case is not within Article 32.
MR WILLIAMS: No, your Honour. It is a case within Article 33, but expulsion in Article 33 - - -
McHUGH J: Why do you say it is within Article 33? Article 33 is a prohibition on a power to be found elsewhere. Now, where is the power to expel or return?
MR WILLIAMS: That is an incident of sovereignty which has not been - - -
McHUGH J: Well, this is the problem. It seems to me there is a great tension between the former 36 and Article 33. Why should not section 36 require a reading that cuts down Australia’s right to return or expel? It does in terms, does it not? It imposes an obligation on itself which did not exist before the enactment of 36.
MR WILLIAMS: In domestic law, it gives effect to the international obligation coming from the Convention not to expel or refoul persons inconsistently with Article 33.
McHUGH J: But that is where the tension arises, is it not? The power to expel or return exists in international law independently of the Convention. Yet the Act, which must be taken to be exhaustive in respect of these matters, says nothing about any obligation to expel.
MR WILLIAMS: Your Honour, the Act does, in our respectful submission, by drawing attention to - - -
GUMMOW J: You have to start off with section 13, do you not, those sections? Unless you have a visa you are an unlawful non-citizen, are you not?
MR WILLIAMS: That is so.
GUMMOW J: If you are an unlawful non-citizen other sections of the Act impose obligations to remove you.
MR WILLIAMS: Yes.
GUMMOW J: Which is an exercise of sovereignty.
MR WILLIAMS: That is so. Section 198, which - - -
GUMMOW J: But, if you have a visa you are not subject to that exercise of sovereign power.
MR WILLIAMS: That is so, and that is the purpose for which section 36 creates the visa, the purpose of implementing in Australian domestic law the limited obligation.
GUMMOW J: Yes, so it is a qualification to an absolute.
MR WILLIAMS: That is so, and Article 33 itself is a qualification to the absolute of the sovereign right to expel. It is a limited qualification and it is one that is expressed in negative terms, but nevertheless it is the most significant obligation that the Convention imposes and the reason why the Convention has been the subject of such international controversy.
CALLINAN J: Can I bring you back to the point I am still not satisfied about, and that is in short why “expel” in Article 33 is not used in exactly the same sense and only in the sense in which “expel” is used in Article 32. It seems to be that it is a different term from “return” and it also seems to me that “expel” at the moment, is “expel” in the sense of an Article 32 expulsion.
MR WILLIAMS: There are a couple of reasons why Article 33 has a different focus and effect. One is that the expulsion contemplated by Article 33 must not be to the frontiers of the territory of persecution, if I can use that phrase. But the Article 33 obligation is a paramount obligation, the principle obligation of the Convention; one that the states cannot derogate from, one that signatories cannot make reservations to by reason of Article 42. Article 32 by contrast is one that can be reserved and, indeed, for a substantial period Australia did reserve Article 32. But the Article 33 obligation is one that is, as we would put it, a stand alone, and it is the principal obligation.
CALLINAN J: I do not see that as an answer to the proposition that “expel” in Article 33 means the same as “expel”, and has all the same connotations, and only those connotations, as it has in Article 32. It must be something different from “return”.
MR WILLIAMS: We certainly accept - - -
CALLINAN J: This is not a case of return. It is accepted on all sides that these appellants cannot be returned to Russia. Is that not so?
MR WILLIAMS: Yes.
CALLINAN J: You accept that?
MR WILLIAMS: Yes, your Honour.
CALLINAN J: So it is either expulsion or nothing.
MR WILLIAMS: We accept that the Tribunal’s finding was that at the time of the Tribunal’s decision they could not be, to be more precise.
CALLINAN J: Well, you do not seek to reverse that, so it is either expulsion or nothing. Is that not right?
MR WILLIAMS: We certainly say that it is a case of expulsion. The meaning of the word “return” or “refouler” is not something that we have - - -
CALLINAN J: Well, define expulsion for me as it is used in Article 33. Does it mean anything different from an expulsion in terms of Article 32?
MR WILLIAMS: Yes, it means an expulsion – Article 33 is a prohibition on expulsion to the frontiers of territories where the life or freedom of the person would be threatened on Convention grounds.
GUMMOW J: I suppose you can expel by ejecting from your own border.
MR WILLIAMS: Yes.
CALLINAN J: I would not doubt that for a moment. Expulsion, used in an ordinary sense and an unqualified way, simply means “eject” probably, but you have got a discussion about expulsion and it is used, it seems to me to be, in a particular sense in Article 32. I do not see why its sense should suddenly change in the next article.
MR WILLIAMS: The answer, your Honour, is that Article 32 looks at different circumstances. Where a person is permanently resident, where a refugee is lawfully, permanently, in the territory, there is an absolute prohibition on expulsion to any country - - -
CALLINAN J: Does it have this effect? You can expel somebody under Article 32 if that person is a threat to national security or public order. That is right, is it not?
MR WILLIAMS: Yes.
CALLINAN J: But you cannot expel such a person, can you, to the frontiers of territories where that person’s freedom would be threatened for any of the reasons set out in Article 33? It is not even an unlimited power of expulsion under Article 32, if the conditions of Article 33 are satisfied. So a third condition to be found in Article 33 is that you cannot expel such a person to a place where such a person would be threatened. Is that right or wrong?
MR WILLIAMS: The primary operation of Article 32 comes from 32.1, which is - - -
CALLINAN J: I understand that, but is what I put to you right or wrong?
MR WILLIAMS: Yes, we accept that the Article 33 obligation is a freestanding obligation.
CALLINAN J: It also qualifies, does it not, Article 32? Because it limits the circumstances in which an Article 32 expulsion can be made.
MR WILLIAMS: It may well do that, subject to the similar exclusion in Article 33.2.
HAYNE J: Does your argument proceed from a premise that the Convention obliges Australia in any circumstance to provide a permission to remain?
MR WILLIAMS: In some circumstances the Convention does, to persons who - - -
HAYNE J: What is the provision of the Convention which imposes that obligation on the signatory?
MR WILLIAMS: Article 33 does that by its prohibition on refoulement, which has been universally understood as including indirect refoulement. If I can take your Honours, just to make good the wider context of these provisions, to the article by Dr Taylor, which was attached to our list of authorities. It is Savitri Taylor.
GUMMOW J: What is the proposition, Mr Williams, about the construction of 33.1?
MR WILLIAMS: The proposition is that Article 33.1 obliges - - -
GUMMOW J: It implies a positive.
MR WILLIAMS: It has a correlative. It is a prohibition on direct or indirect refoulement. In cases where Australia cannot expel a person without breaching the prohibition on indirect refoulement - - -
GUMMOW J: Yes, but suppose we are in the middle of Europe and a person can be expelled by being pushed over the border, but that is not to the frontier of a territory where there is a threat. How is there any breach of 33?
MR WILLIAMS: If the person is pushed over a border of a country as to which there is no knowledge or finding that - - -
GUMMOW J: And where, having arrived there, that person may make an application, assuming it is another Convention country.
MR WILLIAMS: We do not say the Convention goes so far as to say that the mere expulsion to another signatory will suffice for compliance with the Convention obligation. There must be satisfaction on the part of the expelling country that the action of expulsion will not indirectly result in refoulement to a country of persecution, just as here there was an obligation upon the Tribunal, as the trial judge observed in her paragraphs 21 to 26, to examine conditions in Israel, to examine the reception, the likelihood of reception, to examine any rights that they may have and to determine whether there was a risk of indirect refoulement.
McHUGH J: But where do you get that out of the Convention?
MR WILLIAMS: Out of Article 33 which is a prohibition on refoulement both direct and indirect.
KIRBY J: In any manner whatsoever.
MR WILLIAMS: That is so. Those are the words in the Convention. That it has been so read I will make good with two international law references. We had not taken these issues to be in contest, nor indeed, Australia’s compliance with section 36 and the construction in Thiyagarajah. The consistency of that approach with the Convention, we have included only limited international law material but the two articles that we have supplied reflect, in our submission, the general position at international law. The Taylor article – the relevant passage starts at page 198. That is in 15 University of Tasmania Law Review 198 under the heading “The Relevant Principles of International Law”. The passage on which we rely is at the top of the following page, 199. We rely upon the paragraph at the top of page 199, the whole of the first paragraph at 199.
KIRBY J: Can I just interrupt you to say that if it is relevant to the way the matter has developed in argument in the Court for you to send in any international material, I would certainly welcome it because at least on one view of the issue, the construction that you urge is an odd one in the history of this particular Convention because it effectively would exclude Jews from protection in Australia under the Convention although the Convention very substantially grew out of a reaction of the powers after the Second World War to the sufferings of the Jewish people. It is an odd historical result.
MR WILLIAMS: It may be odd historically, although the background to the Convention is not quite so limited as your Honour Justice Gummow suggested in Ibrahim.
KIRBY J: I know it is not.
MR WILLIAMS: It came at the time of the cold war.
KIRBY J: It had many reasons, including the Soviet misuse of people, but it cannot be denied that given its timing and given the dislocation of Europe after the Second World War and given the discovery of the suffering of Jews and the refusal of countries to accept them before the Second World War, that there was a profound sense of shame and that that led to the Refugees Convention and that had a part to protect people who were Jewish or people like Jews. On your theory of the section and the Convention it does not protect them. That is the position, is it not?
MR WILLIAMS: That is so.
KIRBY J: Because they can always be received by Israel, so Jews do not apply. That is our message in Australia: Jews do not apply.
MR WILLIAMS: We accept that it arises in a sensitive context, but it is the same principle that applies in respect of the determination of a claim by a citizen of a European Union country which has rights of residency - - -
KIRBY J: But that is by reason of treaties that have been negotiated within Europe. We are talking about an Act of our Parliament which appears to have general application, but in this particular class says, when you come to Australia, Jews need not apply for refugee status, wherever they come from, whatever they are suffering, whatever their persecution. I have to tell you that when I went to the Anne Frank House in Amsterdam and saw the map of the world of the number of Jews we accepted in Australia before the Second World War, it is really shameful and it is the reason why I think this Convention was negotiated. Your argument is really profoundly disturbing if it is correct.
