Lay Kon Tji v Minister for Immigration & Ethnic Affairs  1380 FCA
|Publisher||Australia: Federal Court|
|Publication Date||30 October 1998|
|Citation / Document Symbol||1380 FCA|
|Cite as||Lay Kon Tji v Minister for Immigration & Ethnic Affairs  1380 FCA , 1380 FCA, Australia: Federal Court, 30 October 1998, available at: http://www.refworld.org/docid/3ae6b76014.html [accessed 25 April 2015]|
MIGRATION - judicial review - refusal of protection visa - dual nationality - distinction between original nationality and derivative nationality - whether putative refugee born in East Timor is a national of Portugal - whether the determination of nationality is a question of fact - whether nationality is determined by the laws of the state of nationality - whether nationality may only be conferred by consent - Refugees Convention - meaning of nationality in Article 1A(2) - what constitutes effective nationality - whether diplomatic protection is an incident of effective nationality - no evidence - whether there was evidence to support the finding that the putative refugee had an effective nationality - whether applicant entitled to tender evidence of non-existence of fact upon which the Tribunal based its decision
Migration Act 1958 (Cth) ss 476(1)(g), 476(4)
Canada (Attorney General) v Ward (1993) 103 DLR (4th) 1 discussed
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 applied
Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1996-1997) 143 ALR 695 discussed
Liechtenstein v Guatemala (1955) ICJR 4 discussed
Mavrommatis Palestine Concessions case Permanent Court of International Justice, Series A, No. 2 mentioned
Merge claim 22  ILR 443 mentioned
Oppenheimer v Cattermole (Inspector of Taxes)  AC 249 mentioned
Sykes v Cleary No. 2 (1992) 176 CLR 77 applied
The King v Burgess; ex parte Henry (1936) 55 CLR 608 applied
United States v Egypt  Annual Digest (1931-1932) Case No 98 discussed
United States; ex rel. Schwarzkopf v Uhl (1943) 137 F (2nd) 898 mentioned
Van Duyn v Home Office  1 CMLR 1 discussed
LAY KON TJI v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
VG 331 of 1996
30 OCTOBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 331 of 1996
LAY KON TJI Applicant
MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS Respondents
JUDGE: FINKELSTEIN J
DATE: 30 OCTOBER 1998
REASONS FOR JUDGMENT
Timor was "discovered" by Portuguese sailors in the 16th century and around 1520 Portugal set up trading posts on the island. In 1613 the Dutch established themselves in the southwestern part of Timor. In 1859 a treaty between Portugal and the Netherlands divided the island with Portugal taking what became known as East Timor. The Dutch ceded their part of the island to Indonesia in 1949 when Indonesia, a Dutch colony since the 17th century, was granted independence by the Netherlands.
In 1960 East Timor became a non-self governing territory under the administration of Portugal: resolution 1542 of the General Assembly of the United Nations passed on 15 December 1960. In 1975 the armed forces of Indonesia invaded East Timor and in 1976 it was annexed by Indonesia as an indivisible part of the United Nation of the Republic of Indonesia: Article 1 of Basic Law No. 7/1976 (Indonesia). By the domestic laws of Indonesia, East Timoreans who were living in East Timor at the time of annexation became nationals of Indonesia. Since 1976 a number of countries, including Australia, have recognised Indonesian sovereignty over East Timor. But Portugal and many other countries continue to regard the annexation of East Timor as illegal.
The applicant, Lay Kon Tji, was born in East Timor in 1964. He arrived in Australia on 17 April 1992 on an Indonesian passport and on 14 May 1992 he applied to the respondent (the Minister) for a Domestic Protection (Temporary) Entry Permit. The Migration Regulations (Cth), as then in force, provided that the criteria for the grant of such a permit included, among other matters "that the applicant has been determined by the Minister to have refugee status...": see reg. 117A. Section 4 of the Migration Act 1958 (Cth), as then in force, defined refugee to have the same meaning as it has in Article 1 of the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967). The amended definition is set out below. In summary, it provides that a person is a refugee is he or she has a well founded fear of persecution in the country of his nationality on account of race, religion, nationality, membership of a particular social group or political opinion.
On 7 December 1992 the Migration Act 1977 was amended by the Migration Reform Act 1992 (Cth). Among the amendments it brought about was the creation of a class of visa known as a protection visa: see s 26B(1); see now s 36(1). The criterion for the grant of a protection visa is that the applicant be "a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol": see s 26B(2); see now s 36(2). By s 39 of the Migration Reform Act an application for a Domestic Protection (Temporary) Entry Permit that had not been determined before 1 November 1993 was required to be treated as an application for a protection visa.
On 18 April 1994 a delegate of the Minister rejected the applicant's claim that he had a well founded fear of persecution if he was required to return to East Timor. Accordingly, the delegate decided that the applicant was not entitled to the grant of a protection visa.
The applicant applied to the Refugee Review Tribunal (the Tribunal) to review that decision.
The Tribunal held that the applicant was a national of Indonesia. It found that the applicant had been harassed and intimidated by the Indonesian forces in East Timor on account of his race (he is Chinese) and political opinions (he is involved in anti-Indonesian activities and is a member of a group that is seeking to secure the independence of East Timor). It found that if the applicant was required to return to East Timor he would face detention and torture on account of his race and political opinions. Accordingly, it determined that the applicant did have a well founded fear of persecution in relation to Indonesia.
However, the Tribunal also found that the applicant had become a Portuguese national at birth, that he still maintained that nationality and because he did not have a well founded fear of persecution in relation to Portugal the applicant was not a refugee. For that reason the Tribunal affirmed the decision of the delegate.
To understand how the Tribunal was able to arrive at this decision it is necessary to refer to the definition of "refugee" in the Refugees Convention as amended by the Refugees Protocol. That definition is found in Article 1A which relevantly provides:
" For the purposes of the present Convention, the term `refugee' shall apply to any person who:
(2) ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national."
