FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Al-Sallal [1999]

FCA 1332

IMMIGRATION – appeal from Refugee Review Tribunal – application for protection visa – respondent stateless Bedoon born in Kuwait – subsequent move to Iraq and later to Jordan – Jordan not a party to Refugees Convention – whether open to Tribunal to find “effective protection” in Jordan against refoulement to Iraq or Kuwait

Migration Act 1958 (Cth) ss 36(2), 65, 476(1)(e)

Migration Regulations 1958 (Cth) Sch 2 Pt 866

Convention Relating to the Status of Refugees 1951 as amended by the 1967 Protocol, Arts 1A(2), 1E, 33

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

R v Secretary of State for the Home Department; ex parte Sivakumaran [1988] AC 958 discussed

Rajendran v Minister for Immigration and Multicultural Affairs (von Doussa, O’Loughlin and Finn JJ,  4 September 1998, unreported) discussed

Minister for Immigration and Multicultural Affairs v Gnanapiragasam (Weinberg J, 25 September 1998, unreported) discussed

Gala v Preston (1991) 172 CLR 243 at 284 applied

Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443 applied

R v Secretary of State for the Home Department; ex parte Adan (23 July 1999, unreported) discussed

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 cited

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

Shayea Rahaq Al-Anezi v Minister for Immigration and Multicultural Affairs [1999] FCA 355 cited

Cross and Harris Precedents in English Law 4^th ed 1991

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v MOHAMAD ABDULAH AL-SALLAL

N 369 OF 1999

HEEREY, CARR AND TAMBERLIN JJ

29 OCTOBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.         Appeal is allowed.

2.         Orders made on 8 April 1999 are set aside.

3.         The respondent pay the appellant’s costs at first instance and of the trial.

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

REASONS FOR JUDGMENT

THE COURT:

1                     A judge of this Court set aside a decision of the Refugee Review Tribunal (RRT) which had affirmed a decision by a delegate of the Minister not to grant a protection visa to the respondent.  The Minister’s appeal raises the question whether Australia’s obligations under Article 33(1) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol of 1967 (referred to collectively as “the Convention”) in the case of  refoulement to a third country can be satisfied notwithstanding that the third country is not a party to the Convention.

The Refugees Convention and Australian Law

2                     Australia is a party to the Refugees Convention.

3                     Section 36 of the Migration Act 1958 (Cth) (the Act) makes provision for protection visas.  Section 36(2) provides:

“A criterion for a protection visa is that the applicant for a visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

4                     Part 866 of Sch 2 of the Migration Regulations 1958 (Cth) prescribes the criteria for the grant of a protection visa, one of which is that, at the time of the decision, the Minister “is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention”. 

5                     If satisfied that the criteria prescribed by the Act and the regulations have been fulfilled, the Minister is to grant a visa; if not so satisfied, the Minister is to refuse to grant the visa: s 65.

6                     The definition of the term “refugee” appears in Art 1 of the Convention.  Article 1A(2) provides that a refugee is any person who

“… owing to a 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Article 1 contains a number of exclusionary provisions, including

“E.  This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”

Article 33(1) provides:

“No Contracting State shall expel or return (“refoule”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Federal Court authorities on Art 33(1) and “safe third country”

7                     In Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 the respondent was a citizen of Sri Lanka.  He left that country after being arrested and harassed by Government forces on suspicion of assisting the Tamil separatist organisation LTTE.  He arrived in France in 1985 and three and a half years later was granted refugee status and permanent residence.  He left France in 1994 because he feared reprisals from LTTE representatives there who claimed he had connections with an anti-LTTE Tamil group known as EBRLF.  The respondent and his family travelled to Australia and in April 1995 applied for protection visas.  The Minister’s delegate concluded that the respondent would be accorded protection by the French authorities on his return and that consequently Australia had no protection obligations to him.  The RRT affirmed that decision but on review to this Court Emmett J held that the RRT had erred in law by applying Article 1E of the Convention where the respondent for a protection visa had most, but not all, of the rights normally enjoyed by nationals (as a non-citizen in France the respondent could not vote, enter the Public Service or engage in certain occupations). 

