FEDERAL COURT OF AUSTRALIA

Al‑Anezi v Minister for Immigration & Multicultural Affairs

[1999] FCA 556

MIGRATION – judicial review of decision of Refugee Review Tribunal affirming decision not to grant applicant protection visa – definition of “refugee” – country of former habitual residence – “unable … to avail himself of the protection of that country” – whether well‑founded fear of persecution must exist at time of decision as to refugee status – discretion – error of law – whether Tribunal would have reached same decision even if it had not made error of law

WORDS AND PHRASES  - “refugee”

Rishmawi v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 421 referred to

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 referred to

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 cited

SHAYEA RAHAQ AL‑ANEZI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1225 OF 1998

LEHANE J

5 MAY 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal dated 10 November 1998 be set aside.

2.         The matter be remitted to the Refugee Review Tribunal for re‑determination in accordance with law.

3.         The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application for judicial review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa.  I delivered reasons for judgment on 1 April 1999.  The orders which would have followed from those reasons were that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal for redetermination.  I did not, however, immediately makes those orders because on one aspect of my reasons – the question whether the applicant’s status as a refugee was to be tested by reference to Iraq and Jordan as well as Kuwait – I had heard no substantial argument.  Accordingly, rather than dispose of the application immediately, I invited the parties to lodge further submissions.

2                     The Minister has lodged submissions on two points.  They are brief, and I shall set them out in full.

“The respondent wishes to raise only two matters in relation to the analysis of the ‘refugee’ definition in the judgment given on 1 April 1999.

Firstly, at paragraph 20, on page 8 of the decision, the following observation appears:

In other words, if a claimant were [unable] for any reason to return to the country of former habitual residence, he or she was a refugee if, and only if, the reason for the claimant’s absence from the country of former habitual residence was a (past) well‑founded fear of persecution; it did not matter that the well‑founded fear did not continue.

                                                                          - emphasis added

In Chan v Minister for Immigration & Ethnic Affairs [(1989) 169 CLR 379] the High Court considered and rejected a ‘once a refugee, always a refugee’ contention.  Mason J said at pages 386‑7 that the question of whether a person has the status of a refugee “… is to be determined upon the facts as they exist when the person concerned seeks recognition as a refugee”.  See also Dawson J at pages 398‑399, Toohey J at page 406.3, Gaudron J at page 414.6, and McHugh J at page 432.7.  Given the Chan decision, it is, with respect, incorrect to say that a person who has a past well‑founded fear of persecution remains a refugee even if the well‑founded fear does not continue.

Secondly, while the Court and the Tribunal differed on the question of whether a stateless person who has multiple countries of former habitual residence must fear persecution in all of those countries, the ultimate outcome of the reasoning process adopted by both the Court and the Tribunal is that one must ascertain whether a putative refugee will enjoy ‘effective protection’ in one or more of the various countries of former habitual residence.  Thus, while the Tribunal may have erred in its reasoning process (which is not conceded by the respondent), the error had no impact on the approach which the Tribunal adopted and would not, of itself, justify setting aside the decision of the Tribunal.”

3                     The first submission relates to a passage in my reasons in which I summarised what I took to be the effect of the judgment of Cooper J in Rishmawi v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 421.  Two things may be said about that.  One is that the conclusion which I reached does not depend upon the correctness of the view expressed by Cooper J.  The other, however, is that in my view there is no inconsistency between that view and the decision of the High Court in Chan.  Chan undoubtedly decides that the question, whether an applicant for a protection visa is a person to whom Australia has protection obligations, is to be answered having regard to the circumstances at the time the decision is to be made – whether by the Minister (or the Minister’s delegate) or by the Tribunal.  Thus if the applicant claims to be unwilling, owing to a well‑founded fear of persecution, to return to his or her country of nationality or former habitual residence, then the question is whether he or she is unwilling, at the time the decision is to be made, owing to a well‑founded fear of persecution held at that time.  Similarly, if the claim is that the applicant is “unable … to avail himself of the protection of that country”, the matter is to be tested at the time the decision is to be made.  It does not, however, necessarily follow that where an applicant is “unable”, rather than “unwilling”, a well‑founded fear must exist at the time of the decision.  Chan itself was, of course, a case where the applicant claimed to be unwilling to avail himself of the protection of his country of nationality owing to a well‑founded fear: thus, Gaudron J said at 414:

“Moreover, the definition of ‘refugee’ is couched in the present tense, thus suggesting that an applicant must have a well‑founded fear which accounts for unwillingness to avail himself of the protection of the country of his nationality at the time that his application for recognition as a refugee is considered.”

4                     Because it is unnecessary for my decision, I need say no more about the Minister’s first submission.

5                     The Minister’s second submission must, in my view, be rejected.  There are two essential steps in my earlier reasons.  One is that the Tribunal erred, as a matter of law, in testing the applicant’s status as a refugee by reference to Iraq and Jordan as well as Kuwait.  The Minister’s submissions do not address that question; on that aspect of the matter, the submissions address only the issue of whether in cases of inability, as well as of unwillingness, a well‑founded fear must exist at the time when an application is considered and decided: an issue which, as I have explained, does not require a decision in this case.  The second step in my reasons is that, in considering the possibility that Iraq and Jordan might be regarded as “safe third countries”, the Tribunal misapplied the principles discussed in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 and subsequent cases: in so deciding, I upheld, in substance, submissions made on behalf of the applicant at the hearing of the application and rejected the Minister’s submissions.  The Tribunal thus made a further error of law; and, because the essence of the error was that the Tribunal failed to consider the question whether Iraq or Jordan would offer the applicant protection of the kind discussed in the cases (see par 32 of my reasons), this is not a case where it can be said that the Tribunal must necessarily have reached, on its findings of fact, the same decision even if it had not made the error of law.

6                     Accordingly, the orders of the Court are those which I have foreshadowed: that

1.         The decision of the Refugee Review Tribunal dated 10 November 1998 be set aside.

2.         The matter be remitted to the Refugee Review Tribunal for re‑determination in accordance with law.

3.         The respondent pay the applicant’s costs.

Associate:

Dated:              5 May 1999