FEDERAL COURT OF AUSTRALIA

Applicant NADB of 2001 v Minister for Immigration & Multicultural Affairs

[2002] FCAFC 326

MIGRATION – refugees – exclusion from the Refugees Convention – whether consideration of a “serious non-political crime” for the purposes of Art 1F(b) of the Convention requires balancing the gravity of the crime against the gravity of the persecution feared – whether Art 1F(b) only applies to a person who has been found to be a refugee

Migration Act 1958 (Cth) ss 500(1) and 500(4)

Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 Art 1F(b)

Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107 - cited

Minister for Immigration and Multicultural Affairs v Singh (2002) 186 ALR 393 - applied

Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982 - cited

Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 - approved

Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 - considered

T v Secretary of State for the Home Department (1995) 1 WLR 545 - cited

T v Home Secretary (1996) AC 742 - cited

Immigration and Naturalization Service, Petitioner v Juan Anibal Aguirre-Aguirre 526 US 415 (1999) - considered

S v Refugee Status Appeals Authority [1998] 2 NZLR 291 - considered

Gonzalez v Canada (Minister of Employment and Immigration (1994) 115 DLR (4^th) 403 - cited

Gill v Canada (Minister of Employment and Immigration) (1994) 119 DLR (4^th) 497 - cited

APPLICANT NADB OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 251 OF 2002

MADGWICK, MERKEL AND CONTI JJ

31 OCTOBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

MADGWICK and CONTI JJ

1                     We have had the benefit of reading the reasons for judgment of Merkel J, and are in agreement with his Honour’s conclusion that the appeal must be dismissed, and with his reasons for that conclusion.

2                     It is perhaps unfortunate that the consequence might well be that once a decision is properly made under Article 1F(b), as occurred here, it may necessarily follow that the Minister is thereby precluded from exercising a discretion in the context of an alternative application which might be made by the appellant in relation to a different visa. The present circumstances provide a possible illustration of what we have in mind. The fact that at his own initiative, the appellant volunteered to the Department of Immigration the existence of his prior criminal offence in Indonesia, and the grave circumstances thereof, may tend to demonstrate the existence of some degree of more recent integrity which might possibly be material to an alternative application, if one be available.  As well, the appellant’s claim to have given the Australian authorities abroad valuable information in relation to drug dealing in Indonesia and people-smuggling into Australia would, if true (and this could readily be checked), provide further support for our concern as to preclusion from any possibility of exercise of discretion.

3                     Indeed it may conceivably be a matter in the public interest, in similar cases of overseas criminal offences, that there be afforded to applicants for refugee status a measure of incentive to make full and frank disclosure of criminal behaviour prior to arrival in Australia, given that, in some cases, there may be a risk of torture or other inhuman retribution in the event of his or her return to the country from which he or she originated. Particularly might that be the case, in circumstances where the person concerned is able to provide valuable information concerning related overseas terrorist activity.

4                     The Convention on Refugees very understandably does not oblige signatory states to afford asylum to serious criminals.  It is another thing that, particularly in the world after September 11 2001 and October 12 2002, an Australian government might not be able to do whatever it reasonably sees fit to encourage the flow of valuable security intelligence to it.

Associate:

Dated:              31 October 2002

REASONS FOR JUDGMENT

MERKEL J:

5                     Shortly after his arrival in Australia the appellant, a national of Iran, applied for a protection visa on the ground that he has a well-founded fear of persecution by reason of imputed political opinion if he were returned to Iran.  The appellant’s entitlement to a protection visa depended, inter alia, on whether he was a refugee as defined in Art 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (“the Refugees Convention”).  Art 1A(2), provides that a person is a refugee if the person:

“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;”

6                     While in Australia the appellant voluntarily disclosed to the authorities that he was involved in the sale and transportation of heroin in Indonesia.  A delegate of the Minister refused the appellant’s application for a protection visa relying on Art 1F(b) of the Refugees Convention.  Article 1F provides:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)               he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)               he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)               he has been guilty of acts contrary to the purposes and principles of the United Nations.”

7                     It may seem anomalous that the appellant’s frankness in relation to his criminal conduct resulted in the delegate finding that he was ineligible to obtain a protection visa.  However, Art 1F(b) does not confer a general discretion on a decision-maker.