The second paragraph of the definition is intended to exclude from refugee status all persons with multiple nationality who can avail themselves of protection from persecution by at least one country of which that person is a national. The reason for this exclusion is the underlying assumption of refugee law, namely that, where available, national protection takes precedence over international protection: United Nations "Handbook on Procedures and Criteria for Determining Refugee Status" (1992) para 106; J C Hathaway, "The Law of Refugee Status" (1991) at 57. In Canada (Attorney General) v Ward (1993) 103 DLR (4th) 1 at 12 La Forest J, delivering the judgment of the Supreme Court of Canada, explained:
"International refugee law was formulated to serve as a backup to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged."
Thus, on the basis of its finding that the applicant was a national of Portugal, a country in respect of which the applicant did not hold any fear of persecution, the Tribunal was of the opinion that the applicant could not fall within the definition of "refugee".
The applicant contends that the Tribunal erred in law in reaching the conclusion that he was not a refugee by reason of the application of the second paragraph of Article 1A(2). It is necessary to say something about the evidence that was before the Tribunal and upon which its decision was based to appreciate the basis upon which the applicant puts his case.
On 29 July 1959 the National Assembly of Portugal promulgated Law No 2098 which was concerned with Portuguese nationality. Part 1 of Section 1 of that law provided:
"1 The following persons will be Portuguese citizens, after having been born in Portuguese territory;
(a) the children of a Portuguese father;
(b) the children of a Portuguese mother, if the father is a stateless person, of unknown nationality or unknown;
(c) the children of a father who is a stateless person, of unknown nationality or unknown;
(d) the children of a foreign father, unless he is located in Portuguese territory in the service of the State to which he belongs;
(e) the children of a foreign mother, if the father is a stateless person, of unknown nationality or unknown, unless the mother is located in Portuguese territory in the service of the State to which she belongs."
Reference should also be made to Part 4 of Law No 2098 that provided:
"4. The children of a Portuguese father, born outside the country, will be considered to be of Portuguese nationality if they satisfy any of the following conditions:
(a) they declare themselves, being of adult age or emancipated, or through their legal representative, if they are incompetent, that they wish to be Portuguese;
(b) they have their birth inscribed in the Portuguese Civil Registry by means of a declaration provided by themselves, being of adult age or emancipated, or through their legal representative, if they are incompetent;
(c) they have established their domicile of their own volition in Portuguese territory, and make a declaration to that effect before a competent authority."
Law No. 2098 was revoked on 30 October 1981 and replaced by Law No. 37/81. Article 1 of Chapter 1 of Law No. 37/81 is in the following terms:
"1 The following shall be Portuguese by origin;
(a) Children of a Portuguese father or Portuguese mother born in Portuguese territory or a territory under Portuguese administration, or abroad if a Portuguese parent is there in the service of the Portuguese State;
(b) Children of a Portuguese father or Portuguese mother born abroad who declare that they wish to be Portuguese or who register the birth at the Portuguese civil registry;
(c) Individuals born in Portuguese territory as children of foreigners who habitually reside here, and who have for at least six years not been in the service of their respective State, and who declare that they wish to be Portuguese;
(d) Individuals born in Portuguese territory when not possessing another nationality."
When Law No. 2098 was promulgated the territory of Portugal included East Timor. However, when Law No. 37/81 came into force this was no longer the case. On 2 April 1976, following the over throw of the previous fascist regime, Portugal adopted a new Constitution. By that Constitution the territory of Portugal was defined as "the territory on the Continent of Europe as is historically defined and the archipelagos of the Azores and Madeira": see Article 1 of Clause 5 of the Constitution. The position of Timor was provided for in Article 307 of the Constitution. That Article provided:
Independence of Timor
1 Portugal remains bound by her responsibilities under international law to promote and guarantee the right to self-determination and the independence of East Timor.
2 The President of the Republic and the Government have the power to take all necessary action for achieving the objectives set out in paragraph 1."
This provision now appears as Article 293 of the 1989 revision of the Constitution.
The Tribunal had obtained an opinion from Professor R M M Ramos, a professor at the Faculty of Law at the University of Coimbra and the Catholic University of Portugal, concerning the nationality of East Timoreans. In that opinion Professor Ramos said that according to Portuguese law whether a person born in East Timor acquires Portuguese nationality at the time of his birth is determined by the law of Portugal in force at the date of birth. Thus, with regard to a person born in East Timor when Law No. 2098 was in force Professor Ramos said that the nationality of that person would be governed by that law. He went on to say that such a person would be a Portuguese national in the same way as a person born in Portugal unless the father of the person in question (or the mother, if the father was a stateless person, of unknown nationality or unknown) was a foreigner and was located in East Timor in the service of the state to which he or she belonged.
Professor Ramos said the position under Law No. 37/81 was somewhat different. By that law, a child born within the territory of Portugal would acquire Portuguese nationality if the child has a Portuguese father or mother. He went on to explain that, by reason of the Constitution of Portugal and the internal legislation of Portugal, a territory under Portuguese administration, such as the territory of East Timor under the terms of the relevant United Nations resolutions, was part of Portuguese territory for the purposes of Law No. 37/81.
With regard to the annexation of East Timor by Indonesia in 1976, Professor Ramos explained that this was not recognised by Portugal and it did not affect the Portuguese nationality of East Timoreans at least according to the domestic law of Portugal.
I can now turn to the first ground upon which the decision of the Tribunal is impugned. It is alleged that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law. This is a ground of review provided by s 476(1)(e) of the Migration Act.
