"SRPP" and Minister for Immigration and Multicultural Affairs  AATA 878
|Publisher||Australia: Administrative Appeals Tribunal|
|Author||Administrative Appeals Tribunal|
|Publication Date||5 October 2000|
|Cite as||"SRPP" and Minister for Immigration and Multicultural Affairs  AATA 878 , Australia: Administrative Appeals Tribunal, 5 October 2000, available at: http://www.refworld.org/cases,AUS_AAT,3ae6b76714.html [accessed 30 March 2017]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
DECISION AND REASONS FOR DECISION  AATA 878
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
And Minister for Immigration and Multicultural Affairs
Tribunal Justice DF O'Connor, President Dr P Nygh, Principal Member of the Refugee Review Tribunal Miss SA Forgie, Deputy President
Date 5 October 2000
Decision The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the direction that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention.
CORRIGENDUM TO DECISION  AATA 878
Tribunal : The Hon Justice D F O'Connor, President
Dr P Nygh, Principal Member, Refugee Review Tribunal
Miss S Forgie, Deputy President
Date : 24 October 2000
Place : Sydney
Being satisfied that there is an obvious error in the text of the decision in this matter, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 I direct the Registrar of the Tribunal to alter the text of the decision in accordance with the following directions, namely:
1. Replacing the final sentence of paragraph 13 with the following:
"The Respondent was represented by Henry Burmester QC and GA Mowbray, instructed by John Eyers of the Department of Immigration and Multicultural Affairs."
2. Amending the appearances page, such that the section relating to representatives for the Respondent reads as follows:
"Counsel for the Respondent: Mr H Burmester QC and Mr GA Mowbray Respondent Instructed By: Mr J Eyers of the Department of Immigration and Multicultural Affairs."
IMMIGRATION AND CITIZENSHIP - referral of RRT-reviewable decision to AAT - whether Australia has protection obligations to the Applicant under the Refugees Convention - Applicant resident in East Timor prior to arrival in Australia - whether East Timor is country of primary reference - whether effective protection available to the Applicant in East Timor - whether Applicant has a right to enter, reside in and re-enter East Timor - whether Applicant has a well-founded fear of persecution in East Timor - whether UNTAET able to provide effective protection from persecution - whether effective protection available to the Applicant in Indonesia or Portugal - whether Applicant has a right to enter, reside in and re-enter Indonesia or Portugal
Administrative Appeals Tribunal Act 1975 - ss. 21(1)(a), 35(2), 37
Domicile Act 1982 - s. 10
Migration Act 1958 - ss. 5, 36(2), 65, 411(1), 443, 444(1)(a), 446, 450
Migration Regulations - item 866.221 of Schedule 2
Convention relating to the Status of Refugees done at Geneva on 28 July 1951
Protocol relating to the Status of Refugees done at New York on 31 January 1967
Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Horvath v Secretary of State for the Home Department  3 WLR 379
Koe v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 289
Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685
Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 167 ALR 175
SZ v Minister for Immigration and Multicultural Affairs (2000) 173 ALR 353
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515
Al-Zafiry v Minister for Immigration and Multicultural Affairs  FCA 443
Minister for Immigration and Ethnic Affairs v Prathapan (1998) 156 ALR 672
Rajendran v Minister for Immigration and Multicultural Affairs (1998) 166 ALR 619
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 144 ALR 567
Hellman v Minister for Immigration and Multicultural Affairs  FCA 645
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331
Ram v Minister for Immigration and Ethnic Affairs and Another (1995) 130 ALR 314
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553
Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401
Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458
Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695
Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681
Tharmalingam v Minister for Immigration and Multicultural Affairs  FCA 1180
Katkova v Minister of Citizenship and Immigration (Canada) (1997) 40 Imm LR (2d) 117
REASONS FOR DECISION
5 October 2000 Justice DF O'Connor, President Dr P Nygh, Principal Member of the Refugee Review Tribunal Miss SA Forgie, Deputy President
LEGISLATIVE FRAMEWORK AND PROCEDURAL HISTORY 4
Migration Act and Regulations 4
The Convention 5
Procedural History 5
FACTUAL BACKGROUND 8