8                     The appellant applied to the Administrative Appeals Tribunal (“the AAT”) to review the decision of the delegate.  Although an application to review a decision to refuse to grant a protection visa is required to be made to the Refugee Review Tribunal (see s 411 of the Migration Act 1958 (Cth) (“the Act”)), there is an exception, inter alia, in respect of the review of a decision to refuse to grant a protection visa in reliance on Art 1F.  Pursuant to ss 500(1)(c) and (4)(c) of the Act applications may be made to the AAT, and not to the Refugee Review Tribunal, for the review of a decision to cancel a protection visa in reliance on Art 1F: see Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107.

9                     The AAT concluded that the appellant’s involvement in drug trafficking in Indonesia was a “serious non-political crime” and, accordingly, affirmed the decision of the delegate of the Minister.  The AAT expressed its conclusion as follows:

“45.     The Tribunal recognises the seriousness with which the Australian community regards crimes involving trafficking in drugs, particularly heroin.  In making an ‘evaluative judgment’, the Tribunal had regard to the mitigating factors identified by Mr Abadee on behalf of the Applicant.  While the Tribunal accepts that because of his situation in Indonesia, [the applicant] found himself in financial difficulties and without valid documentation establishing his citizenship, nevertheless, [the applicant] was later able to find other avenues of financial support when he had stopped acting as a middle man and after his involvement as a drug courier.  These included financial assistance from his parents and girlfriend, and from a counsellor at the Iranian Embassy in return for undertaking some work there.  Moreover, the Tribunal does not regard his fear of being returned to Iran as a mitigating factor.  In the Tribunal’s view, taking the fear of being returned to Iran into account would have the same effect as entering into a balancing exercise of the kind that French J in Dhayakpa (supra) said the receiving State was under no obligation to conduct.”

10                  The appellant applied to the Federal Court to review the decision of the AAT in reliance upon s 39B of the Judiciary Act 1903 (Cth).  The main grounds of review were:

(a)               The AAT failed to determine whether the appellant is a refugee, as defined in Art 1A of the Refugees Convention, prior to determining that the appellant was not owed protection obligations by Australia by reason of Art 1F(b);

(b)               The AAT failed to balance the seriousness of the crimes committed by the appellant against the seriousness of the persecution feared by him (“a balancing test”);

(c)               The AAT failed to take into account Art 7 of the Refugees Convention and the character test in s 501(6) of the Act in construing Art 1F(b);

(d)               The AAT erred in law in concluding that the appellant had committed serious non-political crimes in Indonesia.

11                  An issue was also raised before the primary Judge as to whether the review sought by the appellant of the decision of the AAT was precluded by reason of s 474 of the Act but it was unnecessary for his Honour to determine that issue.

12                  The primary Judge (Hely J) concluded that the AAT did not err in law as claimed by the appellant and dismissed the appeal.  His Honour’s decision is reported as NADB v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 293.  His Honour stated (at 300):

“28.     Article 1F(a) and (c) do not contain any geographic or temporal limitations.  Article 1F(b) refers to a serious non-political crime committed outside the country of refuge and before the person’s admission to the country of refuge as a refugee.  These expressions impose temporal and geographical limitations on the crimes which are within Article 1F(b), without any implication that there must first be a determination of whether the person in question is a refugee before the application of Article 1F can be considered.

29.       Whether issues arising under Article 1F are determined before considering whether the applicant is a refugee in terms of Article 1A is purely a procedural matter, without substantive significance, unless the fact that the applicant is a refugee within Article 1A has some bearing upon what might otherwise be the operation of Article 1F.  Thus whether the application of the Article 1F exclusion can be determined without reference to whether the applicant is or is assumed to be a refugee, is related to the question of whether consideration needs to be given in the application of Article 1F to whether the applicant would be persecuted if returned to his country of origin.”

