NAGV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1456 (27 November 2002) FEDERAL COURT OF AUSTRALIA NAGV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1456 APPLICANTS NAGV AND NAGW OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 344 OF 2002 STONE J 27 NOVEMBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 344 OF 2002 BETWEEN: APPLICANTS NAGV AND NAGW OF 2002 APPLICANTS AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: DATE OF ORDER: WHERE MADE: STONE J 27 NOVEMBER 2002 SYDNEY
THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 344 OF 2002 BETWEEN: APPLICANTS NAGV AND NAGW OF 2002 APPLICANTS AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: STONE J DATE: 27 NOVEMBER 2002 PLACE: SYDNEY PROCEDURAL BACKGROUND REASONS FOR JUDGMENT 1 The applicants, NAGV and NAGW, a father and son who are citizens of Russia, lodged applications for protection visas on 16 July 1999. They claim to have a wellfounded fear of persecution if they return to Russia because of the father's political opinions and because the father, at least is Jewish. Despite accepting these claims the Refugee Review Tribunal ("Tribunal"), in a decision made on 1 March 2002, held that Australia has no protection obligations towards them and affirmed the respondent Minister's decisions not to grant the protection visas. 2 This proceeding was commenced on 24 April 2002 by an application made under s 39B of the Judiciary Act 1903(Cth) ("Judiciary Act"). On 5 June 2002 the applicants filed an amended application seeking a declaration that the Tribunal's decision is null and void as well as writs of certiorari to quash the Tribunal's decision, prohibition restraining the respondent Minister from acting upon the decision and mandamus requiring the Tribunal to reconsider the application for review of the Respondent's decisions according to law. THE TRIBUNAL'S DECISION
3 The Tribunal accepted that each applicant had a well-founded fear of persecution in Russia for reasons of their religion and political opinions but held that Australia did not have protection obligations towards them. The Tribunal found the applicants to be Jewish and for that reason held that they could have "effective protection" in a third country, namely Israel. The applicants, however, do not wish to go to Israel. The Tribunal summarised their views on this issue: "The Applicant father states that it was a decision of the whole family to come to Australia and not to go to Israel. The Applicant's wife is not Jewish and was against going to Israel. The Applicants have never considered Israel to be their homeland. They have never been there. The Applicant father states that he does not share the policy of the Israeli government towards the Palestinians. The Applicants do not speak Hebrew and have a poor understanding of Jewish culture. They have nothing in common with Israelis. The Applicant son is worried that he may have to undergo military training." 4 The Tribunal referred to the official website of the Israeli Immigration and Absorption Department which states that, by virtue of the Israeli Law of Return, Jews everywhere "are Israeli citizens by right", the only exceptions being if they pose an "imminent threat to public health, state security or the Jewish people as a whole" or are "dangerous criminals". The website also referred to the extension of this right in 1970, to the non-jewish children, grandchildren and spouses of Jews and to the non- Jewish spouses of their children and grandchildren. The Tribunal also referred to independent evidence of the large number of Russian Jews who have settled in Israel. The immigration of Jews to Israel is referred to as `aliya'. The Tribunal made its own enquiries on the matter and stated that: "According to a letter received by the Tribunal from the Embassy of Israel dated 16 March 2000, the procedure to make `aliya' includes `presentation of any relevant original document proving Jewishness according to the legislation, the completion of questionnaires, a medical examination, presentation of an original passport and presentation of an original marriage certificate". 5 In its "Findings and Reasons" the Tribunal expressed the following views: "It would seem that the Israeli Government is generous in the grant of resident status to Jewish people. I note that as Jews the Applicants would seem to have at least a prima facie right to enter and reside in Israel. It would seem that they have to apply and to establish some facts. It is questionable whether this application is a mere formality. It is also apparent that many, many Soviet Jews have availed themselves of that generosity and entered and reside in Israel. I am satisfied that if the Applicants had travelled to Israel that they would most probably have been allowed to enter and reside there. I am not aware of any evidence that if that occurred there would be a risk of their being returned from Israel to Russia. Nor am I aware of any evidence which would support a conclusion that the Applicants have a well founded fear of being persecuted in Israel.