PRELIMINARY ISSUE 11
The Present Status of East Timor in International Law 11
East Timor as a Country of Primary Reference 12
SUBSTANTIVE ISSUES 13
DOES THE APPLICANT HAVE EFFECTIVE PROTECTION AVAILABLE TO HIM IN A COUNTRY OTHER THAN AUSTRALIA? 15
Is there effective protection available to the Applicant in East Timor? 15
Does the Applicant have a right to enter, reside in and re-enter East Timor? 15
Does the Applicant have a well-founded fear of persecution for a Convention reason in that territory? 16
Legal principles to be applied 16
Application of those principles to the facts of this case 21
Convention grounds 21
The fear of persecution on the part of the Applicant 22
Is there effective protection from persecution for the Applicant in East Timor? 24
Is there effective protection available to the Applicant in a third country? 29
Is there effective protection available to the Applicant in Indonesia? 29
Is there effective protection available to the Applicant in Portugal? 32
As a matter of domestic law 32
Effective Nationality 42
Nationality and International Law 44
1. This is an application for review of a decision made on 23 August 1996 by a delegate of the Minister for Immigration and Multicultural Affairs ("Respondent") to refuse to grant the Applicant a protection visa under the Migration Act 1958 ("Act").
LEGISLATIVE FRAMEWORK AND PROCEDURAL HISTORY
Migration Act and Regulations
2. A protection visa is one of the classes of visa for which provision is made in the Act. Section 36(2) of the Act provides that:
A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The "Refugees Convention" is defined in s. 5 of the Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the "Refugees Protocol" to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. We will refer to both as the "Convention".
3. The Minister must grant a protection visa if he is satisfied that the criteria prescribed by the Act and the Migration Regulations have been fulfilled but must refuse it if he is not so satisfied (s. 65). Among the criteria for a protection visa prescribed by the Migration Regulations at item 866.221 of Schedule 2 is that:
The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
4. The time at which the Applicant must meet these criteria is the time at which the determination of his status is made (Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302 per Mason, Deane and Dawson JJ applied in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 387 per Mason CJ, at 399 per Dawson J and at 405 per Toohey J). As the Administrative Appeals Tribunal Act 1975 ("AAT Act") as modified by Division 9 of the Act applies to the decision, it follows that the time at which the Applicant must meet the criteria is the time at which we make our decision.
5. The Convention is concerned with the status and protection of refugees. In so far as it is relevant to this case, a "refugee" is defined in Article 1A(2) of Chapter I as a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
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 the 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.
Articles 1C, D, E and F set out the circumstances in which the Convention ceases to apply to a person who has come within the definition of a refugee. None applies to this case.
6. Of relevance in this case is Article 33(1) of the Convention which provides that:
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.
7. The Applicant lodged his application for a protection visa with the then Department of Immigration and Ethnic Affairs on 21 February 1995. The delegate of the Respondent refused the grant of a protection visa on the basis that Australia does not owe the Applicant protection obligations under the Convention. The delegate was satisfied that the Applicant is a Portuguese citizen and that Portugal offers him its protection.
8. The decision of the delegate of the Respondent was an RRT-reviewable decision within the meaning of s. 411(1) of the Act. The Applicant applied to the Refugee Review Tribunal ("RRT") for review of the decision on 23 September 1996.
9. On 2 February 2000 the Principal Member of the RRT referred the decision to the President of the Administrative Appeals Tribunal ("AAT") pursuant to s. 443(1) of the Act on the basis that the decision under review raises important issues of general application. In accordance with s. 443(4) of the Act, the Principal Member of the RRT gave notice of the making of the referral to the Applicant and to the Secretary of the Department of Immigration and Multicultural Affairs ("DIMA"). On 14 March 2000 the President of the AAT directed that the AAT accept the referral of the decision pursuant to s. 444(1)(a) of the Act.