13                  After reviewing the authorities the primary Judge concluded that Art 1A did not have any bearing on Art 1F(b) and, in particular, Art 1F(b) did not require a balancing test.  Accordingly, his Honour concluded that Art 1F did not require that there be a determination that the appellant was a refugee within the meaning of Art 1A of the Refugees Convention prior to a determination as to whether Art 1F applied to the appellant.  His Honour stated (at 302):

“38.     The Minister’s delegate determined the application of Article 1F in the present case without first determining whether the applicant was a refugee within the meaning of Article 1A of the Convention.  AAT confined its consideration of the matter to Article 1F.  It follows from the authorities to which I have referred that AAT was entitled to proceed in that way.  The terms of the Act also indicate that the jurisdiction of the AAT was confined to a consideration of the matters arising under Article 1F, rather than Article 1A.”

14                  The primary Judge also concluded that there was no substance in the appellant’s submissions concerning Art 7 of the Convention, stating (at 303):

“46.     Article 7(1) of the Convention provides that except where the Convention contains more favourable provisions, a contracting State shall accord to refugees the same treatment as is accorded to aliens generally.  Section 501 of the Act enables the Minister to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.  The character test is defined in s 501(6).  In the applicant’s contention it is the character test which should have been applied to the applicant, rather than the provisions of Article 1F.

47.       There is no substance to this contention.  Section 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention as amended by the Refugees Protocol.  The application of that criterion necessarily requires that the provisions of Article 1F be taken into account.  The general provisions of Article 7 do not override the specific provisions of Article 1F.”

15                  Finally, the primary Judge concluded that the AAT did not err in law in arriving at the conclusion that the drug trafficking crimes in Indonesia, to which the appellant admitted, were properly regarded as serious non-political crimes.  His Honour found that the matters taken into account by the AAT were matters that it was entitled to take into account, stating (at 302):

“41.     AAT proceeded on the basis of the applicant’s admission that he was involved in drug trafficking in Indonesia and thereby committed a crime in Indonesia prior to his coming to Australia.  In determining whether the crime should be characterised as ‘serious’, AAT took into account the fact that the Australian community regards crimes involving trafficking in drugs, particularly heroin, as serious.  AAT was entitled to proceed upon the basis that whether a particular crime should be characterised as serious may be answered by reference to notions of serious criminality accepted within the receiving State: Ovcharuk v Minister for Immigration & Multicultural Affairs (supra) at 185 per Branson J.  It was legitimate for AAT to take into account the fact that had the conduct in question occurred in this country, then the quantities of drugs with which the applicant was involved, both as a ‘middle man’ and as a ‘courier’, would be regarded as trafficable quantities or commercial quantities under domestic legislation, as this bore upon the seriousness with which such a crime would be viewed in this country.”

16                  In determining that the drug trafficking crimes are regarded as serious non-political crimes in Australia the AAT stated at [44]:

“The quantities of drugs with which [the appellant] was involved, both as a ‘middle man’ and as a ‘courier’, would be regarded as trafficable quantities under s 235 of the Customs Act 1901 (Cth) and also probably commercial quantities under the Drug Misuse and Trafficking Act 1985 (NSW).”

17                  The penalties for the offences referred to by the AAT were punishment by a maximum fine of $500,000 and/or a maximum term of imprisonment for 25 years in respect of the offence under the Customs Act 1901 (Cth) and a maximum penalty of a fine of $385,000 and/or 20 years imprisonment in respect of the offence under the Drug Misuse and Trafficking Act 1985 (NSW).

18                  The appellant appealed to a Full Court against the decision of the primary Judge.  The grounds relied upon on the appeal were the grounds of review set out in sub-paras (a), (b) and (c) of [10] above.  Before considering those grounds it is necessary to consider the statutory context in which the issues concerning Art 1F(b) arise.

19                  Section 29(1) of the Act provides for the granting by the Minister, subject to the Act, of permission, to be known as a visa, to non-citizens to travel to and enter Australia and to remain in Australia.  Section 36(1) states that there is a class of visas to be known as protection visas.  Pursuant to s 36(2) of the Act a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention.  Under s 65(1) of the Act if, after considering a valid application for a protection visa, the Minister is satisfied that the criteria prescribed by the Act and the other requirements spelled out in s 65(1)(a) are met, the Minister is to grant the visa.

20                  In general, Australia has protection obligations to a refugee, as defined in Art 1(2) of the Refugees Convention.  Subject to Art 1F(b), Australia would appear to owe protection obligations to the appellant if the Minister was satisfied that owing to a well-founded fear of being persecuted for reasons of imputed political opinion the appellant is unable or, owing to such fear, is unwilling to avail himself of the protection of Iran.