MR WILLIAMS: Your Honour, the point that we put in relation to Israel is no more than the corollary of the basis upon which Israel confers rights of entry and citizenship. It is the same principle that applies in respect of a European country. It is the same principle that applies where a New Zealand citizen claims refugee status in the United States, despite the fact that they have full rights of residence in Australia.
McHUGH J: The argument for the Minister seems to me to involve the logical fallacy of the non-sequitur. I cannot see how, as a matter of logic, that because you cannot send a person to a country where that person is liable to persecution, you do not have an obligation to accept a person who would be accepted by another country. That seems to me to be the logical equivalent of saying men are stronger than women, therefore all men are stronger than women. Where do you get this from? In 33 it is a prohibition. It says you cannot send to a particular country. You want to then convert it to say, well, there is no obligation to accept a person who would be accepted by another country.
MR WILLIAMS: Article 33 is not a prohibition on sending to a particular country, your Honour. It is a prohibition on sending to the frontiers of any territory.
McHUGH J: Let us not quibble about it. Let us substitute “frontiers” for “country”.
MR WILLIAMS: Well, “in any manner” includes indirectly, and the consequence of that is that the question that arises is whether an expulsion will breach Article 33 by risking the return of the person indirectly to a country of persecution.
McHUGH J: Add that into what I have put to you, and you still get the same illogical consequence, that is the element of risk. It is a non sequitur to say that because you cannot send a person to frontiers where that person is liable to persecution and you cannot do it directly or indirectly then you do not have any obligation to accept a refugee because that person would be accepted by another country. I find it a staggering proposition, with respect.
MR WILLIAMS: Your Honour, the only obligation that arises, or the central obligation that arises from the Convention is that in Article 33. That is the only place from which an obligation on Australia to permit persons to remain can derive because states have made a careful decision not to impose a general right of asylum. But in the circumstances in which Article 33 and its prohibition on direct or indirect refoulement operates, in those circumstances and only in those circumstances, Australia does have an obligation to permit the person to remain and it is that obligation to which 36 gives effect.
McHUGH J: There may be even an anterior position here as to whether or not there is this sovereign power, or executive power continues in the fact of the Act. It may be an Attorney-General v De Keyser point that, given the provisions of Division 8 and Division 9 of Part 2 of the Act, that the Act declares the circumstances in which refugees can be deported, that there is no executive power outside the Act.
MR WILLIAMS: That may be so, your Honour, but it does it by conditioning the right upon the existence of Convention obligations to the person, infelicitously expressed perhaps, but nevertheless that is the condition of the grant of the visa and it is the only one to which the Act at the relevant time - - -
GUMMOW J: It seems to me Australia has no protection obligations relevantly unless the person is here because there is no obligation to admit. So the whole thing, in a way, is a hypothetical exercise, under 36(2). You have to read the section and say “A person in respect of whom Australia would have protection obligations”, do you not?
MR WILLIAMS: Section 36 only applies in respect of persons who are in Australia. It has to be a non-citizen in Australia.
GUMMOW J: What about applications made outside Australia?
MR WILLIAMS: They are not for protection visas.
GUMMOW J: They are not permitted.
MR WILLIAMS: Section 36 has no operation in respect of them. That is a visa known as a refugee visa.
GLEESON CJ: Is that a convenient time, Mr Williams?
MR WILLIAMS: It is, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Williams.
MR WILLIAMS: Your Honour, before lunch I
was taking the Court to the article by Dr Taylor in the University of
Tasmania Law Review, particularly at page 199. At the top of that page,
Dr Taylor makes two points about the scope of Article 33, first that
it prohibits
the sending of a refugee to any country, not merely the country of
origin, but secondly, Dr Taylor continues at about point 2:
it is accepted in current theory and State practice that the phrase ‘in any manner whatsoever’ has the effect of prohibiting indirect, as well as direct, expulsion or return of a refugee to a persecuting country. A State party to the Refugee Convention is, therefore, under an obligation to refrain from removing an asylum seeker to a third country in which he or she will face a real risk of being expelled or returned to a persecuting country.
That principle is given further explication on the
following page under the heading “Asylum at International Law”. The
first point Dr Taylor makes there is that States are less than enthusiastic
about granting permanent asylum and:
It is, therefore, not surprising that the very clear position at international law is that States are under no obligation to grant permanent asylum to such persons. However, if a State is bound by a non-refoulement obligation with respect to a given individual, and there is no place to which that individual can be removed without the obligation being breached, the State in question has no choice but to tolerate that individual’s presence within its territory. In these circumstances, fulfilment of the non-refoulement obligation through time is functionally equivalent to a grant of asylum.
KIRBY J: There seems to be a lot of double
speaking here. I mean, if you cannot expel and if you are under an obligation
to endeavour to naturalise,
which is in, I think, the last or second last
provision - - -
MR WILLIAMS: Article 34.
KIRBY J: - - - then the reality is, if you cannot expel and you cannot send back, then effectively you have to give asylum. That is the whole point about refugees. It just seems as though saying there is no obligation to give asylum is really speaking with forked tongue.
MR WILLIAMS: The proposition may be correct, as a matter of pure principle, that there is no obligation on a signatory state to admit a claimant and to give a right to asylum, but the central point about the Refugees Convention and the reason why it has been so controversial is that it does in some circumstances oblige a state in which a claimant is found to permit the person to remain. It obliges the state to do that in circumstances where the state cannot expel the person without a risk of direct or indirect refoulement.
Direct refoulement is obvious enough. Indirect refoulement is the matter to which this case relates, that is, a state must be satisfied prior to expulsion that the state is expelling to a third state which will accept the person and will not send them to a country of persecution. That is the obligation which, in our submission, section 36(2) of the Act attaches to.
CALLINAN J: Mr Williams, before you go on, the Chief Justice has asked a number of times about distinguishing Thiyagarajah. Why is not the presence of clause 1E of the Convention the real basis of the decision in Thiyagarajah and the basis upon which it should be distinguished from this case?
MR WILLIAMS: The answer to that is that that was precisely the Minister’s principal position in Thiyagarajah. It was the only position put before Justice Emmett at first instance, it was the basis of the Tribunal’s decision and it was the primary position put on behalf of the Minister in the Full Court, but the Minister lost at both levels on that point. He lost, as the orders of Justice Emmett show, at first instance, and, in respect of the point that was argued on appeal, the Full Court dealt with the alternative argument first, that it did come back – this is at page 566 at about point E, starting perhaps at page 565 of Thiyagarajah (1997) 80 FCR 543 in the Full Court.
KIRBY J: This is no answer in this Court, of course, because the point is still open in this Court.
CALLINAN J: I would just like to know what you say about it here now. Why should not 1E be regarded as applicable to Mr Thiyagarajah’s case? Why does he not fall squarely within it? He had taken up residence in France and the French had recognised him as being entitled to the rights and obligations of a person having French nationality.
KIRBY J: But he had to submit to the obligation of learning the French language.
CALLINAN J: That is no imposition.
MR WILLIAMS: Yes, that was not the basis on which he lost.
KIRBY J: As a Sri Lankan, he would have been much more familiar with English.
CALLINAN J: But why is he not within 1E? I do not care what anybody else has said about it at the moment, if you tell me why he is not within it.
MR WILLIAMS: Can I answer your Honour’s question after making a qualification. The qualification is that no ground of appeal is directed to an endeavour to extinguish Thiyagarajah - - -
CALLINAN J: Do not worry about that for the moment. That is not an answer to my question.
MR WILLIAMS: That is a matter that we drew attention to in our written submissions and we indicated what we took to be the scope of the issues before the Court.
CALLINAN J: Well, if I think a decision below is plainly wrong I will say so, but anyway I have not reached that point yet. Please tell me what you say or why you say that Mr Thiyagarajah was not within 1E.
MR WILLIAMS: Your Honour, all that I can say on the current state of my instructions is that the Minister contended before Justice Emmett that he was and before the Full Court that he was and the Minister lost for the reasons there given.
CALLINAN J: Well, that is not very helpful, Mr Williams. You please look at 1E if you can and tell me why he is not within it, Mr Thiyagarajah.
MR WILLIAMS: Your Honour, to some degree that involves going to Justice Emmett’s judgment and to Justice Hill’s judgment in Barzideh, which as your Honours will see from 565 of the - - -
CALLINAN J: I am interested in your construction of the words, not what some other person has said about them. Now, they seem to me to be very simple words. Was Mr Thiyagarajah a resident in France and was he recognised by the French authorities as a person having the rights and obligations attached to a French national?
KIRBY J: I see Mr Basten’s response for all this. He was appearing for the Minister.
GLEESON CJ: The Federal Court said, no, he did not have all the rights of a national. It said that in terms at the bottom of page 565 and the top of page 566 of 80 FCR.
MR WILLIAMS: And going over to point F - - -
GLEESON CJ: It said that the
argument the Minister had to rely on to succeed was that – and it says
this three lines from the bottom of
565:
Art 1E should be interpreted to exclude from the definition of “refugee” a person who has most but not all of the rights and obligations which are attached to the position of the nationality of a host country.
Now, whether the Federal Court was right or wrong about that, that is the answer to the question you have been asked repeatedly, is it not?
MR WILLIAMS: Yes, your Honour. And while on page 566, if I can draw attention to the conclusion that the court expressed at about point F on that page. The conclusion was that the court would follow Barzideh. If I can then return to - - -
KIRBY J: Just before you leave that, would you give me a hint as to what rights and obligations he did not enjoy from the Republic of France or the French Republic?
GLEESON CJ: He did not enjoy the right of citizenship because he had not made an application for citizenship, although he was entitled to do so.