In support of this ground the applicant puts forward a number of alternative contentions which I need do no more than summarise:
(a) If Portuguese nationality is governed by Part 1 of Section 1 of Law No. 2098 there were not sufficient facts before the Tribunal to enable it to determine whether the applicant fell within one or other of its provisions;
(b) In fact the applicant's nationality is not governed by Part 1 of Section 1 of Law No. 2098 but, if that law is the applicable law, the applicant's nationality is governed by Part 4 of Section 2 for the reason that East Timor is no longer a part of Portugal. Reliance is placed on the Constitution of Portugal for this last mentioned contention. Thus the applicant says that he is not a national of Portugal because the evidence does not show that any of the conditions in Part 4 of Section 2 have been satisfied;
(c) The law which governs the applicant's nationality is not Law No. 2098 but Law No. 37/81 which repealed and replaced Law No. 2098 and according to Law No. 37/81 the applicant would only be a Portuguese national if he was born in a territory of Portugal of a Portuguese father or a Portuguese mother and East Timor is not a territory of Portugal;
(d) If the applicant was a child of a Portuguese father or a Portuguese mother born in a Portuguese country or a territory under Portuguese administration he would only be a national or Portugal under Law No. 37/81 if he declared that he wished to be Portuguese and he has made no such declaration.
The question that arises is whether any of the foregoing contentions raise a question of law. If none of them involves a question of law the ground of review presently relied upon could not be sustained.
According to the common law whether a person is a national of a state is determined by the municipal law of that state: The King v Burgess; ex parte Henry (1936) 55 CLR 608 at 649; Sykes v Cleary No. 2 (1992) 176 CLR 77 at 105-106. There are qualifications to this rule. One is where the person on whom nationality is conferred has no connection or only a slender connection with the foreign state: Oppenheimer v Cattermole (Inspector of Taxes)  AC 249 at 277; Sykes, supra, at 112. In that circumstance the common law would not require recognition to be given to the municipal law of the foreign state. There are other circumstances where public policy may produce the same result as, for example, where a foreign hostile power seeks to change the status of an enemy alien: see Sykes, supra, at 112-113.
Customary international law also proceeds on the basis that questions of nationality are determined by the municipal laws of each state. Mr I Brownlie in his text "Principles of Public International Law" (4th ed) at 381 refers to this as the accepted view. Conventional international law is to the same effect. In 1925 the Council of the League of Nations established a committee and charged it with the task of preparing a code for the regulation of nationality. The Committee drew up the Convention on Certain Questions Relating to the Conflict of Nationality Laws (the Hague Convention) signed at the Hague in 1930 but which did not enter into force until 1937. The following Articles of the Hague Convention are relevant to the present discussion:
"It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States insofar as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality."
"Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State."
In Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1996-1997) 143 ALR 695 the Full Court pointed out that the Refugees Convention is not part of the domestic law of Australia and it must be construed having regard to the applicable principles of international law including the Hague Convention to which Australia is a party: Jong at 698.
There are limitations to the general rule that it is for each state to determine who are its nationals, especially in the case of conquered or ceded territory. For example, it has been said that according to customary international law when territory is transferred to a new sovereign by conquest or cession the people of the territory become nationals of the new government only by their consent: United States; ex rel. Schwarzkopf v Uhl (1943) 137 F (2nd) 898. Here there is no reason to depart from the general rule.
Accordingly, it was the domestic law of Portugal which the Tribunal was required to consider to determine whether the applicant was a national of Portugal. In that regard the ascertainment of the law of Portugal was a question of fact for the Tribunal: Cross on Evidence (5th ed) para 11020; R Fentiman, "Foreign Law in English Courts" (1992) 108 LQR 142; Dicey and Morris, "Conflict of Laws" (12th ed) ch 36; compare Wigmore on Evidence (Chadbourn Revision) vol 9 para 2558.
I have previously mentioned that the Tribunal found that the applicant was a Portuguese national. It based this finding on the fact that the applicant's nationality was governed by Law No. 2098. The evidence of Professor Ramos was to that effect. On the question whether the applicant's nationality was to be ascertained by reference to clause 1 of Part 1 of Law No. 2098, the Tribunal accepted the evidence of Professor Ramos that this was the applicable provision. In addition the Tribunal had before it other expert evidence which was to the same effect.
In other words, the Tribunal found that, on the proper construction of Law No 2098, a construction that was appropriate having regard to the evidence about the operation of that law, the applicant acquired Portuguese nationality by reason of his birth in a territory under Portuguese administration. In reaching that conclusion the Tribunal did not make any express finding about the nationality of the applicant's father or mother. This was said to be the reason for the submission that there were not sufficient facts before the Tribunal to enable it to find that the applicant had acquired a Portuguese nationality by the application of Part 1 of Section 1 of Law No 2098. However, the evidence of Professor Ramos was to the effect that Part 1 of Section 1 operates in such a way as to make irrelevant the nationality of the applicant's father or mother except in the case where his father or mother was in East Timor in the service of some other state. It was not suggested that the Tribunal should have been concerned with ascertaining whether this was a possibility.
In the result, the decision by the Tribunal that the nationality of the applicant fell to be ascertained under Law No 2098 was a determination of a matter of fact as was its decision that it was Part 1 of Section 1 of that Law that was the applicable provision. The same is true of the operation of Part 1 of Section 1 with regard to the applicant. Thus, the first ground of review is not made out.
In arriving at this conclusion I have not overlooked the fact that, at the time of the applicant's birth, East Timor was a non-self governing territory. East Timor was declared to be a non-self governing territory pursuant to Ch XI of the United Nations Charter. Chapter XI is concerned with the advancement of self government of colonial territories. The obligation of an administering power is to ensure the political, economic, social and educational advancement of the people in the administered territory and to develop self government of that territory: see Article 73 of the United Nations Charter.
