FEDERAL COURT OF AUSTRALIA

Patto v Minister for Immigration & Multicultural Affairs [2000] FCA 1554

IMMIGRATION – refugees – application for protection visa – applicant Iraqi national – applicant travelled to Greece - refused refugee status in Greece – applicant nevertheless resided in Greece for seven years – whether Greece third safe country offering effective protection against refoulement to Iraq – finding by Tribunal of legal right or practical protection – no evidence or other material to justify the making of the decision – decision based on existence of a non-existent fact – decision set aside and remitted to Tribunal.

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 followed

Rajendran v Minister for Immigration and Multicultural Affairs (1998) 166 ALR 619 cited

Al-Zafiry v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 663 cited

Minister for Immigration and Multicultural Affairs v Al Sallal (1999) 94 FCR 549 cited

Jong Kin Koe v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 508 cited

SZ v Minister for Immigration and Multicultural Affairs (2000) 173 ALR 353 cited

Minister for Immigration and Multicultural Affairs v Gnanapiragasam (unrep, Fed Court, 25/9/98, Weinberg J) cited

Tour Gul v Minister for Immigration and Multicultural Affairs [2000] FCA 1537 cited

Nefiodova v Minister for Immigration and Multicultural Affairs [2000] FCA 179 cited

Pat Tai Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140 cited

Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 followed

Plender and Mole, Beyond the Geneva Convention: Constructing a De Facto Right of Asylum From International Human Rights Instruments, Nicholson and Twomey (eds), Refugee Rights and Realities Cambridge UP (1999) pp 81-105

Vedstet-Hansen, “Non-Admission Policies and the Right to Protection: Refugees’ Choice versus States’ Exclusion” in Nicholson and Twomey (eds) Refugee rights and Realities Cambridge UP (1999) p 271

Goodwin-Gill, The Refugee in International Law,  2^nd Edition, Clarendon 1996) at p 137

K Hailbronner, The Concept of “Safe Country” and Expeditious Asylum Procedures: A Western European Perspective (1993) 5 IJRL 31

M Kjaerun, The Concept of Country of First Asylum (1992) 4 IJRL 514

Achermann and Gattiker, Safe Third Countries: European Developments (1995) 7 IJRL 19

Federal Ministry of the Interior, Recent Developments in German Law on Asylum and Aliens (1994) 6 IJRL 225

Marx and Lumpp, The German Constitutional Court’s Decision of 14 May 1196 on the Concept of “Safe Third  Countries” – A Basis for Burden Sharing in Europe (1996) IJRL 419

Noll, The Non-admission and Return of Protection Seekers in Germany (1997) 9 IJRL 415

Stephens, The Asylum and Immigration Act 1996: Erosion of the Right to Seek Asylum (1998) 61 MLR 207

Legomsky, The New Techniques for Managing High Volume Asylum Systems (1996) 81 Iowa Law Rev 671

Taylor, Australia’s “Safe Third Country”: Provisions Their Impact on Australia’s Fulfilment of its Non-Refoulement Obligations (1996) 15 U Tas Law Rev 196

PETROS ESHO PATTO v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 2 OF 2000

FRENCH J

2 NOVEMBER 2000

PERTH

THE COURT ORDERS THAT:

1.         The Tribunal’s decision of 20 December 1999 affirming the decision not to grant the Applicant a protection visa is set aside.

2.         The matter is remitted to the Tribunal for reconsideration according to law.

3.         The Respondent is to pay the Applicant’s costs of the application.

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

REASONS FOR JUDGMENT

Introduction

1                     It is sometimes the case that an applicant for Australia’s protection under the Refugees Convention has come to this country from another where protection was available.  In that event, it is open to Australia to return the person to that safe third country without breaching its obligations under the Convention.  This case concerns an Iraqi national who says he fled from Iraq but lived as an illegal immigrant in Greece for seven years before coming to Australia on a forged Greek passport.  His claim for a protection visa has been refused because it is said effective protection was available to him in Greece which, incidentally, refused his claim for asylum.  In deciding that effective protection was available in Greece, the Refugee Review Tribunal has not made any assessment of the applicant’s status as a refugee.  The question in this case is whether the Tribunal had any proper basis for the conclusion it reached.

Factual Background

2                     Petros Esho Patto is an Iraqi national who was born on 1 July 1946 in Dohuk in Iraq.  He was educated first at primary school in Dohuk and thereafter in Baghdad.  He served for a few months in the Iraqi armed forces in 1970 and from October 1970 to June 1984 worked as a clerk with the Eastern Brewery in Baghdad.  He served five years after that with the Iraqi armed forces and returned to employment in June 1989 with the Eastern Brewery.  From 1989 to October 1991 he worked as a chef.  He was married in  July 1972.  He has four children of the marriage, two of whom are in their twenties.  The other two are 19 and 16 years of age respectively.  Mr Patto is a Christian of Caldanian ethnicity.  He has four brothers and sisters.