10. In accordance with s. 37 of the AAT Act as modified by s. 450 of the Act, the Principal Member of the RRT forwarded to the AAT all documents and other records relating to the proceeding before the RRT with respect to the decision under review. These documents comprise the RRT file numbered V96/05066 and a copy of the DIMA file numbered V95/000273.
11. For the purposes of the exercise of its powers in relation to this matter, the AAT was constituted in accordance with s. 21(1)(a) of the AAT Act as modified by s. 446 of the Act. The Tribunal comprises a presidential member who is a Judge, the Principal Member of the RRT and one other member (not being a Judge).
12. On 23 March 2000 the Tribunal made an order pursuant to s. 35(2) of the AAT Act restricting publication of the name and address of the Applicant and directed that the Applicant be referred to as "SRPP". During the course of the hearing, the Tribunal made a further order pursuant to s. 35(2) of the AAT Act prohibiting the publication of the names, addresses or any identifying details of the deponents of the affidavits accepted into evidence. These reasons for decision have been prepared so as to comply with these orders.
13. The hearing of this matter was held in Darwin on 17, 18 and 19 July 2000. The Applicant was represented by Mr Colin McDonald QC instructed by Mr J Hunyor of the Northern Territory Legal Aid Commission. The Respondent was represented by Mr Henry Burmester QC instructed by Mr GA Mowbray of the Australian Government Solicitor.
14. The Tribunal had before it the documents provided by the Principal Member of the RRT to the AAT pursuant to the modified s. 37 of the AAT Act. The following documents lodged by the parties were made exhibits during the hearing:
affidavit sworn by the Applicant on 2 June 2000 (Exhibit A1);
affidavit sworn by the Applicant on 14 July 2000 (Exhibit A2);
affidavit sworn by an Australian of Chinese Timorese origin with business interests in East Timor on 28 June 2000 (Exhibit A3);
affidavit sworn by the Applicant's brother on 27 June 2000 (Exhibit A4) and an accompanying affidavit sworn by the interpreter on 27 June 2000 (Exhibit A5);
affidavit sworn by an Australian of East Timorese origin working as a consultant for a bank in East Timor on 28 June 2000 (Exhibit A6);
affidavit sworn by the director of a non-government organisation assisting refugees in East Timor on 1 July 2000 (Exhibit A7);
affidavit sworn by an Australian of Chinese Timorese origin with business interests in East Timor on 11 July 2000 (Exhibit A8);
affidavit sworn by an employee of the United Nations Transitional Administration in East Timor on 27 June 2000 (Exhibit A9);
miscellaneous documents lodged by the Applicant containing factual material relevant to the application (Exhibit A10);
Memorandum of Expert Opinion of Associate Professor T Lindsey dated 6 June 2000 (Exhibit A11);
Opinion of Professor G Goodwin-Gill dated 4 July 2000 (Exhibit A12);
miscellaneous documents lodged by the Respondent containing material relevant to the application (Exhibits R1 and R2).
The Tribunal also had before it a paper prepared by a team of judges of the Dili District Court entitled "Law Enforcement in East Timor from a National Historical Perspective". A copy of the paper was provided to the Applicant and the Respondent.
15. On 4 August 2000 the Tribunal received from the Respondent a further affidavit sworn on 4 August 2000 by Mr RLM Illingworth, Assistant Secretary of the Onshore Protection and Review Branch in DIMA with a request that it be admitted as evidence in the application. The Tribunal sought the views of the Applicant in relation to the request. By letter dated 9 August 2000 the Applicant's solicitor informed the Tribunal that the Applicant objected to the material being put before the Tribunal.
16. The Tribunal decided to admit the affidavit and informed the Applicant and the Respondent of this decision on 18 August 2000. The Tribunal invited the Applicant and Respondent to make written submissions by 25 August 2000 regarding the matters addressed in the affidavit and on the decision of Horvath v Secretary of State for the Home Department  3 WLR 379 which the Respondent had drawn to the Tribunal's attention. Further written submissions were received from the Applicant and from the Respondent by that time.
17. The Applicant and the Respondent prepared a Statement of Agreed Facts. The following paragraphs are based on that statement.
