FEDERAL COURT OF AUSTRALIA

Semunigus v The Minister for Immigration &

Multicultural Affairs [1999] FCA 422

ADMINISTRATIVE LAW – migration law – appeal from a decision of the Refugee Review Tribunal - procedures contained in the Office of the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status – whether Tribunal obliged to apply these procedures

ADMINISTRATIVE LAW – practice and procedure – Refugee Review Tribunal – time at which a decision is made

Migration Act, 1958 (Cth) s 36(2), s 22AA, s 65(1)(a)(ii), s 420(2), s 427(1)(d), s 430(2), s 430(3), s 476(3), s 478(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Convention relating to the Status of Refugees done at Geneva on 28 July 1951, Article 1A(2), Article 35

Protocol relating to the Status of Refugees done at New York on 31 January 1967

Vienna Convention on the Law of Treaties Article 31(3)(c)

Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 referred to

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 referred to

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 referred to

Chan Yee Kin v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379

Shahzad Gull Awan v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Davies J, 9 April 1998) referred to

Eshetu v Minister for Immigration and Ethnic Affairs (1996) 142 ALR 474 referred to

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 referred to

Director-General of Social Services v Chaney (1980) 31 ALR 571 applied

Rice-Growers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443 referred to

GETACHEW SEMUNIGUS v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, MR BRENDAN KISSANE constituting the REFUGEE REVIEW TRIBUNAL

AG 62 of 1998

FINN J

MELBOURNE (HEARD IN CANBERRA)

14 APRIL 1999

THE COURT ORDERS THAT:

            1.         the application be dismissed.

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

REASONS FOR JUDGMENT

1                     This appeal from a decision of the Refugee Review Tribunal (“the Tribunal”) rejecting the application of Getachew Semunigus for a protection visa raises two issues.  The first, which is speculative in character, invites me to hold that the Tribunal is obliged either as a matter of law (cf s 36(2) of the Migration Act 1958 (Cth) (“the Act”)) or as a matter of “substantial justice” (cf s 420(2) of the Act), to apply the procedures contained in the Office of the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (“the UNHCR Handbook”).  The second requires a precise finding as to the point at which it is properly to be said that the Tribunal has given its decision, a late submission of material having been submitted by the applicant to the Tribunal between the respective dates that each party to the appeal claims was the date of the decision.  It is accepted by both parties that once the decision was given the Tribunal was functus officio:  see Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301.  These claims are based on quite distinct factual foundations and will be considered separately.

Issue 1.  The UNHCR Handbook

2                     The appellant’s submissions on this issue are premised on the Tribunal’s not having followed the procedures of the UNHCR Handbook.

3                     It is contended that as a result of the amendments made to the Act in 1994 introducing s 36(2) into the Act, the description of a criterion for a protection visa so changed as to impliedly incorporate into the four corners of the Act the procedures prescribed in the UNHCR Handbook for determining whether a person is a refugee.

4                     Section 36(2) of the Act provides:

“(2)     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 as amended by the Refugees Protocol.”

It is the Minister who has to be satisfied that this criteria is satisfied:  the Act, s 65(1)(a)(ii).  The precursors of s 36(2) for their part had described simply as a “refugee” the visa applicant whose status had so to be determined:  see eg the prior s 22AA, the legislative history of which was discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 273-275.  What brings the various formulae together is that both a person to whom the relevant “protection obligations” are owed and a “refugee” are defined ultimately in Article 1A(2) in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (“the Convention”) as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, to mean:

“any person who … 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 … .”

5                     The difference in formulation between referring to a person simply as a “refugee” on the one hand and as a person to whom Australia has “protection obligations” on the other has the effect, so it is submitted, of making a person who is a refugee under the latter formula, a person who is found to be a refugee not only under the definition of the Convention but in accordance with the procedures laid down in the UNHCR Handbook.

6                     The reasoning process, as best I can understand it, that produces this somewhat surprising result would seem to be that while the Convention itself ordains no procedures for determining whether a person is a refugee, Australia as a contracting State has by Article 35 of the Convention:

“[undertaken] to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”

The UNHCR has promulgated the Handbook in the exercise of its duty of supervision of the application of the Convention and thus Australia is obliged to implement the Handbook and has done so, impliedly, through s 36(2).

7                     To bolster this unusual reasoning process, resort is had to the proposition that the Act should be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with established rules of international law:  Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287-288.  Accordingly Australia’s obligations under the Convention should be interpreted according to the principles of customary international law, especially as codified in Article 31 of the Vienna Convention on the Law of Treaties:  Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 239-240, 251 ff and 294-295.  The Handbook, it is submitted, embodied “subsequent practice in the application of the [Convention] which establishes the agreement of the parties regarding its interpretation” and this is to be taken into account in its interpretation:  Vienna Convention on the Law of Treaties, Article 31(3)(c).