21                  The present case is concerned with the operation of Art 1F(b).  The primary Judge, in construing Art 1F(b), concluded that there was no implication that “there must first be a determination of whether the person in question is a refugee before the application of Art 1F can be considered”.  While his Honour went on to consider whether such an implication might arise if it was a requirement of Art 1F that there be a balancing test, his Honour’s construction of Art 1F(b) is supported by the judgments of all members of the High Court in Minister for Immigration and Multicultural Affairs v Singh (2002) 186 ALR 393 (“Singh”) which, as his Honour noted, was handed down after the preparation of his reasons but was consistent with his conclusions.

22                  Although Singh was concerned with the content of the “non-political” aspect of a “serious non-political crime” in Art 1F(b), the appellant raised an argument for the first time before the High Court that the Article only operated in respect of a person who, prior to his admission, was “a refugee”.  If the argument were accepted that would have the consequence that Art 1F(b) could not apply prior to a determination that the person in question was a refugee.  The argument, however, was rejected by all members of the Court.  Gleeson CJ said (at 395):

“5.       To give Art 1F(b) a strictly literal interpretation, so that it could only be considered and applied after the Australian authorities had made a decision that the respondent was a person to whom protection was owed under the Convention, would involve an internal inconsistency in the Convention as it applies by force of Australian law. Article 1F is expressed as an exception. If it is satisfied, the provisions of the Convention are said not to apply to the person in question. If the provisions of the Convention do not apply to the person, the person cannot be entitled to protection under the Convention. Whatever the operation of the expression ‘admission ... as a refugee’ in other systems of municipal law, in Australia there would be nothing to which the language could apply. It would be necessary to read the words ‘prior to his admission to that country as a refugee’ as meaning no more than ‘prior to his entry into that country’. The preferable solution is to read the reference to ‘admission ... as a refugee’ as a reference to putative admission as a refugee. Although the point was not adverted to before the Tribunal or the Full Court, that, in practical effect, was how the case proceeded. It was regarded, on both sides of the record, as convenient, and appropriate, to consider the application of Art 1F before addressing any other issues that might have arisen concerning the respondent's refugee status. The respondent has been legally represented at all stages, and it has not been suggested that this involves any unfairness to him. There may be cases in which it would be inappropriate to decide an issue arising under Art 1F as a preliminary question, but this is not one. There is no difficulty in assuming, without deciding, that the respondent has a well-founded fear of persecution on Convention grounds if he were returned to India, and deciding whether, on his own account to the delegate of his role in the KLF, there are serious reasons for considering that he has committed a serious non-political crime outside Australia before he entered Australia and applied for a protection visa.”

23                  Gaudron J said (at 402):

“30.     Before turning to the facts, it is convenient to refer to an argument made on behalf of Mr Singh for the first time in this Court. The argument concerns the phrase ‘outside the country of refuge prior to his admission to that country as a refugee’ in Art 1F(b). It was argued on behalf of Mr Singh, by reference to that phrase, ‘that Article 1F(b) could have [no application to him] in the absence of a finding that he was a 'refugee' in terms of Article 1A.’

31.       The composite phrase ‘outside the country of refuge prior to his admission to that country as a refugee’ describes both where and when a serious non-political crime must be committed before Art 1F(b) operates to exclude a person from the benefit of the Convention. The crime in question must have been committed outside ‘the country of refuge’, a phrase which is apt to include a country in which the person concerned seeks refuge. And the crime must have been committed ‘prior to ... admission to that country as a refugee’. The fact that the person has not, at the relevant time been admitted as a refugee is not to the point if the crime in question was committed before he or she could be so admitted. In such circumstances, the crime was necessarily committed ‘prior to ... admission ... as a refugee’.”

24                  And at 409:

“61.     I agree with other members of the Court that the Court should reject Mr Singh's attempt to raise a new ground concerning the concluding words of Art 1F(b). As the Chief Justice points out in his reasons, the ‘preferable solution is to read the reference to 'admission ... as a refugee' as a reference to putative admission as a refugee’.”

