FEDERAL COURT OF AUSTRALIA

NAEN v Minister for Immigration &  Multicultural & Indigenous Affairs [2003] FCA 216

MIGRATION – protection visas – requirement that Australia owe protection obligations to applicant – principle of effective protection – requisite connection with the third country – whether need for applicant to have prior connection with the third country – whether Israel’s Law of Return means that Australia does not owe protection obligations to Jews.

DISCRIMINATION LAW – finding that Israel’s Law of Return means that a genuine refugee is not owed protection obligations under the Convention – whether finding involves discrimination on grounds of ethnic origin.

Judiciary Act 1903 (Cth), ss 5(1), 39B(1), 65(1)

Migration Act 1958 (Cth), s 36

Racial Discrimination Act 1975 (Cth), s 10(1)

Migration Regulations, Sched 2, cl 866.221

Asylum and Immigration Appeals Act 1993 (UK)

Statement of Changes in Immigration Rules (UK)

Law of Return (Israel)

Convention Relating to the Status of Refugees 1951, Arts 1A(2), 1E, 32, 33(1)

Protocol Relating to the Status of Refugees 1967

Convention Determining the State Responsible for Examining Application for Asylum Lodged in One of the Member States of the European Communities 1990

International Convention on the Elimination of all Forms of Racial Discrimination

Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154, cited

Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549, discussed

Applicant NAGV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1456, followed

Bank of Western Australia v Commissioner of Taxation (1994) 55 FCR 233, cited

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

Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526, cited

Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1, cited

Kola v Minister for Immigration and Multicultural Affairs [2002] FCAFC 59, cited

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

Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549, discussed

Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343, cited

Al-Rahal v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 73, discussed

Patto v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 119, discussed

V872/00A v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 268, discussed

Azemoudeh v Minister for Immigration and Ethnic Affairs (1985) 8 ALD 281, cited

Abdi v Home Secretary [1996] 1 All ER 641, cited

Katkova v Minister of Citizenship and Immigration (1997) 130 FTR 192, cited

Sale v Haitian Centers Council Inc 509 US 155 (1993), cited

Mabo v Queensland (No 1) (1988) 166 CLR 186, cited

Gerhardy v Brown (1985) 159 CLR 70, cited

Jones v Scully [2002] FCA 1080, cited

A Achermann and M Gattiker, “Safe Third Countries: European Developments” (1995) 7 Int J Ref Law 19

R Dunstan, “Playing Human Pinball: The Amnesty International United Kingdom Section Report on UK Home Office ‘Safe Third Country’ Practice” (1995) 7 Int J Ref Law 606

J Crawford and P Hyndman, “Three Heresies in the Application of the Refugee Convention” 1 Int J Reg Law 155, at 168-169

R Byrne and A Shacknove, “The Safe Country Notion in European Asylum Law” (1996) 9 Harv Human Rights J 185

NAEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1227 of 2002

SACKVILLE J

SYDNEY

19 MARCH 2003

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application for relief under s 39B(1) of the Judiciary Act 1903 (Cth).  The applicant challenges a decision of the Refugee Review Tribunal (“RRT”) given on 29 October 2002.  The RRT affirmed a decision of a delegate of the respondent (“the Minister”) to refuse to grant a protection visa to the applicant.  The challenge raises the question of the limits of what is often described in the literature as the concept of the “safe third country”: see, for example, A Achermann and M Gattiker, “Safe Third Countries: European Developments” (1995) 7 Int J Ref Law 19.

2                     The applicant is a national of the Russian Federation.  She is Jewish.  Her husband adheres to the Russian Orthodox faith.  The RRT accepted the applicant’s claim that she suffered from anti-semitism in Russia and that she had a well-founded fear of persecution in Russia based on her religion and ethnicity. 

3                     The RRT nonetheless found that neither the applicant nor her husband was a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees.  The reason was that both were entitled to enter and remain in Israel pursuant to that country’s Law of Return.  According to the RRT, the right of “aliya” conferred by the Law of Return entitled every Jew and the spouse of every Jew (whether or not Jewish) to come to Israel as an “oleh”.  Since neither the applicant nor her husband would be at any risk of being refouled to Russia from Israel, the RRT was satisfied that they would have effective protection in Israel.  It was not the point that they had had no prior contact with Israel and had no desire to live there.  It followed that Australia did not owe the applicant or her husband protection obligations and they were not entitled to protection visas.

the legislative framework

4                     Section 36 of the Migration Act 1958 (Cth) (“Migration Act”) provides for protection visas, as follows:

“(1)     There is a class of visas to be known as protection visas.

(2)           A criterion for a protection visa is that the applicant for the visa is:

(a)          a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;

(b)          …”.

The reference to the Refugee Convention is to the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, while the reference to the Refugees Protocol is to the Protocol Relating to the Status of Refugees done at New York on 31 January 1967: s 5(1).

5                     Other criteria for the grant of a protection visa are specified in the Migration Regulations, Sched 2, Part 866.  These include a requirement 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 Convention: cl 866.221.

6                     If, after considering a valid application, the Minister is satisfied that the criteria and requirements of the grant of a visa have been met, he or she is to grant the visa: s 65(1)(a).  If not so satisfied, the Minister is to refuse to grant the visa: s 65(1)(b). 

7                     Article 1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (the “Convention”), provides that a refugee is a 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, is unable or, owing to such fear, is unwilling to return to it”.