8                     The issues before the Full Court on the Minister’s appeal were:

(i)         Whether Art 1E applied to the respondent,

(ii)        Whether, independently of Art 1E, the protection obligations  under the Convention applied to a person who has established residence and acquired effective protection as a refugee in another country,

(iii)       Whether, as submitted on the respondent’s behalf, the material before the RRT established that there was a real chance that such protection as was available in France would be inadequate, such that there was a well-founded fear of persecution of the respondent in France for reason of his race or political opinion.

9                     Justice von Doussa  (with whom Moore and Sackville JJ agreed) dealt first with the Minister’s alternative argument ((ii) above).  His Honour discussed (at 552-3) the significance of the changes effected to the refugee regime by the Migration Reform Act 1992 (Cth).  After a review of  statute law and authorities in the United Kingdom and Canada as to return to a safe third country, his Honour said (at 562):

“It is not necessary for the purposes of disposing of this appeal to seek to chart the outer boundaries of the principles of international law which permit a Contracting State to return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status.  It is sufficient to conclude that international law does not preclude a Contracting State from taking this course where it is proposed to return the asylum seeker to a third country which has already recognised that person’s status as a refugee, and has accorded that person effective protection, including a right to reside, enter and re-enter that country.  The expression ‘effective protection’ is used in the submissions of the Minister in the present appeal.  In the context of the obligations arising under the Refugees Convention, the expression means protection which will effectively ensure that there is not a breach of Art 33 if the person happens to be a refugee.”

10                  His Honour then said (at 563):

“In the present case, the respondent after his flight from his country of nationality was recognised as a refugee in France.  France accorded him permanent residency and, when requested, provided him with a travel document in accordance with Art 28 of the Convention.  Provided France was able to provide effective protection to the respondent at the time of the determination of his application for a protection visa (see Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553; 142 ALR 191) it was not inconsistent with the obligations owed by Australia as a Contracting State to effect his deportation from Australia without considering the substantive merit of a claim to refugee status.”

11                  His Honour, following the decision of the House of Lords in R v Secretary of State for the Home Department; ex parte Sivakumaran [1988] AC 958 held (at 565) that the same standard (i.e. well-founded fear) should apply both in relation to Art 1A(2) and Art 33.  His Honour held that the RRT in substance had made a finding of fact that a subjective fear of persecution held by the respondent could not be a well-founded fear of persecution since meaningful protection was available from the French authorities.  His Honour concluded (at 565):

“As a matter of domestic and international law Australia does not owe protection obligations to the respondent as he is a person who has effective protection in France which has accorded him refugee status.”

12                  The second limb of the Minister’s submission was thus upheld.  His Honour concluded (at 567-8):

“In summary, at the time of the determination of the respondent’s application for a protection visa:

1.         Subject to consideration of Art 33, Australia did not owe protection obligations to the respondent as he had been recognised as a refugee in France and had been accorded the rights and obligations of a refugee under the Refugees Convention in France, including travel documents under Art 28.

2.         Under Art 33 the “well founded fear” test which applies under Art 1A(2) should be applied.

3.         The RRT has found as a fact that effective protection is available to the respondent in France, and that there is no real chance that the French authorities are unable or unwilling to provide such protection.  This finding involves no error of law.  It determines adversely to the respondent the question whether there was any potential for Art 33 to have application to the respondent, if he were a refugee.  Accordingly, Australia did not owe the respondent protection obligations, and the criterion laid down in s 36(2) of the Act for a protection visa was not fulfilled. 

4.         As there was no real chance that the respondent would suffer persecution in France, Australia was entitled as a Contracting State to deport the respondent to France without considering the substantive merits of his claim to be a refugee.

5.         Although it is strictly unnecessary to decide, Art 1E of the Refugees Convention did not exclude the respondent from the definition of refugee.  The interpretation given to Art 1E in Barzideh should be followed, subject to the qualification identified by Emmett J, namely that some disability suffered by an alien might be so slight as to be negligible.”

