FEDERAL COURT OF AUSTRALIA

Savvin v Minister for Immigration & Multicultural Affairs [1999] FCA 1265

IMMIGRATION – application for refugee status – definition of refugee – whether persecution – whether person “not having a nationality” need be outside the country of former habitual residence for fear of Convention persecution – whether stateless persons the same as nationals for the purposes of the Convention – use of extrinsic materials for interpretation

Migration Act 1958 (Cth)

United Nations Convention Relating to the Status of Refugees 1951

Collected Travaux Préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees

Minister for Immigration v Guo (1997) 191 CLR 559

Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 190 CLR 225

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

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

Husein Ali Haris and Others v Minister for Immigration and Multicultural Affairs (1998) FCA 78

Ali-Anezi v Minister for Immigration and Multicultural Affairs (1999) FCA 335

Ali-Anezi v Minister for Immigration and Multicultural Affairs (1999) FCA 556

Adan v Home Secretary [1997] 1 WLR 1107

Adan v Home Secretary [1999] 1 AC 293

Somaghi v Minister for Immigration and Ethnic Affairs (1991) 31 FCR 100

Attorney-General (Canada) v Ward (1993) 103 DLR(4^th)

SAVVIN V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Q 49 OF 1999

DOWSETT J

13 SEPTEMBER 1999

BRISBANE

THE COURT ORDERS THAT:

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

REASONS FOR JUDGMENT

THE APPLICATION

1                     This is an application pursuant to the Migration Act 1958 (Cth) to review a decision of the Refugee Review Tribunal, upholding a departmental decision to refuse applications for protection visas.

            THE DEFINITION OF “REFUGEE”

2                     Entitlement to a protection visa depends upon classification as a “refugee”.  It will be necessary, at a later stage in these reasons, to address the proper construction of the definition which appears 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 (the “Protocol”).  For the moment, it is sufficient to observe that a refugee is a 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; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.

3                     The identified reasons for persecution are usually described as “Convention reasons”.  The matter has proceeded before me upon the basis that the applicants are “stateless”, meaning that they are without nationality for the purposes of the definition.  It is not clear whether proceedings before the Tribunal were conducted on that basis.  The applicants are described in the reasons as “stateless”, but they are also said to be Russian nationals and to have Russian passports.  As far as I can see, they claim to have been nationals of the former Soviet Union and to have held passports issued by that former power.  It is also not clear that the Tribunal addressed the distinction between persons with, and persons without nationality.  It simply concluded that the applicants did not face a “real chance” of persecution based on a Convention reason and that they therefore could not have a well-founded fear of persecution.  The applications were therefore rejected.  The applicants submit that the Tribunal ought to have concluded that they had a well-founded fear of persecution for a Convention reason and that in any event, as stateless persons, they need not have such a fear in order to qualify for refugee status.  It is convenient to deal firstly with the factual aspects of the “well-founded fear” point.

THE APPLICANTS

4                     The applicants are husband, wife and their two daughters.  The first applicant (the husband) was referred to by the Tribunal as the “primary applicant”.  The decision under review was based primarily upon the facts in his case.  He was born in Russia on 5 April 1955 and educated there, commencing employment with the Latvian Government in March 1974.  He completed military service with the Army of the Soviet Union between May 1974 and May 1976 and then returned to work in Latvia, again with the Latvian Government.  He later worked with the Riga Electric Heating Centre until 1992 when he took employment as an accountant with a company called Vermon. The second applicant was born in Byelorussia and completed her primary and secondary education there, settling in Latvia in 1972.  The first and second applicants married in 1978.  In 1993 they and a Latvian national formed a company called Lesma Limited to operate a hairdressing salon.  The salon employed five Latvian nationals of Russian ethnicity.  It ultimately employed a total of 14 people. The first and second applicants operated the business for three‑and‑a‑half years, but sold it prior to coming to Australia.  The first applicant arrived in Australia on 22 August 1996 with his younger daughter, the fourth applicant.  The second applicant arrived on 12 October 1996.  Their elder daughter, the third applicant, arrived on 29 July 1996.

5                     Although the first applicant has lived in Latvia for over 20 years, he will not be eligible for Latvian citizenship until the year 2004.  He fears that if he returns to Latvia the authorities will know that he has made an application for “refugee status” in Australia.  He will be persecuted for this, will not be able to get work or be allowed to start a business, and so will be prevented from earning a living.  He has no confidence that the Latvian authorities will protect him because  “Latvians hate (us) Russians and the people in authority are Latvians”.  The second applicant fears that if they return to Latvia, they will be “under enormous pressure” on account of their non-Latvian ethnicity.  She does not expect that her husband could find work in Latvia, nor that they could start their own business due to their lack of financial resources.  She fears that the children will be persecuted.  Latvians consider Byelorussia and Russia to be “the same thing”.  The third applicant said that her parents suffered much in Latvia and that life in Australia was much quieter.  She does not believe that there is a future for children in Latvia.  While studying in Switzerland, she noticed a marked change in her parents.  They became increasingly more concerned about living in Latvia.  The fourth applicant said that living in Latvia was “very scary” for children and that teenagers died every day.  She recalled the family receiving “strange phone calls at night” before coming to Australia.  They kept their curtains drawn.  She is scared to return to Latvia.

6                     The applicants fear returning to Latvia because people of Russian background “have no rights there” and are badly treated.  The applicants claim to have been “pressured” by the police in Latvia.  In one incident, the first applicant’s brother‑in-law, also of Russian ethnicity, was working in a café.  He told a patron to stop smoking.  The patron abused him, calling him a “Russian pig”.  The patron ultimately left after much disruption, but returned and shot the applicant’s brother-in-law in the hip.  It turned out that he was a special prosecutor in Riga.  The incident was reported in the newspaper, but the offender was not charged.  The matter was reported to the police, and the victim instructed a lawyer to act on his behalf.  The first applicant believes that the authorities tried to “cover up” the incident.  The bullet, which was removed from his brother-in-law, was misplaced by the authorities.  The first applicant spoke to the media about the incident.  Shortly thereafter, he received threatening telephone calls advising him not to speak to the press.  His brother-in-law and his sister were told that they would be given jobs if he stopped doing so.

7                     In another incident, on 9 December 1995, the second applicant’s car was taken by police for testing in relation to an allegation that it was involved in an “hit-and-run” accident.  The applicants deny that the car was so involved, and that either of them was involved in the incident.  The car was returned some six weeks later.  No further action was taken by the police.  A sample of the second applicant’s hair was also taken.  She was interrogated by the police and received numerous telephone calls from them concerning the incident, but she was not tortured or physically abused.  The applicants claim that they were subjected to harassment in the conduct of their business.  The children were also harassed on occasions.

THE SITUATION IN LATVIA

8                     Apart from the applicants’ claims of harassment and of general discrimination against Russians, there is substantial evidence of such discrimination in respect of the right to vote, employment in the civil service and in other areas of employment.  However Russians may reside anywhere within Latvia, are entitled to social assistance and health care, pay equal taxes and may marry at will.  There is conflict in the evidence as to the right to own land and to travel overseas.  The evidence suggests that there is greater discrimination against non‑citizens than is generally thought to be consistent with obligations under the International Covenant on Civil and Political Rights, but in the US State Department Country Report for 1996, it is said that the government of Latvia generally respects the human rights of its citizens and resident non-citizens.  The 1997 Report categorises Latvia as a parliamentary democracy which permits freedom of movement within the country, foreign travel, repatriation of citizens and re-admission of non-citizens who have claimed refugee status in other countries or who have voluntarily abandoned their permanent residence in Latvia and then sought to return.

