FEDERAL COURT OF AUSTRALIA

SZOQQ v Minister for Immigration and Citizenship [2011] FCA 1237

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules

REASONS FOR JUDGMENT

1    This is an appeal from a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister for Immigration and Citizenship to refuse the applicant a Protection (Class XA) Visa. The applicant had been granted a protection visa on 22 January 1996 however this was cancelled on 5 March 2003 on the ground that he did not satisfy the character test: s 501(2) of the Migration Act 1958 (Cth).

2    On 21 February 2005 and 13 July 2007 the applicant applied for ministerial intervention under s 48B of the Act to enable him to apply for another protection visa. On 12 December 2008 the Minister signed a notice under s 48B(1) stating that he considered it in the public interest to exercise his power under the section and that he had determined that s 48A did not apply to prevent an application for a protection visa within the time specified.

3    The applicant lodged his application on 19 December 2008, within the time specified. His application was rejected by a delegate of the Minister. The delegate found that while the applicant had a well-founded fear of political persecution within the meaning of Art 1A(2) of the Refugees Convention, because he had been convicted of a “particularly serious crime within the context of Art 33(2) of the Refugees Convention” he was not a person to whom Australia owes protection obligations.

4    On review the Tribunal affirmed the delegate’s decision. It held that the applicant “constitutes a danger to the Australian community in accordance with Art 33(2) of the Refugees Convention”. The applicant now appeals to this Court.

Legislation

5    Section 36 of the Migration Act sets out the criteria for the grant of a protection visa. In particular s 36(2)(a) provides that a criterion is that the applicant 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”. Those obligations are found in Art 33 of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees which states:

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

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

[Emphasis added]

The Tribunal Decision

6    The evidence before the Tribunal included documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), documents from the parties including material from when the applicant was in custody between 2000 and 2007 provided by the Queensland Health (Offender Health Services) and the Queensland Department of Community Safety, a copy of the Australian Federal Police ‘Police Certificate’ dated 7 August 2009, reports by Dr Kipling Walker dated 27 October 2008 and 18 May 2010 and a report by Dr Emma Collins, dated 22 March 2010. Both doctors and the applicant gave evidence at the hearing.

7    The Tribunal summarised the applicant’s personal and criminal history. He was born in West Papua (Irian Jaya) and is a citizen of Indonesia. He was involved in fighting for the independence of West Papua since he was fifteen years old. He has suffered arrest, detention and torture by the Indonesian authorities. In 1975 he was shot and seriously injured by the Indonesian military. He arrived in Australia by canoe in 1985. Initially he was granted a Domestic Protection (Temporary) Entry Permit which allowed him to reside in Australia. On 22 January 1996 he was granted a Protection (Class XA) Visa.

8    In September 1996 when he returned to West Papua to see his father he was recognised and imprisoned by the Indonesian military. He eventually escaped and returned to Australia on 22 July 1997.

9    The applicant’s criminal history in Australia dates from February 1986. He has been convicted of several criminal offences including causing grievous bodily harm, assault and damage to property. The most serious conviction was for the manslaughter of his de facto spouse, in late May 2000. He was sentenced to seven years in prison with a non-parole period of two and a half years. The Tribunal referred to an assessment dated 5 July 2002 which stated that “he currently appears as an unacceptable community risk”. He was perceived to have a high risk of reoffending and had failed to progress from his high security classification to a lower classification in an open custody environment. Parole was refused at that time and again in 2005. He was finally released on 18 June 2007 and taken into immigration detention.

10    The applicant gave oral evidence to the Tribunal about various aspects of his background and experiences including the manslaughter of his de facto spouse. He described his previous abuse of alcohol and marijuana but claimed that this was all in the past. He has not drunk alcohol since he was imprisoned and says he is not interested in alcohol, drugs or nicotine any more. He referred to an offer from the Salvation Army in Brisbane to accommodate him if he were to be released and a proposed four-stage strategy for his rehabilitation. The Tribunal also heard about the development of the applicant’s artistic talents and the sale of his paintings to charities.