13                  In Rajendran v Minister for Immigration and Multicultural Affairs (von Doussa, O’Loughlin and Finn JJ, 4 September 1998, unreported) the appellant was a Sri Lankan national who left his home country in 1985 and after periods in India and England went with his family to New Zealand in January 1987.  Later that year he was granted permanent resident status in New Zealand.  He lived there for several years then travelled to the United States and then to Canada where he lived for several years, returning to New Zealand in late 1994.  In November 1995 he entered Australia and in January 1996 applied for protection visa.  He claimed to be a refugee because of persecution alleged to be suffered at the hands of the Sri Lankan army in Sri Lanka and the LTTE in Sri Lanka, Canada and New Zealand on account of his being a Tamil.  Their Honours said (at 5):

“The trial judge in this matter concluded, correctly in our view, that where an applicant for a protection visa has already secured rights and entitlements in a third country the operation of Thiyagarajah ought not be restricted to cases where those rights and obligations result from that country’s grant of refugee status to that person.  His Honour concluded that it should extend at least to cases where the visa applicant is entitled to permanent residence, and, in time, to become a citizen, and has been accorded that ‘effective protection’ referred to in Thiyagarajah in proposition (iii) above, by the third country to which it is proposed to return the applicant.  And in light of the Tribunal’s findings his Honour concluded that New Zealand offered such entitlements and protection and that, in consequence, the principles of international law did not preclude Australia as a Contracting State from returning Mr Rajendran to New Zealand.  We would note specifically that his Honour considered that the Tribunal did not regard Mr Rajendran as being exposed to any real risk or real chance of being returned by New Zealand to Sri Lanka.”

14                  In Minister for Immigration and Multicultural Affairs v Gnanapiragasam (Weinberg J, 25 September 1998, unreported) the applicants were again Sri Lankan Tamils.  They had fled to Germany and were there granted permanent resident status.  They claimed to have been subjected to racial vilification in Germany including threats and physical assaults and damage to their car and house.  The RRT accepted that the applicants did not have any residents’ rights in Germany and it was therefore necessary to assess their case in relation to Sri Lanka.  Weinberg J discussed Thiyagarajah at length and concluded (at 12):

“The decision of the Full Court in Thiyagarajah does not hold definitively that Article 33 applies in circumstances where there is ‘effective protection’ but without prior refugee status.  Nonetheless the combination of scholarly writing upon this subject to which von Doussa J referred, taken together with the decision of the House of Lords in Bugdaycay [v Secretary of State for the Home Department [1987] AC 514] and considerations of general principle, all suggests that Article 33 may obviate the need to consider refugee status without such status having been previously accorded by another country.”

15                  His Honour also said (at 17):

“There is no reason in principle why Art 33 should rest upon nothing less than an entitlement to ‘permanent residence’ in the third country.  Such an entitlement happened to exist in both Thiyagarajah and Rajendran.  Once back in that ‘safe third country’ the claimants in those cases could make their claims for refugee status where, it should be assumed, these would be determined in accordance with the requirements of Art 1A(2) of the Convention.”

16                  After reviewing the evidence his Honour concluded that the material before the RRT demonstrated that the applicants had lost their rights to permanent residence in Germany and were unlikely to regain those rights without being able to establish at the very least that there was suitable employment available to the husband.  However, it did not follow that “effective protection” was unavailable to them.

The respondent’s case

17                  The respondent was born in Kuwait in 1973.  He is a Bedoon and has never had a nationality. 

18                  After the Iraqi invasion of Kuwait in 1990 a Kuwaiti classmate of the respondent threatened to name him to the police as an Iraqi collaborator.  Two weeks after Iraq’s defeat the respondent was detained and questioned for two days until his father obtained his release.  The respondent was told that he would be kept under surveillance.  His classmate continued to make threats to name him as an informer.

19                  About two weeks later the respondent and his family fled from Kuwait into Iraq and settled in the town of Nasiriya, about 400 km from the border.  The respondent and his family obtained false Iraqi identity documents.  He earned his living using his car as a taxi.  In 1992 he married his third cousin, also a Bedoon.  They have two children who were born in Iraq in 1994 and 1996. 

20                  The respondent lived in Iraq for some five years.  He encountered some disapproval from Shi’ite Muslims in the area, he being a Sunni.  He was detained for two days at the General Security Department and questioned about giving religious pamphlets to youths.  He was beaten.  Apart from that he had no trouble with the authorities. 

21                  He decided to flee Iraq because the information on his false ID had caused him to be liable for compulsory military service.  He feared he would be punished, and that the authorities would discover that he had Kuwaiti documents.  Also it would be against his beliefs to kill fellow Muslims while in the army.