9                     The 1995 Law on the Status of Former Soviet Citizens stipulates that registered permanent resident non-citizens should enjoy the right to establish and change residences, to travel abroad and return to the country.  There is an on-going programme of naturalisation of non-Latvians.  This is consistent with the first applicant’s claim that he will be entitled to Latvian nationality in 2004.  It seems unlikely that a person who is to be offered nationality in the relatively near future would be discriminated against by the government in question, although that does not exclude the possibility of persecution by others.  The first applicant, and I infer all applicants, have some competence in the Latvian language.  There have been no recent reports of violence by Latvians against ethnic Russians or other non-Latvians.  There are about 700,000 people of Russian ethnic background in Latvia, out of a total population of 2.56 million.

10                  The Tribunal found that the incident involving the car provided no clear evidence of discrimination and that the incident at the restaurant related to the position of the patron as prosecutor rather than to persecution of ethnic Russians.  These views were fairly open on the evidence.  The Tribunal concluded that there was no “real chance” that the applicants would be subject to persecution for a Convention reason in Latvia and apparently inferred that they therefore had no well-founded fear of such persecution. 

THE APPEAL

11                  The applicants firstly submit that the Tribunal did not apply the correct test to determine status as a refugee.  They refer specifically to the following extract from the Tribunal’s reasons (which appears at pp 11-12):-

The Tribunal accepts that Russian ethnics in Latvia as non-citizens are subject to certain disadvantages. …

These disadvantages are broadly the same as those which all countries impose on non-citizens.  They do appear to go somewhat further in a few cases, and arguably could be considered unfair or unreasonable.  The Tribunal does not think, however, that they come anywhere near a level which could be considered as persecution. …

 …

The restrictions enumerated … do not seem to the Tribunal to be sufficiently serious to be described as persecution of Latvian non-citizens.  The Tribunal is prepared to accept that the applicant has experienced a certain amount of unfair discrimination and disadvantage as a result of not being a Latvian citizen, but in the Tribunal’s view this has not amounted to persecution.

12                  The Tribunal continued at p 21:-

Given the cited country information, the Tribunal finds that the applicant was discriminated against by the Latvian authorities however the Tribunal finds that the discrimination he was subjected to did not amount to persecution within the meaning of the Convention.  Further, the Tribunal finds that at present there is not a real chance that the applicant will suffer persecution for a Convention reason if he returns to Latvia.

13                 The applicants make two criticisms:-

·                 that the Tribunal applied an incorrect test in determining the circumstances which could amount to persecution for a Convention reason; and

·                 that use of the expression “real chance” suggests that the Tribunal used a test disapproved by the High Court in Minister for Immigration v Guo (1997) 191 CLR 559 at 572.

            Persecution

14                 The applicants rely upon certain observations by Brennan CJ and McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 190 CLR 225.  In their written outline, the applicants refer to a passage in the reasons of Brennan CJ at 233, in which his Honour observed:-

… the feared persecution must be discriminatory.  The victims are persons selected by reference to a criterion consisting of, or criteria including, one of the prescribed categories of discrimination (race, religion, nationality, membership of a particular social group or political opinion) mentioned in Article 1A(2).  The persecution must be “for reasons of” one of those categories.  This qualification excludes indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution.  Persecution of that kind is a general, non-discriminatory denial of fundamental rights and freedoms.  The qualification also excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application.  Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.  But the categories of discrimination mentioned in the definition are very broadly stated, especially the category of “membership of a particular social group”.

15                  Implicit in the submission is the assertion that Brennan CJ meant that discriminatory conduct, of itself, constitutes persecution, but at 232-3, his Honour said:-

When a person has a well-founded fear of persecution, the enjoyment by that person of his or her fundamental rights and freedoms is denied.  Forced sterilisation has been seen as a denial of a person’s fundamental rights and freedoms.  It offends the fundamental human right to the security of the person and it destroys, of course, a person’s reproductive capacity.  It has not been argued that, if the other elements of the definition are satisfied, forced sterilisation does not satisfy the element of persecution.

However, the object and purpose of the Convention is not simply the protection of those who suffer a denial of enjoyment of their fundamental rights and freedoms; they must suffer that denial by prescribed kinds of persecution, that is, persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion”.

16                  In other words, persecution involves the denial of “fundamental rights and freedoms”.  The passage relied upon by the applicants was meant to demonstrate that such denial, by itself, is not sufficient for the purposes of the Convention.  There must be an additional element of relevant discrimination.  This approach necessitates the identification of rights and freedoms which are fundamental in Latvia.  The recent history of that country and of its relations with the former Soviet Union and before that, Russia, indicates that there has been resettlement of ethnic Russians in large numbers within its boundaries.  It is reasonable to infer that this resettlement occurred without the consent of the Latvian people.  The current approach to the social and economical imbalances produced by this colonisation is a matter about which minds may differ, but restrictions on land ownership and on some forms of employment may not necessarily be unreasonable.  No attempt was made before the Tribunal to identify as “fundamental” any of the rights and freedoms of which ethnic Russians are deprived by Latvian law.  The current position may not comply with the relevant international treaty, but that is not necessarily enough.  The case was not conducted upon the basis that discriminatory laws relating to property ownership and employment constitute persecution because they deprive non-Latvians of fundamental rights.  It was rather conducted upon the basis of fear of violence and other generalised fears of discrimination.

17                  Observations by McHugh J in Applicant A at 259 may suggest a presumption of persecution where discrimination is shown. However it is clear from his Honour’s observations at 258 that such conduct must at least amount to “harassment”.  It is also clear from that passage that McHugh J contemplated an enquiry as to the reasons for any such discrimination with a view to determining whether or not it was prompted by something other than a desire to persecute for a Convention reason.  Nothing of that kind was attempted in this case, nor would the evidence have justified such an enquiry, particularly as the first applicant expects citizenship in the relatively near future.  As I have said, willingness to offer citizenship seems to be inconsistent with persecution which has been instigated by, or is tolerated by government.  There was no suggestion that the government was unable to offer appropriate protection.

18                  In that case, Gummow J said at 284:-

In ordinary usage, the primary meaning of “persecution” is:-

The action of persecuting or pursuing with enmity and malignity; esp the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it; the fact of being persecuted; an instance of this.

Accordingly, I agree with the following formulation by Burchett J in giving the judgment of the Full Federal Court in Ram v Minister for Immigration [(1995) 57 FCR 565 at 568]:

Persecution involves the infliction of harm, but it implies something more:  an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutor.  Not every isolated act of harm to a person is an act of persecution.

19                  Dawson and Kirby JJ do not seem to have addressed the question of what would constitute persecution, no doubt because it was conceded that the conduct in question was capable of so doing.

20                  The evidence demonstrates that the law of Latvia discriminates against ethnic Russians, but not that the discrimination amounts to persecution.  It demonstrates that the Latvian population does not like ethnic Russians, but not that the state is unable or unwilling to afford protection against the consequences of such dislike.  There may be occasional harassment, but it is not generally government-instigated.

21                  It may be that the applicants have read too much into the Tribunal’s general acceptance of their credibility.  Their accounts of conditions in Latvia do not entirely co-incide with other material available to the Tribunal.  It is probable that the Tribunal concluded that the applicants were unduly concerned by a relatively small number of incidents of harassment.  In any event, I am unable to discern any defect in the approach taken by the Tribunal to the question of persecution.

“Real Chance”

22                  As to the second point, namely the use of the expression “real chance”, it is true that in Guo, the High Court deprecated its use.  Nonetheless, the formula has good credentials.  See Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379at 389 (per Mason CJ), 398 (per Dawson J), 407 (per Toohey J) and 429 (per McHugh J).  The decision in Guo demonstrates that the expression “real chance” as used in Chan was intended only to clarify the meaning of the expression “well-founded fear” in the Convention definition.  A fear of persecution will be “well-founded” if there is a substantial basis for it.  (See Guo at 572.)  In particular, a fear may be well-founded even if “the evidence does not show that persecution is more likely than not to eventuate”.  (See Guo at 573.)  The proper question is whether or not the relevant applicant has a well-founded fear of persecution for a Convention reason.  Given that the Tribunal was not satisfied that the demonstrated discrimination against non-Latvian citizens including the applicants amounted to persecution, fear of that discrimination would not be a well-founded fear of persecution.  It is difficult to see how it could have reached any other conclusion.  Although it might have been wiser to have avoided the reference to “real chance”, I do not consider that the Tribunal applied the wrong test.  It set out the correct test at pages 3 and 4 of the reasons.  Its use of the formula “real chance” reflected the purpose explained by the High Court in Guo.  It follows that I would not upset the finding as to absence of a well-founded fear of persecution for a Convention reason.  The balance of the appeal relates to the application of the Convention to stateless persons, to which issue I now turn.

