FEDERAL COURT OF AUSTRALIA

NAGV v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 144

ADDENDUM

NAGV AND NAGW OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1332 OF 2002

FINN, EMMETT & CONTI JJ

27 JUNE 2003 (ADDENDUM DATED 8 OCTOBER 2003)

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

ADDENDUM TO REASONS FOR JUDGMENT

EMMETT J:

1                     On 27 June 2003, the Full Court, by majority, ordered that the appeal be dismissed.  I dissented and would have upheld the appeal.  In my reasons, I indicated that I was of the view that the decision of an earlier Full Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 (‘Thiyagarajah’) was wrongly decided.  The majority, Finn and Conti JJ, agreed that Thiyagarajah was wrongly decided but concluded that, because of the jurisprudence that had developed on the basis of Thiyagarajah, it would not be appropriate to depart from what had been regarded as settled law.

2                     In the course of my reasons for judgment, I said (at [32]) that ‘Australia has not withdrawn its reservations with respect to Art 28 and Art 32 of the Refugees Convention’.  References to Australia’s reservation of Art 32 were also made at [33], [38], [40], [59], [60], [61] and [62].  I also observed that the attention of von Doussa J had apparently not been drawn to the fact that Australia had reserved Art 32 and that his Honour’s reasoning had proceeded on the basis that Australia had the obligation that would arise under Art 32.  It now emerges that his Honour was perfectly correct in proceeding on that basis.

3                     Prior to the commencement of argument in this appeal, the Minister’s legal representatives provided the Court with a bundle of materials.  Included in the bundle were copies of the Refugees Convention and the Refugees Protocol as reproduced from the Australian Treaty Series: see [1954] ATS 5 and [1973] ATS 37 respectively.  The reservations made by Australia with respect to, inter alia, Art 28(1) and Art 32 are set out in the notes to the Refugees Convention.  No material was included in the bundle to indicate that Australia had withdrawn those reservations. 

4                     During the course of argument, we were referred to the decision of the Full Court in V872/00A v Minister for Immigration & Multicultural Affairs (2002) 190 ALR 268 and to the comment by Hill J (at 271 [17]) that Australia, in ratifying the Refugees Convention, did not adopt Art 32.  We were also referred to the report at (2001) 184 ALR 698 of the decision of the Full Court in Al-Rahal v Minister for Immigration and Multicultural Affairs, also reported at (2001) 110 FCR 73.  In that decision, as originally reported, Lee J stated (at [21] and [23]) that Australia acceded to the Refugees Convention with several reservations, including to Art 28(1) and Art 32. 

5                     However, Lee J’s judgment in Al-Rahal was the subject of a corrigendum issued on 18 April 2002 and reported in 187 ALR at x and 112 FCR at xxiv.  In the corrigendum, Lee J observed that the reservations to Art 28(1) and Art 32 had been withdrawn.  The Court’s attention was not drawn to the corrigendum.  Further, the full text of the Australian Treaty Series does not refer to the withdrawal of the reservations to Art 28(1) and Art 32.  The withdrawal is noted only in the Multilateral Treaty List, which must be reviewed separately.

6                     In fact, Australia withdrew its reservations with respect to Art 28(1) and Art 32.  The reservation to Art 32 was withdrawn in a communication to the Secretary-General of the United Nations received on 1 December 1967 and the reservation to par 1 of Art 28 was withdrawn in a communication to the Secretary-General received on 11 March 1971:  see United Nations Treaty Series, Convention Relating to the Status of Refugees, note 15.

7                      However, the fact that Australia has withdrawn its reservation with respect to Art 28(1) and Art 32 does not affect my conclusion concerning the reasoning in Thiyagarajah. 

Associate:

Dated:              8 October 2003