3                     According to Mr Patto the events which have led to his application for a protection visa began in May 1991 in Iraq when his wife was denied a ration book because she was a Christian.  He went to the shopkeeper and argued with him.  In the course of that argument he reflected upon the ruling Ba’ath regime.  He was subsequently summoned to the Security Office of the Ba’ath Party.  He was detained for ten days and assaulted.  He claimed that in July 1991 he was warned by people in the Security Office that if he received any information from his brothers who were then living in the United States or if he communicated with them he would be executed because they had escaped from Iraq.  He was required to sign a document to that effect.  It was repeated to him several times that he was prohibited from contacting his brothers because they had left Iraq illegally.  Mr Patto was afraid that they would call him and he would find himself in trouble.  He feared his telephone was being tapped.  He went to his sister’s house, rang his brothers in the United States and told them not to telephone him.  About two months later he received a warning that his life was in danger and that he should leave Iraq as soon as possible.  He and his family moved to his sister’s house in Baghdad overnight and the next morning hired a car and drove to Dohuk where they stayed for a month.  There he met a Kurdish man who agreed to take the family to Turkey for $US5,000.  On Mr Patto’s account he and his family left Iraq illegally on forged passports on 6 January 1992 travelling first to Turkey and then into Greece.  They stayed only a short time in Turkey because he only had a ten day visa. 

4                     Upon arrival in Greece he and his family were taken to a police station where they were interrogated.  They applied for asylum on 9 January 1992 and this was refused by order of the Chief Executive Officer of the Ministry of Public Order on 22 March 1992.  The stated reason for refusal in the order was that they did not fulfil the criteria of the Refugee Convention and in particular:

“c        There is no evidence in their file from which can be proven that they have been prosecuted by their country’s authorities due to their race, religion, political beliefs etc.

d.         The above mentioned persons left their country voluntarily in order to settle elsewhere (Greece) to search for a better life (economic migrants).”

5                     Later they were taken to Athens.  Notwithstanding the refusal of asylum they received a permit to stay in Greece for six months.  Shortly prior to the expiry of that visa Mr Patto saw the relevant authorities and asked what would happen when it expired.  He was told that he and his family could stay on provided they didn’t cause any problems.  He rented a house in Athens and obtained employment in a plastics factory.  He and his family remained in Greece for seven years.  He applied to the Australian Embassy in Greece in May 1996, April 1997 and January 1998 for a Permanent Visa on Refugee or Humanitarian Grounds.  In each of those applications he claimed that he had arrived illegally in Greece on 20 June 1995, that he had been persecuted in Iraq because of his refusal to join the Ba’ath Party, that he was detained for four months during military service in 1989 for transferring military information to the Kurds, that he was imprisoned in 1994 for three weeks because his son was accused of disseminating anti-government propaganda.  He said in support of those applications that he and his family had fled from Iraq in November 1994 crossed into Turkey and entered Greece in June 1995.  Each of those applications was refused.  In 1998 Mr Patto’s daughter married an Iraqi national who had obtained Australian citizenship.  She moved to Australia in 1998. Mr Patto decided to get to Australia.

6                     Mr Patto left Greece on a forged Greek passport on 21 March 1999 travelling first to Italy where he boarded a flight to Australia via Singapore.  He arrived in Australia without any passport.  On 26 March 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 20 August 1999 the application was refused and on 25 August 1999 Mr Patto sought review of that decision before the Refugee Review Tribunal.  On 20 December 1999 the Tribunal affirmed the decision not to grant a protection visa.  Mr Patto has now made application to this Court for review of the Tribunal decision.

7                     In a country information report dated 10 August 1999 supplied to the Tribunal and derived from the Department of Immigration and Multicultural Affairs in Athens the following observation appeared:

“The Greek Government is extremely tolerant of an illegal population and generally do not deport unless a person comes to notice for criminal activities.  There is a large illegal community of Iraqis in Greece (generally boat arrivals from Turkey) and it is possile (sic) to remain in Greece for long periods with no official status.

The Greek Government has undertaken to regularise the status of illegals, offering the opportunity to register with the police and apply for either a work permit or asylum. (It should be noted that Greece has the lowest official acceptance rate of refugee claims in Europe).

In real terms an illegal can register with the police, (in some cases obtain a work permit) and obtain an interview for either asylum or a work permit in approximately 2 years’ time.  The registration process to date has been characterised by delays and extensions of expiry dates.  In the short term it provides illegals with a number which registers an official (if illegal) presence in Greece and in some instances permission to work.”