18. The Applicant was born in East Timor in November 1969. At the time of Indonesia's occupation in 1975, East Timor was a non self-governing territory within the meaning of Chapter XI of the Charter of the United Nations. By Indonesian Law No. 7 of 1976 East Timor was annexed by Indonesia as an indivisible part of the united nation of the Republic of Indonesia. Portugal withdrew from East Timor in 1975 but continued to maintain that it was the administering power for East Timor.
19. The Applicant was resident in East Timor until he departed for Australia in December 1994. Having obtained a visitor visa in October 1994, he entered Australia on 17 December 1994 on an Indonesian passport issued in Dili, East Timor in 1990. The Applicant has resided in Australia since his arrival.
20. In the protection visa application lodged on 21 February 1995 the Applicant described his ethnic group as Timorese Chinese and his religion as Catholic. He described his citizenship at birth as Portuguese but his then current citizenship as Indonesian. The Applicant stated that he lost his Portuguese citizenship when Indonesia invaded East Timor in 1975. In a statement attached in support of his application for a protection visa, the Applicant claimed to fear for his life because of the brutal and discriminatory treatment by the Indonesian authorities in East Timor of East Timorese people, particularly those seen as anti-Indonesian including himself and members of his family.
21. By an agreement entered into in New York ("New York Agreement") on 5 May 1999, Indonesia and Portugal entrusted the Secretary-General of the United Nations with conducting a popular consultation of the people of East Timor to determine whether they would accept or reject a proposed constitutional framework for special autonomy within the Republic of Indonesia. Under Article 6 of the New York Agreement it was provided that, should the people of East Timor reject the proposal for special autonomy within Indonesia, Indonesia would take the constitutional steps necessary to terminate Indonesia's links with East Timor, thus restoring under Indonesian law the status that East Timor held prior to 17 July 1976, the date of Indonesia's purported annexation of East Timor. The Governments of Indonesia and Portugal would thereafter agree with the Secretary-General on arrangements for a peaceful and orderly transfer of authority in East Timor to the United Nations, which would then initiate a process enabling East Timor to begin a transition towards independence.
22. The popular consultation provided for under the New York Agreement was conducted on 30 August 1999. By a large majority, the people of East Timor chose not to accept the proposed constitutional framework under which East Timor would have a special autonomy within the Republic of Indonesia.
23. On 15 September 1999 the United Nations Security Council passed resolution 1264 which invited the Secretary-General to plan and prepare for a United Nations transitional administration in East Timor incorporating a United Nations peacekeeping operation to be deployed in the implementation phase of the popular consultation. On 4 October 1999 and pursuant to resolution 1264, the Secretary-General provided to the United Nations Security Council a report on the situation in East Timor.
24. The United Nations Security Council passed resolution 1272 on 25 October 1999 authorising the establishment of a United Nations Transitional Administration in East Timor ("UNTAET"). The Security Council endowed UNTAET with overall responsibility for the administration of East Timor and empowered it to exercise all legislative and executive authority.
25. On 27 November 1999 UNTAET promulgated Regulation No. 1999/1 which was deemed to have entered into force on 25 October 1999. The regulation established the authority of the interim administration according to which all legislative and executive authority is vested in UNTAET and exercisable by the Transitional Administrator. Regulation No. 1999/1 empowers UNTAET to make laws on East Timorese citizenship but no laws have as yet been made.
26. On 25 February 2000 UNTAET promulgated Regulation No. 2000/9 for the purpose of establishing a border regime to control entry and exit of persons and goods to and from East Timor and establishing a Border Service for East Timor. Section 7 deals with permits to enter East Timor and provides that persons seeking entry to East Timor are to be classified into persons who require permits granting entry to East Timor and persons who do not require such permits. Paragraph 7.4(b) applies to the Applicant such that he is not a person who requires a permit to enter East Timor.
27. The Indonesian Majelis Permusyawaratan Rakyat [People's Consultative Assembly] adopted a decree on 20 October 1999 ratifying the ballot result in East Timor and accepted the separation of East Timor from Indonesia. The decree required the President and the House of Representatives to revoke the 1976 law on East Timorese incorporation.
