FEDERAL COURT OF AUSTRALIA

WAKN v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1245

MIGRATION – refugees – Refugees Convention – exclusion clause – Article 1F – temporary protection visa holder – temporary protection visa granted on basis of non-application of Article 1F – application for permanent protection visa – new information – permanent protection visa refused on basis that Article 1F applicable – character of Article 1F as exclusion clause – contrast with cessation clause Article 1C – review by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal precluded from application of Article 1F because of prior grant of temporary protection visa – preliminary ruling by Administrative Appeals Tribunal – review to proceed with consideration of possible application of Article 1F – application for certiorari to set aside preliminary ruling – application dismissed – availability of constitutional writs in respect of interlocutory rulings of Tribunal – observations on nature of inquiry concerning Art 1F in protection visa decision-making

REMEDIES – judicial review – constitutional writs – interlocutory decision of Administrative Appeals Tribunal – availability of statutory remedy under Administrative Appeals Tribunal Act in respect of ultimate decisions – discretionary considerations against the grant of constitutional writs in pending Administrative  Appeals Tribunal proceedings

Migration Act 1958 (Cth) s 500, s 91T

Administrative Appeals Tribunal Act 1975 (Cth)  s 43(1)

Refugees Convention 1951 Art 1A(2), Art 1C, Art 1F

SAL v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1164 cited

SHCB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 229 cited

Director of Social Services v Chaney (1980) 31 ALR 571 cited

McLeod v Repatriation Commission (unrep, Fed Court,  French J, 16/9/92) cited

Sullivan v Department of Transport (1978) 20 ALR 323 cited

Duncan v Fayle [2004] FCA 723 cited

Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 cited

Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 cited

Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533 cited

Pushpanathan v Canada (Minister of Citizenship and Immigration)  (1998) 160 DLR (4th) 193 cited

Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 cited

Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 385 cited

Minister for Immigration and Multicultural Affairs v Ovcharuk (1998) 88 FCR 173 cited

Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 cited

W97/164 and Minister for Immigration and Multicultural Affairs (1998) 27 AAR 482 cited

Ramirez v Canada (1992) 89 DLR (4th) 173 cited

Cardenas v Canada (1994) 23 Imm.L.R. 92d, 244 cited

SHCB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 229 cited

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 cited

M Bliss, ‘Serious Reasons for Considering’: Minimum Standards of Procedural Fairness in the Application of Article 1F Exclusion Clauses (2000) 12 IJRL 92

Nehemiah Robinson, Convention Relating to the Status of Refugees – Its History, Contents and Interpretation, New York June 1953

UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, UNHCR (1979; Re-edited 1992)

Van Krieken (ed), Refugee Law in Context: The Exclusion Clause, T.M.C. Asser Press (1999)

Zagor, Persecutor or Persecuted: Exclusion under Article 1F(A) and (B) of the Refugees Convention (2000) 23 UNSW Law Journal 164

WAKN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W177 OF 2004

FRENCH J

23 SEPTEMBER 2004

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’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                     A former senior member of the Wahdat Army in Afghanistan fled to Australia from the Taliban in 1999.  He was granted a temporary protection visa in 2000.  However, his application for a permanent protection visa was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs in November 2003.   The delegate found that the Refugees Convention (the Convention) did not apply to the applicant.  That finding was made on the basis that there were serious reasons for considering that, as a senior officer of the Wahdat Army, the applicant had committed war crimes and crimes against humanity in Afghanistan and that Article 1F of the Convention therefore excluded him from its protection. 

2                     The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.  Section 500 of the Migration Act 1958 (Cth) (the Act) provides for review of a decision to refuse a protection visa when the refusal is based upon Article 1F of the Convention.  In such a case the Refugee Review Tribunal has no jurisdiction. 

3                     The Tribunal ruled, at a preliminary hearing, that it would deal with the application for review on the basis that it had to determine whether Art 1F applied to the applicant.  The applicant has applied to this Court for certiorari, mandamus and prohibition in respect of the Tribunal’s ruling.  He has done so on the basis that the Tribunal is precluded from considering Art 1F in its proceedings because it was found not to apply to him when he was granted a temporary protection visa.

4                     In my opinion, the application for relief in this Court cannot succeed.  The proceedings before the Tribunal must take their course which will necessarily involve a consideration of the application of Art 1F in this case.