STATELESS PERSONS

23                  Although the Tribunal identified the first and second applicants’ claims to be stateless, it seems not to have considered the significance of that in connection with the definition of “refugee”.  The following relevant passages in the evidence are cited at p 8 of the Tribunal’s reasons:-

The April 1995 “Law on the Status of Former USSR Citizens Who Are Not Citizens of Latvia or Any Other State” guarantees, among other things, the right to travel abroad and return to the country for all registered permanent non-citizens (ie all permanent residents of Latvia with a valid domicile registration as of July 1 1992).  Under the law, all registered non-citizens are entitled to receive non-citizen (or alien) passports which allow them to travel to and from Latvia without providing any additional documents… .  However, the US Department of State Country Reports for 1995 and 1996 noted that Latvia had been slow in issuing new alien passports and that, in the interim, and in apparent contradiction with the law the Citizenship and Immigration Department (CID) continued to require non-citizens departing with former Soviet passports to obtain separate re-entry guarantees… .

Validity of Travel Documents

According to the US Department of State Country Report for 1997, the CID began issuing new alien passports in April 1997.  Also in 1997, the government announced the gradual phase-out of former Soviet external passports.  The validity of former Soviet external passports for departure from Latvia to all countries except the Commonwealth of Independent States (CIS) expired on December 31 1997.  These documents remain valid for travel to the CIS member countries up to December 31 1998.  Former Soviet external passports may be used to return to Latvia from all countries up to December 31, 1998… .

24                  The Tribunal hearing took place prior to the end of 1998, but the decision was not made until 19 February 1999.  Between the date of the hearing and the date of the decision, the applicants lost their entitlement to return to Latvia on passports issued by the former Soviet Union.  For the sake of completeness I should say that the first and second applicants’ passports expired in any event on 6 March 1999.  The third applicant’s passport had expired on 7 June 1998.  The fourth applicant’s passport will expire on 19 December 1999.  The matter is further complicated by the fact that the first applicant claimed that his visa for return to Latvia had expired in 1996.  The relevance of this appears at page 23 of the Tribunal’s reasons.  It seems that his passport was liable to confiscation because he had not obtained an extension to his visa before leaving Latvia.  This is now irrelevant.  The Tribunal was obliged to determine the status of each applicant as at the time of its decision.  By that time, they no longer held valid passports for re-entry to Latvia.  There is no evidence that they are entitled to Russian nationality or Russian passports or any other nationality or passports.  Their only nationality appears to have been that of the Soviet Union which no longer exists.  Prima facie, they are without nationality.  However I am reluctant to decide that such is the case as the issue seems not to have been properly investigated.  It should have been.  I will proceed upon the basis that the applicants are now stateless, but I stress that the issue requires proper investigation.

THE CONVENTION DEFINITION

25                  The Convention definition of “refugee” deals expressly with persons not having a nationality.  It will be recalled that a refugee is a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

26                 The definition appears to fall conveniently into two parts, the first (preceding the semicolon) relating to persons having nationality, and the second (following the semicolon) relating to persons not having nationality.  If this is so, then the natural meaning is that a person without nationality is a refugee if he or she is outside the country of former habitual residence; and is either:-

·          unable; or

·          owing to “such fear”,  unwilling to return to it.

27                 The reference to “such fear” is to well-founded fear of persecution for a Convention reason.  The applicants are certainly outside their country of former habitual residence, namely Latvia.  That country has indicated that passports issued by the former Soviet Union are no longer valid for return to Latvia.  It follows that the applicants cannot return.  Indeed, three of them are now without passports.  Prima facie, they cannot return to Latvia.

28                 The above construction of the definition was rejected by Cooper J in Rishmawi v Minister for Immigration and Multicultural Affairs  (1997) 77 FCR 421.  His Honour held that in order to be a refugee, a person without nationality must be outside the country of former habitual residence for fear of persecution for a Convention reason.  Moore J, in Husein Ali Haris and Others v Minister for Immigration and Multicultural Affairs (1998) FCA 78, adopted the reasoning of Cooper J.  In Al-Anezi v Minister for Immigration and Multicultural Affairs (1999) FCA 335, Lehane J referred to Rishmawi but did not rely upon its correctness in reaching his decision.  See his Honour’s supplementary reasons for judgment at (1999) FCA 556.

29                 I would normally be most reluctant to differ from the considered view of another member of the Court, especially where that view has been subsequently endorsed.  However the arguments of counsel for the applicants have compelled me to consider the reasons in Rishmawi in some detail, particularly as his Honour’s construction appears to be at odds with the text.  Further, a perusal of those reasons demonstrates that the relevant passages may not strictly have been part of the ratio of the decision.  Although the applicant failed on the relevant ground (“Ground 1”), the application was upheld on another ground.  In addition, his Honour’s reasons depend, to some extent, upon the correctness of the decision of the Court of Appeal in Adan v Home Secretary [1997] 1 WLR 1107.  Since the decision in Rishmawi, that decision has been overturned by the House of Lords in Adan v Home Secretary [1999] 1 AC 293.  The decision of the Court of Appeal appears, in any event, to be inconsistent with the High Court’s decision in Chan.  For all of these reasons, I feel obliged to form my own view of the matter.

30                 To be refugees, the applicants must satisfy the test prescribed by the Convention as subsequently amended by the Protocol.  Although I have previously cited the short form of the definition, it is now appropriate to cite it in the fuller form found in the judgment of Gummow J in Applicant A at 275-6.  Article 1 of the Convention is divided into sections A to F.  Section A provides, in part, as follows:-

For the purposes of the present Convention, the term “refugee” shall apply to any person who:-

(1)        Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organisation;

            Decisions of non-eligibility taken by the International Refugee Organisation during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfilled the conditions of paragraph (2) of this Section;

(2)       As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of 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.

31                  The words in bold type were deleted by the 1967 Protocol.  For present purposes the question is whether or not a stateless person, who is outside his or her country of former habitual residence for reasons not associated with any fear of persecution for a Convention reason, and who cannot return to that country for reasons also unassociated with such fear, is a refugee.

THE TEXT

32                  I should make three observations about the text.  Firstly, it is of interest to consider the 1951 wording of the Convention in light of the 1967 amendment.  In the original form, par A(2) required that a person not having a nationality be outside his country of former habitual residence as a result of such events, this being a reference to events occurring before 1 January 1951.  A person with nationality, however, was required to be outside his country both as a result of such events and owing to a well-founded fear of persecution.  Clearly, those who drafted the original Convention deliberately treated the two categories of refugee in different ways.  There could be no other reason for expressly repeating, in the second part of the definition, the requirement relating to the 1951 events but not that of well-founded fear.  It also seems most unlikely that the 1967 amendment was intended to add a requirement as to well-founded fear.

33                  Secondly, there is a tendency to overlook the difference between the second condition required in the case of a candidate for refugee status who has nationality and that required of a person without nationality.  The national must show that he or she cannot, or is unwilling (because of well-founded fear) to avail himself of the protection of that country.  A person without nationality must show that he or she cannot, or is unwilling (because of well-founded fear) to return to it (the country of former habitual residence).  A national may demonstrate a willingness to avail himself of the protection of his country of nationality without necessarily returning to it.  For example, he may accept a passport or draw a pension.  Presumably, a person without nationality will only be able to avail himself of such protection as is offered by the country of former habitual residence if he or she returns to its territory.