28. Indonesia intends to enact legislation to compel its East Timorese citizens to choose between their Indonesian and any other citizenship but not before East Timor becomes an independent state. Indonesia has not yet changed its citizenship laws in relation to East Timorese inhabitants.
29. Portugal has not yet changed, nor does it have any intention of changing, its nationality laws based on recent political changes in East Timor.
30. The Tribunal notes that the Applicant only provisionally accepted the facts outlined in the previous three paragraphs. However, the Applicant did not lead any evidence at the hearing to contradict any of the facts there outlined.
31. In this case a preliminary issue arises as to the country or countries against which the claims of the Applicant under the Convention must be assessed. They were originally made against Indonesia when that country occupied East Timor. They are now made in respect of the failure of UNTAET as the administering authority of East Timor to afford adequate protection. There also remains the issue of whether Portugal still has any obligation of protection towards the Applicant.
The Present Status of East Timor in International Law
32. The Applicant tendered at the hearing an opinion prepared by Professor Guy S. Goodwin-Gill, Professor of International Refugee Law at the University of Oxford, dated 4 July 2000 (Exhibit A12). We accept the following conclusions drawn by Professor Goodwin-Gill from the recent events in East Timor.
5.1 East Timor has not been annexed or incorporated into the territory of another State; on the contrary, its de facto incorporation into another State has been brought to an end.
5.2 East Timor has not been recognized as a 'State' in international law; its status must therefore be considered on the basis, among others, of the relevant resolutions of the United Nations Security Council.
5.3 The United Nations Transitional Administration for East Timor enjoys extensive rights of internal administration and external control.
5.4 Portugal's responsibilities as administering power are effectively at an end. The consultation process and passage under UN administration reaffirm the people's link to the territory, to the exclusion of any residual authority on the part of both the former colonial power and the former de facto occupying State.
East Timor as a Country of Primary Reference
33. As noted before, East Timor is not as yet a sovereign independent State. As Professor Goodwin-Gill noted in his opinion, the present status of East Timor is analogous to that of a 'protected State' or 'protectorate' with the United Nations in the role of the protecting State. No provision has as yet been made with respect to the nationality of its inhabitants. However, pending a regulation on East Timorese nationality, provision has been made in Regulation No. 2000/9 7.4(b) for any person born in East Timor before December 1975 to have a right of entry without permit to East Timor. As agreed, the Applicant falls within that category.
34. Professor Goodwin-Gill expressed the opinion that "[A] claim for protection as a refugee by an 'East Timorese' is to be determined 'as if' the individual were returnable as a national to the territory of East Timor". For the Respondent it was argued that it was not necessary to proceed on the basis of a "quasi-nationality": if the Applicant had a right of re-entry into East Timor and would receive effective protection in that country, Australia's obligation under Article 33(1) of the Convention would not be engaged. We agree with this submission of the Respondent. We conclude and so find that East Timor should be treated as the country of primary reference. There is no doubt that East Timor fulfils the criteria of a "country" as used in Article 1A of the Convention according to the criteria set out by Tamberlin J in Koe v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 289 at 299. It is a distinct area with identifiable borders, has its own immigration laws and is inhabited by a permanent identifiable community.
35. The central issue for determination in this application is whether Australia owes protection obligations to the Applicant. The parties through their representatives agreed that any determination of Australia's obligations under the Convention must start with the principle laid down by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685.
36. In Thiyagarajah von Doussa J (with whom Moore and Sackville JJ agreed) recognised (at 698) that Article 33(1) of the Convention "imposes the principal obligation required by the Refugees Convention on a Contracting State". (See also Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 167 ALR 175 at 185 per Heerey, Carr and Tamberlin JJ where Article 33(1) is rightly described as "the engine room of the Convention".) Von Doussa J defined that principal obligation (at 698) as being not to "expel or return a refugee to the frontiers of territories where his life or freedom would be threatened on account of a Convention reason". The obligation is a negative one: it falls short of imposing a positive obligation to grant asylum to an applicant who meets the definition in Article 1A(2) of the Convention: SZ v Minister for Immigration and Multicultural Affairs (2000) 173 ALR 353 at 356 per Branson J with whom Beaumont and Lehane JJ agreed.