Factual and Procedural History

5                     The applicant, who presently resides in Albany, was born in Afghanistan in 1963.  He is a member of the Hazara ethnic group and is a Shi’a Muslim.  He describes himself as having been, while in Afghanistan,‘... a soldier in the Hezb-i-Wahdat’.  The Hezb-i-Wahdat is a political and military movement in Afghanistan formed by a coalition of Shiite groups in 1989. 

6                     The applicant left Afghanistan in 1999 and travelled via Pakistan to Australia.  He arrived in this country without lawful authority on the boat Jerilderie on 19 November 1999.  Because he arrived unlawfully, without a visa, he was taken into detention at the Port Hedland Detention Centre. 

7                     On 11 December 1999, the applicant applied for a protection visa.  He claimed to be at risk of persecution by the Taliban if returned to Afghanistan.  On 7 February 2000, a delegate of the Minister for Immigration and Multicultural Affairs found that he had a well-founded fear of persecution by the Taliban and that he was a person to whom Australia had protection obligations under the 1951 Convention.  The delegate accepted that the applicant had been ‘a high ranking military officer of the Wahdat Party Army’ before his departure from Afghanistan.  He had been a colonel in 1993 and had been appointed Chief of Staff of an artillery regiment.  His task had been to supervise the regiment in protecting the west side of Kabul from the Taliban.  He feared that he would face death at the hands of the Taliban because of his military service.  The delegate found that the applicant was not excluded from the application of the Convention by Articles 1D, 1E or 1F. 

8                     On 21 March 2000, the delegate granted the applicant a subclass 785 (Temporary Protection) visa which permitted him to remain in Australia for a period of three years or until an application for a protection visa was finally determined, whichever occurred sooner.

9                     On 24 March 2000, the applicant applied for a permanent protection visa.  Receipt of his application was acknowledged on 27 March 2000.  The Department of Immigration (the Department) informed him by letter on that day that under cl 866.228 of the Migration Regulations, as the holder of a subclass 785 (Temporary Protection) visa, he could not be granted a subclass 866 (Protection) visa unless he had held his temporary visa for a continuous period of 30 months or a shorter period specified by the Minister in writing.

10                  On 19 August 2002, the Department wrote to the applicant advising that his protection visa application would be considered ‘... in accordance with standard protection visa processing arrangements and in the light of current country information’.   The applicant sought the assistance of the Southern Communities Advocacy Legal and Education Service Inc (SCALES) which was at that time setting up the Centre for Advocacy Support and Education (CASE) for Refugees.  With the help of SCALES he put a detailed statement in support of his application to the Department on 16 October 2002.  He was interviewed by an officer of the Department in Albany on 16 October 2002.  On 7 March 2003, he was granted a subclass 785 (Temporary Protection) visa valid until the final determination of his subclass 866 (Protection) visa application.  A further interview took place in Albany on 14 May 2003.

11                  On 11 September 2003, a delegate of the Minister wrote to the applicant referring to his statement in support of his application in which he said that he had held senior positions in the Hezb-i-Wahdat Military.  The delegate said he was in possession of a Report on Afghanistan from the Council of European Union in Brussels entitled ‘Hezb-I-Wahdat Human Rights Violations (1992-1999)’.  A copy of the report was enclosed with the letter.  The delegate pointed out that the report identified senior officers of Hezb-i-Wahdat in a list of those that were probably responsible for human rights violations in Afghanistan between 1992 and 1999.  That information, it was said, might lead the relevant case manager to consider the applicant’s case for exclusion under Art 1F(a) of the Convention.  The applicant was invited to comment.  Subsequently a representative of CASE wrote to the Department asking whether there were any other serious reasons, apart from the Report on Afghanistan which had been enclosed with the letter, which it was considered might give rise to the inference that the applicant could be excluded under Art 1F(a).  The Department responded on 18 September 2003, advising that the Report was ‘the primary source of concern’.

12                  On 27 September 2003, CASE for Refugees wrote to the Department pointing out four issues which, it submitted, conclusively demonstrated why Art 1F did not apply to the applicant.  It submitted that the allegations contained in the Report were insufficiently specific about men in the position that the applicant had held.  The applicant had a reputation for assisting non-government organisations and operating in a humane way.  CASE pointed out that the applicant had already been found to be a refugee, having been granted a protection visa in March 2000.  Reference was also made to the recognition of a more senior officer in Hezb-i-Wahdat as a refugee in Denmark.  The letter attached a statement by the applicant denying any involvement in the conduct the subject of the Report from the Council of European Union. 