The Tribunal’s Decision

8                     The Tribunal referred to the factual background already outlined.  In oral evidence before the Tribunal Mr Patto had been asked about his life in Greece.  He told the Tribunal  he had had continuous employment in the same factory until the time of his departure.  His older son and daughter are employed and have been in their current jobs for several years.  His youngest child is of school age and learns English a couple of days a week.  All his children were entitled to attend Greek schools.  Asked about access to health care he said that if he were to get sick he would get a letter from a charitable organisation such as Caritas.  If he wanted private health care he would have to pay otherwise it was free.  He had to spend money to get dental treatment.  He did not pay tax.  Whatever the employer paid him he accepted.  He was employed under his own name.  Asked why he did not continue to live in Greece Mr Patto said that he was an illegal citizen.  He could not complain if he were robbed.  He did not have the same rights as Greek citizens and in particular did not own a house or a car.  He was working there illegally and had to hide from the Department of Employment.  He used to avoid officials from the Department when they inspected the factory.  Asked why he could not return to Greece he said he could not go back to Greece because he would not be able to live there as a free man.  Asked why he had made different claims in his various applications for protection he responded that he had relied on the services of a translator who worked outside the Australian Embassy in Athens.  The applicant could not read English and therefore could not be sure that statements prepared on his behalf were accurate.

9                     The Tribunal accepted Mr Patto’s account of his identity, that he had travelled from Iraq to Greece on an illegal Iraqi passport and to Australia on an illegal Greek passport.  It then turned its attention to the question whether effective protection would be available for Mr Patto if he were returned to Greece.  In the Tribunal’s view effective protection meant protection which would effectively ensure that there would be no breach of Article 33 of the Refugee Convention if he happened to be a refugee and cited Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543.  It also relied upon the observation of the Full Court in Karthigesu Rajendran v Minister for Immigration and Multicultural Affairs  (1998) 166 ALR 619 where it was said:

“In substance the Full Court decision [in Thiyagarajah] is to the effect that for the purposes of determining whether Australia has protection obligations under the Convention, it is necessary to look to the individual circumstances of a particular visa applicant to determine whether, if Australia were to return that person to the third or intermediate country, Australia might be in breach of one of the operative Articles of the Convention (relevantly Art. 33).  If not, then whether or not the visa applicant is a “refugee” under Art. 1, Australia has no protection obligations in respect of that person …”.

10                  The Tribunal then posed as the question for consideration whether or not Mr Patto would be permitted to re-enter Greece at least on a temporary basis and whether upon return to Greece he would be exposed to a real risk of being returned to Iraq.

11                  Inquiries made of Greek authorities to determine Mr Patto’s right of return to Greece were made in October 1999 and on 24 November 1999 but no reply had been received at the date upon which the Tribunal delivered its decision – 20 December 1999.  The Tribunal referred to the fact that Mr Patto was not deported and had continued to live in Greece for seven years after asylum was refused.  It referred also to an Article of Greek Law in the following terms:

“Every alien may enter the Greek territory when he is in possession of an ordinary and valid passport or another travelling document, accredited by international conventions and it bears – in case that is required – a valid and effective entrance permit.”

12                  The Tribunal noted that while Mr Patto claimed not have a travel document for return to Greece it was open to the Australian authorities to provide a travel document.  In the Tribunal’s view it was not part of its function to decide how Mr Patto would physically return to Greece but just that he would be able to do so.  It then said:

“The Tribunal finds that given Greek Law 1975, and the applicant’s strong and current connections to Greece that he will be able to return to Greece.”

13                  Reference was also made to Article 11 of Greek Law 1975 which provides for the creation of a list of unwanted aliens and that a person entered on the list is obliged to leave the country within any time fixed by the Minister of Public Order.  In the event that such alien does not comply he would be deported.  The Tribunal again noted Mr Patto’s evidence at the hearing that he was not at any stage formally ordered to leave Greece and had not received any order stating he was on the unwanted list or that he was to be deported.  The only order he had received was the one refusing him refugee status.  The Tribunal held:

“Given the applicant has resided for 7 years in Athens, his family is still residing there, there is no order for his deportation from Greece, the effect of Article 6 of Law 1975, the Tribunal is satisfied that the Applicant has a right to return to Greece.”

14                  As a fall-back position the Tribunal adopted the approach of Emmett J in Al-Zafiry v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 663, endorsed by the Full Court in Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 where it was held that legally enforceable rights were not a necessary prerequisite to a finding that an applicant for refugee status would be afforded effective protection in a country of former habitual residence.