11    The Tribunal noted that the delegate had found the applicant’s institutional conduct was not satisfactory however it was cautious in its use of reports concerning the applicant’s conduct in prison and in immigration detention. It acknowledged that these reports had not been fully explored with the applicant and “most were not put to him during the hearing”. The Tribunal also noted that “tensions experienced in custody and detention are often more extreme than those experienced in the community”. It nevertheless concluded that the evidence of the applicant’s behaviour in custody and detention “indicates that while generally cooperative and polite, he can be aggressive and abusive when confronted by the inevitable frustrations of the system and of other inmates, and that he has sometimes used threats in order to try and get his own way”.

12    The Tribunal considered the reports and oral evidence of Dr Walker and Dr Collins. Dr Walker’s diagnosis was that the applicant has a personality disorder “defined as a persistent pattern of abnormal emotions and behaviour”. He expressed the opinion that there was a high risk that the applicant would reoffend with violence and that this risk “cannot be managed by psychiatric and/or psychological treatment”. In his oral evidence Dr Walker accepted there was some slight chance treatment could assist the applicant but doubted that he would have the resources to access this treatment.

13    Dr Collins’ assessment was slightly more optimistic. She assessed the risk of the applicant violently reoffending as moderate however this was “in the context of there being a proper management plan in place and a supportive environment”. In the opinion of Dr Collins, but not Dr Walker, cultural factors were a significant influence in the applicant’s behaviour and any management program would need to include a cultural component. Dr Collins expressed doubts about the strategy suggested by the Salvation Army and said that it would need to be updated with more detail about the counselling proposed for her to be able to form a concluded opinion.

14    Section 91U(1) of the Migration Act provides that a reference in Art 33(2) of the Refugees Convention to a “particularly serious crime” includes a reference to “a serious Australian offence (as defined by subsection (2))”. Given the length of his sentence for manslaughter, the applicant conceded before the Tribunal that he had been convicted of “a particularly serious crime” within the meaning of Art 33(2). Therefore the Tribunal held that the question before it was whether the applicant constitutes a danger to the Australian community.

15    Before the Tribunal the parties agreed that the test of whether the applicant is a danger to the Australian community is that expressed by Deputy President Tamberlin in WKCG v Minister for Immigration and Citizenship [2009] AATA 512. In that case the learned Deputy President observed at [25] that it was not necessary to paraphrase the language of Art 33(2) “because the words used are plain and simple English” and that “In deciding the question, regard must be had to all the circumstances of each individual case”. The Tribunal also quoted the following comments of the Deputy President:

Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.

The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or [more] members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, … it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable”.

16    Applying the test as articulated by the Deputy President the Tribunal concluded that it was “comfortably satisfied” that the applicant poses “a real or significant risk or possibility of harm to one or more members of the Australian community”. The reference to being “comfortably satisfied” in making its finding is a reference to the High Court’s decision in Briginshaw v Briginshaw (1938) 60 CLR 336 and to the comment of Rich J at 350. Justice Dixon at 362 spoke of “reasonable satisfaction” which he said “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.

17    The Tribunal was mindful that its decision involved a finding that, under the Refugees Convention, Australia does not have protection obligations in relation to the applicant and therefore, as a result of its decision, the applicant “is liable to be returned to Indonesia”. On behalf of the applicant, it was put to the Tribunal that it should balance the likely danger to the community against the likely consequences for the applicant of being returned to Indonesia. The Tribunal did not accept this submission and merely stated that this is a matter for the Minister and not for the Tribunal. The Tribunal did not give any reasons for this position.

This appeal

18    The applicant seeks to have the Tribunal’s decision quashed and the matter remitted to the Tribunal for redetermination. The grounds of the application are:

1.    The Tribunal failed to weigh up and balance the likely consequences of returning the applicant to Indonesia against his danger to the Australian community.

2.    The Tribunal failed to apply the principle of proportionality, in that it unreasonably impaired the rights of the applicant not to be subjected to persecution or to torture or cruel, inhuman or degrading treatment or punishment.

19    It should be noted that the applicant does not challenge the finding that he would constitute a danger to the Australian community. His complaint is that the likelihood and severity of this danger should have been weighed against the severity of the likely consequences to him of being returned to Indonesia. In essence, the balancing exercise referred to in ground 1 and the proportionality principle or test in ground 2 raise the same issue and I see no need to consider them separately.