13                  On 20 November 2003, an officer of the Department wrote to the applicant care of CASE for Refugees advising that he had been refused a protection visa because he was not a person to whom Australia had protection obligations under the Convention. The decision record of the delegate who refused the application identified a number of matters generally relevant to determining the existence of protection obligations including:

‘The application of the cessation or exclusion clauses specified within Article 1 of the Refugees Convention (Articles 1C, 1D, 1E and 1F) and, as relevant, section 91T of the Migration Act.’

Some 63 documents, which provided evidence used in making the decision, were listed including the Report of the Council of European Union. 

14                  In assessing whether the criteria for the grant of a protection visa had been met the delegate recorded that he was satisfied that the applicant was not a person to whom Australia had protection obligations under the Convention.  The reasons for this were set out in an attachment to the decision record entitled ‘Assessment of Protection Obligations’.  Various tests for the existence of protection obligations were identified, the first of which was expressed thus:

‘1.        Does a cessation or exclusion clause apply (Articles 1C, 1D, 1E or 1F of the Refugees Convention)?’

The delegate reviewed the applicant’s statements about his involvement with Hezb-i-Wahdat and the Report of the Council of European Union.  He said:

‘On the basis of the country information before me which confirms that human rights abuses occurred in Kabul at the time the applicant claimed he was commanding forces in Kabul, I am satisfied that there are serious reasons for considering that the applicant has committed a “war crime” and a “crime against humanity”.’

The delegate was satisfied that acts carried out by the members of the Hezb-i-Wahdat militia at a time when the applicant held high rank in that organisation ‘involved inhumane acts of such gravity, that they intentionally caused great suffering or serious injury to a person’s body or to person’s mental or physical health and that these acts were carried out in wide spread and systematic manner’.  The delegate found that the practices by the Hezb-i-Wahdat militia came within the meaning of ‘war crimes’ and ‘crime against humanity’ as defined by international instruments to which it had referred.  He said that independent country information clearly demonstrated that the conflict in and around Kabul in which the applicant served as a commander involved serious and widespread systematic human rights abuses.

15                  After referring to a Tribunal decision, SAL v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1164 and the Federal Court decision SHCB v Minister for Immigration & Multicultural &  Indigenous Affairs [2003] FCA 229, the delegate said:

‘The applicant held a position of authority within Hezb-I-Wahdat and as reported in the Council of European Union Report, he would as a result have been expressly involved in decision making and security questions and as a consequence would have had specific knowledge of human rights violations, in this case war crimes, that were committed.

This makes him complicit in war crimes and crimes against humanity.

I find the circumstances of this case therefore constitute serious reasons for considering that the applicant has committed war crimes and crime against humanity outside the country of refuge, namely Australia.’

The delegate concluded that Art 1F(a) and (b) of the Convention applied to the applicant and that there was therefore no need to consider other matters relevant to the existence of protection obligations.  They were not assessed.

16                  On 17 December 2003, the applicant filed an application with the Tribunal seeking review of the delegate’s decision.  In a supporting statement the applicant identified alleged errors in law on the part of the delegate in considering the application of Art 1F.  The Minister, as respondent to the proceedings in the Tribunal, filed and served documents required under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth)  (the AAT Act) on 27 January 2004. 

17                  On 11 March 2004, counsel for the applicant filed a special case with the Tribunal pursuant to s 45 of the AAT Act.  The special case identified questions of law which the applicant asked the Tribunal to refer to the Full Court of the Federal Court.  The questions of law so identified were:

‘(a)      Is the Applicant, who has been granted by the Minister a Sub Class 785 (Temporary Protection) visa and to whom Article 1F at the time of grant had been held to have no application, required to satisfy the Minister, at the time when he seeks a grant of a Sub Class 866 (Protection) Visa, that Article 1F does not exclude him from protection under the Refugee Convention?

(b)       Where an applicant for a subclass 866 visa is a current Temporary Protection Visa holder, ought the decision maker, once satisfied that the applicant has not ceased to be a refugee pursuant to Article 1C of the Refugee Convention, then to proceed to consider for a second time whether the applicant is owed protection obligations by Australia as a refugee pursuant to Article 1A(2) and the other articles of the Refugee Convention?’ (sic)

The application for referral of a special case to the Federal Court was heard by Deputy President Hotop in the Tribunal on 7 May 2004.  It was refused. 

18                  The applicant next sought to have the questions of law, raised in the proposed special case, heard by the Tribunal as part of a preliminary determination.  On 19 May 2004, the Tribunal directed that:

‘A preliminary hearing be held on 30 June 2004 for the purpose of determining the abovementioned preliminary questions of law.’