However, the fact that East Timor was declared to be a non-self governing territory, with the consequence that Portugal acquired certain obligations with respect to the inhabitants of the territory, did not deprive Portugal of the ability to confer citizenship on the people of East Timor. What Portugal was required to do was to take steps to enable East Timor to achieve independence in accordance with the principles of self-determination. But, the creation of East Timor as a non-self governing territory did not bring to an end its status as a colonial territory. In particular, it did not bring to an end Portuguese sovereignty over East Timor.
This position may be contrasted with mandated territories created under Article 22 of the Covenant of the League of Nations and trust territories established under Article 75 of the United Nations Charter . Some jurists have argued that that the people of mandated and trust territories lose their former nationality and do not automatically acquire the nationality of the mandatory or trustee: see Dr P Weis, "Nationality and Statelessness in International Law" (1956) at 27; see also Oppenheim's "International Law" (9th ed) vol 1 paras. 87 and 95.
The second ground upon which the applicant relies also involves the assertion that the Tribunal erred in law by failing to apply the applicable law. The contention is that according to the applicable principles of international law a state cannot impose nationality on a person against the will of that person. It follows, so the argument goes, that the acquisition of nationality is dependent upon the voluntary assumption of nationality by the person concerned. The alleged error on the part of the Tribunal is that it failed to have regard to this principle when construing and applying Article 1A(2) to the facts of the case.
In dealing with this submission it is necessary to keep distinct two concepts: the original acquisition of nationality and the derivative acquisition of nationality. Generally speaking original nationality (that is nationality acquired at birth) is based on descent from a national (jus sanguinis) or birth within the territory of a state (jus soli) or a combination of jus sanguinis or jus soli: Weis, supra, at 97; Brownlie, supra, at 386-388; N. Bar-Yaacov, "Dual Nationality" (1961) ch 1; G. Schwarzenberger, "A Manual of International Law" (1967) (5th ed) at 60. There are some exceptions. For example in the Vatican City State nationality is determined by the holding of an office and residence in the territory.
The derivative acquisition of nationality is that acquired by naturalisation. Naturalisation includes not only the acquisition of nationality on application to the conferring state but its acquisition by circumstances such as marriage, subjugation after conquest, acquisition of domicile, legitimation and the like: see Weis at 98. In other words, derivative nationality is nationality that is conferred in consequence of an application or that is acquired by operation of law but it does not include the acquisition of nationality at birth. Thus derivative nationality could include both the voluntary and the involuntary acquisition of nationality.
In support of the proposition that by customary international law nationality cannot be conferred on those who do not wish to have it the applicant relied principally upon what was said by Ms R Donner in the "Regulation of Nationality in International Law" (1994) (2nd ed). In that text Ms Donner wrote (at 181):
"Under international law nationality may not be imposed on the person without his consent and laws purporting to do this are not binding on third States. This consent must be given at the time of naturalisation, or there must be an act constituting express or implied consent at some time after the imposition in order to render it valid under international law. An example of implied consent to a forcible naturalisation is shown where there is a strong factual tie between the State and the national. There must be ordinary residence in the territory and the social bond of attachment to the "body politic" of the state of the new nationality."
This passage is not authority for the proposition for which it was cited. If it was it would be inconsistent with the views of all who have written on the subject. In the first place, the passage quoted is concerned only with the acquisition of nationality by naturalisation. In the second place it is clear that the acquisition of nationality based on jus soli or jus sanguinis is the predominant mode of acquiring nationality at birth. And it has never been suggested that nationality based on jus soli or jus sanguinis requires the consent of the national. On the contrary, H F Van Panhuys in "The Role of Nationality in International Law" (1959) at 160-161 goes so far as to say that these two methods of confirming nationality (jus soli and jus sanguinis) are sanctioned by customary international law. That may be going too far. Dr Weis says (at 98) that concordance of municipal law does not create customary international law; a universal concurrence of states is necessary. Further N Bar-Yaacov in "Dual Nationality" (1961) at 2 states that:
"States are entitled not to recognise the naturalisation conferred upon an individual without his request, when the person concerned has not been attached to the naturalising country by any particular bond such as birth or residence."
Professor G S Goodwin-Gill has expressed similar views in "International Law and the Movement of Persons Between States" (1978) at 6. Conventional international law is to the same effect. Thus, the Hague Convention recognises jus soli and jus sanguinis as acceptable bases for the conferral of nationality: see Articles 12 to 16 dealing with the nationality of children.
It may be that according to international law there will be circumstances where the conferral of nationality by naturalisation will not be recognised by third states unless the conferral of that nationality is supported by the consent of the individual concerned or is based on some connection between the individual and the state. The prevailing view seems to be that there must at least be some link with the state. This issue arose in Liechtenstein v Guatemala (1955) ICJR 4 (the Nottebohm case) where the International Court of Justice considered whether Guatemala was required to recognise the nationality which Liechtenstein had conferred on Mr M Nottebohm, formerly a German national, who had sought and obtained Liechtenstein citizenship. The Court said:
"The character thus recognised on the international level as pertaining to nationality is in no way inconsistent with the fact that international law leaves it to each State to lay down the rules governing the grant of its own nationality. The reason for this is that the diversity of demographic conditions has thus far made it impossible for any general agreement to be reached on the rules relating to nationality, although the latter by its very nature affects international relations. It has been considered that the best way of making such rules accord with the varying demographic conditions in different countries is to leave the fixing of such rules to the competence of each State. On the other hand, a State cannot claim that the rules it has thus laid down are entitled to be recognised by another State unless it has acted in conformity with this general aim of making the legal bond of nationality accord with the individual's genuine connection with the State which assumes the defence of its citizens by means of protection as against other States.
According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly or by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis a vis another State, if it constitutes a translation into juridical terms of the individual's connection with the State which has made him its national."
This conforms to the common law position as stated by Lord Cross in Oppenheimer v Cattermole, supra, at 279 and by the High Court in Sykes, supra, at 112.