MR WILLIAMS: That is so and there were some other incidental obligations. I think there were some aspects – if your Honour will excuse me. It is public service employment my friend - - -
HAYNE J: Page 546D to E, could not become a publican, amongst other things.
MR WILLIAMS: Yes.
GLEESON CJ: So the case turned on the question of the interpretation of 1E and whether the rights meant all the rights.
MR WILLIAMS: That is so, yes, and the conclusion was that it did mean all of the rights and they were only held by persons who were citizens and Mr Thiyagarajah was not a citizen. That interpretation would not avail the present appellants in any event in that they, like Mr Thiyagarajah, have a right, after entry to Israel, to claim citizenship if they so choose. So it would not be a basis of distinction in any event. Your Honours, can I return briefly to the article by Dr Taylor which - - -
KIRBY J: You still have not really answered Justice Callinan’s essential question, which is: do you now endeavour, so far as it is relevant in this Court, to revive the submission of the Minister concerning the meaning of the provisions of 1E of the Convention as being an explanation for the decision that puts Mr Thiyagarajah in a different class? Because he was in a very different category to this case. One can very clearly see a reason why a decision would be made to deny him refugee status under 1E – at least, I can see an argument – as against this present appellant, whose only default and link to another country is that he is Jewish and the link is with Israel.
MR WILLIAMS: Your Honour, in each case there is an entitlement to enter and reside, an entitlement given by law, as in the present case, an entitlement, having entered, by choice to obtain citizenship by election - - -
KIRBY J: Yes, but, Mr Williams, there are many differences. He has never been to Israel - - -
MR WILLIAMS: That is not a point of distinction that is raised by any ground of appeal.
KIRBY J: Is that a matter that has to be specified in a ground of appeal?
MR WILLIAMS: It was below.
KIRBY J: It is self-evident he has not been to Israel, he does not want to go to Israel. There are reasons that have been explained as to why his wife and son are not Jewish. Jewish ethnicity passes through the mother, so the son is not Jewish. They would be in an alien environment, so they feel. It is a dangerous environment.
MR WILLIAMS: They would have the same entitlement to enter, reside and obtain citizenship as the primary appellant, but, your Honour, the point of attempted distinction is one that was sought to be made out below, was rejected by Justice Emmett. It was sought in a specific ground. No such ground is raised here which - - -
KIRBY J: It sounds like I am back in the 19th century in the Chancery Courts. We are dealing with a great issue here as to whether the mere fact that you are Jewish and have a right under a right of return to go to Israel is an answer to a claim under our refugee law, under our Migration Act and an answer to every Jewish person in the whole world that comes to Australia, “Go away, do not come here, you have no right, whatever the circumstances, to be admitted as a refugee in Australia because you are Jewish and you have this theoretical right to go to Israel”.
MR WILLIAMS: Well, your Honour formulates it in terms of ethnicity or religion. The principle is not so formulated. The principle operates - - -
KIRBY J: Well, Jewishness, it is both ethnicity and it may not be religion. Many Jewish people are not religious Jewish people.
MR WILLIAMS: That is so, but the consequence that your Honour points to is one that flows from the criteria upon which the State of Israel confers rights of entry and rights - - -
KIRBY J: Well, that is their business, but we have our business as contracting parties to the International Refugees Convention.
MR WILLIAMS: Obligations that are not engaged, in our submission, whenever there is a country which on whatever criteria the country chooses, their regional arrangements, religion, ethnicity or whatever - - -
KIRBY J: All of this hangs on the word “obligation”.
MR WILLIAMS: “Protection obligation”, yes.
KIRBY J: “Protection obligation”, it all hangs those words. Well, it is a very flimsy statutory source of a very complicated idea, because it is not only Israel, Germany has such a provision - - -
MR WILLIAMS: Precisely.
KIRBY J: And we were told that Syria has such a provision, is that correct?
MR WILLIAMS: That is so.
KIRBY J: Why would Syria not have – why was that not an answer to the Al-Kateb Case? That was not put before us in Al-Kateb, he was a stateless Palestinian.
GUMMOW J: He had been refused, that is why.
MR WILLIAMS: Yes.
KIRBY J: I did not hear the answer.
MR WILLIAMS: He had been refused. There still has to be the assessment that the trial judge drew attention to in paragraphs 21 to 26, there has to be an assessment of whether the third state will accept the person and not in turn, indirectly refoul.
GLEESON CJ: There seems to be a problem, Mr Williams, arising out of the interrelationship of the statute and the Convention, and also arising out of the fact that there could be a whole variety of circumstances in which a person who has been persecuted in his country of nationality is now in Australia, but has some kind of past or possible future association with a third country that, as it were, stands in between his present situation and return to the country of nationality. He might not have been in his country of nationality for many years. Once you go beyond accepting Mr Basten’s proposition that section 36 is satisfied if you have a protection obligation in the form of an obligation not to return him to his country of nationality, once you go beyond that, you have to consider a whole host of alternative possibilities about some other place to which he may be expelled or returned.
MR WILLIAMS: We accept that, your Honour. You have to consider whether the place is itself safe, that is, one where there is no well-founded fear of Convention persecution, and you also have to assess whether there is a real risk of indirect refoulement to a country of persecution. Those are the two issues that are identified in the international law materials. Dr Taylor’s article, the passage to which I have just taken the Court - - -
GLEESON CJ: But is your proposition that so long as it would involve no breach of Australia’s obligations to send the person somewhere other than his country of nationality, then section 36 does not apply?
MR WILLIAMS: That is so, yes. So long as Australia can send the person to a third country without direct breach or indirect breach, the risk of indirect refoulement, then the protection obligations to which 36 refers and which condition the grant of permission to remain in Australia are not engaged.
GLEESON CJ: Is that another way of saying the test for the application of section 36 is, would it be a breach of Australia’s international obligations to send this appellant to Israel?
MR WILLIAMS: That is one way of formulating the question.
GLEESON CJ: And is your argument that if the answer to that question is no, then section 36 does not apply?
MR WILLIAMS: That is correct.
HAYNE J: Does it therefore follow that so long as there is another country, whichever it may be, that will prevent his return to a place of persecution, Australia owes him no protection obligation?
MR WILLIAMS: That is certainly the position at international law and flowing from that we say that section 36 has not gone beyond the international law position in conferring the right to remain in Australia.
HAYNE J: Which leads to what Dr Taylor refers to in her article as buck passing.
MR WILLIAMS: Well, it leads to the potential for that to occur.
HAYNE J: The inevitability on your construction, is it not? Australia says, “Go elsewhere, anywhere where you can obtain protection. We owe you nothing.”
MR WILLIAMS: Subject to the qualification “anywhere”, we accept that. If Australia assesses a third State as being one which, for whatever reason, regional arrangements or the like, will accept the person, allow them to enter and remain and will not refoule them to a country of persecution, then Australia does not owe them obligations. That can be described as buck passing. There has been a great deal of international activity directed to the circumstances in which a State can pass on, as it were, a claimant, including, indeed, some Conventions. But the position of international law, in our submission, is clear. It is reflected in the passage of the Taylor article to which I have referred, another passage of the Taylor article and also in two passages of the Lauterpacht and Bethlehem article.
KIRBY J: I am surprised that that is international law. It may be and if you can give references I would be interested to read them. But on your theory of the Convention, if you take the view that the Convention is there in the appropriate case where the Refugees Convention is engaged to ensure protection to human beings in a difficult and vulnerable situation, that is different from the view that you are propounding, which is you can just send people somewhere else, indeed, constantly be sending people somewhere else so long as they can get in somewhere else.
If you, as it were, make that the general rule for the operation of the Convention, it is not biting on the obligation of States to provide refuge to people who are within its borders. It is simply sending people somewhere else. That does not seem to be, if that becomes the general rule, a very coherent way to operate an international convention on refugees who by definition need protection.
MR WILLIAMS: One of the underlying issues with the Refugees Convention is the pressure under which it has been put by the large international movement of persons and the need to ensure that it is available to those who do have genuine need and a - - -
KIRBY J: There were huge international movements of persons after the Second World War and the environment in which the Convention was drafted, so it was not unknown.
MR WILLIAMS: And a concomitant of that is that the obligations are not engaged in the wide range of circumstances that your Honour posits. It is not the Minister’s position that Australia can simply say, “Here is a third state, they are a signatory, we will send them there” without more. It is engaged where, as here, the person has rights to enter and remain including here to obtain citizenship in a third state arising in some other way. It is engaged where, as in the case of Mr Thiyagarajah, he had resided in France for a number of years and enjoyed rights close to those of a citizen although not equated to him.
KIRBY J: Yes, but like other members of the Court have suggested, at least for the purpose of argument, I can see a very real distinction between the case of Mr Thiyagarajah who received consideration of and grants of entitlements in France, and this case, is it the Minister’s position that every Jewish person that comes to Australia is ex hypothesi denied the status of refugee protection in this country because of the fact that they are Jewish and because by reason of that fact they can be received in Israel if they go there.
MR WILLIAMS: They may have the status of refugee which would have the effect that Australia could not expel them to a country of persecution, but any person who has rights to enter and reside in a third country - - -
KIRBY J: Answer my question directly please, Mr Williams. Is it the Minister’s position that every person who is Jewish and who, therefore, has the right of return to Israel cannot be afforded protection under the Migration Act in this country?
MR WILLIAMS: If, by protection, your Honour is referring to the non-refoulement obligation in Article 33, the obligation not to send back to a country of persecution, then the answer is no, the person has that entitlement. If your Honour is asking whether a person who comes to Australia with a right to enter and reside elsewhere can require Australia to permit them to remain - - -
KIRBY J: You will not answer my question, Mr Williams. You will not answer my question.
MR WILLIAMS: I am sorry, your Honour. I have been endeavouring - - -
KIRBY J: I do want an answer to this question, because it is exactly the grim irony that Justice Sackville, who perhaps had reason to note the irony, mentioned in his judgment, the grim irony that anybody who is Jewish, because they will be received in Israel, cannot engage the protection of this country for their situation no matter what they prove to be the persecution that they have suffered elsewhere.