After argument on 30 June 2004, the Tribunal decided that in considering the application for a subclass 866 (Protection) visa the delegate had not been precluded, by reason of the earlier decision on the temporary protection visa, from determining whether the applicant was a person to whom Australia owed protection obligations under the Convention.  Moreover the delegate was legally obliged to revisit the question whether Australia owed protection obligations to the applicant and that involved a consideration of Art 1F of the Convention.  The Tribunal concluded that the application should proceed ‘as an Article 1F case’.  The real issue of relevance was whether the Tribunal was precluded, not whether the delegate was so constrained.  However, given that the Tribunal on review exercises all the powers conferred on the delegate, the reference to his powers did not affect the correctness of the practical outcome in this case.

19                  On 27 July 2004, the applicant filed an application in this Court seeking orders by way of certiorari to quash the Tribunal’s decision, prohibition to prevent it from proceeding to determine whether the applicant should be excluded from protection under Art 1F and mandamus directing it to set aside the decision of the delegate and to remit the matter to the Minister or her delegate. 

20                  A claim for interim relief and referral of the application to a Full Court was refused on 18 August 2004 and the application proceeded to hearing on 30 August 2004. 

The Tribunal’s Reasons for Decision

21                  The learned Deputy President gave ex tempore reasons on the preliminary questions of law argued before him on 30 June 2004.  He referred to submissions put by counsel for the Minister which he said represented a correct legal analysis of the position.  He said he adopted them.  He went on to say:

‘But, it seems to me, that in dealing with the 866 visa application, which of course was a separate application made by the applicant for a separate visa, the delegate who was dealing with that application was certainly not precluded from considering at the time of making that decision whether the applicant was a person to whom Australia had protection obligations under the Convention by anything that happened in the past. 

Indeed, the later delegate was not only entitled to revisit that issue but, in my opinion, legally obliged to revisit that issue.  And of course that issue included article 1F of the convention.  So, it was certainly nothing improper in the later delegate revisiting that issue and making a finding in relation to that matter.’

22                  The learned Deputy President also held that the delegate was not precluded as a matter of law from considering Art 1F(a) because of the previous delegate’s conclusion that the applicant was not excluded under Art 1F.  He then said:

‘So, my position is that this case should proceed as an article 1F case, which we do get from time to time, and as we know, that they are not that common, but I have done a few in the past, so occasionally they arise.  This seems to me to simply be another one of those article 1F cases, which of course is within this Tribunal’s jurisdiction, not the RRTs jurisdiction and in my opinion this case should proceed on that basis.  So that is the conclusion to which I have come in relation to this preliminary matter.’  

The Decision Under Review

23                  The amended application purports to identify the ‘decisions’ under review as the determinations by the learned Deputy President:

‘1.        That “the Delegate’s process” could not be faulted (subject to any later finding on the merits of Article 1F).  The Delegate had found that “1F(a) and (b) of the Refugee Convention applies to the Applicant.  Therefore, there is no need to consider other matters relevant to the existence of protection obligations and they have not been assessed”.

2.         “This (is) simply ... another one of those Article 1F cases ... and this case should proceed on that basis”.

3.         That [the legal analysis put by the counsel for the Minister] was “faultless” and “I accept it entirely”.  The analysis included “inter alia”:

            (a)        that once concluded (at hearing) there was serious reasons for considering that the Applicant came within Article 1F, “... the Delegate was, as a matter of law, bound to conclude that the Applicant is not a person to whom Australia has protection obligations under the Refugee Convention ...”;

            (b)        that the Applicant’s argument depended upon the existence of an issue estoppel citing Kurtovic [1990] 21 FCR 193;

            (c)        that the Applicant’s claim be assessed as a new application.’

The Grounds for the Application

24                  The grounds for the application are somewhat discursive.  Their substance appears at  pars 1.5 and 1.6 set out in the application.  In summary they are as follows:

(a)        The Tribunal asked itself the wrong legal question.  The applicant had not contended that the earlier delegate’s decision precluded consideration of whether the applicant at the time of the decision under review engaged Australia’s protection obligations.  The issue raised by the applicant was whether, in considering if the applicant as a temporary protection holder, is still subject to protection, a delegate ought to have regard to the criteria set out in the Convention itself when determining if the applicant had ceased to engage Australia’s protection obligations at the time of the decision.