37. Hence, Australia's protection obligations are not engaged in the case where Australia can require a person to go to a country where that person will have effective protection from refoulement as defined in Article 33(1) of the Convention. As von Doussa J said in Thiyagarajah (at 702):
It is not necessary for the purposes of disposing of this appeal to seek to chart the outer boundaries of the principles of international law which permit a Contracting State to return an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status. It is sufficient to conclude that international law does not preclude a Contracting State from taking this course where it is proposed to return the asylum seeker to a third country which has already recognised that person's status as a refugee, and has accorded that person effective protection, including a right to reside, enter and re-enter that country. The expression "effective protection" is used in the submissions of the minister in the present appeal. In the context of the obligations arising under the Refugees Convention, the expression means protection which will effectively ensure that there is no breach of Art 33 if the person happens to be a refugee.
We note that von Doussa J's approach was approved by the High Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515 (at 519 per Gleeson CJ, McHugh, Gummow and Hayne JJ).
38. The precise issue for determination under Article 33 of the Convention depends upon whether it is intended to return the person to the country of his or her nationality or to another country. If it is intended to return him or her to the former, the issue is whether he or she will be given effective protection in conformity with Article 33. If it is intended to return him or her to another, or third, country, the issue is whether:
... as a matter of practical reality and fact, the applicant is likely to be given effective protection by being permitted to enter and to live in a third country where he will not be under any risk of being refouled to his original country ...
(Al-Zafiry v Minister for Immigration and Multicultural Affairs  FCA 443 at paragraph 26 per Emmett J and approved by the Full Court of the Federal Court in Al-Sallal at 184-185.) That will be so even if the person happens to be by definition a refugee: Minister for Immigration and Ethnic Affairs v Prathapan (1998) 156 ALR 672 at 681 per Lindgren J with whom Burchett and Whitlam JJ agreed.
39. The third country need not be one in which the person has already secured rights and entitlements as a result of his or her being recognised as a refugee by that country as in Thiyagarajah. It may arise, as it did in Rajendran v Minister for Immigration and Multicultural Affairs (1998) 166 ALR 619 from a grant of permanent residence in the third country or from the grant of citizenship in a third country as in Prathapan.
40. The person's safety need not be guaranteed by the country before there can be a finding that there is effective protection within the meaning of Article 33 of the Convention. This was expressly stated in Prathapan where Lindgren J relied (at 681) upon an implicit statement to the same effect by von Doussa J in Thiyagarajah.
41. What standard of proof is to be employed in determining whether or not a person's life or freedom would be threatened for a Convention reason in a particular country? In Thiyagarajah the Full Court of the Federal Court held that the inter-relationship between Article 33(1) of the Convention and the definition of a "refugee" in Article 1A(2) is such that the standard of proof must be the same. The standard of proof in Article 1A(2) is that of a "well-founded fear of persecution" for a Convention reason.
42. The issue which arises in this case then is whether the Applicant has effective protection available to him in a country other than Australia. The Tribunal must determine whether effective protection against persecution within the meaning of the Convention is available to the Applicant in East Timor or in two other countries with which he has possible links of nationality: Indonesia and Portugal. Only if the Tribunal is satisfied that there is no effective protection available to the Applicant in any of these countries, will the obligations of Australia under the Convention be engaged.
DOES THE APPLICANT HAVE EFFECTIVE PROTECTION AVAILABLE TO HIM IN A COUNTRY OTHER THAN AUSTRALIA?
Is there effective protection available to the Applicant in East Timor?
Does the Applicant have a right to enter, reside in and re-enter East Timor?
43. As has been agreed, the Applicant has the right to enter East Timor without a permit and to reside there by reason of his birth in that territory prior to 1975.
Does the Applicant have a well-founded fear of persecution for a Convention reason in that territory?