There is no doubt that to the extent that international law requires there to be some link between a state and an individual upon whom nationality is conferred jus soli and jus sanguinis constitute such a link: see eg Louis B Sohn & Thomas Buergenthal, "The Movement of Persons Across Borders" (1992) at para 6.04.
This disposes of the second ground of review and I can now turn to the next alleged error.
It is asserted that the Tribunal failed to properly consider whether the applicant's Portuguese nationality was an "effective nationality". The allegation is that its failure to do so was the consequence of an incorrect interpretation of Article 1A(2) of the Refugees Convention.
In Jong, supra, the Full Court held that the reference in the second paragraph of Article 1A(2) of the Refugees Convention to the nationality of a person who has more than one nationality is a reference to an "effective nationality". However, the Full Court did not explain what was required for nationality to be an "effective nationality" beyond indicating that the nationality had to be "effective as a source of protection" and that it should "entail the protection necessarily granted to nationals" of the state of the second nationality. Here it is necessary to consider in greater detail what is meant by "effective nationality" and then to decide whether, on the proper construction of Article 1A(2), a putative refugee will be denied the status of refugee if his second country of nationality is not able or willing to provide all of the privileges which a national is entitled to expect either under the domestic laws of that country or by international law.
Speaking generally, nationality is the status of a person attached to a state by the tie of allegiance. It is founded on reciprocal obligations; that is, the protection of the subject by the state and the allegiance by the subject to the state. The protection of the subject operates at two levels, viz the domestic and the international. The domestic protection that is to be accorded a national of a state is usually a matter governed by the domestic laws of that state. But according to international law, including conventional international law, a person is entitled to certain "fundamental" rights. Blackstone in his "Commentaries on the Laws of England" (18th ed) (1821) described them as the right to personal security, to personal liberty and to private property: Blackstone vol 1 at 128ff. A national is entitled to have his or her "fundamental rights" protected by the municipal laws of the state of his or her territory.
One incident of this domestic protection is the right of a national to enter into and reside in the territory of the state of nationality. In Van Duyn v Home Office  1 CMLR 1 at 18 the European Court of Justice said that it was a principle of international law that "a state is precluded from refusing to its own nationals the right of entry or residence." See also Article 13(2) of the 1948 Universal Declaration of Human Rights which provides that "[e]veryone has the right to leave any country, including his own, and to return to his country" and Article 12(4) of the 1966 International Covenant on Civil and Political Rights which states that "[n]o one shall be arbitrarily deprived of the right to enter his own country".
Finally, there is the protection given to a national by his or her state in relation to other states. This is usually referred to as diplomatic protection. Dr Weis describes diplomatic protection as "a right of a state, accorded to it by customary international law, to intervene on behalf of its own nationals, if their rights are violated by another state, in order to obtain redress": Weis at 35. Thus, if a person has been injured in breach of international law, whether of a convention or a principle of customary international law, the state of nationality of that person has standing to intervene on behalf of its national. Diplomatic protection may be exercised by amicable or non-amicable means. It may be exercised informally such as by negotiation or mediation, or more formally, by international inquiry or arbitration or by litigation in courts such as the International Court of Justice.
Is the requirement of "effective nationality" satisfied if the country of second nationality will do no more than provide protection against persecution as, for example, by allowing the putative refugee to remain in that country? Or, will the requirement only be satisfied if the putative refugee also receives protection of his or her "fundamental rights" by the country of second nationality?
It is worth recalling the underlying rationale for international refugee protection which I mentioned earlier in these reasons. That protection comes into play only on the failure of national protection by all nations of which the putative refugee is a national. This underlying rationale, that is protection from persecution, could be satisfied if the nationality is "effective" merely by providing protection against persecution.
However, the United Nations Handbook, para 107, provides:
"In examining the case of an applicant with dual or multiple nationality, it is necessary, however, to distinguish between the possession of a nationality in the legal sense and the availability of protection by the country concerned. There will be cases where the applicant has the nationality of a country in regard to which he alleges no fear, but such a nationality may be deemed to be ineffective as it does not entail the protection normally granted to nationals. In such circumstances, the possession of the second nationality would not be inconsistent with refugee status."
Here, the issue of "effective nationality" is explained in terms of equivalence to the protection normally granted to nationals. In other words, according to this view nationality will not be regarded as "effective" if, for example, the putative refugee will not receive the protection under the domestic laws of the state which all other nationals in fact receive.
There are two provisions of the Refugees Convention which also support the view that "effective nationality" is a reference to nationality that provides "effective" protection not only against return to the country of persecution but protection in other respects. The first article is Article 1C(3) which provides:
"This Convention shall cease to apply to any person falling under the terms of
Section 1A if:
(3) He has acquired a new nationality and enjoys the protection of the country of his new nationality."
The second article is Article 1E which provides:
"This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country."
These articles proceed on the assumption that international protection under the Convention will not be available only when fully effective national protection is available from some other state although, of course, in the case of Article 1E de facto protection from that other state will suffice.
It would seem to be a curious result to say the least if a person who would otherwise be a refugee would cease to hold that status if he acquires a new nationality, or a new de facto nationality, that confers all of the rights of nationality, but, in a case where a person has dual nationality, refugee status would be denied if the country of second nationality provided only some of the protections conferred by that state on its other nationals. Moreover, it must be remembered that by the Refugees Convention those countries which do grant refugee status to an individual are also required to accord to the refugee freedom of religion (Article 4), to allow the refugee freedom of association (Article 15), to permit the refugee to have free access to local courts (Article 16). If the country of second nationality would not confer those rights on the putative refugee, being rights which by international law must be afforded to a national, it could hardly be supposed that it was intended that the putative refugee must seek the protection of that state. The reason a putative refugee need not seek the protection of that state is because the nationality that the state offers cannot be regarded as a truly effective nationality.
In my view, conformably with the views expressed in the United Nations Handbook and conformably with the purpose and object of the Refugees Convention, "effective nationality" is a nationality that provides all of the protection and rights to which a national is entitled to receive under customary or conventional international law.