(b)        The Tribunal ignored relevant considerations in particular the applicant’s argument that as a matter of statutory construction subcl 866.221 of Schedule 2 of the Migration Regulations requires ministerial satisfaction in the case of a current protection visa holder to be conditioned by the Articles of the Refugees Convention, which only allow for cessation of protection in limited and defined circumstances, which circumstances do not include, in the case of a refugee recognised as such in Australia, cessation or revocation of the protection under Art 1F.

(c)        The Tribunal ignored and/or misconstrued the law.  In construing the Act and the Regulations it should have had regard to the fact that the provisions were enacted pursuant to or in contemplation of the assumption of international obligations.

(d)        The Tribunal erred in that the Minister’s satisfaction or non-satisfaction under the Act was to accord with obligations which the government accepted under the Convention (and to which obligations executive government had expressed an intent the Act should give effect) and further or alternatively the obligations give rise to a legitimate expectation that the applicant as a recognised refugee who was owed protection obligations under the Convention would be assessed in accordance with those protection obligations governing procedures for cessation and/or expulsion.

25                  It is then said in the application that the Tribunal committed jurisdictional error.

The Statutory Framework – The Migration Act 1958 (Cth) and the Migration Regulations

26                  This case concerns the grant of a visa which is a permission to a person to travel to and enter Australia and/or remain in Australia (s 29(1)).  There are prescribed classes of visas (s 31).  One of them is the class known as ‘protection visas’ (s 36(1)).  The Regulations may prescribe criteria for the grant of visas of a specific class (s 31(3)).  In the case of protection visas one of the criteria is set out directly by the Act namely that the applicant for the visa is:

‘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.’ s 36(2)(a))

A limitation on the scope of Australian protection obligations is set out in s 36(3) and qualified to some extent by s 36(4) and (5).  Neither the limitation nor the qualifications are material for present purposes. 

27                  A non-citizen who wants a visa must apply for a visa of a particular class (s 45).  Requirements for valid visa applications are specified (s 46).  The Minister is required to consider valid visa applications (s 47).  After considering a valid visa application the Minister, if satisfied that the various criteria for its grant are met and that the grant is not prevented by the operation of other specified provisions of the Act, is to grant the visa (s 65(1)).

28                  The provisions of ss 91A to 91G and 91N to 91Q of the Act set limits on the circumstances in which protection visas may be granted.  These relate to the availability of sanctuary in other countries.  The provisions of ss 91R to 91U prescribe the ways in which the criteria for determining whether someone is a refugee are to be construed with respect to persecution (s 91R) and membership of a particular social group (s 91S). 

29                  The application of Art 1F is affected by s 91T which provides:

‘(1)      For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non-political crime were a reference to a crime where the person’s motives for committing the crime were wholly or mainly non-political in nature. 

(2)       Subsection (1) has effect subject to subsection (3).

(3)       For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non-political crime included a reference to an offence that, under paragraph (a), (b), (c) or (d) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.’

This latter section was inserted in 2001 and took effect on 1 October 2001.

30                  The Migration Regulations 1994 prescribe criteria attaching to the grant of various classes of visa – Reg 2.02 and 2.03. 

31                  Item 1401 of Pt 4 of Schedule 1 of the Migration Regulations refers to the class of protection visas established by s 36(1) of the Act which are designated Class XA.  Sub-item 1401(4) designates two subclasses of protection visas, namely ‘785 (Temporary Protection)’ and ‘866 (Protection )’.  Item 1403 provides for an additional class of protection visas, namely ‘Protection (Class XC)’ which has one subclass ‘785 (Temporary Protection)’. 

32                  Regulation 2.08F applies to persons who are the holders of subclass 785 (Temporary Protection) visas which were granted prior to 19 September 2001.  Holders of that class of visa who, within 36 months after the date of its grant, have made application for a Protection (Class XA) visa are taken also to have applied for a Protection (Class XC) visa.  

33                  Item 785.511 in the Second Schedule provides that a subclass 785 (Temporary Protection) (Class XA) visa expires after 36 months or when an application for a Protection (Class XA) visa, made within the 36 months is determined or withdrawn.

34                  The visa for which the applicant applied in this case was a subclass 866 Protection (Class XA) visa.  A criterion for its grant is that the Minister be satisfied that the applicant is a person to whom Australia has protection obligations under the Convention – Item 866.221. 

35                  Section 500(1)(c) of the Act provides that applications may be made to the Tribunal for review of a decision to refuse to grant a protection visa relying on one or more of Art 1F, 32 and 33(2) of the Convention.  Such a decision is not reviewable by the Refugee Review Tribunal (s 500(4)(c)). 