Article 1E of the Convention excludes persons with rights and obligations in another country equivalent to nationality.  It provides as follows:

            “This Convention shall not apply to a person who is recognized 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) of the Convention is as follows:

“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.

Article 32 provides that a Contracting State shall not expel a refugee lawfully in its territory save on grounds of national security or public order.  However, Australia, when ratifying the Convention, did not adopt Art 32.

8                     It should be noted that s 36(3) of the Migration Act, provides that Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter or reside in any country apart from Australia.  That provision, however, came into force after the applicant sought a protection visa.  That being so, neither party suggested that s 36(3)  applies to the present case.  In any event, it appears that s 36(3) does not detract from the doctrine of effective protection discussed later in this judgment: see Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154, at 171-172.

BACKGROUND

9                     The applicant was born on 25 October 1955, in Khabarovsk, then in the USSR.  According to her birth certificate, her father was of Russian nationality, while her mother’s “nationality” was Jewish.  She and her husband were married in February 1995 in Khabarovsk. 

10                  The applicant and her husband arrived in Australia on 25 March 1999.  They lodged separate applications for protection visas. 

11                  The applicant claimed to have left Russia because she feared for her life and that of her family by reason of the pervasive anti-semitism in that country.  She claimed that her first husband had left her because he had been warned of the consequences of being married to a Jewish woman.  She had suffered severe harassment by neighbours and had been attacked in the street by anti-semitic youths.  Her family’s summer house had been vandalised and at one point had been set alight.  The police had refused to provide any help with an investigation.

12                  The husband claimed that he had become a target for anti-semitic abuse because of his marriage to a Jewish woman.  He expressed the fear that he would be harmed by anti-semitic paramilitary organisations which had become powerful in Russia.

13                  On 30 June 1999, the delegate rejected both applications, finding that neither the applicant nor her husband had been persecuted in Russia and would not face persecution if they were to return.  The applicant sought review of the delegate’s decision by the RRT.

the rrt’s reasons

14                  The RRT noted that the husband considered “aliya” to be unacceptable because of his Russian Orthodox faith.  He did not wish to be subjected to Jewish law, as he considered would be the case if he went to Israel.  The RRT also noted that by a letter sent after the hearing, the applicant claimed to have been converted to Christianity in 1996.  She asserted that her conversion to the Russian Orthodox faith would preclude her from obtaining aliya in Israel.

15                  The RRT did not accept that the applicant had converted to Christianity as she had claimed.  It found that she had created the claim as a “late embellishment” in order to enhance her claim to refugee status in Australia.  The RRT expressed the view that she was “forum shopping”. 

16                  The RRT then considered country reports addressing the position of Jews in Russia.  These reports indicated that, while state-sponsored anti-semitism had ceased, anti-semitic attitudes by the Russian population were nevertheless widespread.  Moreover there was a continuing problem with crime in Russia, particularly crime directed at the Jewish population.  While the Russian constitution guaranteed the equality of rights of citizens regardless of race and religion, there were problems in the enforcement of these laws.

17                  The RRT accepted that there had been an increase in discrimination against Jewish citizens of Russia and that the applicant had suffered from that discrimination.  The RRT was satisfied that the applicant and her family had suffered

“cumulative discrimination for her religion and ethnicity amounting to persecution.  I am satisfied that, if she were to return to Russia, she would continue to face that discrimination for her religion and Jewish ethnicity.  I am satisfied that there is a real chance that the discrimination amounting to persecution including acts of violence would, if she and her husband returned to Russia, again manifest itself”.

18                  The RRT further found that it would not be reasonable, in the circumstances of the case, to expect the applicant and her family to relocate elsewhere in Russia.  The independent evidence did not suggest that there were places in Russia where attitudes towards Jews were different from the attitudes experienced by the applicant in Khabarovsk.  Accordingly, the RRT accepted that the applicant had a well-founded fear of persecution in Russia based on her religion and ethnicity.

19                  The RRT observed that, for the purposes of s 36(2) of the Migration Act, Australia’s protection obligations to Convention refugees are subject to certain qualifications.  In particular, Australia does not have protection obligations to a person who has been accorded effective protection in a third country.  The RRT continued as follows:

“[e]ffective protection in this context is protection which will effectively ensure there is not a breach of Article 33 of the Convention which prohibits the return of a refugee to the frontiers of territories where his or her life or freedom would be threatened for one of the five Convention reasons.  If, ‘as a matter of practical reality and fact’, an applicant is likely to be given ‘effective protection’ in a third country by being permitted to enter and live in that country where he or she will not be at risk of being returned to his or her original country, Australia can (consistently with Article 33) return the applicant to that third country without considering whether he or she is a refugee: Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549.  In determining whether an applicant has effective protection in a third country relevant considerations will usually be: whether the applicant will be permitted lawfully to reside in, enter and re-enter the third country; whether there is a risk that the third country will return the applicant to his or her country of nationality; and whether the applicant has a well-founded fear of persecution in the third country itself.”

20                  The RRT then quoted from material contained on the official website of the Israeli Immigration and Absorption Department.  This stated that essentially all Jews everywhere are Israeli citizens by right, except for certain dangerous criminals.  Since 1970, Israel had granted automatic citizenship not only to Jews but to non-Jewish members of their families including non-Jewish spouses.