Legal principles to be applied
44. A "well-founded fear of being persecuted" has been found to have both a subjective and an objective element. As Dawson J said in Chan at 396-398:
The phrase "well-founded fear of being persecuted" has occasioned some difference of opinion in the interpretation of the relevant Article of the Convention. Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be a fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear. The differences which have arisen have largely stemmed from a desire to place a greater emphasis upon either the subjective or the objective element of the phrase. ... But "well-founded" must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him, to have no foundation. It is clear enough that the object of the Convention is not to relieve fears which are all in the mind, however understandable, but to facilitate refuge for those who are in need of it....
On the other hand, it is also clear enough that a fear can be well-founded without any certainty, or even probability, that it will be realized. So much was recognized by the United States Supreme Court in Immigration and Naturalization Service v Cardoza-Fonseca ((1987) 480 U.S. 421) where it was held that a statutory provision reflecting the relevant phrase in the Convention did not require the probability of persecution. As was said by Stevens J., delivering the opinion of the Court ((1987) 480 U.S., at p. 431):
"That the fear must be 'well-founded' does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a 'more likely than not' one. One can certainly have a well-founded fear of an event happening when there is less than a 50 per cent chance of the occurrence taking place."
Quoting from Immigration and Naturalization Service v Stevic ((1984) 467 U.S. 407, at pp. 424-425), Stevens J ((1987) 480 U.S., at p. 440) concluded that a "moderate interpretation" of the "well-founded fear" standard was that it was enough that "persecution is a reasonable possibility". At the same time he recognized ((1987) 480 U.S., at p. 448) "some ambiguity in a term like 'well-founded fear' which can only be given concrete meaning through a process of case-by-case adjudication" and referred ((1987) 480 U.S., at p. 440) to other formulae suggested by various writers: "a real chance", "reasonable chance", "substantial grounds for thinking", "serious possibility".
... Whilst alternative verbal formulations of the correct test may be useful in identifying shades of meaning, none can ever offer complete precision. Nevertheless, for the sake of uniformity of approach I should express my preference for a test which requires there to be a real chance of persecution before fear of persecution can be well-founded. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent. "
(See also Mason CJ at 389, Toohey J at 407 and McHugh J at 429.)
45. The High Court subsequently warned against the substitution of a "real chance" test for the words in Article 1A(2) of the Convention. It said in Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 144 ALR 567 (at 576-577 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow):
Chan is an important decision of this court because it establishes that a person can have a well-founded fear or persecution even though the possibility of the persecution occurring is well below 50%. But to use the real chance test as a substitute for the Convention term "well-founded fear" is to invite error.
No doubt in most, perhaps all, cases arising under s 22AA of the Act, the application of the real chance test, properly understood as the clarification of the phrase "well-founded", leads to the same result as a direct application of that phrase. Wu Shan Liang (1996) 185 CLR 259 at 274-5; 136 ALR 481) is an example. Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term. ... A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50% chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
46. The meaning of the word "persecution" as it is used in Article 1A(2) of the Convention was considered in light of the object and purpose of the Convention by Branson J in Hellman v Minister for Immigration and Multicultural Affairs  FCA 645:
18 The object and purpose of international refugee law, which presently has the Convention at its heart, has been described by Professor Hathaway in The Law of Refugee Status, at p 124 as follows:
"...refugee law is designed to interpose the protection of the international community only in situations where there is no reasonable expectation that adequate national protection of core human rights will be forthcoming. Refugee law is therefore 'substitute protection' in the sense that it is a response to disenfranchisement from the usual benefits of nationality. As Guy Goodwin-Gill puts it, '... the degree of protection normally to be expected of the government is either lacking or denied.'''
21 It is thus strictly speaking incorrect to speak of a person who has a well-founded fear of being persecuted within the meaning of Article 1A(2) of the Convention nonetheless having available to him or her the protection of the country of his or her nationality. A person who has available to him or her the protection of his or her country of nationality may have a well-founded fear of being harmed in a discriminatory way (see McHugh J in Applicant A at 258) but that feared harm will not amount to persecution within the meaning of Article 1A(2) of the Convention. Persecution in the Convention sense involves discriminatory harm which the putative refugee's country of nationality is not willing or not able to prevent to the degree that is normally to be expected of a country sensibly concerned with the human rights of its citizens.