Statutory Framework – The Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)

36                  Section 25(4) of the AAT Act provides that the Tribunal has power to review any decision in respect of which application is made to it under an enactment.  Section 43(1) provides:

‘For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ...’

37                  Appeals lie to this Court from decisions of the Tribunal on a question of law (s 44(1)).  An appeal under s 44(1) will usually lie only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review.  Questions of standing are expressly provided for in s 44(2).  There is authority for the proposition that where Tribunal proceedings call for a number of ultimate decisions to be made involving review of a series of connected decisions by the original decision-maker, each of those ultimate decisions may be subject to appeal under s 44(1) – Director of Social Services v Chaney (1980) 31 ALR 571 at 591.  See also McLeod v Repatriation Commission (unrep, Fed Court, French J, 16/9/92) and Sullivan v Department of Transport (1978) 20 ALR 323.

38                  Ordinarily it would not seem that any s 44 appeal would lie against a ruling on a preliminary question unless it finally disposed of the application.  This is a consideration relevant to the discretion to award relief under s 39B  of the Judiciary Act 1903 (Cth) in respect of a preliminary question of law.  The absence of a remedy under s 44 may, according to the circumstances of the case, weigh in favour of the discretion to grant such relief.  Butas a general rule the Court will be very reluctant to do so in respect of interlocutory decisions taken by the Tribunal which do not finally dispose of the matter before it.  The risks of fragmentation and delay are too great.

39                  That is not to say that s 44 is in a practical sense the only remedy available for the judicial review of Tribunal decisions.  Except where it is expressly excluded, theAdministrative Decisions (Judicial Review) Act 1975 (Cth ) is applicable to Tribunal decisions but subject to the discretion under s 10 of that Act to withhold relief because of the availability of the remedy provided by s 44 of the AAT Act – Duncan v Fayle  [2004] FCA 723; cf Tuite v Administrative Appeals Tribunal  (1993) 40 FCR 483; Percerep v Minister for Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483. 

40                  Section 45 of the AAT Act authorises the Tribunal to refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision. 

41                  There is no specific power for the Tribunal to hear and determine preliminary questions.  However, s 33(1)(a) of the AAT Act provides that the procedures of the Tribunal are ‘subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal’.  The Tribunal is empowered by s 33(2) to give directions ‘as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal...’.  These powers appear to be sufficient to support the hearing of particular issues separately from the main body of the hearing.  It is nevertheless a power to be exercised with caution because, as the experience of the courts has shown, it can lead to fragmentation of what should be a relatively informal and expeditious process.  In so saying, I recognise that the question whether Art 1F applies to an applicant for review in the Tribunal may be, but does not have to be, determined as a theoretical question upon the provisional assumption that the applicant would fall within the definition of a refugee in Art 1A – Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533 at [5] per Gleeson CJ, [86] per Kirby J.  There is a related issue which has been the subject of academic debate and varying international practice namely whether inclusion under Art 1A should be considered before exclusion under Art 1F.  There appears to be no such requirement in the Australian jurisprudence.  In any event, at a practical level, the two questions may be inextricably factually intertwined – see generally M Bliss, ‘Serious Reasons for Considering’: Minimum Standards of Procedural Fairness in the Application of Article 1F Exclusion Clauses (2000) 12 IJRL 92 (at 106-108). 

The Refugees Convention 1951

42                  Article 1A(2) of the Convention as amended by the Refugees Protocol confers the status of ‘refugee’ on a person who:

‘... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’

43                  Article 1B is not relevant for present purposes.  Article 1C provides that the Convention shall cease to apply to any person falling under the terms of Art 1A if one of a number of events occur, namely if:

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

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

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

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

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

There are provisoes to that Article which it is not necessary to set out here.  Article 1D provides that the Convention shall not apply to persons receiving protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees.  Article 1E provides that the 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. 

44                  Article 1F, which is in issue in the present case, provides:

‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)       he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)       he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)        he has been guilty of acts contrary to the purposes and principles of the United Nations.’

The Purpose of Article 1F and its Operation upon the Grant of Protection Visas

45                  As a matter of form Art 1F limits the application of the Convention ab initio so that it does not apply to persons with respect to whom there are serious reasons for considering, inter alia, that they have committed a war crime or a crime against humanity.  It is because it sets a limit on the application of the Convention that Art 1F is referred to as an exclusion clause.  It is to be contrasted with Art 1C which sets out circumstances under which Convention protection may cease.  That Article is commonly referred to as a cessation clause. 