22                  In June 1996 he paid a smuggler to take him across the border to Jordan.  He did not take Iraqi documents with him, but he had Kuwaiti documents proving that his family had been in Kuwait for generations.  He did not apply for a Jordanian visa.  In Jordan he worked first as a shepherd then in a coffee shop.  His family joined him.

23                  In June 1998 he bought a false Kuwaiti passport and after a brief stay in Malaysia arrived in Australia on 5 July 1998.  Ten days later he applied for a protection visa.

24                  He made no claims against Jordan, but said that he could not live there because he did not have a visa or residency permit and was at risk of being sent back to Iraq or Kuwait.

The RRT’s decision

25                  The RRT accepted that the respondent was a stateless Kuwaiti Bedoon who had left Kuwait and gone to Iraq.  However it was not satisfied with the credibility of some of his evidence relating to his stay in Iraq.  For example, it was improbable that, having been detained and questioned for two days, his identity papers had not been checked.  Nor was it accepted that as a Bedoon he had been under threat in Iraq.  The RRT referred to Department of Foreign Affairs and Trade (“DFAT”) advice that there have been no known incidents of persecution of Bedoons by Iraqi authorities.  The unlikelihood of such occurrences was underscored by the facts that Iraq has traditionally been generous with asylum seekers, particularly Arabs, and that Iraq would have appreciated the Bedoons’ political support during the Gulf War.  Also Amnesty International and other human rights surveys did not refer to discrimination against Bedoons in Iraq, although abuse of other groups, such as Kurds, was rife. 

26                  The RRT did not accept the respondent’s claim that he arrived in Iraq unhindered and unnoticed.  Also, although the drift of his evidence of religious tensions in the area was that “Shi’ites were lording it over Sunnis”, in fact at the time (March 1991) there were violent uprisings by Shi’ites in southern Iraq.  They were crushed by the Iraqi army, which killed as many as 30,000. 

27                  The RRT thought that although it was possible the respondent could have secretly taken on a false Iraqi identity this appeared an unnecessarily expensive and hazardous procedure given the independent evidence of Iraq’s tolerant attitude towards Bedoons.  He had papers proving his Kuwait Bedoon origin, which he could have shown the Iraqi authorities.  If he did not have them when arriving in Iraq, he could have had them sent to him from Kuwait in the same way as he was able to produce his Kuwaiti birth certificate to the Australian authorities.  The RRT therefore could not understand why he would not do this and instead adopt a false Iraqi identity which carried the constant threat of discovery, punishment and military conscription.  The RRT said (in this and subsequent passages from the RRT’s reasons the present respondent is of course referred to as the applicant):

“In considering all of the above, I am not satisfied that the applicant’s evidence is credible.  I am of the opinion that he has tailored his evidence to give an impression of coming covertly into Iraq, thus having to live there covertly, thus having to escape from that country, thus having to seek refuge elsewhere.  I consider that his true circumstances were different; that he was able to live freely in Iraq as a Bedoon from Kuwait and that he left Iraq for Jordan either because the authorities might have wished Bedoons, like other Iraqis, to fulfil a military service obligation or because he wanted a more comfortable life in Jordan without the distractions for military activity or the economic travails brought about by the foreign trade embargoes against Iraq. 

Whatever the truth of the matter, I will accept that the applicant lived with his family in Iraq for five years and then chose to go to Jordan in search of safety and a better life.”

28                  The RRT accepted the respondent’s evidence of staying in Jordan for two years and that he worked as a shepherd and then in a coffee shop.  However the RRT was not satisfied that the rest of his evidence was credible.  The RRT thought that, given Jordan’s grave security concerns, the respondent’s claim to have arrived in Jordan illegally and without hindrance, to be implausible.  The RRT, after referring to evidence from a number of publications, said:

“I am not satisfied with the applicant’s claim that he and his family were able to come undetected from Iraq into Jordan and remain there undetected by the security agencies for two years (June 1996 to June 1998).  I consider that, given their security concerns, the authorities would keep a vigilant eye on the border with Iraq and on strangers in both rural/remote areas, where the applicant worked as a shepherd, and in Amman where he worked in a coffee shop.”

29                  Nor was the RRT satisfied with the credibility of the respondent’s claim to have lived in Jordan for that length of time without in some way attempting to regularise his status.  His Kuwait documents (father’s ID, school and birth certificates) would have proved his identity and enabled him to gain a residency permit or to apply for refugee status in Jordan. 