MR WILLIAMS: Your Honour, I have answered your Honour’s question as directly as I can. Australia will have an obligation not to refoule a person to a country of persecution.
KIRBY J: That is only a partial answer. That is only a partial answer. That means this particular appellant cannot be sent back to Russia.
MR WILLIAMS: That is so.
KIRBY J: I want to know whether every person who is in this appellant’s position as an ethnic Jew who comes to this country will not only not be sent back to the country of persecution but will not be received as a refugee in this country because they have the right to be received in Israel under the law of return.
MR WILLIAMS: If by “received as a refugee” your Honour means granted a protection visa, the answer to that is no.
KIRBY J: So every Jewish person has no right of a protection visa in this country, no matter what the circumstances? This is a horrid result of your interpretation of the Act as Justice Sackville pointed out, and one grimly ironic because of the purpose and history of the Refugees Convention.
MR WILLIAMS: Your Honour, the point on which we
put it is one of principle, and perhaps it may be of assistance if I move on to
the statement of
the principle at international law. I have taken your Honours
to page 199 of Taylor. Could I take your Honours to page 204, the
passage immediately following that to which my friend took the Court. At the
top of page 204, following on from the passage:
What follows from this? Reasoning from first principles, the third country must not be one in which the asylum seeker has a well-founded fear of facing persecution on a Refugee Convention ground, and/or in which there are substantial grounds for believing that he or she would be exposed to a real risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment, as sending the asylum seeker to such a place would quite clearly amount to a breach of the buck-passing State’s non-refoulement obligations. Moreover, since indirect refoulement is also encompassed by the prohibition against refoulement in all three treaties here considered, the third country must be one which can be relied upon to grant asylum or, at the very least, to accept responsibility for fulfilment of the non-refoulement obligations.
That is the touchstone. The same point is reflected in the
Lauterpacht and Bethlehem opinion, which is also attached to our list
of
authorities. The extract from the opinion deals with Article 33. At
page 113 of that extract, at paragraph 76, the authors deal
with
“Rejection at the frontier”. That, of course, is not this case, but
there is a point of principle stated there
which becomes significant in what
follows. In paragraph 76:
As regards rejection or non-admittance at the frontier, the 1951 Convention and international law generally do not contain a right to asylum.
GUMMOW J: Do you we know what year is this publication?
GLEESON CJ: 2001. It appears from the note at the bottom of the page headed 2.1. It says, “This Opinion was completed on 20 June 2001”.
MR WILLIAMS: The book itself was first published in 2003. The opinion may be from an earlier time.
GLEESON CJ: Yes.
MR WILLIAMS: In the
middle of paragraph 76:
What it does mean is that, where States are not prepared to grant asylum to persons who have a well-founded fear of persecution, they must adopt a course that does not amount to refoulement. This may involve removal to a safe third country or some other solution such as temporary protection or refuge. No other analysis, in our view, is consistent with the terms of Article 33(1).
That conclusion is then picked up in relation to third countries
in a passage at page 122. At page 122, from paragraph 115, the
authors
refer to:
The same prohibition also precludes the removal of a refugee or asylum seeker to a third State in circumstances in which there is a risk that he or she might be sent from there to a territory where he or she would be at risk.
Then there is paragraph 116 that we quote in our written
submissions, that Article 33(1) does not preclude removal to a safe third
country, but does:
require that a State proposing to remove a refugee or asylum seeker undertake a proper assessment as to whether the third country concerned is indeed safe.
GLEESON CJ: What puzzles me a little about
this – and I wonder if there is any writing on it,
Mr Williams – is this. Presumably this
hypothesis of removal to
a safe third country assumes that the safe third country is prepared to accept
the person in question.
Is that right?
MR WILLIAMS: Yes, your Honour.
GLEESON CJ: But belonging to a country involves a reciprocal arrangement. They are mutual obligations. What if the person says, “I am not willing to undertake an obligation of loyalty to that country I am not willing to join their army. I am not willing to be used for target practice by the enemies of that country”. What happens then?
MR WILLIAMS: The Convention confers no choice of State of asylum upon the asylum seeker. It does not make distinctions based on the preference of the asylum seeker.
GLEESON CJ: I was going beyond preference. I was going to an unwillingness to make a commitment that is involved, or may be involved, in taking up residence in a country.
GUMMOW J: And in taking up citizenship, in particular.
MR WILLIAMS: The Convention is a document conferring limited rights or limited obligations upon States and does not any more than it obliges a State which has received a person coming across the border in an international movement to desist from recruiting that person while they remain in the county into national service in accordance with the domestic law of that country, so it does not confer choice based on criteria of that kind. If the person wants the protection of the third country, then the person takes it on the terms that the third country offers.
GLEESON CJ: Yes, but what if the person does not want the protection of the third country, for a very good reason? The protection might come at too high a price.
MR WILLIAMS: The only criterion that the Act imposes is the well-founded fear test in Article 33.1.
GUMMOW J: The Act?
MR WILLIAMS: I am sorry, which the Convention imposes is the well-founded fear test in Article 33.1. If a person flows across a border into a country and wishes to remain there consistently with the Convention, then the person is entitled to take the refuge on the terms that the country offers. The same principle applies with safe third countries.
GUMMOW J: What you have been saying may be taken in support that section 36 put in by the border protection legislation of 1999 is consistent with the international obligations under the Convention.
MR WILLIAMS: Yes.
GUMMOW J: But that is not the question we have to decide. We have to decide what this odd collection of words in 36 means when it says “owes protection obligations”. And it owes at least one obligation, you agree, namely, not to return to Russia. Is that not enough?
MR WILLIAMS: In our submission, no, because - - -
GUMMOW J: How then do you read the text – that is what mystifies me – the text of the legislation?
MR WILLIAMS: The text of the legislation is a provision dealing with a permission to remain in Australia and the only criterion to which it directs attention is that of possession of protection obligations to the person. Most naturally, in our submission, that draws attention to the obligation to permit the person to remain in Australia. That is what the creation of the visa facilitates.
GLEESON CJ: Well, that is what it comes down to.
HAYNE J: It seems to me that there is a translation that is occurring here which needs to be exposed. You seem to read the Act as Australia shall permit to remain, that is a visa permitting remaining shall issue, if removal would in the particular circumstances breach Australia’s obligations under the Convention. Is that right?
MR WILLIAMS: That is another way of saying if Australia owes protection obligations, in our submission, yes.
GUMMOW J: That is the question.
HAYNE J: And the alternative construction against you seems to be shall permit to remain if removal could breach, that is if certain kinds of removal, removal to certain places would. You seem to take the obligation in the Convention, cast in negative terms Australia or the signatories shall not expel or return to certain places and in the course of translating that or engaging that with 36(2) treat 36(2) as engaged if, but only if, there could be no removal without breach. Now, it may be, it may not be that that is an impermissible inversion of what is the negative proposition in the Convention into what is the positive assertion in the Act. The criterion is if owe protection obligations. Now, there is the area for debate. You assert if, but only if, in the particular circumstances there can be no removal anywhere without breach, then and only then. Is that right?
MR WILLIAMS: Yes, if Australia - - -
HAYNE J: Which gives 36 a very, very narrow engagement.
MR WILLIAMS: It gives it an engagement precisely consistent with Australia’s obligations to permit persons to remain in Australia.
GLEESON CJ: You interpret the expression “protection obligations” to mean obligations to permit to be in Australia.
MR WILLIAMS: Yes. That is what a visa does.
GLEESON CJ: The Convention does not refer to visas. The visa is the creature of the Australian legislation but the question we have to decide - it may be a very awkward question – is what this expression “has protection obligations” means and your case, as I understand it, is that it means has an obligation to permit the person to remain in Australia.
MR WILLIAMS: That is so. That is what section 36 means.
GLEESON CJ: Mr Williams, was there some reason why, when they were drafting section 36, they did not just say a non-citizen in Australia who is a refugee within the meaning of the Refugees Convention?
MR WILLIAMS: Your Honour, that is a point that we seek to make. The Act did say that. It said that immediately prior to the introduction of section 36. The Act that introduced section 36 repealed that. I can take your Honour to the material, it repealed it and it substituted the test which is now in section 36 and that is, in our submission, a powerful indicator of an intention to move away from a reliance upon the definition in Article 1. The material is attached to our friends’ submissions.
At page 18 of the bundle of material attached to our friend’s submission is an extract from the Migration Act as it stood prior to the coming into effect of the amendments made by the 1992 Migration Reform Act. The Migration Reform Act 1992 introduced what is now section 36, repealed the definition of “refugee”. It was assented to in December 1992 but did not commence until 1 September 1994.
KIRBY J: When did 22AA come into force, do you know?
MR WILLIAMS: It came into force a few months earlier in 1992. Section 22AA was enacted in, I think, May 1992. Footnote 19 of our submissions goes through the legislative history.
KIRBY J: And, in fact, this is, as you say, an important part of your argument. You say it started off in our law by assigning consequences to being a refugee in international law and then it moved, apparently deliberately, to saying that is not enough, you have to be a person to whom protection obligations are owed. Then the question becomes: is that just a synonym or is it a deliberate difference? The argument against it being a deliberate difference is that no retreat from Australia’s obligations was signalled at the time; it was said to be merely a machinery provision.
MR WILLIAMS: This is completely consistent with Australia’s obligations, as the international law materials to which I have taken the Court shows.
KIRBY J: Yes, but your argument is that there was a subtle but important difference introducing a new and, in this case, relevant barrier that the person had to jump over – not only non-refoulement, but also non-removability to a third country – and that added a new and important and, in this case, you say, significant and determinative difference that robs this man of rights he would have had under 22AA though the change was said to be merely machinery.