34                  Thirdly, the reasoning in Rishmawi depends heavily upon the use of extrinsic material in aid of construction.  The courts have not always found extrinsic aids to be of assistance in interpreting this Convention.  In Chan, at 392, Mason CJ said:-

I note in conclusion that I have not found the Handbook on Procedures and Criteria for Determining Refugee Status (1979) (“the Handbook”) … especially useful in the interpretation of the definition of “refugee”.  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 relative parts of the Convention.

35                  A number of the other members of the Court (Dawson J at 397-9, Toohey J at 405-6, Gaudron J at 414 and McHugh J at 432) declined to accept the “Handbook construction” of the relevant provision.  In Adan v Home Secretary [1997] WLR 1107 at 1114, Simon Brown LJ made similar comments concerning the use of extrinsic material, as did Lord Lloyd of Berwick in the House of Lords.  See Adan v Home Secretary  [1999] 1 AC 293 at 304-5.  See also the observation of Dawson J in Applicant A at 248.  This general lack of enthusiasm for using the Handbook and other external materials to contradict the plain words of the Convention suggests that a certain conservatism should attend such usage.

THE CASES

36                  Before considering the decision in Rishmawi, I should refer to three other decisions.

37                  The first is the decision of the High Court in Chan.  In that case, the applicant claimed refugee status as a result of alleged political persecution in China.  The decision was cited by Gummow J in Somaghi v Minister for Immigration and Ethnic Affairs (1991) 31 FCR 100 at 115 as authority for the proposition that refugee status is to be determined as at the date upon which the decision is made.  In Chan that matter was dealt with by Mason CJ at 386-7,  Dawson J at 398-9,  Toohey J at 405-6 and McHugh J at 432.  In fact, their Honours all identified the relevant date as that on which the applicant claims recognition as a refugee but presumably, an application retains that character until disposed of  by a decision.  A person with nationality will be a refugee if he or she is out of the country of nationality because of a present, well‑founded fear of persecution and unable or, owing to such fear, unwilling to return.

38                  The second case is the decision in Somaghi.  The matter of particular interest is the discussion by Gummow J at 116-8 of the notion of a refugee “sur place”, that is a person who left his or her country of nationality or residence without the status of refugee, but subsequently acquired such status, either because of subsequent events in that country, or because of his or her conduct whilst outside that country.  That a person may become a refugee in this way follows from the decision in Chan, requiring examination of the facts as they are as at the date at which the matter is raised for determination.  The same approach is demonstrated by the House of Lords in Adan.  I should add, with respect to that decision, that Lord Lloyd of Berwick observed at 304 that a particular view of the application of the Convention to persons without nationality was “common ground”.  That view is contrary to the construction urged by the present applicants.  Obviously, no significance can be attributed to his Lordship’s having recorded this matter without further comment.

39                  The third case is the decision of the High Court in Applicant A which offers assistance in the approach to be taken to construing this Convention.  Brennan CJ said of this exercise at 231:-

In interpreting a treaty, it is erroneous to adopt a rigid priority in the application of interpretative rules.  The political processes by which a treaty is negotiated to a conclusion preclude such an approach.  Rather, for the reasons given by McHugh J, it is necessary to adopt an holistic but ordered approach.  The holistic approach to interpretation may require a consideration of both the text and the object and purpose of the treaty in order to ascertain its true meaning.  Although the text of a treaty may itself reveal its object and purpose or at least assist in ascertaining its object and purpose, assistance may also be obtained from extrinsic sources.  The form in which a treaty is drafted, the subject to which it relates, the mischief that it addresses, the history of its negotiation and comparison with earlier or amending instruments relating to the same subject may warrant consideration in arriving at the true interpretation of its text.

40                  Dawson J said at 239-240:-

Deciding that question involves the construction of a domestic statute which incorporates a definition found in an international treaty.  Such a provision, whether it is a definition or otherwise, should ordinarily be construed in accordance with the meaning to be attributed to the treaty provision in international law.  By transposing the provision of the treaty, the legislature discloses the prima facie intention that it have the same meaning in the statute as it does in the treaty.  Absent a contrary intention, and there is none in this case, such a statutory provision is to be construed according to the method applicable to the construction of the corresponding words in the treaty.

The general rule of interpretation of treaty provisions appears in article 31 of the Vienna Convention on the Law of Treaties (the Vienna Convention), par 1 of which provides:-

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Under that rule, the starting point must be the text of the treaty.  Of course, the text of the treaty is often couched in fairly general terms due to differences in language and legal conceptions among those to whom it is to be addressed and as part of an attempt to reach agreement among diverse nations.  Accordingly, technical principles of common law construction are to be disregarded in construing the text. …

Article 31 plainly precludes the adoption of a literal construction which would defeat the object or purpose of the treaty and would be inconsistent with the context in which the words being construed appear.  To say as much is, perhaps, to state no more than the accepted canon of construction that an instrument is to be construed as a whole and that words are not to be divorced from their context or construed in a manner which would defeat the character of the instrument.

41                  McHugh J (at 254) preferred the approach adopted by Judge Zekia in Golder v United Kingdom (1975) 1 EHRR 524 as follows:-

Thus, Judge Zekia emphasised an ordered yet holistic approach.  Primacy is to be given to the written text of the Convention, but the context, object and purpose of the treaty must also be considered.

42                  At 255, his Honour said: -

… taking the text as the starting point is consistent with the basic principle of interpretation that courts should focus their attention on “the four corners of the actual text” in discerning the meaning of that text.  The text of the treaty, being the starting point in any investigation as to the meaning of the text, necessarily has primacy in the interpretative process.  As the International Law Commission has noted:-

The article … is based on the view that the text must be presumed to be the authentic expression of the intentions of the parties; and that, in consequence, the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties.

The need to give the text primacy in interpretation is accentuated by the tendency of multilateral instruments to be the results of various compromises by various States or groups of States.  If the subjective intentions of their representatives were the criterion, the interpretation of many international instruments might be impossible.

43                  At 277, Gummow J said:-

It is necessary to begin with the construction of the definition as it appears in the Convention and Protocol.  Regard primarily is to be had to the ordinary meaning of the terms used therein, albeit in their context and in the light of the object and purpose of the Convention.  Recourse may also be had to the preparatory work for the treaty and the circumstances of its conclusion, whether to confirm the meaning derived by the above means or to determine a meaning so as to avoid obscurity, ambiguity, or manifestly absurd or unreasonable results.  However, as McHugh J demonstrates by the analysis of the subject in his reasons for judgment, with which I agree, it is important to appreciate the primacy to be given to the text of the treaty.

44                  Gummow J also discussed the history and philosophy of the Convention, observing at 277-8:-

A perusal of the text of Article 1 discloses the following.  First, whilst as a matter of ordinary usage, a refugee might be one whose flight has been from evasion, earthquake, flood, famine or pestilence, the definition is not concerned with such persons.  Accordingly, care is needed in resolving any apparent obscurity in the text of the definition by seeing the definition as reflecting, in a broad sense, humanitarian concerns for displaced persons.

The international instruments identified in par 1 of s A of the Convention attempted to deal with particular hardships consequent upon the collapse of the Russian and Ottoman Empires, and the advent of the Bolshevik and later the National Socialist regimes.  These regimes took measures to render stateless sections of their citizenry including persons abroad.  The process became known as “Denationalisation”.  Nationals whilst abroad were treated by customary international law as remaining under the supremacy of their home state and in various municipal legal systems matters of personal status were governed by the law of nationality.  The stateless refugee thus was left in particularly difficult circumstances.