21                  On the basis of independent evidence, the RRT was satisfied that the husband would not suffer harassment in Israel for his lack of knowledge of the Jewish faith or by reason of the fact that he was not Jewish. 

22                  The RRT then referred to Israel’s Law of Return, 5710-1950.  It summarised the position as follows:

“The right of ‘aliya’ is enshrined in Israeli legislation.  According to the Law of Return…[e]very Jew has the right to come to this country as an oleh.  According to paragraph 3, a Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while in Israel receive an oleh’s certificate.  According to paragraph 4A(a) the rights of a Jew under this Law and the rights of an oleh under the Nationality Law, as well as the rights of an oleh under any other enactment are also vested in a child and a grandchild of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion: paragraph 4B.  For the purposes of this Law ‘Jew’ means a person who was born of a Jewish mother or has become converted to Judaism and who is not of another religion.  The Israeli authorities issue these emigrants actual Israeli citizenship, not merely the right to acquire it”.

23                  The RRT was satisfied that both the applicant, being Jewish, and her husband, being married to a Jewish person, would be granted aliya.  The applicant had not argued that she would not be permitted to enter and live in Israel (except for her claim to have converted to Christianity).  The RRT found no independent evidence to support the applicant’s claims that she and her husband would suffer harassment in Israel.  On the contrary, the independent evidence indicated that the Russian speaking community in Israel had its own political party, its own media, business circle and cultural scene.

24                  The RRT concluded as follows:

“I am satisfied that the applicant and her husband do not have a well-founded fear of persecution, within the meaning of the Convention, in Israel.  I find that the applicant has a right of ‘aliya’ to Israel and has the right to enter and live in Israel where she and her family will not be under any risk of being refouled to Russia.  I am satisfied the applicant has a right to enter and remain in Israel with her spouse.  Israel is [a] signatory Convention country and I am satisfied that she does not have a well-founded fear in Israel and would have effective protection in Israel.

Therefore I am satisfied Australia does not owe protection obligations to the applicant and her husband.

The Tribunal is not satisfied that the applicant has a well-founded fear of persecution based on her race, religion, nationality, political opinion or membership of a particular social group”.

The Submissions

the applicant’s contentions

25                  The applicant acknowledged that Australia’s “protection obligations” (as that expression is used in s 36(2) of the Migration Act) centre on the obligation of non-refoulement imposed on Contracting States by Art 33(1) of the Convention.  She also acknowledged that

(i)        Australia’s obligations under the Convention are not triggered if an applicant has “effective protection” in another country; and

(ii)       effective protection is to be determined as a matter of “practical reality and fact”.

26                  Nonetheless, Mr Karp, who appeared on behalf of the applicant, submitted that, except for one decision of a single Judge, this case was different from all others in which the effective protection principle had been applied in Australia.  The difference was that in this case neither the applicant nor her husband had any prior connection whatsoever to Israel.  They had neither sought nor acquired citizenship in Israel.  They had not resided in Israel, whether temporarily or permanently.  Indeed, they had not even passed through Israel on their way to Australia, the country in which they have sought refuge.  According to Mr Karp, the authorities assume that the only territory to which the host country (that is, the country in which refuge is sought) can expel a refugee is one with which the refugee has a prior connection.

27                  Mr Karp argued that “law and practice” require a connection or attachment between the asylum seeker and the safe third country.  That connection or attachment may take the form of a grant of refugee status in the third country, citizenship of that country, residency or even a transient geographical connection en route to the host country.  But there is no relevant connection or attachment simply because an applicant is entitled, if he or she wishes, to reside in and obtain citizenship of that country.

28                  Mr Karp accepted that the decision of Stone J in Applicant NAGV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1456, is squarely against his submissions.  Mr Karp submitted, however, that I should not follow this decision, because (so he argued) it was clearly wrong.

29                  Mr Karp argued that to uphold the approach taken in NAGV v Minister, in effect, would close the Convention to Jews who are among the very groups that the Convention was designed to protect.  Moreover it would create the danger of “buck-passing” in the sense that a host country might expel a refugee to another country in the expectation that it would grant asylum or residency to the refugee, yet that expectation might not be met.

30                  Mr Karp put, although he did not develop in any detail, an alternative submission.  This was to the effect that if, on its proper reading, s 36(2) of the Migration Act excludes Jews from the grant of protection visas in Australia, then s 10(1) of the Racial Discrimination Act 1975 (Cth) (“Racial Discrimination Act”) acts “to void the exclusion”.  The foundation for this argument was the proposition that the people of all ethnic origins, except Jews, have a right to be granted a protection visa where the Minister is satisfied that the particular applicant has a well-founded fear of persecution in his or her country of nationality.  No other person is excluded from this entitlement by reason of his or her ethnic origin, although they may be found to be ineligible for protection visas for reasons other than ethnic origin.   Accordingly, so Mr Karp contended, s 10(1) of the Racial Discrimination Act operates to give people of Jewish ethnic origin the same rights under the Migration Act as non-Jews.

The Minister’s contentions

31                  The Minister submitted that the decision in NAGV v Minister was precisely in point and could not be said to be plainly wrong.  On the contrary, that decision applied the correct principles to hold that if Australia were to “expel” persons in the position of the applicant to Israel, Australia would not breach its obligations under Art 33 of the Convention.  No question of “buck-passing” would arise, because on the findings of fact made by the RRT, Israel would be prepared to admit the applicant and her family and to permit them to remain indefinitely without any question of refoulement to Russia.  Nor was there any question of closing the Convention to Jews, since any person, Jewish or not, had equal access to the protection offered by the Convention.  If one group did not require protection,  by reason of having a safe third country available to them, they simply had no need of the protection provided by the Convention.