MR WILLIAMS: Well, your Honour, perhaps I should
take the Court to the provisions and then I will indicate our submissions in
support of the construction.
At page 18 there is the definition of
“refugee”:
“refugee” has the same meaning as it has in Article 1 of the Refugees Convention or in that Article as amended by the Refugees Protocol;
I am not sure that that is again felicitous
language, but - - -
KIRBY J: When did that come into the 1958 Act, do we know that?
MR WILLIAMS: This definition came in in May 1992.
KIRBY J: How was it handled before then, because Australia was one of the early parties to the Convention?
GUMMOW J: It is all in your footnote 19, is it not?
MR WILLIAMS: Yes. The history broadly is that prior to 1980 there was a discretion to give an entry permit to anyone. In 1980 there was a restriction imposed upon that. One of the qualifications for the grant of the entry permit was that the person is a person in respect of whom the Minister has made a determination that the person has the status of a refugee under the Convention and protocol. That position subsisted under the Act until some time in 1990 when a definition of “refugee” was inserted into the Act but only for very obscure purposes, for the purpose of determining whether a person who was in Australia on a criminal justice visa to give evidence and who claimed to be a refugee qualified, but for other purposes the refugee status test and definition remained in the Migration Regulations. In, I think, May 1992, 22OO was introduced which then interacted with the definition of “refugee” in section 4, which is on page 18 of the materials.
A few months later, that was repealed by the Migration Reform Act 1992. That was assented to in December, but did not commence until September 1994. In short, that is the legislative history.
HAYNE J: Did Minister Hand, who I think was responsible for the 1992 Reform Act, say anything about the purpose to be effected by these changes?
MR WILLIAMS: Can I take your Honour to
that in just a moment? If I can take your Honours briefly to page 19,
just to indicate 22AA and the scheme
that it set out:
If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee.
The supporting material to that immediately follows, to answer your Honour Justice Hayne - - -
HAYNE J: I see what is said at page 22, paragraph 15, suggesting a purely mechanical change.
MR WILLIAMS: Well, your Honour, page 24 is also instructive. It refers, in paragraph - - -
GUMMOW J: It is this word “technical”. It is used by politicians in a special sense.
MR WILLIAMS: Yes.
GUMMOW J: It means, “Do not look too closely”.
MR WILLIAMS:
Paragraph 25 refers to the creation of another temporary visa class.
There is a recital of the protection obligations under the Refugees
Convention,
essentially a summary of the section. In paragraph 26:
A protection visa is intended to be the mechanism by which Australia offers protection to persons who fall under the 1951 Convention and the 1967 Protocol –
We place reliance on that, we say
that - - -
McHUGH J: Yes, but why? It seems to me the flaw in your argument is that Article 33 has only a limited effect on Australia’s obligations under the Convention. It assumes a power to expel or return a refugee and it regulates the exercise of that power by saying that you cannot send the refugee to a country where the person is liable to be persecuted, and, if you like, by necessary implication, you cannot send to a third country where the person may be sent on to a country. But that is the beginning and end of it, and, from that negative, you then seek to establish a proposition that the Convention, in terms, does not impose any obligation to receive people. Now, that obligation exists outside the Convention. The Convention operates on it; it operates on a power that exists independently of it. Your problem is because of the drafting of 36. And your argument – at different times you have spoken about obligations and you do not put the qualifier on. There has to be an obligation under the Convention.
MR WILLIAMS: Your Honour, at risk of being repetitive, the Convention imposes only limited obligations, but - - -
McHUGH J: Where? Where does it impose any obligations?
MR WILLIAMS: Article 33. Prohibition on refoulement in any manner whatsoever.
McHUGH J: It prohibits the exercise of a power.
MR WILLIAMS: Yes.
McHUGH J: It does not create an obligation except by implication that you cannot send the refugee to the boundaries of a territory where that person is likely to suffer persecution.
MR WILLIAMS: The problem with that argument is that it proves to much. If that were so, there would be no obligations and nothing for 36(2) to attach to, whereas plainly 36(2) was intended to attach to something. What it was intended to attach to was the circumstance in which Australia is obliged, by the negative constraints in Article 33, to allow a person in Australia to remain in Australia.
GLEESON CJ: Mr Williams, by hypothesis we are talking about a person who is a refugee.
MR WILLIAMS: Yes, your Honour.
GLEESON CJ: The corollary of that hypothesis is that all other countries which are signatories to this Convention, except the country of nationality, are safe third countries, is it not?
MR WILLIAMS: Only if the expelling State is satisfied in the matter indicated in the international law articles that the third State is one that will accept the person and not refoule them.
GLEESON CJ: How can the third country refuse to accept the person if the third country is bound by the Convention and the person is a refugee?
MR WILLIAMS: Your Honour, it is not our proposition that a State can simply expel to another Convention State.
GLEESON CJ: Why not? It seems to me that a possible point of view is that if you are right, Australia has protection obligations to nobody so long as there is another country that is a signatory to this Convention.
MR WILLIAMS: Well, again, that may prove too much in that 36(2) was plainly intended to attach to something.
McHUGH
J: Yes, but that is another flaw in your argument. Your argument depends
upon all the obligations arising out of 33 but, for the reasons
I put to you,
they do not. Where the obligations arise out of is by necessary implication out
of all the other provisions like Article
2:
Every refugee has duties to the country –
That
implies the person is entitled be here.
The Contracting States shall apply the provisions of this Convention to refugees without discrimination –
All those
articles, those positive articles about religion, about access to the courts, by
necessary implication they impose an obligation
on a person who answers the
definition of “refugee” to stay here.
MR WILLIAMS: We have two answers to that. If that was the construction of section 36, then the Act has changed significantly in its focus in moving from the definition of “refugee” that I have taken the Court to to the question whether there are protection obligations, and one, in the ordinary rule of statutory construction, would take from that change a change of meaning. True it is that there were machinery changes around the creation of a protection visa, but that could equally have been brought into effect by continuing the definition of “refugee” and conditioning the grant of a protection visa upon satisfaction of the definition of “refugee” in Article 1.
McHUGH J: Well, they have changed the language dramatically and, as Bean’s Case establishes, it is what Parliament has done, not what they intended or what even they said they were intending to do.
MR WILLIAMS: There is another indication that the definition
in Article 1 was not intended to be the touchstone after the introduction
of section
36 and that is to be found in sections of the Act that are
inconsistent with that view in sections 500 and following that are attached
to our written submissions. In section 500 - this is at page 19
of the bundle attached to the respondent’s written submissions
-
section 500 confers a right to apply to the Administrative Appeals Tribunal
for a review of certain decisions. Section 500(1)(c)
identifies one of the
decisions in respect of which review by the
Administrative Appeals Tribunal may be sought as:
a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one of more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33 –
Now, 1F would be - - -
GUMMOW J: That itself is an odd sort of way of drafting it, I must say, relying on one of more of the following articles.
MR WILLIAMS: I think the scheme is, your Honour, that a delegate may make a decision on a protection visa application that could encompass a whole range of issues that might arise. One of the issues may be that the delegate decides that the person is someone who is - - -
GUMMOW J: Unhealthy?
MR WILLIAMS: Well, it is not connected to being healthy, your Honour. It is connected to refusing to grant a visa based upon one of these provisions taking Article 33.2 as an example; a provision relating to character, a provision relating to previous crimes. Now, the existence of that provision, Article 1F might be consistent with the view that a person would fall outside the definition of “refugee”, but Articles 32 and 33 are inconsistent with a view that the definition of “refugee” in Article 1 is the touchstone, because if a person, on the view taken in the court below, if a person satisfies the definition in Article 1, then the person is entitled to a protection visa because Australia owes them obligations. This section explicitly assumes that a person may fall within the definition in Article 1 and nevertheless be a person to whom a protection visa may be refused.
McHUGH J: But 33.2 is dealing with a person who is a security risk.
MR WILLIAMS: Yes, the person may still be a refugee.
McHUGH J: Well, exactly.
MR WILLIAMS: On the view that was put in the court below, if the person is a refugee then they are entitled to a protection visa. That is what follows from the broad view in the court below or from the view that your Honour Justice McHugh put to me a short time ago. If you satisfy the definition of “refugee” then you are a person to whom Australia owes the panoply of obligations under the Convention from Article 2 following, but that is inconsistent with this view.
McHUGH J: Well, if it is inconsistent and it is possible that you are right, I will have to think about that. It seems to me a very weak platform to overcome what I regard as the hopeless illogic of the argument based on Article 33, it is just an illogical argument.
MR WILLIAMS: Your Honour, the section
directs attention to protection obligations. It has to be directing itself to
something. It is not simply
all of the obligations in the Convention because
that could not be read consistently with this section or, indeed, with
section 502
which is to similar effect although 502 has substantive effect.
Section 502 is set out at page 25 of our bundle of materials. Section
502(1)(a)(iii), the Minister can personally make a decision:
to refuse to grant a protection visa, or to cancel a protection visa, relying on . . . Article . . . 33(2) –
That is inconsistent with the construction that focuses only upon the definition in Article 1.
McHUGH J: Not necessarily. It may be that the proper construction is that notwithstanding sections 36 and 65, 503 overrides them, but only in that limited situation.
MR WILLIAMS: But 503 and, indeed, 500 assumes that a person can be refused a protection visa.
McHUGH J: Yes, but 500 is operating on a decision that has already been made so you have to start with 503, do you not, and that gives - - -
MR WILLIAMS: They are different provisions, your Honour. Section 500 assumes that a decision may be made by a delegate on that basis; 502 assumes that a decision can be made by the Minister personally on that basis. So those provisions which came into effect at the same time on 1 September 1994 as the 1992 amendment that we have been construing are fundamentally inconsistent with a view that no change was intended from the prior definition of “refugee” in section 4 of the Act.