45                  His Honour then discussed the various instruments referred to in par A(1) of the Convention and continued at 279:-

Refugees might suffer hardships in their country of refuge even without loss of their nationality of origin.  They might have been denied in fact if not law (as the 1938 Convention postulated) the protection of the law of their country of nationality or be unwilling for good reason to avail themselves of that protection.  The international instruments identified above were designed to protect these and stateless individuals until a new nationality had been acquired, and to do so by providing a substitute at least as to some aspects of civil status.  Group rather than individual characteristics determine membership of the class of refugees.

46                  One final passage from the judgment of Gummow J is of considerable importance because Cooper J relied upon it in Rishmawi at 428-9.  It appears at 283-4 as follows:-

Moreover, par (2) of s A contains two cumulative conditions which must be satisfied for classification thereunder as a refugee.  The first condition contains several elements and the second contains alternatives, one of which refers back to the first condition.

The first condition is that a person be outside the country of nationality by reason of (owing to) a fear of persecution which is well-founded both in an objective and subjective sense.  This means that persons who are outside the country of nationality by reason of such causes as natural disasters, war and economic misfortune cannot answer the requirements of par (2).

The second condition is satisfied if a person who meets the first condition is unable to avail himself or herself of the protection of the country of nationality.  This meets the case of those who are stateless or otherwise denied the protection of that country and they may be compared with those considered refugees under the treaties specified in par (1) of s A.  Alternatively, a person who meets the requirements of the first condition will answer the second condition if, for a particular reason, that person is unwilling to avail himself or herself of the protection of the country of nationality.  That reason is the well-founded fear of persecution identified in the first condition.

Thus, the notion of persecution is a necessary component of the first condition and also of one of the alternatives comprising the second condition.

47                  As I have said, the definition is in two parts – that preceding the semicolon and that following it.  Each part appears to prescribe two conditions which a candidate must meet in order to be a refugee.  Gummow J, in the last passage cited above, was clearly considering only that part of the definition which precedes the semicolon, although the reference to “the case of those who are stateless” may suggest to the contrary.  The “first condition” is the first of the two prescribed in the first part of the definition.  This is demonstrated by his Honour’s reference  to a person who is “outside the country of nationality”.  Similarly, in discussing the second condition, his Honour referred to a person who is “unable to avail himself or herself of the protection of the country of nationality”, words found in the first part of the definition, but not in the second part.

48                  Nonetheless, his Honour’s approach offers assistance in interpreting the second part of the definition.  In discussing the “second condition” (prescribed in the first part of the definition ) his Honour observed that the requirement for a well-founded fear of persecution relates only to unwillingness to avail oneself of the protection of the country of nationality, and that relevant inability to do so may arise for other reasons, including statelessness.  By parity of reasoning, it would follow that for the purposes of the second part of the definition (following the semicolon), a person without nationality and unable to return to his country of former habitual residence for reasons other than fear of persecution will satisfy the test.  This conclusion, in my view, reflects the natural meaning of the words.  As will be demonstrated, it is also supported by some of the extrinsic material concerning the drafting of the Convention.  I feel the need to draw attention to this aspect only because Moore J, in Husein Ali Haris (at 2) suggested that Cooper J, in Rishmawi, held to the contrary.  I consider that Moore J has misunderstood Cooper J in this respect.

RISHMAWI

49                  I turn now to the judgment in Rishmawi.  That case involved an application by a stateless person who argued that:-

·          The words appearing before the semicolon in the Convention definition provide a separate and distinct definition of a refugee having a nationality.  The words after the semicolon apply to a person who is stateless, so that such a person is a refugee if he or she is outside the country of former habitual residence and unable or, owing to well founded fear of persecution for a Convention reason, unwilling to return to it.

·          The person’s presence outside the country of former habitual residence need not be as a result of such fear.

·          The phrase “owing to such fear” relates to unwillingness to return to the country of former habitual residence, but not to inability to return, which must only be established as an objective fact, irrespective of reason.

50                  This is essentially the argument advanced by the present applicants.  Cooper J noted that there is English authority supporting such an approach.  His Honour then referred to the Handbook on Procedures and Criteria for Determining Refugee Status, issued by the Office of the United Nations High Commissioner for Refugees, various parts of the Travaux Préparatoires relating to the 1951 Convention, the Vienna Convention on The Law of Treaties and a commentary on the Convention published by Nehemiah Robinson in 1953.  His Honour then drew certain conclusions as to the “context, object and purpose” of the Convention and the associated Protocol and rejected the suggested meaning outlined above as inconsistent with the intention underlying the Convention.  Cooper J then sought an alternative, and consistent construction.  Three related criticisms may be made of this approach.  The first is that it does not give priority to the text, a requirement imposed by the High Court in Applicant A.  Secondly, the outcome is dependent upon the reliability of the views formed as to context, object and purpose.  The third criticism is that such an approach artificially excludes the best evidence of shared intention, namely the text to which the parties have agreed. 

51                  In my view, there is no apparent difficulty in construing par A(2).  The difficulty arises only if it be assumed that the underlying intention of the parties can be more accurately determined from the extrinsic material than from the text itself.  I doubt whether any clear understanding of the intention of the parties can be derived from the extrinsic material.  I will presently go to that material with a view to demonstrating that such is the case, but my primary point is that the text, insofar as it deals with stateless persons, contains very little difficulty.  I would have thought it beyond argument that the words preceding the semicolon deal with persons having nationality and those following the semicolon deal with persons without nationality.  If so, it follows that in order to satisfy the definition, a person without nationality must be outside the country of his former habitual residence (for whatever reason) and either:

·          unable to return thereto for any reason; or

·          unwilling to return because of well-founded fear of persecution for a Convention reason.

52                  Cooper J, at 428, conceded that this is the literal meaning of the words.  It is therefore necessary to ask why it should not be accepted.  His Honour suggested that:-

Such a result would be unintended on the part of the framers of the Convention and inconsistent with the object of dealing only with persons who have been or who are being persecuted for a Convention reason or who have a well-founded fear of such persecution.  It would also treat stateless persons in a substantially more favourable way in respect of attaining refugee status than persons with a nationality, and thus would be inconsistent with the object of equality of treatment to all who claim refugee status.

53                  Before considering these conclusions in light of the external material, I should deal with certain other matters in the judgment.  The first is his Honour’s reliance upon the observations made by Gummow J in Applicant A.  I have set out the relevant passage above. Cooper J concluded (apparently relying primarily upon that passage) that Applicant A:

… requires a construction of the definition of “refugee” which utilises the totality of the words in Article 1A and one undertaken in conformity with the requirements of Article 31 of the Vienna Convention …

54                  As I have said, in my view, Gummow J was there discussing only that part of the definition which relates to persons having nationality, although I concede that the reference to persons “who are stateless” appears to be anomalous, given the specific provisions in the second part of the definition.  The above observation by Cooper J may be correct, but the construction for which I contend does not overlook any of the words.  As to the application of the Vienna Convention, I have already demonstrated that both the High Court and the House of Lords have found extrinsic material to be of limited assistance in construing this Convention.  The High Court has, in any event, demonstrated a firm preference for treating the text as being of primary importance.  It may be that the decisions of the High Court in Chan and Applicant A offer better guides for present purposes than do extrinsic sources.

55                  At 429, Cooper J concluded that a refugee is:-

(a)               any person who, owing to a Convention reason, is outside the country of his or her nationality or, in the case of a stateless person, is outside the country of his or her former habitual residence; and

(b)               in respect of a person having a nationality is unable or, owing to a well-founded fear of persecution for a Convention reason, is unwilling to avail himself or herself of the protection of the country of nationality; or

(c)               in respect of a stateless person is unable or, owing to such fear, is unwilling to return to the country of his or her former habitual residence.