32                  The Minister further submitted that there was no basis for the operation of s 10(1) of the Racial Discrimination Act.  The applicant did not fail because of any discrimination directed towards Jews.  She failed simply because of the application of a “neutral” principle, namely that any refugee who is able to secure effective protection in a safe third country is outside the scope of the Convention.

Applicant nagv of 2002 v minister for immigration and MULTICULTURAL and indigenous affairs

33                  The facts of NAGV v Minister were in substance identical to those of the present case.  Mr Karp, at one  point, suggested that there might be a difference in the findings made by the RRT in relation to the procedure for making aliya.  In the end, however, as I understood him, he did not press the point.  I think Mr Karp was right to accept that NAGV v Minister is precisely in point.  Accordingly, as Mr Karp also accepted, the applicant can succeed in these proceedings only if she establishes that the decision in NAGV v Minister was clearly wrong: Bank of Western Australia v Commissioner of Taxation (1994) 55 FCR 233, at 255.

34                  Stone J identified the relevant principle as follows (at [13]):

“Australia does not owe protection obligations to a person who has acquired effective protection from persecution for a Convention reason in a third country and who is not at risk of being sent from that country to the country in respect of which a fear of such persecution is well-founded”.

Her Honour pointed out that this principle had been applied in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543.  There it was proposed to return the asylum seeker to France, which had already recognised that person’s status as a refugee and had accorded him effective protection, including a right to reside, enter and re-enter the country.  Stone J continued as follows:

“[t]he principle may apply where the visa applicant is entitled to residence in the third country for reasons other than the grant of refugee status: Rajendran [v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526]; Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1.  It also applies where as a matter of practical reality, he or she is likely to be given effective protection even in the absence of a legally enforceable right to enter and live in the third country: [Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154, at 161]; Kola [v Minister for Immigration and Multicultural Affairs [2002] FCAFC 59, at [63]].  Effective protection involves the person not only being permitted to remain in the third country without risk of persecution for a Convention reason but also not being at risk of being refouled to his or her country of origin.  In deciding whether the principle applies it is necessary to abjure any rigid standard of applicability and concentrate on the circumstances of each applicant and the practical consequences of sending that person to the third country: Applicant C, at [22]; Kola, at [63]; see also [Al-Zafiry] v Minister for Immigration and Multicultural Affairs [1999] FCA 443, at [26], per Emmett J, approved in Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549, at 558”.

35                  Stone J recorded a submission on behalf of the applicants that the principle of effective protection does not apply if the applicant has never been to the third country, has never made any attempt to obtain effective protection there and does not wish to go there.  The applicants’ counsel contended that, unless the principle was limited to cases where the applicant had arrived directly or indirectly from the relevant third country, decisions about refugee applications “would become an exercise in buck-passing”.

36                  Stone J accepted that, as a matter of fact, the cases in which effective protection had been determinative of an application for a protection visa involved applicants who had an established connection with the third country, having come from there or having passed through.  Her Honour did not consider, however, that it followed that a connection established in this way was necessary for the principle to apply.  The emphasis was on the practicalities of the matter, and the task of the RRT was to decide on the facts before it whether Australia had protection obligations to the particular case. 

37                  The evidence before the RRT included independent information concerning Israel’s attitude to granting resident status to Jews and the non-Jewish members of their families.  There was nothing before the RRT to suggest that the information obtained from Israeli government sources did not reflect the true position.  Her Honour considered that:

“[c]ontrary to the applicants’ submission, accepting that the applicants can obtain effective protection in Israel does not imply that Australia would be able to avoid any Convention obligations merely by referring an applicant’s claim to another Convention country.  It cannot have been intended under the Convention that refugees could be shunted from one Convention country to another in the absence of any special connection with that other.  I agree that it would be absurd to adopt such a construction and that the principle of effective protection does not require it.

As is so often the case the question of whether a principle governing earlier cases applies depends on the level of generality with which that principle is expressed.  The principle of effective protection requires that the applicant has a connection with the third country in the sense that one can be satisfied that the country in question will accord him or her effective protection either because it has already recognised that person’s status as a refugee or for some other reason.  Stated at that level of generality the fact that a person has never been to the third country is not a distinguishing feature”.

38                  Accordingly, Stone J dismissed the application.

Reasoning

the effective protection principle

39                  Mr Karp submitted that Stone J had erred in formulating the effective protection principle at too high a level of generality.  He contended that the “connection” with the third country must at least include a prior association, whether by way of citizenship, residence or at least temporary physical presence en route to the host country.  When asked to articulate an underlying principle or rationale to justify such a requirement, I think it fair to say that Mr Karp found some difficulty in doing so.

40                  In my view, Stone J did not misinterpret the authorities upon which she relied.  For present purposes, the critical point to emerge from Thiyagarajah is that the question posed by s 36(2) of the Migration Act is not whether an asylum seeker, to the satisfaction of the Minister, has the status of a “refugee”.  The question is whether the Minister is satisfied that the applicant is a person to whom Australia presently owes protection obligations: Thiyagarajah, at 552-553, per von Doussa J, with whom Moore J and I agreed.