15                  The Tribunal considered the issue to be whether as a matter of “practical reality and fact” Mr Patto was likely to be given effective protection by Greece.  It so found.  Reference is also made to the country report of 10 August 1999 concerning the tolerance of the Greek Government for illegal immigrants.  Reference was also made to US State Department Reports on Human Rights 1998 in which it was said that the United Nations High Commission on Refugees had criticised the fact that Greece deported some potential asylum seekers back to their country of origin before they could submit formal applications for asylum.  In this case however Mr Patto had applied for asylum but had been refused and had been refused but not deported.  In any event the Tribunal gave greater weight to the more recent country information confirming that Greece does not deport illegal immigrants unless they come to their attention for criminal activities.

16                  The Tribunal also expressly rejected Mr Patto’s claim that he was informally told in Greece to “go to another country”.  The Tribunal’s rejection of this evidence had regard to the length of stay in Greece by Mr Patto and his family without any apparent intervention from Greek authorities.  In the event the Tribunal concluded that based on country information namely that illegals are not deported, the circumstances of Mr Patto, that he was not formally ordered to leave Greece and continued to live there for seven years and that Greek law allows re-entry he has effective protection in Greece.  On that basis the Tribunal was not satisfied that he was a person to whom Australia had protection obligations under the Refugees Convention.

Grounds of Application

17                  In summary the grounds of application are as follows:

1.         That the Tribunal erred in that there was no evidence or other material to justify its finding that Mr Patto had a right to return to Greece.

2.         The Tribunal erred in that there was no evidence or other material to justify the finding, or alternatively that it was a wrong application of the law to the facts that Mr Patto would enjoy “effective protection” in Greece for the purposes of Article 33 of the Refugee Convention.

3.         The Tribunal contravened s 424 A of the Migration Act 1958 (Cth) in failing to invite Mr Patto to comment upon the country information. (This ground was not pressed)

Evidence on the Review

18                  In addition to the materials which were before the Tribunal and the Tribunal’s reasons for decision counsel for the applicant tendered an affidavit of Nicholas Venizelakos a person admitted as a barrister and solicitor of the Supreme Court of Victoria and also admitted to practice under the laws of Greece since 1981 and a current member of the Athens Bar Association.  Mr Venizelakos has provided expert evidence in matters involving Greek law pending before various Australian courts including the Family Court of Australia and various State Supreme Courts.  Mr Venizelakos referred to various Greek statutes on the assumption of the following facts:

(a)        Patto left Greece on a false Greek passport under a false name;

(b)        that Patto no longer holds a valid Greek passport;

(c)        that he has no visa to enter or re-enter Greece; and

(d)        that his application for refugee status was refused by Greece,

Mr Venizelakos was of the opinion that Patto does not have a right to re-enter Greece.  He does not satisfy the requirements of s 6(1) of Law No 1975 in respect of entry – departure, residence, work, deportation, procedure of recognition of foreign refugees and similar provisions.  Even though he holds no valid passport or a valid travelling document and has no valid visa to enter Greece, authorities at the Athens airport would have the power to prohibit him from entering Greek territory on either a permanent or interim basis.  He could however apply for a visa from the Greek Consulate in Perth or in Canberra.  However he would not be able to stay in Greece on a temporary basis for more than three months.  Absence a valid visa he could be refused entry.

19                  Mr Venizelakos was also of the opinion that if returned to Greece, Patto would be exposed to a real risk of being returned to Iraq.  In regard to his departure from Greece under a false passport in violation of s 4(4) of the Act the consequence would be that appropriate Greek authorities would not only have the power to prosecute him but also to send him back to the country of his origin either Australia or to Iraq where he comes from.

20                  Moreover, Patto would not be entitled to apply again in Greece for refugee status.  His previous application was rejected and a new application would be rejected under s 25(1)(b) of the Act as he would not be coming directly from a country where his life or freedom is at threat. In the circumstances he would not fulfil the requirements of the Convention.

Statutory Framework

21                  Visas for non-citizens are dealt with in Division 3 of Part 1 of the Migration Act.  The Minister has general power, subject to the Act, to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia (s 29).  There are to be prescribed classes of visas as well as classes provided for specifically in the Act (s 31).  Criteria for a visa or visas of a specified class may be prescribed in the Regulations (s 31(3)).  A non-citizen who wants a visa must apply for a visa of a particular class (s 45).  Valid applications for visas are to be considered by the Minister (s 47).  The Minister, if satisfied that health criteria for a visa (if any) have been satisfied and other criteria prescribed by the Act or Regulations have been satisfied and that other conditions not relevant for present purposes have been met, is to grant the visa.  If not so satisfied, the Minister is to refuse to grant the visa Is 65).