20    As noted above the Tribunal refused to take into account the likely consequences for the applicant of being returned to Indonesia on the ground that this was a question for the Minister. Counsel for the applicant, Mr Poynder, submitted that in taking this approach the Tribunal had made a jurisdictional error. The error consisted of failing to comply with a statutory precondition for the exercise of its power: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 618-9 per Gummow A-CJ and Kiefel J.

21    It was submitted that the Tribunal was required to determine whether Art 33(2) applied so as to engage the exception to the non-refoulement obligation in Art 33(1). In doing so, it was submitted, the Tribunal was “bound” to take into account the likely consequences for the applicant of being returned to Indonesia and was required to strike a balance between whether the applicant “constituted a danger to the Australian community” and the consequences of him being sent back to Indonesia.

22    In Australia, subject to any direction to the contrary in a relevant statute, treaties are interpreted in accordance with Art 31 of the Vienna Convention on the Law of Treaties: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 252 per McHugh J. Art 31(1) provides that:

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

23    In the same case Brennan CJ at 231 said that where a provision of a treaty is transposed into a statute “so as to enact it as part of domestic law, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty”.

24    In his written submissions Mr Poynder pointed to the language and structure of the Refugees Convention to support the applicant’s contention that the Tribunal was bound to take into account the consequences of the applicant being returned. He argued that the non-refoulement obligation in Art 33 is the fundamental obligation in the Convention and therefore “the withdrawal of such protection from a recognised refugee ought not occur without the most serious consideration of the consequences of such a decision”.

25    Mr Poynder drew the Court’s attention to the comments of Sir Elihu Lauterpacht and Daniel Bethlehem in their joint opinion published in 2003: Lauterpacht and Bethlehem, “The scope and content of the principle of non-refoulement: Opinion” in Feller, Turk and Nicholson (Eds) Refugee Protection in International Law, Cambridge University Press, 2003 at pp 87-177. At p 137, the learned authors cited the view of Weiss (The Refugee Convention, 1951 at 342) to the effect that the principle of proportionality has to be observed and that this would require taking account, among other things, of the consequences or refoulement in circumstances such as the present.

26    These comments must be considered taking into account the task that the learned authors were addressing. In their introduction, at 89, they say:

We have been asked by the Office of the United Nations High Commissioner for Refugees (UNHCR) to examine the scope and content of the principle of non-refoulement in international law. We have not been asked to address particular cases or specific circumstances in which the principle has been in issue but rather to comment on the interpretation and application of the principle in general. It goes without saying that the interpretation and application of the principle in specific cases will hinge on the facts involved. The present opinion is limited to a preliminary analysis of the matter.

27    A different view is expressed by Professor James C Hathaway in The Rights of Refugees under International Law, University of Michigan, Cambridge University Press, 2005. In chapter 4, entitled “Rights of Refugees Physically Present” Professor Hathaway considers both Art 33(2) and Art 1(F)(b) of the Convention. The latter article concerns persons who are fugitives from justice. It 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 …

(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.

28    Article 1F permits a country to exclude persons falling within its terms without making a determination as to whether they are refugees. Article 33(2) applies to persons who have been determined to be refugees. Professor Hathaway says, at 353:

By allowing states to contemplate refoulement in only these clear and extreme cases, the drafters conceived a threshold test for permissible refoulement which takes real account of both refugee and communal rights. If it is shown either that a refugee is a danger to national security, or that a refugee who is a serious criminal poses a danger to the safety of the community of that country, there is therefore no additional proportionality requirement to be met: by definition, no purely individuated risk of persecution can offset a real threat to such critical security interests of the receiving state. Because the objective of Art. 33(2) is protection of the most fundamental interests of the host state and its community, a clear risk to such collective interests defeats the refugee’s right to invoke the duty of non-refoulement.

29    Article 1(F) was considered in Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 565: The applicant, Mr Dhayakpa, was a Tibetan who came to Australia in 1989 under a visitor’s visa using a false passport. In November 1989 he was convicted of conspiracy to import drugs into Australia and sentenced to imprisonment for a term of 12 years. He was also sentenced to imprisonment on several other counts; the sentences on the other counts were to be served concurrently with the sentence for conspiracy. On appeal the sentence for conspiracy was reduced to 9 years. His eligibility for parole commenced on 17 June 1993. On that date he applied for refugee status in Australia.