Your Honours, the central point that we make is that there is nothing in the Act from which an intention can be evinced to go beyond the obligations that Australia has to permit people to remain by reason of the negative obligations deriving from Article 33. There is nothing in the Act or in the extrinsic materials from which one can derive an intention to confer the right to remain in Australia upon Mr Thiyagarajah upon a citizen of an EU country who has a number of other places to which they can turn for sanctuary, if required.
KIRBY J: What about Article 34 with its reference to naturalisation?
MR WILLIAMS: It is exhortatory. It encourages states to facilitate naturalisation of refugees.
KIRBY J: You are not doing that if you are taking advantage of a curious provision in the law of some other country and sending them away.
MR WILLIAMS: Section 34 refers to persons who are accepted in the country and it is an exhortatory provision directed to the kinds of circumstances of Mr Thiyagarajah, that having been accepted in France and resided there for some time France should afford him the opportunity to obtain citizenship, as it did.
CALLINAN J: Mr Williams, does Australia still reserve Article 32?
MR WILLIAMS: No, your Honour.
McHUGH J: No, they do not.
CALLINAN J: When did that happen?
MR WILLIAMS: In 1967, your Honour.
KIRBY J: Is this the point of the supplementary reasons of Justice Emmett?
MR WILLIAMS: Yes.
KIRBY J: The long and short of it is that that is not relevant to this case, is it?
MR WILLIAMS: No, Article 32 is a provision that has been read as having quite limited scope in the way indicated by the appellant. If I can indicate in further answer to your Honour Justice Callinan on the proper reading of 32 and 33, the structure is that all refugees get the benefit of Article 33.1 but that is limited to the prohibition on expulsion to the frontiers of a country of persecution. Those who are lawfully resident, in other words permanently resident, get the additional benefit of a prohibition on any form of expulsion subject only to the limited exclusions coming from Article 32.2.
GUMMOW J: Can I ask you to look at
Article 1, Mr Williams? Now, the preceding section in Mayer v The
Minister [1985] HCA 70; [1985] 157 CLR 290 - it is set out, is it not? The
old 6A, I may have been a bit harsh in criticising use of that word
“technical”. If
one goes to [1985] HCA 70; 157 CLR 290, the condition
was that:
the Minister has determined, by instrument in writing, that he has the status of refugee -
which is slightly ambiguous, I suppose,
because looking at Article 1, people go to the definition of the term, do
they not, and they
go to 1A(2) in particular, do they not?
MR WILLIAMS: Yes.
GUMMOW J: But 1C might apply, in other words the Convention may have ceased to apply; or 1D might be in point, the Convention may not apply because they are already getting benefits; or 1E might apply, that is the Thiyagarajah suggestion; or 1F might apply. Now, is not a possible construction that all that was being done when this change was made was to make it clear that when you are talking about protection obligations, you are just meaning that this is an Article 1 person, reading Article 1 as a whole, not just paragraph 2.
MR WILLIAMS: Your Honour, what the definition of “refugee” referred to was not the definition in Article 1A, but to the definition in Article 1. Your Honour sees the heading under Article 1 ‘Definition of the Term “Refugee”’. That italicised heading is that - - -
GUMMOW J: I realise that.
MR WILLIAMS: That is on page 54.
GUMMOW J: I realise that.
MR WILLIAMS: That is to the whole section.
GUMMOW J:
For the purposes of the present Convention, the term “refugee” shall apply to any person who –
Right?
MR WILLIAMS: Yes.
GUMMOW J: That may be true, but nevertheless the Convention may have ceased to apply to such a person because of 1C.
MR WILLIAMS: They would then fall outside the definition of “refugee” in Article 1.
GUMMOW J: I know, but in the legislation as it stood under the old system before these changes were made, that was not crystal clear.
MR WILLIAMS: Your Honour, in our submission, it was clear enough from the reference to Article 1 rather than to some part thereof, but if that were the ambiguity to which the legislature were directing its attention it could have addressed it by referring to Article 1A to 1E rather than by making a fundamental change.
GUMMOW J: But the section did not refer to status. It just said has the status of refugee within the meaning.
MR WILLIAMS: Yes, but the definition of “refugee” – your Honour is looking at Mayer?
GUMMOW J: Yes. I know it had been changed since but that seemed to me the problem that is involved in all of this.
MR WILLIAMS: Your Honour, in Mayer – if your Honour has Mayer.
GUMMOW J: Yes.
MR
WILLIAMS: At page 299 at about point 8 the conclusion of the
joint judgment is that the words:
“status” of refugee . . . does not refer merely to the fact that the person is a “refugee” within the meaning of the Convention or the Protocol. Rather, it is a compendious reference to the “rights”, “benefits” –
et cetera, and the circumstances in which they are
engaged. So it is necessary to look beyond the definition of
“refugee”
to the facts to see whether the person has that status by
reason of engagement of it further down in the Convention, but by the time
one
comes to the 22A definition, it does not refer to refugee status. It has a
definition of “refugee” that says “refugee”
means a
person who falls within the definition in Article 1.
Now, if there was an ambiguity as to whether it was just 1A or all of the sections of 1, that would have been resolved by inserting a reference to 1A to E rather than by making a fundamental change in the point - - -
GUMMOW J: It is said to be technical.
MR WILLIAMS: Part of it was said to be technical, your Honour, and that is the structure. It was said to be machinery. It is true that there was a machinery change in the creation of a protection visa and the elimination of the previous two-step process where one obtained a determination that earlier one had the status of a refugee, or from 1992 one was a refugee within the definition, to a single process where there is a protection visa with the criterion in section 36. That is certainly aptly described as machinery, but the section went further.
GUMMOW J: Given the consequences of this change which the Chief Justice pointed out to you about 20 minutes ago, it sounds a bit more than technical, on the construction you urge.
MR WILLIAMS: The construction is to equate Australia’s grant of entitlement to remain to Australia’s obligation under the Convention to permit people to remain. We see nothing astonishing in that and, indeed, one would look long and hard in this legislation to find an intention to confer the right to remain in Australia on persons who had no concomitant Convention entitlement to remain.
GUMMOW J: The answer may be that before 1992 – with hindsight, one could say that the Australian Parliament had gone further than it need, if it was going simply to implement the Convention.
MR WILLIAMS: Depending on how one reads Mayer.
GUMMOW J: And the buck-passing situation which was clearly understood by 1992 was, on one view of it, by 1999 understood in international law to permit the amendments then made in 1999, but you want to sort of say it made earlier, I think, by these 1992 changes.
MR WILLIAMS: There is certainly evidence, your Honour, that at international law there was an acceptance of the position prior to then. I have had provided to the Court copies of the 1990 Dublin Convention determining State responsibility for examining applications for asylum.
GUMMOW J: What year is the Dublin Convention?
MR WILLIAMS: 1990, your Honour. So refugees in
orbit and like issues were well and truly live by then and were the subject of
regional arrangements.
The crucial provision for present purposes is on page
455, the right-hand facing page, in Article 3.5.
Any Member State shall retain the right, pursuant to its national laws, to send an applicant for asylum to a third State –
And we take
that to be a third non-member state –
in compliance with the provisions of the Geneva Convention, as amended by the New York Protocol.
So certainly by 1990 these were live issues, and at least the signatories to that Convention, which include all the member states, perceived that they were not in breach of the Geneva Convention by doing so.
McHUGH J: Is there not some convention or arrangement concerning Asian refugees or Indo-Asian refugees?
KIRBY J: Vietnamese.
MR WILLIAMS: There were some arrangements that - - -
McHUGH J: About states, who has to take them or who looks at it first?
MR WILLIAMS: Yes, your Honour, there are provisions in the Act that deal with it. It is in section 91B and following. It is in Subdivision AI that my friend has referred to, “Safe third countries”, and there is an agreement referred to in 91B. Your Honours, I think this may be attached to – yes, this is in my friend’s submissions.
HEYDON J: Page 29.
MR WILLIAMS: Section 91B at page 29.
McHUGH J: It is that 1989 conference, that comprehensive plan of action. That was all I had in mind. Indo-Chinese refugees.
MR WILLIAMS: The way in which this subdivision works is to relieve Australian decision-makers of the obligation to even consider a claim in the circumstances that are dealt with in Subdivision AI.
CALLINAN J: Mr Williams, this question might perhaps be better directed to Mr Basten, but was there any evidence, do you know, in Thiyagarajah about the prospects of success in France of an application for citizenship?
MR WILLIAMS: Your Honour, my recollection is that the evidence was that a person in Mr Thiyagarajah’s position, certainly prior to the time when he left France, would be entitled to citizenship.
CALLINAN J: And that would then have removed the disqualifications to which Justice Hayne drew attention and which were referred to in Justice von Doussa’s judgment?
MR WILLIAMS: Yes, if he had chosen to make such an application. That of course, is the substantial matter to which the amendments in 36(3) and following, which do not apply directly to this case, because they came into effect shortly after the application was lodged, are directed – a case in which a person – East Timorese claimants might be an example – a person who has an entitlement to nationality of a third State, but who chooses not to exercise it.
CALLINAN J: So in Thiyagarajah the application would have been a mere formality then, really.
MR WILLIAMS: I am not sure that the evidence went that far, but certainly my recollection is that he was - - -
CALLINAN J: Likely to be granted citizenship and then to lose all of the disqualifications.
MR WILLIAMS: Yes, just as the appellants in the present case would be entitled to take Israeli citizenship, according to the - - -
GLEESON CJ: The son?
MR WILLIAMS: I am sorry?
GLEESON CJ: Would the son? The son’s mother is not a Jew.
MR WILLIAMS: Your Honour, members of the family
are included, according to an amendment to the law of return which is, I think,
referred to in
the Tribunal’s – page 96 of the book, the
evidence is set out. Yes, it is at about line 28, your Honour,
starting on
the right-hand side of the page:
In 1970 Israel took another historic step by granting automatic citizenship not only to Jews, but also to their non-Jewish children, grandchildren, and spouses, and to non-Jewish spouses –
CALLINAN J:
Is that right, though? They still have to make an application, do they not?