41                  The latter question is to be determined by reference to Art 33, which imposes the principal obligation required by the Convention on a Contracting State (Thiyagarajah, at 557).  Thus, as was confirmed by the High Court on the appeal in Thiyagarajah (on a different issue), even if a person is a refugee within the definition in Art 1A(2) of the Convention, Australia does not owe protection obligations to that person if Art 33 applies: Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343, at 349-350, per Gleeson CJ, McHugh, Gummow and Hayne JJ.  That is, if Art 33 does not prevent Australia expelling or returning a refugee to the frontiers of another territory, Australia owes no protection obligations to that person.

42                  In Thiyagarajah, the asylum seeker had already been granted refugee status in France.  It was held that Australia did not owe protection obligations to him, since France had already accorded him effective protection, including the right to reside in and re-enter the country.  von Doussa J was careful not to chart the outer boundaries of the principle of international law which permits a Contracting State to return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim to refugee status (at 562).

43                  Later authorities have, however, carried the principle applied in Thiyagarajah considerably further.  In Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549, a Full Court held that Art 33 of the Convention can be satisfied where the “safe third country” is not a signatory to the Convention. In that case, a stateless Bedoon, who had been born in Kuwait and claimed to fear persecution in that country, fled to Jordan, via Iraq.  The RRT was satisfied that Jordan would not refoul the applicant to Kuwait and that he had the right to reside and re-enter Jordan.  The Court held (at 559) that the question of whether Jordan offered effective protection was to be determined as a matter of “practical reality and fact”.  Whether Jordan was a party to the Convention was relevant, but not determinative.  Any other view represented a substantial gloss on the plain language of Art 33 and was subversive of the purpose of the Convention. 

44                  In Al-Rahal v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 73, the same principle was applied to an Iraqi national living in Syria.  The RRT found that the applicant could re-enter Syria and reside there and was not at risk of deportation to Iraq.  According to Spender J (at 75), the application of Art 33 of the Convention was a question of fact which did not necessarily require that the third country had already accepted an obligation to protect the applicant for a protection visa.  Tamberlin J (at 97) took a similar approach.

45                  In Patto v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 119, the applicant was an Iraqi national who had fled to Greece, but had been refused refugee status in that country.  Nonetheless, he remained in Greece as an illegal immigrant for some years, before travelling to Australia on a forged Greek passport.  French J cited (at 130-131), with apparent approval, the observation of Weinberg J in Gnanapiragasam, at 13, that there is no reason in principle why Art 33 “should rest upon nothing less than an entitlement to ‘permanent residence’ in the third country”.  French J ultimately set aside the RRT’s decision refusing the applicant a protection visa, on the ground that there was no evidence to support the RRT’s finding that the applicant could return to Greece.  Had there been such evidence, however, it would seem that French J would not have regarded the applicant’s illegal status in Greece as necessarily fatal to the contention that Australia did not owe him protection obligations.

46                  In Kola v Minister for Immigration and Multicultural Affairs [2002] FCAFC 59, the Full Court derived these propositions from the authorities (at [63]):

   “.     Australia does not owe protection obligations to a person who has established residence and acquired effective protection (in the sense of protection that ensuring there is no breach of Art 33 of the Convention) in a third country.

·        This principle does not apply only to the case where the person has a legally enforceable right to enter and reside in a third country.  It is enough that, as a matter of practical reality and fact, the person is likely to be given effective protection in the third country by being permitted to enter and live there and is neither at risk of being refouled to his or her original country, nor of his or her life or freedom being threatened on account of race, religion, nationality, membership of a particular social group or political opinion.

·        In determining the likelihood of the person being afforded effective protection, it is necessary to abjure any rigid standard and rely on a judicial assessment of the practical realities and circumstances relevant to that person’s position”.  (Citations omitted.)

47                  In V872/00A v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 268, the appellants were Iraqi citizens who applied for protection visas in Australia.  Each had travelled to Australia via Syria.  The RRT was satisfied, largely on the basis of country information, that the appellants could re-enter and remain in Syria indefinitely and would not be at risk of being returned to Iraq unless they engaged in illegal activities or were a threat to Syria’s security.

48                  The issue in the case, as stated by Black CJ (at 269) was this:

“whether Australia has protection obligations within the meaning of s 36(2) of the Act to a non-citizen who, although lacking any legally enforceable right of entry to a third country (that is, a country other than the country of nationality) is likely to be allowed entry to the third country and is likely, as a matter of practical reality, to have effective protection there and not be subject to refoulement contrary to Art 33 of the Convention.”

The appellants argued that Australia would cease to have protection obligations to a person who would otherwise be a refugee only if that person had a legally enforceable right of entry or re-entry to a safe third country.

49                  The Full Court rejected the argument.  Tamberlin J (at 286) said that in applying Art 33 of the Convention there were three questions to ask:

“(a)     Is there a safe third country where the applicant will not face a real chance of persecution for a Convention reason?

  (b)     Can the person gain access to that safe third country?

(c)           If the person is admitted to that country is there a real chance that the person might be refouled to a country where there will be a real risk of persecution?”

His Honour thought that the appropriate question was whether there was a real risk that the applicant would not be able to gain access to that country so as to secure its protection.

50                  Hill J considered that the effect of principles of international law, taken together with Art 33 of the Convention, was clearly that (at 274) Australia

“would have no protection obligations where the safe third country consents to admit the refugee, where the refugee has a legally enforceable right to enter the safe third country or where as a matter of fact the safe third country in fact admits the refugee.”