To that extent I am satisfied that the Applicants would have had the effective protection of Israel had they travelled to Israel. It is probable that they still would have access to that effective protection if they travelled to Israel now." 6 The Tribunal's decision that the applicants had the effective protection of Israel was based on its interpretation of s 36(2) of the Migration Act 1958 (Cth) ("Migration Act") and Article 33 of the Refugees Convention as amended by the Refugees Protocol" (compendiously, the "Convention"). Having so decided the Tribunal then concluded that Australia does not owe protection obligations to them and that therefore they do not satisfy the criterion for the grant of a protection visa set out in s 36(2) of the Migration Act. PROTECTION OBLIGATIONS 7 Section 65 of the Migration Act provides that the Minister is to grant a visa "if satisfied" that certain criteria have been met. As I remarked in Minister for Immigration and Multicultural Affairs v Applicant C (2001) 66 ALD 1 ("Applicant C") at [14], "The section does not allow for ministerial discretion although there obviously is some leeway for the Minister in reaching the requisite state of satisfaction." The only criterion relevant to this proceeding is that found in s 36(2) of the Migration Act which states that the applicant must be "a non-citizen in Australia" to whom Australia has protection obligations under the Convention. 8 The protection obligation relevant to these proceedings relates to refugees and is imposed under Article 33 of the Convention which is in the following terms: "1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country." 9 A refugee is defined in Article 1A(2) of the Convention as a person who: "...owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear is unwilling to return to it." 10 The obligation Australia has assumed as a signatory to the Convention does not purport, at least directly, to give any person a right of asylum in this country; Minister
for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 ("Thiyagarajah"); Rajendran v Minister for Immigration and Multicultural Affairs (1998) 166 ALR 619 ("Rajendran"). The obligation is cast in negative terms and is to refrain from returning a person to the "frontiers of a territory" such as is described in Article 33. 11 International treaty obligations only become part of Australian municipal law if and to the extent to which they are incorporated into it by statute; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. The obligation imposed by Article 33(1) is incorporated into Australian law by s 36(2) and is qualified by subsections (3) to (6) which were introduced into the Migration Act by the Border Protection Legislation Amendment Act 1999 (Cth) ("Border Protection Act") and came into effect on 16 December 1999. They provide: "(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter or reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. (4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country. (5) Also, if the non-citizen has a well-founded fear that: (a) a country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion; Subsection (3) does not apply in relation to the first-mentioned country. (6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country." 12 These subsections and the principle of effective protection developed under s 36(2) are directed to delimiting the extent of Australia's protection obligations and identifying the persons to whom, irrespective of any well-founded fear of persecution in their country of origin, Australia does not owe protection obligations under the Convention. These are not the same tests; the principle of effective protection has not been overtaken by these amendments; Applicant C at [63]-[64], per Stone J (with whom Gray and Lee JJ agreed); Kola v Minister for Immigration & Multicultural Affairs [2002] FCAFC 59 ("Kola") at [63]. In this case the Tribunal only referred to the principle of effective protection and did not rely on the amendments made by the Border Protection Act. Effective protection
13 The principle is that Australia does not owe protection obligations to a person who has acquired effective protection from persecution for a Convention reason in a third country and who is not at risk of being sent from that country to the country in respect of which a fear of such persecution is well-founded. The concept was explained by von Doussa J (with whom Moore and Sackville JJ agreed) in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 562: "It is not necessary for the purpose of disposing of this appeal to seek to chart the outer boundaries of the principles of international law which permit a Contracting State to return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status. It is sufficient to conclude that international law does not preclude a Contracting State from taking this course where it is proposed to return the asylum seeker to a third country which has already recognised that person's status as a refugee, and has accorded that person effective protection, including a right to reside, enter and re-enter that country. The expression "effective protection" is used in the submissions of the Minister in the present appeal. In the context of the obligations arising under the [Convention], the expression means protection which will effectively ensure that there is not a breach of Art 33 if the person happens to be a refugee." 14 The principle may apply where the visa applicant is entitled to residence in the third country for reasons other than the grant of refugee status; Rajendran; Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1. It also applies where as a matter of practical reality, he or she is likely to be given effective protection even in the absence of a legally enforceable right to enter and live in the third country; Applicant C at [21]-[22], Kola at [63]. Effective protection involves the person not only being permitted to remain in the third country without risk of persecution for a Convention reason but also not being at risk of being refouled to his or her country of origin. In deciding whether the principle applies it is necessary to abjure any rigid standard of applicability and concentrate on the circumstances of each applicant and the practical consequences of sending that person to the third country; Applicant C at [22], Kola at [63]; see also Al-Zafiri v Minister for Immigration and Multicultural Affairs [1999] FCA 443 at [26] per Emmett J approved in Minister for Immigration and Multicultural Affairs v Al-Sallal [1999] 94 FCR 549 at 558. 15 As I summarised it in Applicant C at [65], the combined effect of the principle of effective protection and s 36(3)-(5) is that Australia does not owe protection obligations under the Convention to: "(a) a person who can, as a practical matter, obtain effective protection in a third country; or (b) a person who has not taken all possible steps to avail himself or herself of a legally enforceable right to enter and reside in a third country." 16 In the case of the applicants in this proceeding the Tribunal decided that they could, as a practical matter, obtain effective protection in Israel and therefore Australia does not owe them protection obligations under the Convention.