It is also necessary to consider whether "effective nationality" requires the state of second nationality to be able to provide diplomatic protection to the putative refugee.
By customary international law the Portuguese authorities are entitled to intervene on behalf of its nationals. But it is by no means clear whether, under international law, the international community is obliged to recognise the right of Portugal to intercede on behalf of a national who has become a national of Portugal by reason of his or her birth in East Timor and where that person also holds Indonesian nationality. In other words, what is not clear is whether Portugal, notwithstanding that it might be willing to provide diplomatic protection to such a person, has the ability to provide that protection.
There seems to be a divergence of opinion whether, in a claim against a third state by a state claiming to be one of the states of nationality, the third state can assert that the other nationality of the individual is his or her effective nationality and thereby deny the first state standing to bring the claim. In the United States v Egypt  Annual Digest (1931-1932) Case No 98, a special arbitral tribunal heard a claim by the United States Government against the Egyptian Government concerning one Salem. Egypt argued that Salem's "effective nationality" was Egyptian and, accordingly, that the United States could not maintain the claim. The Tribunal held that "the principle of so called effective nationality" was not part of international law. In any event, the Tribunal said that in a case of dual nationality a third power is not entitled to contest the claim of one of the two powers whose national is interested in the case by refusing to recognise the nationality of the other power. On the other hand in the Merge claim 22  ILR 443 the Italian-United States Conciliation Commission approved the principle of effectiveness. Mr Brownlie suggests that one effect of Nottebohm's case is to apply the principle of effective nationality to the case of dual nationality. If that is correct it may be that the international community will now not recognise the standing of Portugal to protect the interests of the applicant and others in his position.
Reference should also be made to Article 5 of the Hague Convention. It provides that within a third state, a person having more than one nationality is to be treated as having only one nationality and, without prejudice among other things to any Convention in force, the third state is to recognise exclusively the nationality of the country where the person is habitually and principally resident or with which he appears to be in fact most closely connected. It is true, as the Full Court pointed out in Jong 143 ALR at 702-3, that Article 5, which is concerned with the undesirability of a person having more than one nationality, is not of direct application to the construction of Article 1A(2) of the Refugees Convention for the reason that the Article expressly recognises the possibility of dual nationality. But the effect of the Article 5 and the effect of Nottebohm's case will have direct relevance to the question whether the applicant's Portuguese nationality will enable Portugal to provide the applicant with the diplomatic protection normally accorded to other nationals of Portugal.
However, it is not necessary for me to resolve the difficult question whether, under customary international law, Portugal would have standing to provide diplomatic protection to the applicant and other East Timoreans. In my view, on the proper construction of Article 1A(2) of the Refugees Convention, the potential inability of Portugal to provide diplomatic protection would not render it a state that is incapable of providing "effective nationality".
My reason for this conclusion is that a national does not have a right to diplomatic protection from his or her state; that is, it is not a right of nationality. Diplomatic protection is the right of the state to intervene on behalf of its nationals. The state has complete discretion whether to exercise this right and is not in any way bound to protect its nationals: see E Borchard "The Diplomatic Protection of Citizens Abroad"(1922) at 352, 356. When it does so the state is in reality asserting its own right to ensure, for the protection of all of its nationals, that international laws are observed: see Mavrommatis Palestine Concessions case, Permanent Court of International Justice, Series A, No. 2.
In the present case the Tribunal did consider whether the applicant's Portuguese nationality was an "effective nationality". It found that "the evidence available to the Tribunal leads to the conclusion that the Portuguese authorities are, in fact, clearly willing to provide the applicant with durable protection to the requisite standard" and that "the Portuguese authorities recognise the claims of citizenship [by East Timoreans]" with the consequence that the applicant "can access his birthright to Portuguese nationality, which is effective and affords the applicant the rights and obligations of other Portuguese citizens." The applicant says that these findings, which are clearly findings of fact, were not open on the evidence that was before the Tribunal and that this is a reviewable error.
The evidence upon which the Tribunal said it based these findings was correspondence with the Ambassador of Portugal and, I assume, notes of a discussion that took place with the Ambassador. It is important to refer to this evidence in some detail. It begins with a letter dated 21 April 1995 from the Department of Immigration and Ethnic Affairs to the Ambassador. The letter reads:
"I am writing to you following discussions with the Department of Foreign Affairs and Trade and the Attorney-General's On 18 April 1994 a delegate of the Minister rejected the application on the basis that the applicant did not have a well founded fear of persecution if he was required to return to East Timor. As you know, this Department has responsibility for deciding applications by persons seeking Australia's protection under the 1951 Convention relating to the Status of Refugees (the "Convention") as amended by the 1967Protocol relating to the Status of Refugees (the "Protocol").
Nationality is a threshold issue in making an assessment under the Convention and the Protocol. The Department has received advice to the effect that the relevant Portuguese law prescribes that:
Since October 1981, persons born within Portuguese territory (including East Timor) who were the children of a Portuguese father or mother have Portuguese nationality; and
Before 10 October 1981, persons born in Portugal (and East Timor) are Portuguese nationals.
On this basis, it is clear that persons who come to Australia from East Timor and claim that they are refugees within the meaning of the Convention and Protocol are not, at international law, entitled to do so until they have availed themselves of the protection which Portugal must extend to persons who fall within the nationality definition of its own law. This derives, of course, from the last paragraph of Article 1A(2) of the Convention. It is therefore likely that the relevant people from East Timor in Australia could approach your offices for their Portuguese travel documentation so that they can avail themselves of that protection."
The Ambassador replied by letter dated 1 June 1995. He wrote:
"I would like to thank you for your letter of 21st April 1995, regarding the "recent applications for refugee status in Australia made by people from East Timor", the content of which was brought to my authorities and given careful consideration by them.