The next question was whether the RRT could find that Australia’s Convention obligations are satisfied where the refugee is to be removed to a safe third country and it is likely as a practical matter that the refugee would be accepted by that country but he or she has no legally enforceable right to enter and there is no evidence that the third country consents to the refugee’s admission.  His Honour answered that question in the affirmative.  He did not think, however, that the test is whether there is a real chance that the third country would refuse admission to the refugee.  In his view, the RRT must consider whether it is satisfied that the third country will permit entry so that the applicant will not be left at the border and denied admission.  Any doubt would be resolved in favour of the applicant.  Accordingly (at 276), the RRT

“will need to be comfortably satisfied that the applicant, with no legal right to enter a safe third country, will be granted admission there before it will be satisfied that the person who it believes will practically be granted admission is for that reason not a person to whom Australia owes protection obligations.”

51                  Black CJ held that the Court should follow the line of authority represented by Al-Rahal.  His Honour did not address the differences between Tamberlin and Hill JJ as to the appropriate test. 

52                  V872/00A v Minister was decided before NAGV v Minister, but was apparently not cited to Stone J.  However, that decision and the others to which she referred support the proposition that the question of effective protection is to be determined as a matter of fact and is not dependent upon whether the asylum seeker has previously been resident in the third country.  There is no obvious reason why, on the approach taken on those cases, Art 33 should be read as precluding expulsion or removal of an asylum seeker from Australia to a third country which in fact offers effective protection, even though the asylum seeker has had no prior geographical or other connection with that country.  Indeed the approach taken by Hill and Tamberlin JJ in V872/00A v Minister suggests that no such connection is required.

53                  Nor is there anything in the language of Art 33 itself to suggest otherwise.  It requires a Contracting State not to expel or return a refugee to the frontiers of territories where he or she is at risk (in effect) of persecution for a Convention reason.  Article 33(1) is framed as a prohibition on the entitlement that a Contracting State might otherwise have to expel or return a refugee to the frontiers of “territories”: see V872/00A v Minister, at 273-274, per Hill J.  It has been construed in Australia, however, as marking out the limits of the Contracting States obligations so far as removal of refugees is concerned (subject to any other specific restrictions contained in the Convention, such as Art 32 (which Australia has not adopted)).  Read this way, Art 33 appears to contemplate that a Contracting State can remove a refugee to the frontier of a territory, provided that the refugee is not at risk of persecution in that territory for a Convention reason.  There is nothing in the language of Art 33 to suggest that a Contracting State is limited to removing a refugee to a safe third country with which the refugee has had a prior connection.  If, for example, an asylum seeker in Australia was removed from this country to New Zealand, the latter having agreed to accept the asylum seeker as a permanent resident, it is difficult to see how Australia would be in breach of its protection obligations to that person.

54                  The difference of opinion in V872/00A v Minister as to the test to apply has to be considered against the consequences of a decision to remove a refugee to a third country which, while nominally adhering to the Convention or otherwise promising effective protection, in fact refoules the refugee to his or her country of nationality.  That the consequences of an incorrect judgment can be disastrous for refugees caught up in the application of the effective protection principle is shown by experience: R Dunstan, “Playing Human Pinball: The Amnesty International United Kingdom Section Report on UK Home Office ‘Safe Third Country’ Practice” (1995) 7 Int J Ref Law 606; Azemoudeh v Minister for Immigration and Ethnic Affairs (1985) 8 ALD 281, discussed in J Crawford and P Hyndman, “Three Heresies in the Application of the Refugee Convention” 1 Int J Reg Law 155, at 168-169.

55                  Mr Karp referred to the Dublin Convention (Convention Determining the State Responsible for Examining Application for Asylum Lodged in One of the Member States of the European Communities (1990)) as an illustration of an international agreement for regularising safe third country practices and burden sharing on the basis of an asylum seeker’s prior association with the third country.  He did so, as I understood his argument, to support the proposition that a safe country in international law is one with which the refugee has a prior association, whether by way of citizenship or physical connection.

56                  The Dublin Convention, signed by all twelve European Union States, is designed to lay down criteria to determine which State is responsible for examining an application for asylum: A Achermann and M Gattiker, above, at 20.  It is based on the notion that one State and only one State is responsible for determining an asylum application.  That State will normally be the one that first issues a residence permit to the asylum seeker or whose borders are first crossed by the asylum seeker (Arts 5, 6).  The responsible State is obliged to determine the application.  The other side of the coin, however, is that a State which is not responsible may expel or send back asylum seekers to the responsible State.  As French J remarked in Patto, at 129, the Dublin Convention and similar multilateral and bilateral arrangements have had a significant impact on the processing of asylum claims in Western Europe.  According to Achermann and Gattiker, at 23, in practice

“[t]he principle of the responsible State has … been turned upside down: expulsion to a third State is no longer the exception but the rule”.

57                  It is important for present purposes to note that the Dublin Convention (Art 3(5)) preserves to each Member State

“the right, pursuant to its national laws, to send an applicant for asylum to a third State, in compliance with the [Convention]”.

Article 3(5) appears to assume that the Convention permits asylum seekers to be expelled to a third country even though that country has not necessarily accepted “responsibility” for processing an application under the Convention.  It leaves open the circumstances in which expulsion is permissible under Art 33 of the Convention.