25                  Kirby J said (at 414-415):

“87.     …the definition of ‘refugee’ in Art 1A and the exclusions from it in Art 1F are not necessarily intended to be applied sequentially. Ordinarily, they will be decided, as necessary, in the one proceeding. However, there is nothing in the Convention or the Act that forbids the decision-maker saying to the applicant, as the delegate and the Tribunal said, in effect, to the respondent: ‘For the moment we will assume that you would be admitted as a refugee. We will approach your case on that footing, without finally deciding it. But we want first to determine whether you have 'committed a serious non-political crime outside' Australia.’ The Convention is expected to operate in the real world of speedy, economical and efficient decision-making. Where there is a choice between a construction of the Convention that would further decision-making of that character and one that would frustrate those objectives, the former construction should be preferred.”

26                  Callinan J said (at 438):

“162.   Contrary to a submission made in this court for the first time by the respondent, I am of the opinion that the words ‘prior to his admission to that country as a refugee’ should be understood to mean, ‘prior to his entry into the country in which he seeks or claims the status of a refugee’.  Otherwise the purpose of the Convention would be subverted in that the nature of an applicant’s prior criminal conduct could only be explored after he had been accorded refugee status.”

27                  A similar view of Art 1F has been taken in Canada.  In Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982 at 984 the majority observed that the general purpose of Art 1F is “to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status”.

28                  It follows that the contention of the appellant that Art 1F(b) can have no application in the absence of a finding that the appellant was a refugee must be rejected.  But, it does not follow from that conclusion that Art 1F(b) does not require a balancing test.  As was explained in Singh there is no conceptual difficulty in conducting the Art 1F(b) inquiry by assuming in a person’s favour that his or her claim to refugee status will succeed.

29                  The difficulty confronting the appellant’s “balancing test” argument is that, as was observed by the primary Judge, the text of Art 1F(b) and the authorities concerning its meaning in Australia, the United Kingdom, the United States, New Zealand and Canada do not support the appellant’s contention that a balancing test is required by the Article.  The appellant relied primarily on observations in the UNHCR Handbook and in other extraneous material relating to Art 1F(b) to support his contention that a balancing test was required.  In response to that submission the primary Judge stated (at 300):

“31.     Zagor, ‘Persecutor or Persecuted: Exclusion under Article 1(A) and (B) of the Refugees Convention’ (2000) 23 UNSWLJ 164 at 186 notes that the balancing test (ie the balance between the nature of the offence presumed to have been committed and the degree of persecution feared) is advocated by all eminent writers in the field and is ‘clearly consistent with the object and purpose of the clauses, and overarching human rights purpose of the Convention.  However, it has been explicitly abandoned in the common law jurisdictions of the United Kingdom, Australia, Canada, New Zealand and the United States.  In other words, once a non-political crime is characterised as ‘serious’, no assessment of the feared persecution is required’.”

30                  Zagor’s observations are supported by the Summary Conclusions on Legal Aspects of the 1951 Convention relating to the Status of Refugees made by the Lisbon Expert Roundtable as part of the Global Consultations on International Protection, 3-4 May 2001.  The participants included 32 experts from 25 countries drawn from Governments, NGOS, academia, the judiciary and the legal profession.  By consensus, it was agreed that on the question of balancing:

“(i)      State practice indicates that the balancing test is no longer being used in common law and in some civil law jurisdictions.

(ii)       In these jurisdictions other protection against return is, however, available under human rights law.”

31                  The conclusions of the primary judge are also amply supported by the authorities referred to by him when arriving at the conclusion that a balancing test is not required by Art 1F(b).  In Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563-564 French J observed:

“          It has been said that the operation of Art 1F confers upon the potential State of refuge a discretion to determine whether the criminal character of the applicant for refugee status in fact outweighs his or her character as a bona fide refugee and so constitutes a threat to its internal order: G S Goodwin-Gill, The Refugee in International Law (1983), p 160. The adjective ‘serious’ in Art 1F(b) involves an evaluative judgment about the nature of the allegedly disqualifying crime. A broad concept of discretion may encompass such evaluative judgment. But once the non-political crime committed outside the country of refuge is properly characterised as ‘serious’ the provisions of the Convention do not apply. There is no obligation under the Convention on the receiving State to weigh up the degree of seriousness of a serious crime against the possible harm to the applicant if returned to the state of origin. In par 156 of the Handbook on Procedure and Criteria for Determining Refugee Status (Office of the United Nations High Commissioner for Refugees, 1992), it is said of Art 1F(b):

‘156. In applying this exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has well-founded fear of very severe persecution, eg persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee.’