46                  The drafting history of the Convention discloses that the United States proposed that Art 1F should begin:

‘The High Contracting Parties shall be under no obligation to apply the terms of this Convention to a person ...’

Because this might have allowed a State to regard a war criminal as a refugee France proposed the words ‘shall not apply’ which were ultimately adopted – Nehemiah Robinson, Convention Relating to the Status of Refugees – Its History, Contents and Interpretation, New York June 1953 (at 68).  According to Robinson’s commentary which was written very shortly after the making of the Refugees Convention, the categorical language of Art 1F as finally drafted means that (at 67):

‘... once a determination is made that there are sufficient reasons to consider a certain person as coming under this section, the country making the determination is barred from according him the status of a refugee.’

47                  The purpose of Art 1F was discussed by the Supreme Court of Canada in Pushpanathan v Canada (Minister of Citizenship and Immigration) (1998) 160 DLR (4th) 193 (at 225):

‘The purpose of Article 1 is to define who is a refugee.  Article 1F then establishes categories of persons who are specifically excluded from that definition.’

Bastarache J, who delivered the majority judgment of the Court, distinguished the function of Art 1F from the refoulement provisions of Art 33, which allows for the refoulement of a bona fide refugee to his or her native country where he or she poses a danger to the security of the country of refuge or to the safety of the community.  He said:

‘Thus, the general purpose of Article 1F is not the protection of the society or refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Article 33 of the Convention.  Rather, it is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status.  Although all of the acts described in Article 1F could presumably fall within the grounds of refoulement described in Article 33, the two are distinct.’

He went on to describe the rationale of Art 1F related to the purpose of the Convention as a whole, the rationale being that those responsible for the persecution which creates refugees should not enjoy the benefits of a Convention designed to protect those refugees (at 228).  Seen from this perspective and from its drafting history, Art 1F does not provide a discretionary basis for the refusal of Convention protection.  It is a bar to its application.

48                  The taxonomy of the exclusion Articles and the circumstances in which they may be applied is usefully explained in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status – UNHCR (1979; Re-edited 1992):

‘140.    The 1951 Convention, in Sections D, E and F of Article 1, contains provisions whereby persons otherwise having the characteristics of refugees, as defined in Article 1, Section A, are excluded from refugee status.  Such persons fall into three groups.  The first group (Article 1D) consists of persons already receiving United Nations protection or assistance; the second group (Article 1E) deals with persons who are not considered to be in need of international protection; and the third group (Article 1F) enumerates the categories of persons who are not considered to be deserving of international protection.

141.     Normally it will be during the process of determining a person’s refugee status that the facts leading to exclusion under these clauses will emerge.  It may, however, also happen that facts justifying exclusion will become known only after a person has been recognized as a refugee.  In such cases, the exclusion clause will call for a cancellation of the decision previously taken.

49                  The more recent statement of Joint Position defined by the Council of the European Union on 4 March 1996 on the basis of Art K.3 of the Treaty of the European Union observed (at 1.3) that:

‘The clauses in Article 1F of the Geneva Convention are designed to exclude from protection under that Convention persons who cannot enjoy international protection because of the seriousness of the crimes which they have committed.

They may also be applied where the Acts become known after the grant of refugee status (see point 11)

In view of the serious consequences of such a decision for the asylum seeker, Article 1F must be used with care and after thorough consideration, and in accordance with the procedures laid down in national law.’

Reproduced in van Krieken (ed) Refugee Law in Context: The Exclusion Clause T.M.C. Asser Press (1999)

50                  The Netherlands’ State Secretary for Justice wrote a memorandum in 1997 to the Netherlands Parliament on the policy relating to the application of Art 1F:

‘It should be noted here that the Common Position of 4 March 1996 indicates that Article 1F of the Convention on Refugees can also be applied where the offences come to light after refugee status has been granted.  It seems to me that, in these cases, the legal grounds for withdrawal do not so much lie in Article 1F of the Convention on Refugees as in the law of the country.’ 

Reproduced in van Krieken op cit

The Netherlands’ State Secretary also said that Art 1F would be restrictively interpreted in view of the consequences of exclusion for the person concerned.  That principle was established in the UNHCR Handbook and in the permanent case law of the Council of State.  The State Secretary went on:

‘I therefore consider that it places me an under an obligation to ensure that exclusion under Article 1F is based upon meticulous investigation and solid grounds.  I expect this to be provided for, in principle, by the introduction of a number of procedural guarantees.’