58                  In Abdi v Home Secretary [1996] 1 All ER 641, the House of Lords considered rules made pursuant to the Asylum and Immigration Appeals Act 1993 (UK).  The Statement of Changes in Immigration Rules provided as follows:

“180D  The Secretary of State may decide not to consider the substance of a person’s claim to refugee status if he is satisfied that the person’s removal to a third country does not raise any issue as to the United Kingdom’s obligations under the Convention and Protocol.  More details are given in paragraphs 180K and 180M.

…

180K.  If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status.  A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Art 33 of the Convention) and the government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention and Protocol. The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless: (a) the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity, at the border or within the territory of a third country, to make contact with that country’s authorities in order to seek their protection; or (b) there is other clear evidence of his admissibility to a third country.  Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of a third country before the removal of an asylum applicant.”  (Emphasis added.)

The terms of par 180K are consistent with the London Resolutions of 1992, which seek to advance the object of harmonised European asylum policies.  The Resolutions contemplate that a safe country can either be one where the asylum applicant has already been granted protection or has had an opportunity to do so or one in respect of which there is clear evidence that the asylum seeker will be admitted: see R Byrne and A Shacknove, “The Safe Country Notion in European Asylum Law” (1996) 9 Harv Human Rights J 185, at 191-192.

59                  The significant point for present purposes is that it was not disputed in Abdi that par 180K, if properly invoked, complied with the United Kingdom’s obligations under the Convention.  Since sub-par (b) of par 180K is framed in broad terms and is not subject to any requirement that the asylum applicant have a prior connection with the third country, Abdi appears to assume that removal of an asylum applicant to a safe third country does not infringe the Convention even if the applicant has no prior connection with that country.

60                  I should mention that I was not referred to any decisions in other jurisdictions which support the applicant’s submissions.  In Canada, the significance of Israel’s Law of Return has been addressed in the context of the reference in Art 1A(2) of the Convention to the applicant’s country of nationality: see Katkova v Minister of Citizenship and Immigration (1997) 130 FTR 192.  No reliance appears to have been placed on Art 33 of the Convention.  In the United States, the Supreme Court seems to have acknowledged that Art 33 does not necessarily prevent a nation from sending a refugee to a country where he or she has never been: Sale v Haitian Centers Council Inc 509 US 155 (1993), at 182, n 39 (the word “not” seems to have been omitted from the last part of the first sentence).

61                  In my opinion, no basis has been shown for holding that NAGV v Minister is clearly wrong.  I propose therefore to follow that decision.

the test of effective protection

62                  The affidavit filed in support of the further amended application identified as a ground of jurisdictional error that the RRT had failed to take into account relevant considerations, being that

(i)       the applicant had never been in Israel;

(ii)      she had no familial or other connection with Israel; and

(iii)     any right to citizenship of Israel depended on her entering that country and expressing a desire to settle there.

63                  It was not clear from the argument whether this ground intended to add anything to the submissions I have already addressed.  It is possible, however, that Mr Karp intended to challenge the RRT’s finding that it was satisfied that the applicant and her husband would be granted aliya in Israel and therefore would receive effective protection in that country.

64                  The RRT did not advert to the difference in the opinion expressed in V872/00A as to the appropriate standard to apply in determining whether a third country offers safe protection to a refugee.  I think, however, that a fair reading of the RRT’s reasons indicates that it considered that there was no real chance that the applicant or her husband would be denied entry to Israel or that they would be refouled to Russia.  The critical finding was expressed in terms of them having a “right” of aliya to Israel.  The RRT expressly stated that, apart from the claim that the applicant had converted to Christianity (which it rejected as a fabrication), no suggestion had been made that she or her husband would not be permitted to enter and live in Israel.  Their claim before the RRT was different, namely that they would be harassed in Israel.

65                  The RRT was clearly aware of the fact that the applicant had never been to Israel and had no familial or other connection with that country (except for being Jewish).  Equally clearly, the RRT took the view that that fact was immaterial given the terms of the Law of Return.

66                  The RRT was also clearly aware that any right the applicant or her husband had to Israeli citizenship was dependent on their arriving in the country and expressing a desire to settle in Israel.  The RRT made a finding to that effect by reference to par 3 of the Law of Return.  The RRT obviously took the view that the question of effective protection is to be assessed on the assumption that the refugee is prepared to enter and remain in the third country, in this case Israel.  As a matter of principle that must be right.  Otherwise a refugee could defeat a claim that a third country will provide effective protection simply by declining to go to that country or to remain there.  It is axiomatic that no person seeking the protection of the Convention in Australia wishes to take advantage of the protection offered by a third country, unless forced to do so.  I see no error in the RRT taking the approach it did.

the discrimination issue

67                  Section 10 of the Racial Discrimination Act provides as follows:

“(1)     If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2)       A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.”

68                  The Convention referred to in s 10(2) of the Racial Discrimination Act is the International Convention on the Elimination of all Forms of Racial Discrimination (“CERD”).  Article 5 of CERD provides as follows:

“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a)   The right to equal treatment before the tribunals and all other organs administering justice;

…

(d)        Other civil rights, in particular:

…

          (ii)        The right to leave any country, including one’s own, and to return to one’s country;

          (iii) The right to nationality;

…

69                  Mr Karp submitted that the right enjoyed by people of all ethnic origins, except Jews, is the right to be granted a protection visa where the Minister is satisfied that the applicant

(a)        has a well-founded fear of persecution in his or her country of nationality or former residence; and

(b)        meets the other criteria specified in the Migration Regulations.