56                  His Honour found support for this view in s C of Article 1 which provides:-

This Convention shall cease to apply to any person falling under the terms of s A if:

(1)               he has voluntarily re-availed himself of the protection of the country of his nationality; or

(2)               having lost his nationality, he has voluntarily reacquired it; or

(3)               he has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

(4)               he has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or

(5)               he can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

provided  that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

(6)               being a person who has no nationality he is, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, able to return to the country of his former habitual residence;

provided  that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.

57                  Cooper J considered that par (4) differed from the other paragraphs in s C in drawing no distinction between persons who have and persons who have not a country of nationality.  That observation may not be precisely correct in that pars (2) and (3) may also apply to both categories.  Paragraph (2) is appropriate to describe a person who lost nationality following acceptance as a refugee and subsequently reacquired it.  It could also apply to a person who lost nationality before such acceptance.  Paragraph (3) might contemplate a person with nationality who acquires a new nationality or a person with no nationality who acquires nationality.  I am, in any event, unable to see that the terms of par (4) offer any support to his Honour’s views.  It clearly applies to any person who returns to a country which he or she has previously left, but again, as with par A(2), it is not clear whether the expression “owing to fear of persecution” relates both to the circumstances in which the person left the country in question and to his or her reasons for remaining outside of it, or only to the latter.  It supplements the operation of pars (1), (2) and (3) which prescribe other conduct which may result in loss of refugee status.  Further, par (6) would apply to a person not having a nationality who returns to the country of former habitual residence in any circumstances.

58                  Finally, Cooper J sought (at 429-431) to give meaning to all parts of par A(2), commencing this exercise by asking:-

Does the first of the two cumulative conditions (as identified by Gummow J) require that the reason the person is outside his or her country of nationality or former habitual residence is a present, as opposed to a past, well-founded fear of persecution for a Convention reason?

59                  I again observe that nothing in the reasons of Gummow J suggests that his Honour intended to discuss the position of persons without nationality.  In any event, the respondent before Cooper J (the Minister) had submitted that the first condition requires a present fear of persecution; in other words, the relevant person must be outside his country of nationality or former habitual residence because of a present fear of persecution for a Convention reason.  Cooper J rejected that argument, considering that a past fear of persecution is sufficient.  His Honour noted that a similar submission was rejected by Simon Brown and Hutchinson LJJ in Adan.  His Honour considered that Thorpe LJ had also taken that view, but his Lordship actually dissented on this aspect of the case.  Since the decision in Rishmawi, the House of Lords has reversed the decision of the Court of Appeal on this point.  As I have observed above, Chan appears to support the view taken in the House of Lords.

60                  In order to understand his Honour’s reasons for so construing the first condition, it is necessary to understand his view of the second condition.  Cooper J considered that a person who is “unable”, for any reason, to return to his or her country of nationality or former habitual residence would satisfy the second condition, but that a person who is merely unwilling to do so must be motivated by a present, well-founded fear of persecution for a Convention reason.  This is consistent with the wording of the text.  This led his Honour to conclude that in the first condition, a past fear would suffice because if a present fear were necessary, the second condition would be “otiose”.  (See 429-431.)  With all respect to his Honour, this approach is inconsistent with that adopted by the High Court in Chan, although that case involved an applicant having nationality.  The relevant passages are at 386-7 (per Mason CJ), 398-399 (per Dawson J), 405-6 (per Toohey J) 414-5 (per Gaudron J) and 431-3 (per McHugh J).  In the case of an applicant with nationality, the test is not whether he or she had the relevant well-founded fear at two different points in time.  It is whether, at the time of application, the applicant is,

·          outside the country of nationality owing to a present, well-founded fear of persecution for a Convention reason; and

·          unable or, owing to such present, well-founded fear, unwilling to avail him- or herself of the protection of that country.

61                  If, as Cooper J suggested, substantially the same test is to be applied to nationals and to persons without nationality, then it must be consistent with the test prescribed in Chan.  That test fits well with the wording in the first part of the definition as applied to persons with nationality, but does not fit well with the wording of the second part of the definition.  Such a test would presumably require that at the time of application, a stateless person be:-

·          outside the country of former habitual residence owing to a present, well-founded fear of persecution for a Convention reason; and

·          unable or, owing to that present, well-founded fear, unwilling to return to that country.

62                  The problem is that the focus of the second condition in the case of a stateless person is different from that of the second condition in the case of a person having nationality.  In the former case, the focus is return to the country of former habitual residence.  In the latter, it is available protection from the country of nationality.  Once it is accepted that the Convention definition, when it speaks of “well-founded fear” and “such fear”, is describing the same present fear, there is, as Cooper J pointed out, an apparent redundancy in any construction which assumes, as his Honour did, that a stateless person must be out of the country of former habitual residence because of a well-founded fear.  The redundancy arises from the fact that “being outside” the relevant country for a particular reason and being “unwilling to return” to that country for the same reason are little more than alternative descriptions of the same factual situation and state of mind.  The redundancy may not be absolute, but it is of concern in any exercise which aims to give meaning to all aspects of the definition.  Of course there would be no such redundancy in the case of a stateless person who is unable (rather than unwilling) to return.  This problem does not arise in the case of persons with nationality because the two relevant conditions have different factual focuses – being outside the relevant country and being unable or unwilling to avail oneself of its protection.  If the definition as it relates to stateless persons is given its literal meaning, there is no redundancy.

63                  Finally, Cooper J referred (at 431) to the decision of the Supreme Court of Canada in Attorney-General (Canada) v Ward (1993) 103 DLR(4^th) 1 at 17-20.  It is sufficient to say with respect to that case that the Canadian legislation contains a redrafted form of the Convention definition.  It can be found in Ward at 14.  That definition clearly requires that a stateless person be outside his country of former habitual residence because of a well‑founded fear of persecution for a Convention reason.

CONTEXT, OBJECT AND PURPOSE OF THE CONVENTION

64                  It is convenient to commence this part of the judgment with a consideration of the apparent purpose of the Convention.  Much of the judgment in Rishmawi and some of the extrinsic material focuses upon the protection of refugees from persecution, but this is not the primary purpose of the Convention.  The Shorter Oxford Dictionary defines “refugee” as:-

A person driven from his or her home to seek refuge, esp. in a foreign country, from war, religious persecution, political trouble, natural disaster, etc … .

65                  As Gummow J points out in Applicant A at 278, the term is used in the Convention in a narrower sense in that many possible causes of a person’s leaving his or her home are not included.  In another sense, however, the usage in the Convention may be wider than the dictionary definition in that there is no requirement that a refugee should have been “driven” from that home.

66                  The more recent history of the international treatment of refugees has its roots in statelessness.  That this is so appears from the judgment of Gummow J in Applicant A at 278‑279.  His Honour points out that the “Arrangements” of 12 May 1926 and 30 June 1928 referred to in par A(1) of Article 1 of the Convention were dependent upon a definition of “refugee” which was, in the case of Russians:-

… any person of Russian origin who does not enjoy or who no longer enjoys the protection of the Government of the Union of Socialist Soviet Republics and who has not acquired another nationality.

67                  The Convention of 10 February 1938 (also referred to in par A(1)) defined the expression “refugees coming from Germany” as:-

… persons possessing or having possessed German nationality and not possessing any other nationality who are proved not to enjoy, in law or in fact, the protection of the German Government.

68                  However, as Gummow J points out at page 279:-

Refugees might suffer hardships in their country of refuge even without loss of their nationality of origin.

69                  His Honour then demonstrates that the definitions were wide enough to encompass both persons who were stateless and persons who had, in fact, lost the protection of their respective governments.  In other words, it was the absence of protection of a relevant government which created the status of refugee, not any notion of persecution.  A person who was stateless was obviously in need of assistance in this regard, particularly if he or she had been deprived of nationality by action of the relevant government.  Persons who had suffered a de facto loss of governmental protection might also have need of assistance.

70                  Thus, as Gummow J says at 279:-

The international instruments identified above were designed to protect these and stateless individuals until a new nationality had been acquired, and to do so by providing a substitute at least as to some aspects of civil status.