22                  The prescribed classes of visas are those set out in the respective items in Schedule 1 together with Transitional (Permit) and Transitional (Temporary) classes (reg 2.03).  Prescribed criteria for the grant to a person of a visa of a particular class are primary criteria set out in the relevant part of Schedule 2 or where a relevant part of Schedule 2 sets out those secondary criteria (reg 2.03).  One of the classes of visa mentioned in Schedule 1 is Item 1126 Protection (Class AZ).  This has only one subclass, 866, which is referred to in Schedule 2.  It is a criterion for the grant of a protection visa specified in 866.221 that:

“The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the refugees convention.”

So the existence of protection obligations under the Convention is the central criterion the fulfilment of which requires the Minister to grant a protection visa – Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 at 552; Jong Kin Koe v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 508 at 522.  These provisions, reflecting amendments effected by the Migration Reform Act 1992, shifted the criteria for grant from the status of the applicant as a refugee to the subsistence of protection obligations on the part of Australia.  A person may have refugee status but attract no protection obligations from Australia.

23                  The Refugees Convention is defined in Item 866.111 of Schedule 2 of the Migration Regulations as the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the status of Refugees.  A refugee is defined in Article 1A(2) of the Convention as any person who:

“Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; 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.”

This is to be read with Article 33 which provides:

“1.       No Contracting State shall expel or return “refouler” 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.

2.         The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

24                  Article 31, dealing with refugees unlawfully in the country of refuge, is also relevant because of the confinement of its protection to refugees coming directly from the country of origin to the country in which refuge is claimed.  It provides:

“31(1)  The Contracting States shall not impose penalties on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in the territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

Article 1E is also of significance in that it specifically excludes from the application of the Convention persons with nationality rights in another country of residence.  It may therefore be said to exclude such persons from the definition of refugee.  It provides that:-

“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.”

25                  There is specific provision in the Act, introduced in 1994 by the insertion of subdivision AI in Division 3, relating to safe third countries.  It is limited in its application to Indo-Chinese refugees covered by the Comprehensive Plan of Action (“CPA”) approved by the International Conference on Indo-Chinese Refugees held at Geneva, Switzerland from 13 to 14 June 1989 and one other category.  The other category is that of non-citizens covered by an agreement relating to persons seeking asylum, between Australia and a country that is, or countries that include a country that is, at that time, a safe third country in relation to the non-citizen (s 91C(1)).  The term “safe third country” is defined in s 91D thus:

“91D(1)  A country is a “safe third country” in relation to a non-citizen if:

(a)       the country is prescribed as a safe third country in relation to the non-citizen, or in relation to a class of persons of which the non-citizen is a member; and

(b)       the non-citizen has a prescribed connection with the country.

     (2)  Without limiting paragraph (1)(b), the regulations may provide that a person has a prescribed connection with a country if:

(a)       the person is or was present in the country at a particular time or at any time during a particular period; or

(b)       the person has a right to enter and reside in the country (however that right arose or is expressed).”

There is provision for the tabling in parliament of statements covering countries prescribed as safe third countries.  Non-citizens to whom subdivision AI applies are generally unable to apply for protection visas (s 91E).  This is subject to a ministerial dispensation by way of written determination which must be tabled in each House of Parliament (s 91F).

26                  The only regulation which appears to be extant in connection with safe third countries is reg 2.12BA which designates the Peoples Republic of China (PRC) as a safe third country in relation to Vietnamese refugees who are or have been settled in that country or close relatives or dependents thereof as covered by an agreement between Australia and the PRC in the terms set out in Schedule 11 to the Regulations.

Safe Third Country and Effective Protection

27                  There is no right of asylum conferred by the Refugees Convention.  Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543; Rajendran v Minister for Immigration and Multicultural Affairs (1998) 166 ALR 619;  SZ v Minister for Immigration and Multicultural Affairs (2000) 173 ALR 353 at 356.  Nevertheless it has been argued by reference to other international instruments, that a right of asylum exists at international law – Plender and Mole - Beyond the Geneva Convention: Constructing a De Facto Right of Asylum From International Human Rights Instruments – Nicholson and Twomey (eds), Refugee Rights and Realities, Cambridge U.P. (1999) pp 81-105.  While the judgment of Branson J in SZ at p 356 propounds the absence of a right of asylum at international law, that proposition, in  context, is directed only to rights and obligations arising under the Refugees Convention. Whatever the true position at international law generally, the relevant municipal law of Australia gives effect only to protection obligations assumed by Australia as a contracting party to the Refugee Convention.  The primary obligation arises out of the prohibition against refoulement in Article 33.

28                  There are two important elements of the prohibition in Article 33:

1.         It operates in respect of refugees.

2.         It prohibits only their expulsion or return to the frontiers of territories where their lives or freedom  would be threatened for a Convention reason.