30    The question whether Australia had protection obligations to Mr Dhayakpa under the Refugees Convention raised Art 1F of the Convention. Justice French (as the Chief Justice then was) referred, at 563, to comments made by Professor Goodwin-Gill in The Refugee in International Law (1983) at p 160 to the effect that Art 1F “confers upon the potential State of refuge a discretion to determine whether the criminal character of the applicant for refugee status in fact outweighs his or her character as a bona fide refugee and so constitutes a threat to international order”. Justice French observed that the adjective, “serious” involves an evaluative judgment however his Honour added:

But once the non-political crime committed outside the country of refuge is properly characterised as “serious” the provisions of the Convention do not apply. There is no obligation under the Convention on the receiving State to weigh up the degree of seriousness of a serious crime against the possible harm to the applicant if returned to the state of origin.

31    His Honour dismissed comments in the Handbook on Procedure and Criteria for Determining Refugee Status (Office of the United Nations High Commissioner for Refugees, 1992) advocating a balancing exercise in relation to the application of Art 1F(b). He observed, at 565, that the Handbook does not purport to interpret the Convention and referred to Mason CJ’s comment that he regarded the Handbook more as a practical guide than a document purporting to interpret the Convention: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392. In Dhayakpa French J recognised the beneficial nature of the Convention that its provisions were not to be construed narrowly however in relation to Art 1F(b) his Honour said, at 565:

The exemption in Art 1F(b), however is protective of the order and safety of the receiving State. It is not, in my opinion, to be construed so narrowly as to undercut its evident policy. … The operation of the exemption is not punitive. There can be no question of twice punishing a person for the same offence. Rather it is protective of the interests of the receiving State.

32    His Honour’s comments apply equally to Art 33(2). It also is protective of the State and the community. The construction for which Mr Poynder contends finds some support in the decision of the Court of Appeal in R v Secretary of State for the Home Department, Ex parte Chahal [1995] 1 WLR 526. Mr Chahal was accused of being a danger to the security of the United Kingdom. The Secretary of State had argued that once a danger to security had been found and a decision made that deportation of Mr Chahal would be for the public good it was not necessary to consider the likely consequences of deportation to Mr Chahal. All three members of the Court of Appeal rejected this submission and held that a balancing exercise was required: per Staughton LJ at 532-4, per Nolan LJ at 538-9 and per Neill LJ at 544.

33    Support for the approach Mr Poynder so eloquently advocated also comes from directives of the Council of the European Union and comments made by the Executive Committee of the United Nations High Commission. Professor Hathaway argues, at 353, that this support, including that in Chahal, relies largely on a single comment of the British co-sponsor of the particularized refoulment provision without appreciating the context in which the comment was made.

34    Ultimately the support or disapproval of commentators cannot substitute for a proper consideration of the relevant provisions of the Migration Act and the Convention provisions which are incorporated by reference into the Migration Act. The issue here is the proper construction of Art 33(2) of the Refugee Convention which is incorporated into the Migration Act by s 36. The comments to which Mr Poynder referred provide no support for the submission that in the context of the Migration Act Art 33(2) should be construed as requiring the balancing exercise advocated by the applicant.

35    Mr Kennett, senior counsel for the first respondent made a number of cogent and persuasive submissions as to why there is no textual basis for an argument that a balancing exercise is required in the application of Art 33(2). I accept those submissions which lead me to the following conclusions:

1.    Article 33(2) only applies to a person who is a refugee within the meaning of the Convention. It provides that, in the circumstances to which it refers, and despite being a refugee, the protection afforded by Art 33(1) is not available to that person.

2.    Once the circumstances to which it refers exist, Art 33(2) applies automatically; it does not await the exercise of any discretion.

3.    The circumstances in which Art 33(2) applies are circumstances in the country of refuge. The Article does not contemplate consideration of circumstances in any other country, including those that might have an adverse impact on the refugee to which it applies, should he or she be returned to that country.

4.    In determining whether the relevant circumstances exist the decision maker, in this case the Tribunal, must apply objective criteria. While there may be some uncertainty in determining whether the criteria are met in given circumstances (and hence some inevitable leeways of choice), there is no call for a discretionary judgment.

5.    In providing that the protection of Art 33(1) is not available to the refugee, the Article does not impose an obligation on anyone; in particular it does not impose an obligation to weigh the consequences of refoulement against the danger to the relevant community on anyone.