According to Mr Karp, only Jewish applicants for protection visas do not enjoy this right.

70                  Section 10 of the Racial Discrimination Act implements Art 5 of CERD.  The “right” to which s 10 refers is, like the rights mentioned in Art 5, a human right, not necessarily a legal right enforceable under municipal law: Mabo v Queensland (No 1) (1988) 166 CLR 186, at 217, per Brennan, Toohey and Gaudron JJ.  The operation of s 10 was explained by Mason J in Gerhardy v Brown (1985) 159 CLR 70, at 94, as follows:

“Section 10 is not aimed at striking down a law which is discriminatory or is inconsistent with the Convention.  Instead it seeks to ensure a right to equality before the law by providing that persons of the race discriminated against by a discriminatory law shall enjoy the same rights under that law as other persons.”

71                  Mr Karp did not identify any “right” in the sense in which that expression is used in s 10(1) of the Racial Discrimination Act.  The only “right” in Art 5 of CERD that appears to be directly applicable to the applicant’s situation is the right to equal treatment before tribunals administering justice (Art 5(a)).

72                  If that is the relevant right for the purposes of s 10(1) of the Racial Discrimination Act, it is difficult to see how, on the material before me, the applicant has been denied equal treatment by the RRT or the courts.  The reason that her application for a protection visa failed was that, on the facts before the RRT, Australia does not owe her protection obligations.  That in turn is because Israel’s Law of Return, according to the RRT, entitles her to effective protection in that country.  It is, however, not only Jews who are affected by the principle that Australia owes no protection obligations to a refugee who can receive effective protection in a third country.  The same principle applies to persons of different ethnic origin (assuming Jews to be persons of a particular ethnic origin: cf Jones v Scully [2002] FCA 1080, at [113]).  The difficulty facing the applicant is created by Israel’s Law of Return which attracts the effective protection principle.  In other words, the Commonwealth law which excludes the applicant from a protection visa (ss 36(2) and 65(1) of the Migration Act) cannot be characterised as discriminatory.

73                  I should add that, in any event, Mr Karp’s submission misstates the relevant criterion for the grant of a protection visa.  That criterion is expressed in s 36(2) of the Migration Act, namely that the applicant is a non-citizen to whom the Minister is satisfied that Australia has protection obligations under the Convention.  There is nothing discriminatory in applying a criterion in that form.  Of course, if it could be shown that the RRT was applying the principle in a discriminatory manner, for example by making inquiries only about safe third countries for particular classes of applicants and not others, other issues may arise.  But there is no evidence to that effect in this case.

a comment

74                  I have concluded that the RRT did not commit any jurisdictional error in finding that the applicant is not owed protection obligations by Australia.  It must be said, however, that there are some troubling consequences that seem to flow from the proposition that Art 33 of the Convention is not infringed where an asylum seeker is removed from the country of refuge to a third country offering effective protection notwithstanding that the asylum seeker has no prior connection with the third country.  The consequences include the following:

1.         So long as Israel maintains the Law of Return, a Contracting State is not obliged to afford protection under the Convention to a Jewish refugee.  Indeed, it appears that this has been the case since 1950, the date of enactment of the Law of Return.  Having regard to the historical origins of the Convention, which was adopted in the aftermath of the Holocaust, this must be regarded as an exquisite irony.

2.         It is open to a decision-maker to inquire as to whether an applicant for a protection visa is Jewish, regardless of whether the applicant’s claim is based on persecution by reason of his or her Jewish faith or origins.  The point of the inquiry would be to ascertain whether the applicant can be removed to Israel consistently with Art 33 of the Convention.  When I asked Mr Lloyd whether it would be open for the RRT, for example, to make such an inquiry because a particular applicant had a Jewish-sounding name, he did not demur.  The implications of this, to put it mildly, are not pleasant.

3.         To give effect to the effective protection principle, every application for a protection visa should be scrutinised to ascertain whether there is any country in the world that might provide effective protection to the applicant.  In Al-Rahal, for example, the RRT found that Syria permits all nationals of the Arab States to enter at any time without entry visa requirements, with the exception of Iraqis and Somalis (see at 98).  The RRT also found that all nationals of Arab countries are able to remain in Syria as long as they wish provided they do not get involved in activities incompatible with law and order.  Assuming this finding to be correct and that the same position continues to apply, it would presumably follow that Australia owes no protection obligations to any refugee from an Arab country except possibly Iraqis and Somalis. (Even Iraqis and Somalis, as V872/00A shows, may receive effective protection in Syria.)  There may be many other examples of nationals of particular countries, or perhaps persons of particular ethnic origin, who can receive effective protection in a third country and who are therefore excluded from the protection of the Convention.

4.         In practice, there would seem to be a significant danger of inconsistent and, perhaps, discriminatory application of the effective protection principle.  Some nationals or members of particular ethnic or religious groups may be much more vulnerable to exclusion than others, depending on what procedures are followed by the Minister’s delegates and the RRT to identify supposedly safe third countries.

conclusion

75                  The applicant has not shown any jurisdictional error on the part of the RRT.  The application must be dismissed, with costs.

Associate:

Dated:              19 March 2003