Article 33 does not operate in respect of any person to whom the Convention does not apply.  So it will not operate in respect of a person covered by Article 1E.  It may rightly be said that, strictly speaking, Article 1E defines a class of persons who are not refugees.  They cease to be such upon taking residence in a country whose competent authorities recognise them as having the rights and obligations which attach to the possession of nationality in that country.  It is an article of cessation in relation to the application of the Convention rather than exclusion from its protection – Vedstet-Hansen, “Non-Admission Policies and the Right to Protection: Refugees’ Choice versus States’ Exclusion”, in Nicholson and Twomey(op cit) 269 at 271.  The first element of Article 33 presupposes that the person whose return is in issue is a refugee as defined in Article 1A.  As a matter of necessary implication, it will apply to persons seeking protection under the Convention whose entitlement has not been established.  Absent such implied coverage, at least for an initial period and in appropriate circumstances, there would be no effective protection – Goodwin-Gill, The Refugee in International Law, 2^nd Edition, Clarendon (1996) at p 137.  The obligation of non-refoulement is of fundamental importance notwithstanding that individuals may not have been recognised as refugees – UNHCR Executive Committee Conclusion No 6 (1977).

29                  The question whether a person may be refused recognition as a refugee in the country of refuge because a country through which that person had passed earlier could have determined his or her refugee status, is not expressly answered by the Convention.  On the face of it each State party has its own independent obligation to determine the refugee status of a person claiming its protection.  The Dutch Council of State in an opinion of 8 April 1991 said:

“The system in the Convention on Refugees assumes that the obligations apply to each of the States which are signatories to the treaties separately, when a foreigner seeks asylum.  The prevailing Dutch asylum law starts from the view that the Netherlands has its own independent responsibility to determine whether people presenting themselves at its borders to seek asylum or who are on its territory are actually granted refugee status” – see P Shah – Refugees and Safe Third Countries (1995) 9 Imm. and Nationality Law and Practice 3 at 9.

This view, in a somewhat qualified way, is reflected in the UNHCR Background Note on the Safe Country Concept and Refugee Status prepared by the High Commissioner in July 1991 which proposed:

“..while in principle each State Party to the 1951 Convention and 1967 Protocol has a responsibility to examine refugee claims made to it, “burden sharing” arrangements allowing for readmission and determination of status elsewhere are reasonable provided they always ensure protection of refugees and solutions to their problems.”  (EC/SCP/68 26.7.91)

30                  Notwithstanding the principle of separate State responsibility, the so-called first asylum concept and “safe third country” and “burden sharing” arrangements are features of contemporary State practice in the processing of refugee claims particularly in Europe.  They reflect the pressure of significant numbers of people displaced by war and civil and other strife seeking asylum and the phenomenon of “refugees in orbit”, that is to say asylum seekers who are sent back and forth between different countries.  In so far as they involve a shift away from assessment of each applicant, including judicial review, they respond to the difficulties of delivering individualised protection decisions where large numbers of people are concerned – K Hailbronner, The Concept of “Safe Country” and Expeditious Asylum Procedures: A Western European Perspective (1993) 5 IJRL 31 at 32-33. 

31                  The concept of “first asylum” can be used within the framework of the Convention to reject an applicant on the basis that some other is more “appropriate” to provide protection.  On that basis, which reflects inter alia Swedish practice, there is no need to consider whether the applicant is a refugee.  First asylum principles there operate as a preliminary hurdle no doubt seen as consistent with the non-refoulement obligation in Article 33.  Alternatively the principle may be used to reject somebody whose status as a refugee is accepted.  This reflects Danish practice – M Kjaerun – The Concept of Country of First Asylum (1992) 4 IJRL 514 at 515-516.  The distinction between these practices is also reflected in their respective descriptions as “procedural exclusion from asylum procedures” and exclusion based on “substantive decisions” respectively – Vedstet-Hansen, op cit at 271-272.

32                  Agreements formalising safe third country and burden sharing principles such as the Dublin Convention, signed by all twelve European Union Member States in 1990, and elements of the Schengen Agreement  of June 1985 between the governments of the States of the Benelux Economic Union, Germany and France, have as their central concept the proposition that one State is responsible for examining any given application for asylum.  Asylum seekers in countries covered by these agreements will not have the opportunity of going through the asylum procedure in a second country where they have arrived from a “safe third country”.  These multilateral agreements and bilateral readmission agreements have had significant impacts on the processing of asylum claims in Western Europe – see Achermann and Gattiker, Safe Third Countries: European Developments (1995) 7 IJRL 19.  State legislation such as Article 16a of the Basic Law in Germany, enacted in 1993 and upheld by the German Constitutional Court in 1996, supports designation of specified States as “safe third countries” – Federal Ministry of the Interior – Recent Developments in German Law on Asylum and Aliens (1994) 6 IJRL 225; Marx and Lumpp, The German Constitutional Court’s Decision of 14 May 1996 on the Concept of “Safe Third Countries” – A Basis for Burden Sharing in Europe (1996) 8 IJRL 419; Noll, The Non-admission and Return of Protection Seekers in Germany (1997) 9 IJRL 415.  The safe third country designation has also been given statutory support under the Asylum and Immigration Appeals Act 1996 (UK) – Stephens, The Asylum and Immigration Act 1996: Erosion of the Right to Seek Asylum (1998) 61 MLR 207.  In the USA, Justice Department Regulations authorise discretionary denials of asylum to aliens who would otherwise be deported to safe third countries through which they travelled to the US even if they had not settled in such countries – Legomsky – The New Techniques for Managing High Volume Asylum Systems (1996) 81 Iowa Law Rev 671 at 678 et ff.