30                  The RRT cited a Jordanian law, No. 24 of 1973, which made provision for the grant of international laissez-passers to, inter alia, stateless persons and persons with no established nationality.  The RRT observed:

“That Jordan is willing to extend support and consider refugee claims of stateless people such as the applicant and his family, including giving them international laissez-passers or other travel and visa documents, that normal residency permits of three months are issued and are renewable, that Arabs such as the applicant can renew them without even paying fees, and that even if one were to overstay a visa the fine is small, 10 dinars and a gaol term, if imposed, not excessive – between one week to six months, and that Jordan keeps control of foreigners within its borders by requiring employers to register such persons.  It also shows that refugees, and persons allowed to stay for humanitarian reasons, are exempted from the requirements named above.

The information given above is supported by the independent evidence (given in precis below) that Jordan’s legislative assurances on this matter are enacted in practice and that considerable leeway is given to visa overstayers who are allowed to stay on and work off whatever fees they might have amassed, and that tens of thousands of foreign Arabs live and work in Jordan under this system even if they do not choose to apply for refugee status.”

31                  The RRT referred to a number of DFAT cables, a World Refugee Survey and Amnesty International Report and also a US Committee on Refugees Press Release which stated that Jordan “is a world leader in its generosity towards refugees and displaced persons” and “bears the distinction of having the highest ratio of refugees to indigenous population of any country in the world”.  The RRT then continued:

“Given the above independent evidence, the Tribunal does not propose, in the circumstances of this individual applicant, to make a finding as to whether he can reasonably be expected to return to either Kuwait or to Iraq.  Instead, the Tribunal considers that the applicant has found effective protection from any harm he might have feared in Kuwait and Iraq in Jordan, against which he has made no claims, and where he and his family have been living for the past two years.

On the applicant’s own evidence the Tribunal is satisfied that the applicant has no well-founded fear of persecution in Jordan over his Bedoon ancestry.  Given independent evidence the Tribunal is satisfied that Jordan will not refoule the applicant to Kuwait and given the provisions of the Jordanian law No 24 of 1973 and other independent advice quoted above the Tribunal is satisfied that the applicant has the right to reside in, enter and re-enter Jordan.”

Later the RRT said:

“… I find that since the applicant has made no claim against Jordan and since that country has for the past two years afforded him and his family effective protection from the harm he feared in Kuwait, and having regard to the Jordanian law and its application that there is no reason why the applicant could not re-enter Jordan and find refuge there.  Since Jordan had adequate functioning mechanisms to assess any claim the applicant might put up for refugee status, legislative assurances that such claims are entertained, and a liberal attitude towards Arabs who choose to enter and stay there on residency visa without claiming refugee status, I find that it affords the applicant effective protection from the harm he fears in Kuwait or Iraq, with the result that Australia is under no obligation to give him refugee status.”

Decision of the primary judge

32                  After setting out the legislative framework and summarising the RRT’s decision his Honour discussed the three decisions of this Court already referred to (which had also been referred to by the RRT), that is to say Thiyagarajah, Rajendran and Gnanapiragasam.

33                  His Honour noted that the Minister acknowledged that Jordan was not a party to either the 1951 Refugees Convention or the Refugees Protocol.

34                  His Honour considered that the Full Court decisions in Thiyagarajah and Rajendran did not require him to conclude that Jordan could be a “safe third country” for present purposes.  The third country in each of those cases, respectively France and New Zealand, was a party to the Convention.  However, his Honour thought that the reasoning in Thiyagarajah did not permit him to conclude that Jordan could be a safe third country.  His Honour said (par 33):

“According to von Doussa J the concept [of ‘effective protection’] meant protection in the third country concerned which would effectively ensure that there would not be a breach of Art 33(1) of the Convention by that country if the person concerned happened to be a refugee.  It appears to me that to speak, as von Doussa J did, of the need for there to be effective insurance that there would be no breach of Art 33(1) by the third country concerned if the person concerned happened to be a refugee necessarily implied that that country would be a party to the Convention.  A country could hardly be in breach of Art 33(1) otherwise.” 

35                  His Honour observed that von Doussa J made it plain that he was not seeking to define exhaustively those circumstances in which a State which is a party to the Convention does not breach its protection obligations thereunder if it returns to a third country a person claiming refugee status without determining that claim. 