8                     There are, in my view, many vices in these submissions.  I need, though, only refer to one.  Even if the tortured interpretative path I am invited to tread led ultimately to the UNHCR Handbook, it is not possible to regard the Handbook as having or as being intended to have binding force, or as being capable of being given such character notwithstanding its intrinsic lack of such force, because of the provisions of Article 35 of the Convention.

9                     The courts have, on many occasions, referred to the Handbook as a guide to which resort may properly be had (with greater or less benefit) by those who are required to determine whether or not a person is a refugee:  Applicant A v Minister for Immigration and Multicultural Affairs, at 302;  Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392;  Shahzad Gull Awan v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Davies J, 9 April 1998);  and see also Eshetu v Minister for Immigration and Ethnic Affairs (1996) 142 ALR 474 at 485 where Hill J at first instance commented on the “danger of making reference to the Handbook on matters of procedure”.  I would add the present case rather illustrates the justice of Hill J’s comment.  The procedures that the applicant seeks to invoke from the Handbook – they relate to “Benefit of the doubt”:  see UNHCR Handbook paras 203-204;  and “Mentally disturbed persons”:  paras 206-212 – are partially at least, in potential conflict with powers given by the Act:  see the Act, s 427(1)(d) (medical examinations).

10                  The UNHCR Handbook on its face purports to do no more than provide a source of guidance and assistance to contracting States, the language of the document from the “Foreword” to the “Conclusion” being redolent of this purpose.  In furtherance of its purpose, it does attempt by definition and prescription to provide a workable schemata capable of being used in the determination of refugee status.  The “Conclusion” to the handbook adequately captures both the purpose and the methodology I have noted.  I merely note two paragraphs by way of illustration:

“220.   In the present Handbook an attempt has been made to define certain guidelines that, in the experience of UNHCR, have proved useful in determining refugee status for the purposes of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.  In so doing, particular attention has been paid to the definitions of the term ‘refugee’ in these two instruments, and to various problems of interpretation arising out of these definitions.  It has also been sought to show how these definitions may be applied in concrete cases and to focus attention on various procedural problems arising in regard to the determination of refugee status.

…

223.     Within the above limits it is hoped that the present Handbook may provide some guidance to those who in their daily work are called upon to determine refugee status.”

11                  Even if I were to accept all of the steps in the applicant’s submissions leading to the UNHCR Handbook – which I do not – it is impossible to conclude that it embodies procedures that are required by the Act (and the applicant only relies on s 36(2) for this) to be observed in connection with the making of a refugee status determination.  The UNHCR Handbook does not prescribe mandatory procedures.  In any event, s 36(2) does no more than define the type of person who can be an applicant for a protection visa.  No different in this from its predecessors, it does not expressly or impliedly define the procedures to be followed in determining whether a particular applicant falls within the definition.  Likewise the Tribunal cannot be said to have committed an error of law, as alleged by the applicant, in not taking the procedures of the Handbook into account:  see also s 476(3) of the Act.

12                  I would also add, though it is unnecessary to express a concluded view on the matter, that Article 35 of the Convention in its undertaking to cooperate seems a most unlikely source for the imposition of a positive obligation to follow a specified procedure for the determination of refugee status.

13                  The applicant has sought indirectly to achieve the result of the UNHCR Handbook being in effect binding on the Tribunal by resort to the “substantial justice” limb of s 420(2)(b) of the Act as interpreted by the majority of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300.  With the Handbook having the status of at best a guide to which resort might be had, this indirect path to its being in effect mandatory is wholly misconceived.

14                  This ground of appeal must be rejected.  But as a matter of fairness and courtesy to the Tribunal the following should be stated.  The Tribunal found that (i) Mr Semunigus had, subjectively, a genuine fear of returning to his home country, Ethiopia;  (ii) it acknowledged his psychological state and expressed considerable sympathy for him and for the difficulties that have developed for him;  but (iii) it did not accept that the difficulties he had experienced related to “a Convention reason” nor did it accept that there was a real chance of his being persecuted for a Convention reason.

15                  Given the indirect route the applicant has invoked to attack the Tribunal’s decision, I should also say, though without further elaboration, that not only can I discern no error in the Tribunal’s decision – particularly on the issue of “standard of proof”:  see Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 at 548ff – nor any lack of sensitivity to the applicant’s psychological difficulties.

Issue 2.  The Time the Decision was Made

16                  The respondent has agreed, or at least does not contest, the following sequence of events as outlined in the applicant’s submission:

“6.       The RRT member signed his decision on 12 June 1998 and handed the decision to the RRT registry staff for processing.  The RRT member had no further involvement with the matter.

7.         At approximately 4.39pm on 12 June 1998, after the RRT member had signed his decision and passed it to the RRT registry staff for processing, the applicant’s adviser sent further submissions to the RRT.