I am instructed to inform you that, being East Timor a non-self-governing territory under Portuguese administration according to international Law, it derives from article 293 of the Portuguese Constitution that every East Timorese to whom Law 37/81, of October 3rd, is applicable and provided that he so wishes, will be entitled to prevail himself of the Portuguese nationality and, therefore, to apply for relevant Portuguese documentation and protection.
The Portuguese authorities have taken good note of the fact that your Department's assessment of the legal situation of the East Timorese in the light of the relevant provisions of the Portuguese Law concurs with their own interpretation as mentioned above."
There are two points to note about this response. First, it assumes that the position of East Timoreans will always be governed by Law No. 37/81. It will be recalled that the evidence of Professor Ramos was that the nationality of the applicant was governed by Law No. 2098 being the law that was in force at the date of his birth. Second, the Ambassador states that Portuguese nationality will be available "provided that [any East Timorean] so wishes." When regard is had to clause 1 of Article 1 of Law No. 37/81 the statement of the Ambassador implies that he had in mind sub-clause (b) which provides that nationality is conferred on "children of a Portuguese father or Portuguese mother born abroad who declare that they wish to be Portuguese" rather than the automatic nationality that is conferred by sub-clause (a).
On 5 December 1995 the Department wrote to the Ambassador and asked him a series of questions concerning the nationality of East Timoreans. The questions were posed in relation to an hypothetical person who was born in East Timor in 1973 and who arrived in Australia in 1992. The letter then proceeded:
"Thus, according to law number 2098 he has Portuguese nationality. He approaches the Portuguese consular authorities in Australia seeking authority to go to Portugal as a Portuguese national. He has an Indonesian passport (showing place of birth as East Timor) and is able to produce other documentation to confirm date and place of birth.
Would the Portuguese authorities in Australia conduct the necessary administrative checks and issue him with a Portuguese passport enabling him to travel to Portugal? If so, are there any restrictions or limitations placed in the passport; i.e. would it be valid for travel to Portugal only, or
Would the Portuguese authorities issue him with a one way travel visa only, to enable him to go to Portugal where his application for recognition as a national would be processed?
If this verification process takes place in Portugal, how long would that normally take and what procedures are involved?
While waiting for a passport and/or an identity card to be issued, what rights does he enjoy to legal employment, education, social services and public medical assistance; i.e. would he have the same rights and entitlements as other Portuguese citizens in Portugal?
If he leaves Portugal before obtaining his passport or identity card does he have an automatic right to re-enter Portugal?
On 19 December 1995 the Ambassador provided the following response. He wrote:
"With reference to your letter, dated December 5, I would like to refer to my letter to the Department of Immigration and Ethnic Affairs, of June 1st 1995. I am instructed to inform you that, that letter covers the position of the Portuguese Government regarding East Timor and the Portuguese laws concerning nationality. We will be unable to answer questions pertaining to other matters presently being dealt with by the Department regarding asylum seekers from East Timor.
This Embassy and the Portuguese Consulates in Australia are at the reach of those Timorese or Portuguese who may wish to avail themselves of their assistance. For that purpose, they can contact these offices and present their requests personally."
I draw attention to the fact that, again by implication, the Ambassador was still continuing to deny that the nationality of a person born in East Timor when Law No. 2098 was in force is governed by that law. It is clear enough that the Ambassador was expressing the view that the nationality of such a person is governed by Law No. 31/81.
Then there is a minute of a discussion that took place between the Ambassador and senior representatives of the Department, a discussion that occurred at the Ambassador's request. Although it is a lengthy document it is necessary to set out most of its contents:
"The Ambassador confirmed his earlier advice that Portugal recognises (under its Nationality Laws) persons born in East Timor are Portuguese nationals and may apply to enter Portugal. He said that the current law was drafted in recognition of the decolonisation process - it was not designed to assimilate people into the Portuguese nation but rather to avail them of a free choice to live in Portugal until something better comes along for them.
The Portuguese regard this as an option for the East Timorese. Portugal would not want any suggestion or announcement that there has been an agreement forged between Australia and Portugal to force the East Timorese to Portugal. There would need to be a case by case examination. The Ambassador emphasised these two points several times (ie there is no arranged position between Australia and Portugal and Portugal will want to deal with cases as they come up).
The Ambassador then discussed arrangements in Australia. He suggested that the people who arrived by boat should apply in the cities where they are located...He also urged that in the case of those who do have a legitimate fear of Indonesia we give consideration to granting them refugee status.
I said we would want to satisfy ourselves about the nationality of the people concerned. If we are satisfied that these people are able to obtain Portuguese nationality then we would not proceed with examination of refugee claims because our protection obligations would not be engaged.
I said we could face a situation where we are satisfied on the nationality issue, our protection obligations were not engaged but the people concerned do not voluntarily apply for entry to Portugal. The Ambassador said that his instructions from Portugal do not cover the case where we would want to remove people who do not wish to go to Portugal. The advice he has is on the basis of people going freely to the Consulate. He could not at this stage of the instruction agree to forced removals to Portugal. He reiterated the process involved a case by case examination but in extreme cases, Portugal may accept people without documentation.
The information provided by the Ambassador and the conclusions that can be drawn from that information are as follows, in my opinion:
(a) Contrary to the evidence of Professor Ramos as to the correct legal position, Portugal does not recognise that the nationality of an East Timorean, such as the applicant, is governed by Law No. 2098.
(b) Contrary to the evidence of Professor Ramos as to the correct legal position, Portugal does not treat an East Timorean whose nationality is governed by Law No. 31/81 as automatically a national of Portugal under Article 1 clause (a) but as subject to Article 1 clause (b) in that he or she must declare that he or she wishes to become a Portuguese national before that nationality will be conferred.