36                  Nevertheless his Honour read von Doussa J as having said that any of those other circumstances necessarily involved, as an irreducible minimum, “effective protection” in the sense in which he defined it.  His Honour thought von Doussa J was foreclosing the possibility that a third country could be “safe” if there was not effective insurance that there would be no breach of Art 33(1) by that country if the person concerned happened to be a refugee.

37                  His Honour concluded that, given the Minister’s acknowledgment that Jordan was not a party to the Convention, it was not open to the Tribunal to conclude that Jordan was a “safe third country” for present purposes.

38                  After further analysis of the RRT’s reasons, his Honour was satisfied that it had proceeded on the basis that Jordan was not a party to the Convention.  In the result, his Honour concluded that its decision was an error of law involving an incorrect application of the law to the facts as found:  s 476(1)(e) of the Act.  His Honour therefore set aside the RRT’s decision.  In the circumstances he found it unnecessary to deal with other grounds of review.  His Honour concluded (at par 43) by noting that had he been “uninstructed by authority” he would not have held that a country which was not a party to the Convention was disqualified from being a “safe third country”.  He would have taken the view that a third country was not disqualified from being “safe” for present purposes

“… provided that, if the person being considered for return to it is so returned, that country will be under a non-refoulement obligation with respect to that person, if the person is a refugee, at least as beneficial from that person’s point of view as is the non-refoulement obligation under Art 33(1) of the Convention (as that obligation is construed by Australia).”

Such an extra-Convention obligation might arise, for example, by regional international instrument or ad hoc arrangement or by the country’s own domestic law.  However on the facts of the present case his Honour considered that that approach would not have availed the Minister.

Is the Full Court’s decision in Thiyagarajah determinative?

39                  In Gala v Preston (1991) 172 CLR 243 at 284 Toohey J applied the following passage from Professor Julius Stone’s Precedent and Law (1985) at 123:

“Two main methods of finding the ratio of a case are currently regarded as permissible and proper:  one which seeks the holding on ‘the material facts’ of the preceding case, the other which seeks the rule propounded by the precedent court as the basis of its decision.  In the material facts version, the ratio decidendi is that reason which ‘explains’ (or is ‘the basis’ of, or is ‘necessary to explain’) the holding by the precedent court on ‘the material facts’ as identified by the precedent court.  In the rule-propounded version, the ratio decidendi is that reason which is propounded by the court as ‘the basis’ of (or as ‘explaining’, or as ‘necessary’ for ‘explaining’) its decision.”

To similar effect is the description of ratio decidendi by Cross and Harris in their work, Precedent in English Law (4^th ed 1991) at 72, as

“… any rule of law expressly or impliedly treated by the Judge as a necessarystep in reaching his conclusion, having regard to the line of reasoning adopted by him.”  (Emphasis added)

40                  In our opinion neither the actual decision in Thiyagarajah nor the reasoning resolves the present question.  That case did not deal with refoulement to a non-Convention country.  Put another way, the basic factual finding on which the case turned was that there was no real chance that the asylum seeker would not enjoy effective protection in France against refoulement to a country where he might suffer persecution.  This was also the reason or basis of the decision, in the sense discussed by Professor Stone and by Cross and Harris.

41                  Consistently with Thiyagarajah it was open to the RRT to find in the present case that there was no real chance that the respondent would not enjoy effective protection in Jordan.  Where factors A, B and C are present in a case and the result is X, it does not necessarily follow that in a later case where only A and B are present the result must be something other than X.  In Thiyagarajah von Doussa J does not discuss the possible outcome on the hypothesis that France was not a party to the Convention, for the simple reason that such a hypothesis was contrary to the facts.  The question whether there can be effective protection in  a country which is not a party to the Convention remains open, and falls for consideration in the present case. 

42                  We agree with and adopt the observation of Emmett J in Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443, the appeal from which was heard by us immediately following the present appeal.  His Honour said at par 26:

“I consider that all that von Doussa J was saying (and this is consistent with the approach adopted by the Full Court in Rajendran and by Weinberg J in Gnanapiragasam) is that so long as, as a matter of practical reality and fact, the applicant is likely to be given effective protection by being permitted to enter and live in a third country where he will not be under any risk of being refouled to his original country, that will suffice.”

Can Art 33(1) be satisfied where the third country is not a party to the Convention?