36    In Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289 the Supreme Court of New Zealand considered the first limb of Art 33(2) which provides that the benefit of Art 33(1) “may not … be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is”. The Court rejected the submission that the proportionality principle must be applied in the application of the Article. Instead the Court held, at [25] and [27], that the Article must be given a sequential reading:

Article 33, in its plain terms, first places an obligation on the states parties not to expel a refugee whose life or freedom might be threatened in certain circumstances but, secondly, notwithstanding that prohibition, empowers them to expel a refugee for certain reasons including the endangering of national security. The two considerations are stated distinctly in each paragraph. According to their ordinary meaning, the two provisions operate in sequence. They are not related in any proportionate or balancing way. The second, if satisfied in its own terms, defeats the prohibition in the first. …

…

That distinct sequential reading, based as it is on the ordinary meaning of the terms of the two paragraphs of art 33 and their purpose, is supported by a consideration of what the proportionality or sliding scale proposition would require. The decision maker would have to measure against one another two matters which are difficult to relate: the level of threat to the life or liberty of an individual, on the one side, and, on the other, the level of reasonably perceived danger to the security of the state. While the law may sometimes appear to require such weighing, such an interpretation is to be avoided unless it is plainly called for.

37    The Supreme Court reached this conclusion despite it also referring to a qualification that “decisions on security risk are made in the context of the prospect of refugees facing a threat to their life or freedom on the proscribed grounds”. The Court described the qualification as “apparent rather than real since it does not involve a particular weighing of the risk to the individual in question. Rather it is a matter of the gravity, indicated by para 1 of Art 33, of the consequences of deportation or removal”: Zaoui at [20].

38    With respect I agree that the context in which decisions as to the application of Art 33(2) are made is one of the utmost gravity. Indeed I would go so far as to reject the notion that any qualification is involved. The context is such that the possibilities which are perceived to constitute the danger to the community must have substance not be merely speculative or fanciful. This is fundamental to the decision maker’s task not a qualification. To say that the issue is a serious one because it involves the prospect of a threat to life or liberty is, in one sense, to state the obvious and underline, as does the New Zealand Supreme Court, the gravity of the inquiry under Art 33(2). It does not invite a proportionality analysis.

39    In his written submissions Mr Poynder also referred to the Tribunal’s comment that “this is a matter for the Minister” as an “opaque” comment “in that there appears to be no statutory basis upon which the Minister could have substituted the Tribunal’s decision for a more favourable decision”. At the hearing he corrected this statement and referred to s 501J which provides that the Minister, in the public interest, may set aside a decision of the Administrative Appeals Tribunal in relation to a protection visa decision and substitute a decision more favourable to the applicant. There seems little doubt, and the applicant did not contend otherwise, that s 501J would apply in the present circumstances and permit the Minister to authorise the grant of a protection visa to the applicant if it appeared to him to be in the public interest to do so.

40    The discretion that s 501J reposes in the Minister supports the first respondent’s construction of the Act and the Convention. The section is not predicated on the result reached by the Tribunal being a consequence of error. It recognises that it may be in the public interest for there to be a result different from that dictated by a correct interpretation of the statute. In considering whether to exercise the power granted by s 501J in circumstances such as the present, the Minister would necessarily engage in the balancing exercise that the applicant asserts is required under Art 33(2). As such the structure of the Act is consistent with the intention to reserve this issue for the Minister to decide on the basis of public interest. This fact that the Minister has in the words of counsel for the applicant, “an unenforceable discretion to allow the person to stay” is not a reason for holding that the decision maker must take into account the consequences of deportation.

41    This is consistent with the view expressed in a paper prepared by the Australian Government for the UNHCR round table consultation in 2001. The paper, Interpreting the Refugees Convention – an Australian Contribution (2002) is referred to in note 22 at p305 of Zanoui. It rejected the principle of proportionality but accepted that States may “for administrative purposes” consider the consequences of refoulement for a refugee in making a determination under Art 33.2.

42    I have concluded that the Tribunal was correct in not considering the likely consequences of its decision for the applicant. In my view it would have been an error for it to do so. It follows that the applicant’s submissions based on a claim of Wednesbury unreasonableness must be rejected. The Tribunal’s statement that this is a matter for the Minister is correct.

43    For these reasons the application must be dismissed with costs.

Associate:

Dated:    4 November 2011