            In T v Secretary of State for Home Department [1995] 1 WLR 545 at 554-555; [1995] 2 All ER 1042 at 1050- 1051, the Court of Appeal held that there is nothing in the Convention to support the view that in deciding whether a non-political crime is ‘serious’ the relevant Minister or appeal tribunal is obliged to weigh the threat of persecution if asylum be refused against the [gravity] of the crime. It is not necessary for present purposes to decide whether the evaluative characterisation of an offence as serious attracts elements of a balancing exercise. For on any view, a conspiracy to import into Australia trafficable quantities of heroin must be regarded as a serious offence.”

32                  French J considered the policy underlying Art 1F(b) at 564-565:

“          A policy basis for Art 1F(b) is set out in the 1992 UNHCR Handbook. It is said at par 148 of the Handbook that at the time the Convention was drafted there was a desire on the part of States to deny admission to their territories of criminals who would present a danger to security and public order. At par 151 it is said:

‘The aim of this exclusion clause is to protect the community of a receiving country from the danger of admitting a refugee who has committed a serious common crime. It also seeks to render due justice to a refugee who has committed a common crime (or crimes) of a less serious nature or has committed a political offence.’

            It is also said in the Handbook that only a crime committed by the applicant outside the country of refuge prior to admission to that country as a refugee is a ground for exclusion (par 153). A refugee committing a serious crime inside the country of refuge is subject to due process of law in that country (par 154). Article 33 permits a refugee's expulsion or return to his home country if, having been convicted of a particularly serious common crime, he constitutes a danger to his country of refuge. It is to be noted that the Handbook is not a document which purports to interpret the Convention. In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392, Mason CJ (as he then was) said that he had not found the Handbook especially useful in the interpretation of the definition of ‘refugee’. His Honour went on to observe:

‘Without wishing to deny the usefulness or the admissibility of extrinsic materials of this kind in deciding questions as to the content of concepts of customary international law and as to the meaning of provisions of treaties ... I regard the Handbook more as a practical guide for the use of those who are required to determine whether or not a person is a refugee than as a document purporting to interpret the meaning of the relevant parts of the Convention.’

            See also Todea v Minister for Immigration and Ethnic Affairs (1994) 20 AAR 470 at 484, per Sackville J.

…

            The provisions of the Convention are beneficial and are not to be given a narrow construction. The exemption in Art 1F(b), however, is protective of the order and safety of the receiving State. It is not, in my opinion, to be construed so narrowly as to undercut its evident policy. The fact that a crime committed outside the receiving State is an offence against the laws of that State does not take it out of the ordinary meaning of the words of Art 1F(b). Nor does the fact that the crime has subsequently been punished under the law of the receiving State. The operation of the exemption is not punitive. There can be no question of twice punishing a person for the same offence. Rather it is protective of the interests of the receiving State. The protective function is not limited according to whether or not the punishment has been inflicted in Australia or elsewhere. Nor, on the language of the Article or its evident policy, is it necessary that the disqualifying crime have any connection to the reason for seeking refuge. A person who would otherwise qualify for admission as a refugee may be disqualified by the operation of Art 1F(b) if it were shown that such a person had a record of serious non-political criminal offences whether in the country of origin or elsewhere. In my opinion also it makes no difference that the offence, in this case a continuing offence, was committed both outside and within Australia.”

33                  In Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 (“Ovcharuk”) a Full Court agreed with the observation of French J in Dhayakpa that Art 1F(b) is intended to be protective of the order and safety of the receiving State and, as a consequence, the question of whether there are serious reasons for considering that a person “has committed a serious political crime outside the country of refuge prior to his admission to that country as a refugee” may be answered by reference to the notions of serious criminality accepted within the receiving State: see 179 per Whitlam J, 185 per Branson J and 191 per Sackville J.  While the issue in Ovcharuk related to whether the phrase “a serious non-political crime” should be qualified in respects that are not presently relevant there is nothing in any of the judgments in that case that affords any support to the appellant’s argument in the present case.  However, while the courts in Australia might not have finally determined that there is no requirement for a balancing test the courts in the United Kingdom, the United States and New Zealand have specifically rejected the balancing test proposed by the appellant.  In T v Secretary of State for the Home Department (1995) 1 WLR 545 at 554-555 the Court of Appeal stated:

“Such a balancing exercise is suggested in paragraph 156 of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of  Refugees (1979), published by the Office of the United  Nations High Commissioner for Refugees.  This reads in part:

‘it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of the persecution feared.  If a person has well-founded fear of very severe persecution, e.g. persecution endangering his life or freedom, a crime must be very grave in order to exclude him.’

We do not accept that the analogy with Chahal’s case is sufficiently close to require us to follow that decision on the question whether the balancing exercise suggested in paragraph 156 of the handbook is necessary.  The paragraphs of the Immigration Rules upon which the judgments in Chahal’s case were based (paragraphs 164 and 167 of Statement of Changes in Immigration Rules (1990) (H.C. 251)) do not apply to the removal of illegal entrants such as this applicant.  By paragraphs 161 and 173 of those Rules, the Secretary of State is required not to act contrary to the Convention.  If a person has committed a serious non-political crime outside the United Kingdom prior to his arrival here, the provisions of the Convention do not apply to him.  We can find nothing in the Convention which supports the view that, in deciding whether a non-political crime is ‘serious’ and therefore within article 1F, the Secretary of State or the appeal tribunal is obliged to weight the threat of persecution if asylum be refused against the gravity of the crime.”

34                  On appeal in T v Home Secretary (1996) AC 742 (“T”) it was not necessary for the House of Lords to decide the issue, although Lord Mustill observed (at 768-769):

“In recent years new criteria have been proposed.  The first is one of ‘proportionality.’  Whilst there is substantial support for this test, on closer examination it is seen that the decisions and commentaries use the term in more than one sense.  The first, relied upon by the appellant is that a crime cannot be political if the adverse consequences for the fugitive of using it as a basis for extradition or refoulment would be out of proportion to the gravity of the offence.  I see no substance in this and if Reg. v. Secretary of State for the Home Department, Ex parte Chahal [1995] 1 W.L.R. 526 supports it I must disagree.  The gravity of the offence is relevant to the question whether it is ‘serious’ for the purposes of article 1F(b).  But the crime either is or is not political when committed, and its character cannot depend on the consequences which the offender may afterwards suffer if he is returned.”

35                  Lord Mustill’s observation in T was cited with approval by the Supreme Court of the United States in Immigration and Naturalization Service, Petitioner v Juan Anibal Aguirre-Aguirre 526 US 415 (1999) (“Aguirre-Aguirre”) 119 S. Ct. 1439; 143  L. Ed. 2d 590.  Kennedy J, expressing the unanimous view of the court, found that a statutory provision incorporating Art 1F(b) into United States municipal law did not require a balancing of the respondent’s criminal act against the risk of persecution he would face if returned to his country of nationality.  In Aguirre-Aguirre the statutory provision in question provided for the withholding of deportation of any alien if the Attorney-General determined that the alien’s freedom would be threatened on account of race, religion, nationality, membership in a particular social group or political opinion.  However, the statute provided that the withholding does not apply, and deportation to the place of risk is authorised:

“if the Attorney General determines that there are serious reasons for considering that the alien has committed a serious non-political crime outside the United States prior to the arrival of the alien in the United States.’ 8 U.S.C. § 1253(h)(2)(C).”

36                  Justice Kennedy rejected the argument that the statute required the balancing of the respondent’s criminal acts against the risk of persecution he would face if returned to Guatemala.  Justice Kennedy, stating (at 426):

“As a matter of plain language, it is not obvious that an already-completed crime is somehow rendered less serious by considering the further circumstance that the alien may be subject to persecution if returned to his home country.  See ibid (‘We find that the modifie[r] … ‘serious’ … relate[s] only to the nature of the crime itself’).”

37                  And at 428:

“For the reasons given, supra, at 425-426, we think the … determination that § 1253(h)(2)(C) requires no additional balancing of the risk of persecution rests on a fair and permissible reading of the statute.  See also T. v. Secretary of State for the Home Dept., 2 All E.R. 865, 882 (H.L. 1996) (Lord Mustill) (‘The crime either is or is not political when committed, and its character cannot depend on the consequences which the offender may afterwards suffer if he is returned’).”