THE PRESENT APPLICATION Applicants' claims and submissions 17 The application for relief under s 39B of the Judiciary Act sets out multiple grounds of relief not all of which were pressed either in written submissions or at the hearing. The essence of the applicants' claim is that the Tribunal was in error in finding that they could have effective protection in Israel. The applicants submit that the principle of effective protection does not apply in relation to a country where they have never been, where they have never made any attempt to obtain effective protection and where they do not wish to go. They point to the fact that all of the cases in which the principle has been applied have involved persons who have directly or indirectly come from the relevant third country. 18 Counsel for the applicant, Mr Basten QC submitted that if no distinction is made between these cases and the present, decisions about refugee applications "would become an exercise in buck-passing". He submitted that: "On the assumption that all signatories to the Convention will apply its requirements in good faith and reasonably, a bona fide applicant with a well-founded fear of persecution should be able to obtain protection in any Convention country. Accordingly, on the Tribunal's reasoning no-one would relevantly engage Australia's protection obligations." 19 He submitted that the Tribunal was obliged to consider a particular applicant's claims against the country of his or her nationality and that the question of whether the applicant can be removed to a third country without breach of Australia's protection obligations must be considered, not on the basis of speculation but only in the context of an actual determination in respect of a specific country. Moreover that determination "is not one which can be answered by any authority in Australia: it requires reference in an individual case to the relevant authorities in the third country." He submitted that while the Convention makes an assumption that a country of an applicant's nationality will accept him or her back, it does not make any such assumption in respect of any third country. 20 For these reasons, it was submitted, the Tribunal constructively failed to undertake the enquiry it was required to undertake, namely that of ascertaining if the applicants were persons to whom Australia owed protection obligations, and that the Tribunal's enquiry into the applicants' entitlement to residence in Israel was not reasonably referable to the powers conferred on it. The applicants therefore contend that the decision is beyond the jurisdiction of the Tribunal and, on the authority of R v Hickman; ex parte Fox & Clinton (1945) 70 CLR 598, is not protected by s 474 of the Migration Act. Consideration 21 It is true that, as a matter of fact, the cases in which effective protection has been determinative of an application for a protection visa have involved applicants who had an established connection with the relevant third country by having come from there or having passed through there. The conclusion as to effective protection has relied on
this evidence as well as on independent information concerning the attitude and practice of the third country to such persons. It does not follow, however, that a connection established in this way is necessary for the principle to apply. As the discussion above indicates, the emphasis of the Court in applying the principle is on the practicalities of the matter. The task of the Tribunal is to decide on the facts before it whether Australia has protection obligations in the particular case. The necessary question is, as Spender J expressed in in Al-Rahal at [8]: " whether refoulement would involve a threat to the person's life or freedom on account of his race, religion, nationality, membership of a particular social group or political opinion. That question, it seems to me, is a question of fact. Moreover it does not necessarily require that a third country has already accepted an obligation to protect the person who is an applicant for a protection visa, with the consequence that that person has a right to reside in that country and a right to have issued to him travel documents that permit departure from and re-entry into that country." 22 In the same case Tamberlin J also emphasised (at [93]) that the question is one of "fact and degree" and "does not require proof of actual permission, or of a right, to enter that country." The Tribunal must be satisfied on this issue as on the other issues which it is charged with deciding. 23 In this case the evidence supporting the Tribunal's conclusion as to the availability of effective protection includes independent information concerning Israel's attitude to granting resident status to Jews (including Russian Jews) and the non-jewish members of their families. In part, that evidence has come from Israeli government sources including specific information obtained by the Tribunal making direct enquiries of the Israeli Embassy. There was nothing before the Tribunal to suggest that the information obtained from Israeli government sources does not reflect the true position. 24 Contrary to the applicants' submission, accepting that the applicants can obtain effective protection in Israel does not imply that Australia would be able to avoid any Convention obligations merely by referring an applicant's claim to another Convention country. It cannot have been intended under the Convention that refugees could be shunted from one Convention country to another in the absence of any special connection with that other. I agree that it would be absurd to adopt such a construction and that the principle of effective protection does not require it. 25 As is so often the case the question of whether a principle governing earlier cases applies depends on the level of generality with which that principle is expressed. The principle of effective protection requires that the applicant has a connection with the third country in the sense that one can be satisfied that the country in question will accord him or her effective protection either because it has already recognised that person's status as a refugee or for some other reason. Stated at that level of generality the fact that the person has never been to the third country is not a distinguishing feature. 26 The Tribunal's conclusion that the applicants can have effective protection in Israel is based on laws and policy of that country that are directed specifically to people in their position. It was not in dispute that the applicant father is a Jew. Whether the
applicant son, having a non-jewish mother, is Jewish under the Israeli criteria was immaterial to the Tribunal because the Israeli law of return extends its protection to the non-jewish children of Jews. The Tribunal acknowledged that there are exceptions to this protection (see [4] above) but there was nothing to suggest that any of these exceptions applied in this case. The Tribunal was satisfied that the applicants have a presently existing claim under Israeli law. On the evidence before it, it was open to the Tribunal to be satisfied that the applicants would obtain effective protection in Israel and thus to conclude that Australia does not owe them protection obligations. 27 The applicants' contention that the Tribunal was not entitled to embark on the question of effective protection must also be rejected. The fundamental enquiry for the Tribunal is whether Australia owes protection obligations to the applicants. The question of effective protection is an integral part of that enquiry. There can be no question of the Tribunal not having jurisdiction to decide that issue. The Hickman exceptions to the protection extended by s 474 of the Migration Act do not apply. 28 For these reasons the application must be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 27 November 2002 Counsel for the Applicant: Mr J Basten QC appearing with Ms I Ryan Counsel for the Respondent: Mr J Smith Solicitor for the Respondent: Clayton Utz Date of Hearing: 5 September 2002 Date of Judgment: 27 November 2002