(c) Contrary to the evidence of Professor Ramos as to the correct legal position, Portugal does not consider East Timor to be a part of the territory of Portugal.
(d) If an East Timorean does not wish to become a Portuguese national the protection afforded to Portuguese citizens will not be afforded to that person.
(e) If an East Timorean is deported to Portugal it is unlikely that he or she will receive the protection given to Portuguese nationals.
(f) An East Timorean who does declare that he or she wishes to become a Portuguese national may not necessarily be granted that nationality because his or her claim will be determined on a "case by case examination.
In my view both the oral and written statements of the Ambassador do not admit of the conclusion that Portugal "recognises claims of citizenship" and is "clearly willing to provide durable protection" to those of its citizens who have been born in East Timor. Moreover, I fail to see how, in those circumstances, the Portuguese nationality of East Timoreans, a nationality that exists according to the laws of Portugal, can be described as an "effective nationality" when the government of that country does not accept that those laws apply in the way that was outlined by Professor Ramos. That is to say, one essential element in the concept of an "effective nationality" is the recognition of the existence of nationality by the state of nationality.
Thus the Tribunal was in error in its findings of fact that I have mentioned and in its conclusion, based on those erroneous findings of fact, that the Portuguese nationality of the applicant is an "effective nationality".
Do these errors enable the decision of the Tribunal to be set aside? Section 476(1)(g) of the Migration Act provides for a ground review of the decision of the Tribunal in the following terms: "that there was no evidence or other material to justify the making of the decision."
It is clear enough, indeed it is an inevitable finding, that the decision of the Tribunal was based upon the erroneous findings of fact. Not only was the decision based on those findings, the findings were critical to the making of the decision because the Tribunal had accepted that it was necessary for it to find that the applicant's Portuguese nationality was an "effective nationality" before it could deny to the applicant the status of a refugee.
In Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 221 Black CJ, speaking for the Full Court, said of s 5(3)(b) of the Administrative Decisions Judicial Review Act (Cth), which is in similar terms to s 476(1)(g) of the Migration Act:
"Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. The small factual link in the chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision if based is the fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leaves the decision maker to take one path in the process of reasoning rather than another and so come to a different conclusion."
However, it is also necessary for the applicant to establish that the "facts" for which there was no evidence, and upon which the decision of the Tribunal was based, were "facts" that did not exist. This obligation follows from s 476(4) of the Migration Act that provides:
"The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact and that fact did not exist."
The applicant did establish the non existence of the critical "facts" by the tender of a press communique issued by the Embassy of Portugal in June 1998. The communique is in the following terms:
"The Portuguese Government has been following closely the developments regarding Australian Tribunal and Court findings on the nationality of East Timorese asylum seekers. Portugal regrets the Tribunal's decision on the case Jong Kim Koe considering that Australia, despite being a party to the Refugees Convention and Refugees Protocol is under no obligation of granting protection to the Applicant on grounds that he can avail himself of the protection of Portugal.
As other East Timorese asylum seekers in Australia, Mo Koe has never applied for Portuguese citizenship, therefore there is no basis for him to enjoy protection from the Portuguese authorities. Portugal has consistently stated that the attribution of Portuguese citizenship to East Timorese born persons presupposes an individual and voluntary application that reveals the wish to become a Portuguese national. It means that East Timorese are not automatically Portuguese nationals.
Portuguese nationality laws were not designed to force the assimilation of East Timorese people into the Portuguese State, but to positively provide them with the right of exercising a free choice on what concerns their nationality until self determination is settled in the Territory. The application of Portuguese nationality laws must be done in accordance with the right to self-determination of the people of East Timor, as required by Article 293 of the Portuguese Constitution and international law.
It is ironical that Australia, the single member State of the international community that has recognised "de jure" the integration of East Timor in Indonesia, for the sake of granting protection to East Timorese now considers them to be Portuguese. In fact "Australia has never considered the people of East Timor as anything but Indonesian since 1979, as Foreign Minister Downer said, so the finding on Mr Koe case can only be interpreted as a denial of responsibilities towards East Timorese persons from Australian authorities.
Portugal will continue to consider, on a case by case basis, all applications for Portuguese nationality by persons born in East Timor who voluntarily seek to obtain it."
This communique confirms what the Ambassador had previously advised the Department, namely that East Timoreans are not automatically regarded as Portuguese nationals. It indicates the view of Portugal that for an East Timorese to become a national he or she must make an application to become a national and that application may not be granted. If it does nothing else, this communique also demonstrates the potential danger confronting an Australian court or tribunal when determining the existence of an "effective nationality" in the absence of a clear indication from the state concerned that the claimed nationality is recognised to exist. This is not to say that Australian courts and tribunals can avoid their obligation to determine such issues when they come up for consideration. But it serves to emphasise that questions such as are here under consideration must be approached with a good deal of caution because of the potentially serious consequences that may flow from a wrong decision.
I should mention that the Minister did object to the tender of the press communique. However, in my view its reception into evidence is permitted by reason of the fact that s 476(1)(g) of the Migration Act requires an applicant who seeks to establish the "no evidence" ground of review to lead evidence that the "fact" in question does not exist. In the ordinary case the non-existence of the asserted "fact" will usually be proved by the tender of evidence at the hearing of the application for review as has occurred here.
For the foregoing reasons the decision of the Tribunal must be set aside and the respondent must pay the applicant's costs of the review. I will hear the parties on what other orders should be made and in particular whether the matter should be remitted to the Tribunal for its reconsideration or whether I should make a decision in substitution for the decision set aside.
I certify that this and the preceding twenty five (25) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein
Dated: 30 October 1998
Counsel for the Applicant: Mr BA Keon-Cohen QC
Solicitor for the Applicant: Erskine Rodan & Associates
Counsel for the Respondent: Mr RRS Tracey QC
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 6, 7 October 1997 and 24 June 1998
Date of Judgment: 30 October 1998