8.         On 16 June the RRT registry staff produced two unsigned copies of the decision (for the applicant and the Department of Immigration and Multicultural Affairs).  They affixed the RRT seal on the documents and wrote the date 16 June 1998 within the seal on each copy (this sealing of an unsigned copy of the decision accorded with the Registry’s usual practice).  By letter dated 18 June 1998, a Deputy Registrar of the RRT advised the applicant of the decision and enclosed the sealed copy of the decision.”

17                  The only issue I am being asked to determine at this stage is whether the Tribunal was functus officio when the applicant’s further submissions were received.  If I conclude it was not, further submissions will be made on whether the Tribunal was obliged to consider them given their particular character.

18                  The usual setting in which the question arises whether or not a “decision” has been made is the quite contrived one of whether there has been a decision made to which the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) apply:  see eg Director-General of Social Services v Chaney (1980) 31 ALR 571 at 590;  see also Rice-Growers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443 per Northrop J.  Only guarded assistance can be obtained from these.  It is not in any event profitable to attempt to define in any exhaustive way when it properly is to be said that a decision is made.  Context can have real bearing on the question as this case illustrates.

19                  For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.

20                  What constitutes such an act can obviously vary with the setting in which the decision is made:  it may be no more than a written notation of a conclusion on a departmental file;  it may be publication of the conclusion in a particular forum, or communication of it to another;  it may be performing a consequential or collateral act that presupposes the decision’s having been made, etc.

21                  In the present matter the provisions of the Act itself appear to throw light on the question.  Section 430 of the Act provides:

“Refugee Review Tribunal to record its decisions etc and to notify parties

430      (1)        Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

            (a)        sets out the decision of the Tribunal on the review;  and

            (b)        sets out the reasons for the decision;  and

            (c)        sets out the findings on any material questions of fact;  and

            (d)       refers to the evidence or any other material on which the findings of fact were based.

            (2)        The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.

            (3)        Where the Tribunal has prepared the written statement, the Tribunal must:

            (a)        return to the Secretary any document that the Secretary has provided in relation to the review;  and

            (b)        give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.”

22                  Section 478(1) which regulates applications to this Court from the Tribunal provides:

“Application for review by Federal Court

            478(1)  An application under section 476 or 477 must:

            (a)        be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act1976;  and

            (b)        be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.”

23                  The former of these sections would appear to contemplate the possibility of (i) a decision;  then (ii) a s 430(1) statement prepared in the period between the making of the decision and the expiry of 14 days;  and (iii) the notification of it via the written statement within 14 days of the decision.

24                  For present purposes I need not explore whether the Tribunal’s decision in fact was made prior to, or was merely a part of, the preparation of the written statement that was signed by the Tribunal on 12 June.  All I need consider is whether on that day, when the decision and statement were signed and the statement handed to the registry for processing, the decision had been taken.

25                  By way of factual background to the question I should refer to the internal processes adopted by the Tribunal for the finalisation of a decision and for the discharge of the notification and other obligations imposed by s 430(2) and (3).  Three documents would appear to be utilised within the Tribunal for these purposes.  The first is a Finalisation Record, that identifies (a) the actual decision ie, “affirmed”, “set aside” etc;  (b) when it was checked in draft;  (c) on what date it was a final decision and the method of case management finalisation thereafter to be followed;  and (d) catchwords for the decision.  In the instant case, the date given for final decision was “12/6/98”.

26                  The second document carries into effect the case management finalisation processes consequent upon the decision being designated in the first document as final.  These processes include notifying the applicant and the Secretary as required by s 430(2).  Such occurred in this case on 18/6/98.  The third document, signed by the Tribunal Member is addressed to the case management team directing return to the Secretary to the Department of the documents referred to in s 430(3).  In the present case this document was signed on 12/6/98.

27                  The key to determining by when a decision has been taken is to be found in these practices when considered in the light of the obligation imposed by s 430(2) to notify the applicant and the Secretary “within 14 days after the decision concerned is made”.  Because of the need to know from when this obligation runs, the processes adopted have the practical effect of identifying the date of the decision.  That date is the date given for the “final decision” in the first of the documents to which I have referred.  From that date obligations arise under s 430(2) and (3) - and in relation to the former subsection, time begins to run.  The latter two documents to which I have referred presuppose the decision has been made and provide the processes for the consequential s 430 obligations to be discharged and in a timely way.

28                  To put the matter baldly, the date of the decision in this case can best be identified by identifying the date on which duties consequent upon it have arisen.  The very nature of those duties presuppose the finality of the decision.

29                  In the present circumstances, then, the date of decision was 12 June 1998.  The Tribunal in consequence was functus officio when the further submissions were received.  I should add that I should not in any way be taken as suggesting that if the Tribunal was not functus it was for that reason obliged to consider the further submissions.

Conclusion

30                  The applicant being unsuccessful on all grounds actually prosecuted on the hearing of this application, the appeal must be dismissed.

Associate:

Dated:              13 April 1999