MR WILLIAMS: Yes, they do, just as did Mr Thiyagarajah.
CALLINAN J: In Israel, just as Mr Thiyagarajah. Well, I must say and I am sorry to go back to it, but if an application is in the nature of a formality, why Mr Thiyagarajah would not have been within 1E?
MR WILLIAMS: Because he did not have the rights of a national.
CALLINAN J: But he could have had them simply by applying.
MR WILLIAMS: Yes, but he had not applied just as the appellants here, on the evidence before the Tribunal, could have Israeli citizenship by travelling there and applying.
CALLINAN J: But the appellant here would not satisfy 1E, would he, because he has not taken up residence in Israel?
MR WILLIAMS: Article 1E does not focus upon residence but - - -
CALLINAN J: No, it may not focus upon it but it is a necessary condition, is it not? He has to be a person who has taken up residence.
MR WILLIAMS: Yes, that is one of the pre-conditions.
CALLINAN J: Yes, and it certainly is not a condition which this appellant could satisfy. He has never taken up residence in Israel.
MR WILLIAMS: No.
CALLINAN J: So Mr Thiyagarajah, on the possible view which I put that it is a mere formality, would in those circumstances be within 1E but on no view can the appellant here be within 1E. Is that not right?
MR WILLIAMS: Your Honour, Mr Thiyagarajah was not within 1E - - -
CALLINAN J: I understand your submission. I am just suggesting to you that one possible view is that he was within 1E simply because any disqualifications that he suffered were disqualifications which could have been cured by an application which was likely to have been granted for French citizenship.
MR WILLIAMS: Yes, but which he had not at that time made.
CALLINAN J: I know what you say but I am not sure that simply by abstaining from making an application he then takes himself outside 1E, Mr Thiyagarajah. I am putting this to you as a suggestion because at the moment it is exercising my mind.
MR WILLIAMS: Yes, your Honour, I do not have instructions in relation to Article 1E and Thiyagarajah. I can certainly put to your Honour what the Minister’s position was at both levels in that, that the Minister failed, but to the extent to which that would apply to Mr Thiyagarajah, that he has rights that he can exercise and those rights include re-entry, right to remain and obtain citizenship, all of those things can be said of the present appellants, because the evidence showed – this was not a case in which there was some intermediate position.
CALLINAN J: I understand that, but he had - - -
MR WILLIAMS: Under Israeli law they had the right to remain and the right to obtain citizenship. So on that submission there would be no distinction.
KIRBY J: Is there any translation – I know there is that little extract from the return law of Israel, but is there any translation of the whole law or is that it?
MR WILLIAMS: Your Honour, the law is set out in - - -
KIRBY J: Justice Emmett has an extract from it and that may be enough.
McHUGH J: The original 1950 law is in the book about pages 84 or 85.
MR WILLIAMS: Yes, 83, your Honour, and 83 to 84, yes. The amendment is page 85, that is the - - -
KIRBY J: What is the year 5710 in the Jewish calendar in the Christian calendar, do you know?
MR WILLIAMS: Sorry, your Honour, I do not know the answer to that.
KIRBY J: We do not know when it originated.
MR WILLIAMS: It says 1950 on the top, my friend points out helpfully.
KIRBY J: I see.
MR WILLIAMS:
Your Honours, we do put the point that the correctness of
Justice von Doussa’s reasoning in Thiyagarajah was
expressly adopted by this Court as part of its reasoning and forms part of the
ratio of the Court’s decision on the question
of relief in
Thiyagarajah. The correctness of the Full Court’s approach was not
challenged in this Court, the appeal being the Minister’s appeal
as to the
form of relief and no cross-appeal or notice of contention being pursued.
However, the majority in this Court did not
restrict its reasoning to reliance
upon the absence of a challenge to that reasoning. It expressly endorsed and
adopted it. It
was the correctness of the Full Federal Court’s
conclusion as to the proper approach to section 36(2) that founded this
Court’s
decision that the relief the Minister was entitled to succeed on
the appeal. That can be seen from 199 CLR 343 at 348. In
paragraph 14, the joint judgment summarises the position before
Justice Emmett and then sets out at the bottom of the
page that:
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.
Then there is a reference to the Full Court’s holding.
Then in paragraph 16 on page 349, the joint judgment describes
Justice
von Doussa as having correctly emphasised two aspects of the
case. The first I can pass over for present purposes, but at the foot
of
349:
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.
Then in paragraph 17
the judgment continues that:
The Tribunal had not dealt with the matter by reference to Art 33. However, the Full Court held that the findings made by the Tribunal constituted an answer to the question correctly formulated.
Then
Justice von Doussa’s conclusion is quoted, and in the middle of
the quote:
This finding involves no error of law. It determines adversely to the respondent the question whether there was any potential for Art 33 to have application to the respondent, if he were a refugee. Accordingly, Australia did not owe the respondent protection obligations - - -
GUMMOW J: The
crucial thing is we accepted Justice Sackville’s dissenting judgment,
did we not? That is what the Minister was agitated
about.
MR
WILLIAMS: That is what the decision turned on, but the narrowest basis of
the decision, in our submission, is seen at the top of 358 in the
concluding
part of paragraph 35:
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.
GUMMOW J: I have just been looking at
Mr Basten’s argument.
HEYDON J: There was no argument, was there, in 199 CLR about the point agitated today, so it has no precedential significance for the present controversy.
MR WILLIAMS: Only this, your Honour. The joint judgment could have proceeded upon the basis that it was common ground and not in issue in the court that the correct approach was that in Justice von Doussa’s judgment and dealt only with the question of relief that followed from that. The court’s reasoning, however, went further and expressly adopted - - -
GUMMOW J: And it responded to Mr Basten’s arguments which you were arming him with, were you not?
GLEESON CJ: Correct me if I am wrong, Mr Williams, but in the back of my mind is a memory that the practical problem that arose in Thiyagarajah at the level at which we were considering it was that there was some question about a possible change in the position in France. The question whether events that had occurred after the Tribunal made its decision in that regard might be material.
MR WILLIAMS: Yes, that is so.
GLEESON CJ: What had happened? Can you just remind me.
MR WILLIAMS: At the time at which the Tribunal made its decision, Mr Thiyagarajah was in possession of a travel permit that permitted him to re-enter France and remain there on the travel permit. Shortly after the Tribunal’s decision - and the date of decision of course is the relevant date for determination of protection obligations – that permit expired. The question was: notwithstanding that there was no error in the Tribunal’s decision as at the date at which it was made, could the Full Court nevertheless set aside the Tribunal’s decision and remit it to the Tribunal for further consideration in light of the change of circumstances since the admittedly valid decision was made?
GLEESON CJ: I remember now. That was the point that we had to deal with.
MR WILLIAMS: Yes.
GUMMOW J: It is quite a different situation if the Tribunal has it wrong and it has to go back. Then the Tribunal looks at it again at the time it goes back but, if they do not have it wrong in the first place and they have it right, the Minister’s complaint was why on earth does it go back to have another go?
MR WILLIAMS: Yes. That was the narrow point the case determined but we put it no higher than to say that although the court could have restricted its reasoning to the undisputed error, it expressly adopted the correctness of Justice von Doussa’s reasoning as part of its conclusion. If I could turn then to the question of relief - - -
HAYNE J: Just before you do that,
can I take you back to 36 and what, if any, consequences follow from the border
protection amendments
and the introduction of 36(3) and following. Section
36(3) is engaged where there is:
a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in –
another country. The reference to the person having a right to enter would limit its operation perhaps to cases of the present kind where there is a law of return of a kind with which we are presently dealing. On the argument you advance about the extent of Australia’s protection obligation, Australia owes no protection obligation unless its expulsion inevitably amounts to refoulement, is that right? That seems to lead to the odd result that 36(3), far from narrowing the obligations which Australia owes to persons, may perhaps even have enlarged them. Is that not the consequence of the position that we find ourselves in? If it is, does it matter, or do we simply resolutely shut our eyes to 36(3) and following?
MR WILLIAMS: Your Honour, the question that your Honour put to me as to when Australia’s obligations are engaged, we would not put it that expulsion must inevitably result in breach of the obligation. It is an expulsion that cannot be made without a real risk of indirect refoulement. Subject to that qualification we accept the - - -
HAYNE J: You can expel a person if there is anybody willing to take him, whether or not he has a right to go there?
MR WILLIAMS: Your Honour, section 36(3) is in part predicated upon the correctness of the decision of the Full Court in Thiyagarajah but it is in no sense – and there is a series of cases that have considered it – it is in no sense a codification of the principle. Rather, it goes to a slightly different issue although it may overlap in some cases such as the present. It goes to an issue - first of all, it is a deeming provision rather than a definitional provision. Its purpose is to compel a person – I have given the example of an East Timorese citizen with an entitlement to citizenship in Portugal – its operation is to compel the person to endeavour to avail themselves of rights in that third country. In the present circumstance, if it applied to the appellants, it may well – there is no consideration of this – but it may well operate to exclude the appellants because of their failure to avail themselves of a right to enter and reside in Israel, but the provision - - -
KIRBY J: There is an important distinction, is there not? Portugal had a long 300, 400 year colonial history with East Timor and with the people thereof. Israel has had no such contact with the Russian people or the Russian Jewish people, or some Russian Jewish people so that you are, in a sense, forcing the Israeli offer on the people like the appellants.
MR WILLIAMS: Your Honour, there may be a factual distinction but not one of principle. It may be one that we do not, in any event, need to debate because section 36(3) does not apply by reason of the commencement date.
KIRBY J: But I though Justice Hayne was making a point that because the Parliament felt the need to add these sections you have a specificity which is missing in the two-word phrase in 36(2) which you have to get to do the work that you want as a textual foundation for your argument.
MR WILLIAMS: That assumes that section 36(3) was intended as a codification.