71                  Gummow J also demonstrates that only after the Second World War was persecution or fear of persecution accepted as a reason for rejecting the protection of a country of origin, leading to refugee status.  It is easy to discern from his Honour’s observations the rational development of the idea of the refugee from that of a person deprived of nationality to include a person who technically has nationality but in fact, is deprived of the governmental protection which would normally go with that nationality.  In other words, one might demonstrate that one is a refugee by showing that one is stateless, and therefore without the protection of any government.  Alternatively, one might do so by demonstrating that the only government to which one can look is not willing or able to offer the appropriate protection.

72                  Much of the reasoning in Rishmawi depends upon the assertion that a conscious decision was taken in the process leading up to the adoption of the Convention that it would deal only with “refugees” and not with the problem of statelessness.  This may have been the case, but it is clear that the Convention deals with the question of statelessness for some purposes.  The broader construction of the definition urged by the present applicants and by the applicant in Rishmawi does not lead to substantial resolution of all problems associated with statelessness.  It means only that the Convention offers protection to stateless persons who are outside their country of former habitual residence and unable or, because of well‑founded fear, unwilling to return.  I do not profess to be an expert in these matters, but it takes little imagination to identify a variety of problems which might face a stateless person in respect of which no solution is offered by the Convention.

73                  Firstly, a stateless person who remains in the country of habitual residence may be discriminated against in ways which do not amount to persecution or prompt him or her to leave the country.  Secondly, a stateless person may not have the benefit of appropriate travel documents.  Thirdly, there is the question of capacity to change one’s country of residence, which may not be easy in the absence of an existing nationality.  Fourthly, there is the overall uncertainty which, one would suspect, infects the lives of a stateless person and his or her family.  Simon  Brown LJ, in Adan at 1113, deals with this matter in more detail.  I doubt whether many people would voluntarily choose to be stateless.  Even more do I doubt that a stateless person would voluntarily leave his or her country of habitual residence with no prospect of returning, save in exceptional circumstances.  Those who would limit the natural meaning of the definition in the Convention appear to be motivated by a view that such meaning makes it too “easy” for stateless persons to be classified as refugees.  This view underestimates the seriousness of the problem of statelessness.

EXTRINSIC MATERIAL

74                  It is true that paragraphs 101, 102 and 103 of the Handbook suggest an interpretation of the definition which is at odds with that which I favour.  The paragraphs appear in full in the judgment in Rishmawi, but the relevant parts are these:-

101.         … Moreover, once a stateless person has abandoned the country of his former habitual residence for the reasons indicated in the definition, he is usually unable to return.

102.         It will be noted that not all stateless persons are refugees.  They must be outside the country of their former habitual residence for the reasons indicated in the definition.  Where these reasons do not exist, the stateless person is not a refugee.

103.         Such reasons must be examined in relation to the “country of former habitual residence” in regard to which fear is alleged.  This was defined by the drafters of the 1951 Convention as “the country in which he had resided and where he had suffered or fears he would suffer persecution if he returned.”

75                  It is not clear what is meant by the expression “for the reasons indicated in the definition” where it occurs in paragraph 101.  In the Handbook this paragraph follows an extract from the Convention definition which includes the words “as a result of such events” which were deleted by the 1967 Protocol.  It will be recalled that these words referred back to the phrase “events occurring before 1 January 1951” which was also deleted by the Protocol.  Cooper J has reproduced this error in Rishmawi at 424.  It is at least possible that the reference in par 101 to “the reasons indicated in the definition” is to the words “as a result of such events”.  It may be that the author assumed that they referred to “events” leading to a well-founded fear of persecution.  Alternatively, the author may have understood that the reference was to events prior to 1 January 1951 and believed that such events were still relevant.  In either case, it is difficult to accord respect to the author’s view when it seems to be based upon defective knowledge of the text.  Even if these observations are rejected, the point remains that the author does not come to grips with the problem of construction which emerges from the location of the words relating to stateless persons after the semicolon and the absence of any repetition of the reference to persecution as a necessary cause of such a person being outside of the country of former habitual residence.  The express reference to fear of persecution in connection with unwillingness to return highlights the problem.  Similar comments apply to par 102.

76                  Par 103 offers the following definition of  “country of former habitual residence”, said to have been that of the drafters of the 1951 Convention:-

The country in which he had resided and where he had suffered or fears he would suffer persecution if he returned.

This suggests that use of the expression “country of former habitual residence” carries the implication that the person in question has suffered persecution in that country or fears persecution there.  Of course, the Convention definition contains no reference to actual persecution, and Chan establishes that past persecution is irrelevant other than as a basis for a present well-founded fear.  The House of Lords in Adan took a similar view.  The definition therefore does not fit easily into the current view of the operation of the Convention.  Cooper J referred to this definition in Rishmawi at 424 and 428, identifying its location in the Collected Travaux Préparatoires of the 1951 Geneva Convention Relating to the Statute of Refugees (the “Travaux”), Volume 1, at 415.  I have referred to that page of the Travaux and note that there is a reference in the relevant passage to sub-par A-1(b).  As that passage appears under the heading Definition of the Term “Refugee”, it is reasonable to infer that the reference is to the definition in a preliminary draft of the Convention.  Cooper J also referred to Convention Relating to the Status of Refugees, Its History, Contents and Interpretation by Nehemiah Robinson.  That author exhibits a number of drafts of the Convention.  The first (prepared by the Secretariat) is at Appendix I.  There is nothing resembling the paragraph identification system referred to at page 415 of the Travaux.  That draft offers three possible approaches to the definition of “refugee”, but none contains the expression “country of former habitual residence”.  Subsequently, the Ad Hoc Committee on Statelessness and Related Problems prepared a second draft.  It is Appendix II in Robinson’s work.  It appears to be the draft under consideration at page 415 of the Travaux.  In particular, paragraph A(1) defines a refugee as:-

Any person who:

(a)    as a result of events in Europe after 3 September 1939 and before 1 January 1951 has well-founded fear of being the victim of persecution for reason of race, religion, nationality or political opinion; and

(b)    has left or, owing to such fear, is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence; and

(c)    is unable or, owing to such fear, unwilling to avail himself of the protection of the country of his nationality.

This provision shall not include a person who is a member of the German minority in a country outside Germany and who is in Germany.

77                  Fairly clearly, that definition would require that a person (with or without nationality) have a well-founded fear of persecution in order that he or she be a refugee.  In light of that requirement, it is hardly surprising that the definition of “country of former habitual residence” should contain an assumption that either there had been persecution or there was fear of such persecution in the country of former habitual residence.  However that definition of “refugee” is quite different from the present definition and in any event, the definition of “country of former habitual residence” was not included in the draft, nor does it appear in the Convention.  In those circumstances, it is difficult to see why it should be assumed that it “… underlay the future use of the term in the documents leading to the Convention…”.  (Rishmawi at 424). 

78                  I am inclined to adopt the same attitude to the Handbook as was expressly adopted by Mason CJ and implicitly adopted by other members of the Court in Chan, that it is unlikely to be of much assistance on matters of construction.

79                  Whilst considering page 415 of the Travaux, it is convenient to observe that it records that in the relevant draft:-

…“unable” refers primarily to stateless refugees, but includes other refugees possessing a nationality who are refused passports or other protection by their own government.  “Unwilling” refers to refugees who refuse to accept the protection of the government of their nationality.

This supports the views expressed by Gummow J in Applicant A at 413 and by Cooper J in Rishmawi at 431 that a person who is unable to return to a country of former habitual residence need not demonstrate that such inability is attributable to fear of persecution.  I have previously referred to this in connection with the decision of Moore J in Husein Ali Haris.