33                  Australia is a party to the CPA agreement which provides for countries in its region to give first asylum to certain categories of asylum seekers – see Taylor, Australia’s “Safe Third Country” Provisions Their Impact on Australia’s Fulfilment of its Non-Refoulement Obligations (1996) 15 U. Tas. Law Rev 196.  This and the specific agreement with the PRC in respect of certain Vietnamese asylum seekers are supported by provisions of the Migration Act rendering invalid applications made by a non-citizen covered by an agreement relating to persons seeking asylum between Australia and a country that is, at the relevant time, a safe third country in relation to the non-citizen.  There is however no safe third country provision applicable to persons coming to Australia from Greece.  This case therefore falls to be determined in accordance with Australia’s protection obligations as derived from a consideration of the terms of the Refugees Convention.

34                  The question whether the return of a person seeking a protection visa in Australia, to a country other than the country of origin, breaches Article 33 will arise in a variety of cases.  A person who has acquired the rights and obligations of a national of the third country and has the right to reside there is not covered by the Convention because of Article 1E.  Article 1E apart, Article 33 would not extend to such a person because return to the third country would not involve a threat to his or her life or freedom for a Convention reason.  As Von Doussa J (Moore and Sackville JJ agreeing) said in Thiyagarajah at 555:-

“If it is clear on the information before the decision-maker that the applicant has taken residence in a country other than his country of nationality and is recognised by the competent authorities of that country as having rights and obligations which are attracted to the possession of the nationality of that country (so as to come within Art 1E), there is neither need nor practicable purpose in the decision-maker exploring whether the applicant still falls, or indeed whether he ever fell, within Art 1A(2).”

See also Rajendran in which case the applicant also fell within Article 1E by virtue of his right of residence in New Zealand and, a fortiori, return to New Zealand would not contravene Australia’s obligations under Article 33. 

35                  In Minister for Immigration and Multicultural Affairs v Gnanapiragasam (unrep, Fed Court, Weinberg J, 25/9/98), Weinberg J observed that there was no reason in principle why Article 33 “…should rest upon nothing less than an entitlement to “permanent residence” in the third country… Once back in that “safe third country” the claimant 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”. 

36                  A right of residence in a third country is not a condition of its characterisation as a safe third country if it be a party to the Convention which will honour its obligations thereunder.  Nor is it necessary that the third country be a party to the Convention if it will otherwise afford effective protection to the person.  In Minister for Immigration and Multicultural Affairs v Al Sallal (1999) 94 FCR 549 the Full Court expressly approved and adopted at p 558-559 the approach of Emmett J in Al-Zafiry v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 663 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 to live in a third country where he will not be under any risk of being refouled to his original country, that will suffice.” (at [26])

The question therefore whether the third country is a party to the Convention “…is relevant, but not determinative either way” – Al-Sallal at 559.

37                  One can draw from these cases broad propositions in relation to the protection obligations assumed by Australia under Article 33 of the Convention in its application to persons who travel to Australia from the country in which they fear persecution by a third country in which they have stopped or stayed for a time:

1.         Return of the person to the third country will not contravene Article 33 where the person has a right of residence in that country and is not subject to Convention harms therein.

2.         Return of the person to the third country will not contravene Article 33, whether or not the person has right of residence in that country, if that country is a party to the Convention and can be expected to honour its obligations thereunder.

3.         Return of the person to a third country will not contravene Article 33 notwithstanding that the person has no right of residence in that country and that the country is not a party to the Convention, provided that it can be expected, nevertheless, to afford the person claiming asylum effective protection against threats to his life or freedom for a Convention reason.

The preceding propositions are obviously not exhaustive.  They do not expressly cover the situation in the present case where the applicant for a refugee visa has been residing in a third country, absent any right to do so but as a matter of sufferance for an extended period, and has been assessed for refugee status in that country but declined.  That is the situation which faces this applicant.