KIRBY J: It does not. I am not talking about codification. I am talking about particularity and specificity as against a very vague phrase which you want to do an awful lot of work.
MR WILLIAMS: Well, your Honour, we would make two points about 36(3). The first essentially I have made, that it operates in a different way to compel persons to avail themselves of rights. The second is that on the construction – the construction is not settled in the Federal Court but at least in the decision which my friend has taken your Honours this morning, WAGH, an indication that the provision is to be read narrowly, there is a division between Justice Hill and Justices Lee and Carr in that case as to the scope of it but Justices Lee and Carr read it as restricted only to the existence of enforceable rights of entry and that, of course, is a limited category if it be correct because enforceable rights of entry given that, as Justice Hill points out in that judgment, states reserve their rights of sovereignty and reserve to themselves in most cases a discretionary power to cancel even entry permits and visas that they have clearly given in respect of particular individuals - an enforceable right of entry on that view would be a rare animal indeed. So, given that it is a deeming provision, I am not sure how much assistance the Court can derive from it.
GLEESON CJ: Mr Williams, we have, attached to the appellants’ submissions, the Convention entered into in 1954. That was amended by a protocol, was it not?
MR WILLIAMS: There was a protocol. In strict terms, it was not an amendment, but - - -
GLEESON CJ: Did the protocol vary the definition of “refugee” or Article 1?
MR WILLIAMS: Yes.
GLEESON CJ: In what respect?
MR WILLIAMS: It removed the temporal – that has been handed up as well, your Honour – it removed the temporal limitation. The original Convention was historic. Its scope, in Article 1A, was restricted to persons who, prior to the date in 1951, had this well-founded fear. The protocol made it forward-looking, as it were.
GLEESON CJ: Thank you. What I wanted to ask you was this. As a matter of legislative history, in 1992 the Australian Parliament ceased to fasten onto the Convention definition of “refugee” as the criterion for the grant of a protection visa, and instead stated the criterion as persons in respect of whom Australia has protection obligations. To go back to a line of questioning that Justice Gummow raised with you earlier, why does it not all fall into place if you treat the purpose of that change in terminology as being to pick up the qualifications in paragraphs C, D, E and F of Article 1 and to give them work to do, as distinct from simply relying on the definition of “refugee” in Article 1A, which, as I say, is highly qualified by the rest of Article 1?
MR WILLIAMS: There are two answers. The first is that if the intention was to clarify an ambiguity about whether the reference was to 1A only or to all of the sections, that could have been done explicitly in the definition of “refugee”, without changing the whole focus. The second answer, the change in the whole focus to the existence of protection obligations, is that that view is inconsistent with sections 500, 502 and 503.
GUMMOW J: When did they come in?
MR WILLIAMS: They commenced on 1 September 1994, at the same time at which section 36 commenced. They came from different Acts.
GLEESON CJ: And what is the reason for the inconsistency?
MR WILLIAMS: The reason is that section 500 assumes that a person who falls within the definition of “refugee” in Article 1 may nevertheless not be entitled to a protection visa.
GLEESON CJ: Well, that is right, is it not? You only have to look at the Convention to see that somebody who falls within the definition in Article 1A is not necessarily a person who is entitled to protection. He might be a murderer, a war criminal, and excluded from the protection of the Convention by Article 1F, even though he falls within the definition of a refugee in Article 1A.
MR WILLIAMS: If the intention was simply to make clear that the reference in the definition was to the whole of Article 1, 1A to F, then one could read it in that way, but 500 goes further than merely referring to Article 1F and refers also to Articles 32 and 33. Now, a person may be a murderer and therefore not entitled to the non-refoulement obligation because of Article 33.2, but the person would nevertheless fall within the definition in Article 1 on the hypothesis and be a refugee. So it is inconsistent with the view that the intention was to go no further than to identify the whole of Article 1, including A to F, as the content of the definition.
GLEESON CJ: Thank you.
MR WILLIAMS: Your Honours, on the question of relief the principle applied in Chen depended upon the express power to make an order in section 481(1)(b) which, of course, was repealed prior to the present proceeding commencing. The appellants can only get relief in the present proceedings in light of the privative clause if they can show that the Tribunal’s purported decision is regarded in law as no decision at all. It is no decision in law. If it is no decision in law, then there is nothing upon which the Court’s order can operate to preserve findings of fact. The Ipec decision to which your Honour Justice Gummow refers depends upon an entitlement - - -
GUMMOW J: Well, we looked at that most recently in Samad [2002] HCA 24; 209 CLR 140, the New South Wales case about the drug facility, at 163, paragraph 77. We decided that there was still a discretion about standing.
MR WILLIAMS: In the present case, following from Wang, the decision that is to be taken by the Tribunal is a decision on the facts at the date of the Tribunal’s decision and there is accordingly a matter still outstanding in that respect. If the matter is remitted to the Tribunal, the Tribunal would be obliged to make a decision on the - - -
GUMMOW J: We are talking about mandamus. We are not talking about remitting anything anywhere. We are talking about mandamus.
MR WILLIAMS: It can be remitted to the Tribunal
to be determined in accordance with law. We accept the view put by the
appellant that when the
Tribunal makes a decision it will make it on the law as
it stood prior to the enactment of section 36(3). But because of the
approach
in Wang 196 ALR 385 – perhaps I should take
your Honours very briefly to a couple of paragraphs. There are two
passages. There is a passage in
the judgment of your Honour
Justice McHugh at page 395 in paragraph [38] to the effect that
sometimes a court can find there has
been no change of circumstances:
it may be open to the Federal Court to direct the tribunal only to decide the point in respect of which the court has found legal error.
But here there was no evidence before the
Federal Court as to whether circumstances in the Russian Federation
subsisted subsequent
to the date of the Tribunal’s decision.
In the joint judgment of your Honours Justice Gummow and Hayne at page 404, paragraphs [76] to [77], your Honours emphasise the necessity to address the issue at the date of the Tribunal’s decision. The appellants seek to rely upon section 22 of the Federal Court Act. That is not a source of power to make orders of this kind.
HAYNE J: What do you say about a passage in
Justice Gaudron’s judgment in Thiyagarajah in this Court,
paragraph 59, where she said:
Where an administrative decision maker has considered all relevant issues and made findings which permit of only one outcome but has failed to reach that decision, a court may, in an appropriate case, make orders giving effect to the decision that should have been made.
MR WILLIAMS: That is so where there is a fixed record, in a case like Ipec or Steele v Commissioner of Taxation, events which have crystallised, as it were. In the present case, there is a jurisdictional precondition to the grant of a visa, and that is the Tribunal’s satisfaction that protection obligations are owed. That is a matter of which the Tribunal must be satisfied at the date of decision, and we rely upon Wang in that respect, as well as, of course, upon Chen. I would also observe, the notice of appeal does not seek mandamus in that respect. Your Honours, those are our submissions.
GLEESON CJ:
Thank you, Mr Williams. Yes, Mr Basten.
MR BASTEN:
Your Honours, just in relation to the question of the change in the
terminology from “refugee” to “protection obligation”,
that, in our submission, is linked to the amendments my friend seeks to rely
upon in sections 500 and following. It went, we would
think, one step
further than what your Honour the Chief Justice and
Justice Gummow were putting to my friend, at least in principle,
and that
may be reflected by section 500, namely, both Articles 32 and 33
contain exceptions in similar terms to Article 1F –
exceptions which
would prevent those obligations inuring for the benefit of a person who fell
within the exception. So that when
they said “A person to whom Australia
owes protection obligations”, they may have intended to take account of
those additional
exceptions.
Now, I accept that that may give Article 33 more work to do than the Court might think appropriate, but that would explain why they took that approach. Of course, the only purpose of section 500 was to confer jurisdiction on the AAT to deal with the criminal matters.
GUMMOW J: How does that then trace through to this case?
MR BASTEN: It has no consequence for this case. It merely explains that the reason for changing from the definition of “refugee” to a person to whom protection obligations is owed could in other cases, where matters of national security arise, make sure that someone does not get a visa, because the exceptions to the two articles would take them outside the scope of those protection obligations, assuming the article - - -
GUMMOW J: But there would be no adverse consequence for your client’s position?
MR BASTEN: No, there is no question of character or criminality of any kind in this case. That raises the other question. Your Honour Justice Gummow was questioning me before about the transitional provisions. I thought it appropriate to provide to the Court the material which is referred to in our footnote 26, which is the border protection legislation transitional arrangements and unless there is any other - - -
GUMMOW J: Articles 32 and 33.2 are talking about security matters, are they not?
MR BASTEN: They indeed are.
GUMMOW J: And it is not 33.1, it is 33.2.
MR BASTEN: No, no, no, it is 33.2 precisely which is picked up by section 500.
GUMMOW J: Which feeds back to 1F.
MR BASTEN: Indeed, yes. The final matter that I should perhaps deal with is the way my friend put his argument as a matter of statutory construction after lunch. As I understand his case, it is that if a person who is a non-citizen in Australia can be removed to any other country, section 36(2) is not engaged. That is because the only protection obligation to which it refers is an obligation to grant refuge, and that only arises, he says, when a person cannot be sent anywhere without contravening relevant articles of the Convention.
With respect, there are two
difficulties with that approach. First, it is not the language of
section 36(2), but more importantly,
it is not consistent with the language
of section 36(2). The argument he puts is posited on the proposition that the
Convention
does not in terms impose an obligation to grant refuge. We accept
that. The terminology which is of critical importance in 36(2)
is not just two
words “protection obligations”. It is five words, “protection
obligations under the Convention”.
In other words,
whatever the
section is referring to must be an obligation arising under the Convention and
not dehors the Convention. That construction,
with respect, should not be
accepted. Those are the only additional matters.
GLEESON CJ:
Thank you, Mr Basten. We will reserve our decision in this matter
and we will adjourn until 10.15 tomorrow morning.
AT 4.08 PM THE MATTER WAS ADJOURNED
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