80                  The second aspect of the extrinsic material deserving of attention is Robinson’s commentary.  It will be noted that in Rishmawi at pages 426-7, his Honour adopted substantial parts of those observations, including an assertion by Robinson that:

Although par A(2) does not say so explicitly, it is obvious that a person without nationality must be outside the country of his habitual residence for the same reasons (ie well‑founded fear) because otherwise he could not be unable to return thereto.

81                  I do not understand this assertion.  Clearly enough, such a person must be outside the country of former habitual residence if he or she is to be accurately described as unable to return thereto, but I cannot see why that line of reasoning leads to the conclusion that it is necessary that he or she also be outside of that country because of a fear of persecution.

82                  Robinson observed at footnote 20 on page 45 of his work (noted in Rishmawi at 427), that the British representative expressed a view of the Article which substantially, although not precisely, coincided with that urged by the present applicants.  Robinson dismissed this view by asserting that it was wrong.  It is difficult to know why Robinson would be better placed to offer an opinion than was the British representative.  It is interesting to note, however, that in the Law of Refugee Status by James C. Hathaway (Butterworths 1991) at page 61, there is a reference (footnote 181) to a statement by a Mr Robinson of Israel in a United Nations document dated 20 July 1951 concerning these matters.  I am sure it will not be taken amiss if I point out that it appears from the preface to Mr Robinson’s commentary that it was published by the Institute of Jewish Affairs.  It may be that Mr Robinson was an Israeli representative in the negotiation of the Convention.  If so, his commentary may have additional weight.  It does not necessarily follow, however, that his impression of events or his view as to the construction of the Convention is any more reliable than that of the British representative.  This, if anything, highlights the problems associated with attempting to attribute meaning to a document by reference to anything other than its text.

83                  Some of the other footnotes at that page in Hathaway are of interest.  In footnote 178, it is said that Mr Henkin of the United States said, on January 26 1950:-

The problem of stateless persons who were not refugees should, however, be kept separate from the question of refugees, especially since there were doubtless stateless persons who were in no need of protection by the United Nations… .

Similarly, in footnote 179 it is reported that Mr Rain of France said, on 26 January 1950:-

There were two categories of stateless persons:  those who were also refugees, who would, of course, benefit from the draft Convention, and those who were not refugees.  Almost all refugees were in need, a fact which gave the problem its special urgency.  The same could not be said of stateless persons who were not also refugees… .

Finally, in footnote 181 Mr Robinson is reported as saying:-

The real difference between a refugee and a stateless person was that whereas the former might have some sort of travel document, and a particular country might claim his allegiance, the stateless person (who is not also a refugee) would have neither a travel document nor a country of allegiance… .

84                  Thus it seems to have been accepted that a stateless person might also be a refugee in some circumstances, but there is little extrinsic evidence identifying those circumstances.  The inference to be drawn from much of the judgment in Rishmawi is that the person in question must have been persecuted or fear persecution, but the Convention does not say so.  Cooper J appears to have reached this conclusion in reliance upon an observation by Robinson that the changes to the Ad Hoc Committee’s draft, leading to the definition in the existing Article, were only meant to be textual or stylistic changes and not substantive.  It is not clear why that observation should be accepted at face value given that at best, Robinson was merely one participant in very involved negotiations.  In order to assess Robinson’s opinion, it would be necessary to compare the relevant draft with the final Convention definition.  It might be thought that the draft in question was that of the Ad Hoc Committee referred to above and reproduced as Appendix II in Robinson’s work.  However that is not the case.  This appears from Robinson’s footnote 20, reproduced in Rishmawi at 426.  The elliptical expression “who has had … habitual residence” does not appear in that draft.  Further, the footnote refers to “the draft adopted by the Ad Hoc Committee, Second Session”.  The Appendix II document was considered at the First Session.  Appendix III contains a draft which was apparently considered at the Second Session, but it does not include Article 1.  Attempts to obtain a complete draft from appropriate agencies in Canberra have been unsuccessful although perhaps not exhaustive.  The outcome is that I have been unable to evaluate Robinson’s opinion, and I am not inclined to accept it at face value.  This is the matter upon which he and the British representative disagreed.

85                  I should say something about the other extrinsic material.  Out of interest, I have tried to obtain the complete Travaux.  It seems, however, that it is not readily available and in any case, contains a very substantial body of material.  I  have therefore generally contented myself with the material referred to in Rishmawi.  As to the Vienna Convention, I have not felt the need to make express reference to its terms, believing that the High Court has sufficiently digested its content in Applicant A and Chan, which decisions I have tried to apply.

86                  From all of this, Cooper J inferred (at 427) that the Convention “was not intended to deal with stateless persons who were not also refugees”.  His Honour also concluded that “the object of the Convention was to treat uniformly persons seeking refugee status, so far as was possible, whether or not that person had a nationality”.  His Honour then continued:-

This equality of treatment is seen in the equation of country of nationality with country of former habitual residence and the inability or unwillingness to obtain the protection of the country of nationality with the inability or unwillingness to return to the country of former habitual residence.  And finally, the object of the draft Convention was to provide sanctuary to persons who had a well-founded fear of persecution for a Convention reason and not for any other reason.

His Honour concluded (at 428) that the construction of the definition proposed by the applicants would result in stateless persons being treated:

… in a substantially more favourable way in respect of obtaining refugee status than persons with a nationality, and thus would be inconsistent with the object of equality of treatment to all who claim refugee status.

CONCLUSIONS

87                  It may be that all refugees are to be treated equally, but that does not mean that there is to be only one route by which persons attain that status.  Indeed, it is quite clear that there are two routes because otherwise there would be no reason to discriminate between nationals and persons without nationality.  It is instructive at this point to ask why a person without nationality, who is outside his or her country of former habitual residence and not able to return thereto, should be thought to be any less in need of protection than a person who has been persecuted in his or her country of nationality, is now outside of it and does not wish to return.  Neither is, for the moment, exposed to persecution, but neither has a government to which it can look for protection.  Whilst a person subject to persecution may be in a worse position whilst in the country of nationality than is a non-national in that same country who is not being persecuted, that “inequality” disappears when they leave the country.  Gummow J demonstrates that it is the inability to return to a safe haven which is the basis for the Convention definition of “refugee”.  The two branches of the definition merely recognise that different people may find themselves in substantially the same position for different reasons and without fault.  In reaching this conclusion, I have kept in mind the caveats expressed in Applicant A at 248 (per Dawson J) and at 277-8 (per Gummow J).

88                  Hathaway (p 62) asserts that the primary purpose of refugee law is to avoid sending people back to a country where they will be persecuted.  If this were so, it might justify a construction of the Convention which assumes that refugees are people who are fearful of being returned to their country of origin.  However it is clear that this is not the “essential” nature of the protection offered by the Convention.  I have previously dealt with this point.  Simon Brown LJ also did so in Adan at 1113.  The underlying humanitarian philosophy of the Convention is that displaced persons should be given an opportunity to rebuild their lives with a relative degree of security.  The Convention regulates the way in which these people are to be treated by those countries which ratify it.  Further, it clearly recognises that some refugees may not be able to return to their country of origin for reasons unrelated to persecution.

89                  I find nothing in the Travaux, the Handbook or the other material which would lead me to the conclusion that any interpretation other than the literal interpretation of the Convention definition ought be adopted.  None of the material demonstrates how the clear wording of the definition might be tortured into the more limited form for which the respondent presently contends.  In those circumstances, the better course is to adopt the literal meaning.

90                  As I have said, however, I am not satisfied that the applicants’ claims to statelessness have been properly investigated.  Similarly, I am not sure that the possibilities of their returning to Latvia have been properly considered.  It may be that only relatively simple applications are required in order to reinstate their rights to re-enter that country.

ORDERS

91                  I propose to set aside the order of the Tribunal affirming the decision not to grant protection visas and remit the matter to the Tribunal for reconsideration in accordance with law.  I will hear submissions as to appropriate orders and as to costs.

Associate:

Dated:              13 September 1999