Van Krieken op cit at 301

51                  The Australian jurisprudence presently supports the proposition that the use of the words ‘serious reasons for considering that ...’ does not mandate a positive finding by the receiving State that the applicant for protection has engaged in conduct of the kind contemplated in Art 1F.  No question of proof on the civil or criminal standard arises in that context – Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563 per French J; Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 385 at 388 per Marshal J and on appeal Minister for Immigration and Multicultural Affairs v Ovcharuk (1998) 88 FCR 173 at 179 per Whitlam J.  See also Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 at 476 where Weinberg J reviewed the authorities.  A contrary view in relation to standard of proof was expressed by Mathews J sitting as President of the Tribunal in Re W97/164 and Minister for Immigration and Multicultural Affairs (1998) 27 AAR 482 at 491.   In Canada the Federal Court of Appeals has held that the words require something less than proof on the balance of probabilities – Ramirez v Canada (1992) 89 DLR (4th) 173.  But see also Cardenas v Canada  (1994) 23 Imm.L.R. 92d, 244 where a requirement for ‘clear and convincing evidence’ was posited by Jerome ACJ (at 252). 

52                  It should be emphasised however that the absence of a requirement for a positive finding of the commission of conduct of the kind contemplated by Art 1F is not inconsistent with the need for ‘meticulous investigation and solid grounds’ in order to meet the standard of ‘serious reasons for considering that’ the conduct has been engaged in.  It would be a matter for concern if the Tribunal, in an Art 1F case, merely extrapolated from the criminality of an organisation to that of an individual within it without undertaking any clear analysis of purpose or complicity – SHCB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 229 at [17] per Selway J.  See also the helpful discussion of this question in Zagor, Persecutor or Persecuted: Exclusion under Article 1F(A) and (B) of the Refugees Convention (2000) 23 UNSW Law Journal 164 (at 168-170).  The observation of Jerome ACJ in Cardenas is apposite (at 252):

‘the Board must be extremely cautious in its application of the exclusion clause particularly in situations ... where it has concluded that the claimant has a well founded fear of persecution in his country of origin.  In light of the potential danger faced by such a claimant, the Board must base its decision to exclude only on clear and convincing evidence, not simply on suspicion and speculation.’

53                  It may be debatable whether the approach taken in this case by the delegate, relying upon the contents of a general report about human rights violations by the Wahdat Army and extending the contents of that report by inference to the applicant, meets the standard of inquiry to be expected where Art 1F is to be applied.  The exclusion of a person from  Convention protection on the basis of Art 1F may be literally a matter of life and death.  Ultimately however that says nothing about the elusive merits of the legal arguments advanced on behalf of the applicant in this case. 

54                  Counsel for the applicant submitted that, in construing sub-clause 866.221 of Schedule 2 of the Regulations, ministerial satisfaction, in the case of a current protection visa holder, was to be conditioned by the Articles of the Convention which only allow for cessation of protection in limited and defined circumstances.  So in construing municipal provisions it might be considered that such provisions had been enacted ‘pursuant to, or in contemplation of, the assumption of international obligations...’ – Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 (at 492). 

55                  In my opinion, municipal law may provide more than one mechanism for giving effect to the limits upon the scope of the protection conferred by the Refugees Convention by reason of Art 1F.  Protection under the Convention may be refused by refusal of an initial application for a protection visa on the basis of Art 1F.  If the facts attracting the operation of Art 1F are discovered after the initial grant then the visa may be cancelled as is the case under existing provisions of the Act.  And when a temporary visa has been granted, a permanent visa may be refused on the basis of the intervening discovery of facts establishing the application of Art 1F.  None of these mechanisms is inconsistent with the approach to Art 1F indicated by its own language, by the UNHCR Handbook, by the European Union Joint Position or by the Netherlands’ statement.  There is nothing which requires the Court to import into the concept of ‘protection obligations’ in the visa grant criteria the limited occasions for the invocation of Art 1F for which the applicant seems to contend.

56                  The grant of a permanent protection visa requires satisfaction of the criterion that Australia owes protection obligations to the applicant.  If, on the facts as found at the time of the decision on the application for such a visa, the Convention does not apply then the protection obligations will not arise and the visa will have to be refused.

57                  In my opinion there is no basis for attributing any error to the approach taken by the Tribunal in this case.  Even if error were disclosed it would be a rare and exceptional case in which the Court would grant relief of the kind sought here      against a preliminary ruling that did not finally dispose of the proceedings before the Tribunal. 

Conclusion

58                  For the proceeding reasons, in my opinion, the application should be dismissed with costs. 

Associate:

Dated:              23 September 2004