43                  Article 33(1) is, so to speak, the engine room of the Convention.  In Australia prior to 1992 its significance may not have been so apparent because, as von Doussa J points out in Thiyagarajah (at 552), decision-makers then were concerned only to determine whether an asylum-seeker satisfied the Art 1A(2) definition of “refugee”, this having been expressly made part of Australian domestic law by s 4(1) of the Act.

44                  Since 1992 the focus is on Art 33(1).  This is so whether the proposed refoulement is (i) direct to the asylum-seeker’s country of nationality (country A) or (ii) indirect by means of refoulement to country B which will, or might, refoule him or her to A.

45                  In (i) the “territories” are the territories of A.  In (ii) the territories are also those of A, the only difference is that the alleged breach of Art 33(1) would be achieved indirectly (“in any manner whatsoever”) by refoulement to B.

46                  This analysis suggests an answer to the present question.  In the former case the decision-maker has to make a factual assessment.  Is there a “real chance” of persecution for a Convention reason in country A?  That real chance may exist whether or not country A is a party to the Convention.  Likewise in the latter case, the decision-maker has to assess (also in terms of “real chance”) the prospects of “effective protection” in country B against refoulement to country A.  It is, as Emmett J said in Al-Zafiry, a matter of practical reality and fact.  The question whether B is a party to the Convention is relevant, but not determinative either way. 

47                  The respondent’s case involves a substantial gloss on the plain language of Art 33(1).  Moreover, it is inconsistent with the unchallenged proposition that there can be a real chance of lack of effective protection notwithstanding that the third country in question is a party to the Convention.  The learned primary judge noted that there are currently 133 States which are parties to the Convention.  It is a sad reality of modern times that countries do not always honour human rights, whether enshrined in domestic constitutions or in international treaties to which they are parties.  To treat the fact of a country being a party to the Convention as conclusive would be a distortion of the Convention’s language and subversive of its underlying purpose.  The converse must logically follow.  As a matter of fact, parties may have better effective protection in some countries which are not parties to the Convention (a category which, incidentally, includes the United States) than in many which are.

48                  The learned primary judge’s alternative reading, the “at least as beneficial” criterion, is we think equally at odds with the language of Art 33(1).

49                  The recent decision of the English Court of Appeal in R v Secretary of State for the Home Department; ex parte Adan (23 July 1999, unreported) upon which the respondent relied was governed by the terms of UK domestic legislation and in particular s 2(2)(c) of the Asylum and Immigration Act 1996 (UK). 

50                  Counsel for the respondent relied in the alternative on a number of review grounds specific to the present case.  To these we now turn.

Did the RRT apply the real chance test?

51                  At an early stage of its reasons the RRT discussed the Convention definition of refugee and a number of authorities, and in particular the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 575-6.  The RRT’s reasons set out four elements which Guo had elicited from the definition.  These included the “real chance” of persecution for a Convention reason.

52                  In formulating the issues which it had to decide, the RRT identified as one of the relevant considerations “whether there is a risk that the third country will return the applicant to a country where he fears persecution”.  The RRT then proceeded to make firm and reasoned findings of fact based on the material before it.

53                  On a fair reading of the RRT’s reasons it is apparent that the correct approach was adopted.  There was no obligation on the RRT to repeat the expression “real chance” in formulaic fashion throughout its reasons.  This is not even a case where an administrative decision-maker has engaged in “looseness in language” or “unhappy phrasing” so that it becomes necessary to pray in aid principles of restraint in judicial review:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

Were the particular circumstances of the respondent considered?

54                  The passages already quoted make it clear that the RRT considered the individual circumstances of the respondent, as well as the law and practice of Jordan in relation to persons like the respondent.  These were questions of fact and within the sole purview of the RRT.

55                  The decision of Lehane J in Shayea Rahaq Al-Anezi v Minister for Immigration and Multicultural Affairs [1999] FCA 355 at pars 24 to 26 must be regarded as turning on its own facts. 

Orders

56                  The appeal will be allowed and the judgment and orders of the primary judge dated 8 April 1999 set aside.  In lieu thereof it is ordered that the respondent’s application be dismissed.  There will be an order that the respondent pay the appellant’s costs at first instance and on the appeal, including reserved costs.

Associate:

Dated:              29 October 1999