38                  In S v Refugee Status Appeals Authority [1998] 2 NZLR 291 at 297-300 the Court of Appeal considered the relevant United Kingdom, Canadian and Australian authorities and concluded (at 300):

“Having taken into account all the matters urged by counsel, we have reached the conclusion that the words of art 1F(b) being clear and unambiguous, should not be given some special meaning, requiring the addition of qualifying words which are not easily capable of insertion, and are unnecessary to give an acceptable meaning in context to the paragraph.  Whether a crime is to be categorised as serious is to be determined by reference to the nature and details of the particular offending, and its likely penal consequences.  It does not depend upon, nor does it involve, a comparative assessment of its own gravity with the gravity of the perceived persecution if return to the homeland eventuates.”

39                  The appellant argued that the statement that the words of Art 1F(b) are “clear and unambiguous” cannot be accepted in the light of the observations to the contrary in Singh.  Those observations, however, were directed at the difficulties involved in determining whether certain crimes are “non-political” crimes, and not at whether non-political crimes are to be regarded as “serious” crimes.  As was explained by French J in Dayapakh at 563-564 the seriousness of a crime involves an “evaluative judgment about the nature of the allegedly disqualifying crime”.

40                  In Canada the courts have been less definitive about whether a balancing test is required by Art 1F(b).  In Gonzalez v Canada (Minister of Employment and Immigration (1994) 115 DLR (4^th) 403 at 410, Mahoney J suggested that “[p]erhaps the modifier” serious in Art 1F(b) would make possible [a] balancing [test].  Subsequently, in Gill v Canada (Minister of Employment and Immigration) (1994) 119 DLR (4^th) 497 at 517 Hugessen JA, delivering the judgment of the Federal Court of Appeal, doubted that Art 1F(b) requires a “kind of proportionality test which would weigh the persecution likely to be suffered by the refugee claimant against the gravity of the crime”.

41                  The courts in the common law jurisdictions have rejected the views expressed in the UNHCR Handbook and by eminent writers that Art 1F(b) requires a balancing test.  Those views appear to be based upon a policy allegedly underlying Art 1F(b) that a person should not be denied the protection of the Refugees Convention unless the seriousness of the crime outweighs the risk of the persecution the person is likely to suffer if he or she is refouled to his or her country of nationality.  The difficulty with that view is that the policy underlying Art 1F(b) is to be found in the Article’s specification of the criterion for exclusion to be the commission of a “serious non-political crime” prior to the person’s admission into the intended country of refuge.  Thus, the Article provides that the commission of such a crime, of itself, is sufficient to exclude the person in question from the protection of the Refugees Convention.  In the context of the limited manner in which the Refugees Convention has been incorporated into municipal law in Australia (see Khawar v Minister for Immigration and Multicultural Affairs (2002) 187 ALR 574 at 584) the purpose of Art 1F(b) is clear; if a person has committed a serious non-political crime prior to the person’s admission into the intended country of refuge he or she is not a person to whom Australia has protection obligations under the Refugees Convention.  In determining whether the disqualifying crime is “serious” it is appropriate to have regard to the fact that it must be of such a nature as to result in Australia not having protection obligations to persons who commit such crimes.  However, there is no textual or contextual basis for reading into Art 1F(b) an additional requirement of a balancing test nor would such a requirement be justified on the basis that it is giving effect to a purpose or object of Art 1F(b) of the Refugees Convention.

42                  Finally, for the reasons given by the primary judge there is no substance in the appellant’s argument that Art 7 and the character test in s 501(6) should be taken into account in construing Art 1F(b).  The question in the present case is whether, for the purposes of s 36(2) of the Act, Australia has protection obligations to the appellant.  The primary judge was plainly correct in concluding that the answer to that question is to be resolved by reference to Art 1F(b), and not to Art 7 or s 501(6), which are concerned with different issues.  Thus, there is no basis for considering Art 7 or s 501(6) in construing Art 1F(b).

43                  For the above reasons the appeal is to be dismissed with costs.

Associate:

Dated:              31 October 2002