Effective Protection in Greece

38                  The way in which the Tribunal approached the third safe country issue was to identify as the questions for consideration:

“…whether or not the applicant would be permitted to re-enter Greece, at least on a temporary basis and …if upon return to Greece, would the applicant be exposed to a real risk of being returned by Greece to Iraq?” (p 10)

The questions thus posed did not raise for determination whether Greece would give or had given proper consideration to its protection obligations under the Convention.  The Tribunal had no information from the Greek government about Patto’s right of return to that country.  Nevertheless noting that Patto was refused refugee status by the Greek government, that he had resided there following that refusal for seven years and that his family still resided there, the Tribunal was satisfied that he had “… a right to return to Greece”.  With all due respect the conclusion of a right to return to Greece is a non-sequitur.  There is nothing in the material to suggest a legal right to return to that country.  While it may be that Patto could have remained in Greece indefinitely, his departure in Australia and prospective re-entry as a deportee from this country are circumstances which place in the realm of sheer speculation what the attitude of the Greek government might be to his re-entry.  This difficulty also confronts the Tribunal’s fall-back finding that even in the absence of a legal right he would, as a matter of “practical reality” be afforded effective protection in Greece.

39                  It was submitted that in so far as the decision of the Tribunal rested upon this conclusion, there was no evidence or other material to justify the making of the decision.  This relies upon the ground for review set out in s 476(1)(g) which is subject to the requirement in s 476(4) that:

“(4)     The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

            (a)        the person who made the decision was required by law to reach that decision only if a particular matter was established and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

            (b)        the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

The latter requirement is a necessary condition to be satisfied before the ground in s 476(1)(g) can be made out.  It is not however a sufficient condition for satisfying s 476(1)(g) – Tour Gul v Minister for Immigration and Multicultural Affairs [2000] FCA 1537; Nefiodova v Minister for Immigration and Multicultural Affairs [2000] FCA 179; Pat Tai Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140.  The general test for the application of s 476(1)(b) was set out in Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 thus :

“The kind of fact which will enliven this ground of review is a “particular fact” on the existence of which the decision was based.  If the existence of the fact is critical to the decision then the claim is said to be based on that fact – Curragh Qld Mining Ltd v Daniel (1992) 34 FCR 212 at 220.  That does not mean that the “particular” fact is required to be the only or predominant fact upon which the decision is to be based – Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 364, approved in Curragh Qld Mining Ltd (supra) at 721.” (p 19 at par 56)

40                  On the primary facts which it found, there was no basis for the Tribunal to reach the conclusion that Patto has a right to re-enter Greece.  That was a fact critical to its decision that third safe country protection was available in Greece which in turn went to the question whether return to Greece would breach Australia’s obligations under Article 33.  Nor was there any basis for the fall-back position in purported application of the approach of Emmett J in Al-Zafiry that “…as a matter of practical reality and fact the applicant is likely to be given effective protection by the third country, Greece.”  Given the present circumstances of the applicant outside Greece there was simply no information from which that conclusion could be drawn.  I would add that the evidence of Mr Venizelakos is not relied upon in my assessment of the Tribunal’s reasoning process.  Nevertheless, it supports the finding that the particular facts found by the Tribunal did not exist.

41                  The Tribunal went on to consider the likelihood that, if accepted back into Greece, Patto would be returned to Iraq.  This consideration was posited upon his acceptance by Greece which falls foul of the difficulty in the two critical findings of, legal or practical right of re-entry to which I have already referred. 

Conclusion

42                  For the preceding reasons, the decision of the Tribunal will be set aside and the application for a protection visa remitted to it to be dealt with according to law.  If no firm conclusion can be reached about the existence of a legal or practical right of re-entry to Greece, then it may be necessary for the Tribunal to move to consider whether Patto is a refugee in Convention terms and entitled to Convention protection quite independently of any safe third country.  Of course, there may still be open for consideration the difficult question of Australia’s obligation to a person who has come to this country via a country which is a party to the Convention, which has assessed his claim for refugee status and which has rejected it.  There is a question whether Australia is entitled, consistently with its obligations under the Convention, to treat the finding in that country as determinative of the issue.  Whether that could be done administratively or requires legislative support may be debatable.  It would, I would think, only be adopted as a general proposition in relation to those countries of which a judgment is made that they have in place fair and reliable processes in accordance with the requirements of the Convention for dealing with asylum claims.  It can hardly have been the intention of the drafters of the Convention that persons claiming refugee status could move from one Convention country to another and be entitled in each to the full benefit of domestic processes in place for the assessment of refugee claims. That however is not a matter which is canvassed in this case.  It may fall for consideration in some future case.  In the meantime the matter must be returned to the Tribunal.

Associate:

Dated:              November 2000