47. Turning from the general to the particular, it is clear that persecution of which there is a well-founded fear must have certain qualities if it is to satisfy Article 1A(2) of the Convention. The first, relating to the source of the persecution, was described by Brennan J in a dissenting judgment in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 (at 334):
... A person ordinarily looks to "the country of his nationality" for protection of his fundamental rights and freedoms but, if "a well-founded fear of being persecuted" makes a person "unwilling to avail himself of the protection of [the country of his nationality]", that fear must be a fear of persecution by the country of the putative refugee's nationality or persecution which that country is unable or unwilling to prevent. Then, Art 1C(5) provides that a refugee can no longer "continue to refuse to avail himself of the protection of the country of his nationality" if "the circumstances in connexion with which he has been recognized as a refugee have ceased to exist". As the justification for the refugee's not availing himself of the protection of that country is the existence of the relevant "circumstances", those circumstances must have been such that the country of the refugee's nationality was unable or unwilling to prevent their occurrence. Thus the definition of "refugee" must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality.
48. The second quality is concerned with the nature of the person's fundamental rights and freedoms that are denied. Harm may be inflicted upon a person for many reasons. Isolated acts of harm do not necessarily amount to persecution. It is only if the reason or motivation for the infliction of that harm is to deny the fundamental rights and freedoms identified in Article 1A(2) that the infliction of harm becomes persecution. That is to say, it is only if the persecution is "for reasons of race, religion, nationality, membership of a particular social group or political opinion" (Article 1A(2), emphasis added) that it is relevant to consider them in the context of the Convention. (See Ram v Minister for Immigration and Ethnic Affairs and Another (1995) 130 ALR 314 at 317 per Burchett J, with whom O'Loughlin and Nicholson JJ agreed.)
49. As Brennan J said in Applicant A of the second quality (at 334-335):
... This qualification excludes indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution. Persecution of that kind is a general, non-discriminatory denial of fundamental rights and freedoms. The qualification also excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of "refugee". But the categories of discrimination mentioned in the definition are very broadly stated, especially the category of "membership of a particular social group".
50. With regard to the operation of a law of general application, it has been recognised that such a law may, in its operation, impact differently upon different people. If that is the case, that law may operate discriminatorily. There may also be selective enforcement of a law of general application. If that is the case, it may be said to operate discriminatorily. (See Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at 559 per Gleeson CJ, Gaudron, Gummow and Hayne JJ.)
51. To some extent, the fundamental rights and freedoms which are the subject of Article 1A(2) of the Convention overlap. This is apparent from those cases that have considered the compass of the expression "particular social group" as it is used in that Article. It has been recognised that the expression must be given a broad interpretation: Applicant A at 340 per Dawson J citing the decisions of the Federal Court in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 and Ram. Despite the wide interpretation to be given to a "particular social group", it is not enough to define such a group by reference to the discriminatory treatment or persecution that they fear. It is not enough, for example, to define such a group by reference to its members' disagreeing with a particular law of general application and fearing the imposition of sanctions should they contravene it. (See the discussion of Applicant A in Chen at 559 per Gleeson CJ, Gaudron, Gummow and Hayne JJ.)
52. Having reviewed the judgments in Applicant A, the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458 concluded that the group under consideration must have three features before it may be regarded as a particular social group within the meaning of Article 1A(2) of the Convention. The first, which we have already considered in the previous paragraph, is that the group must have some characteristic other than persecution, or the fear of persecution, as their unifying characteristic. The Full Court went on to describe the following two characteristics (at 464):
... Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community.
53. To sum up:
The person or tribunal determining an application for a protection visa must be satisfied:
a) that the applicant has a subjective fear of ill-treatment;
b) that fear is also objectively well-founded;
c) the ill-treatment that the applicant fears is sufficiently grave to amount to persecution;
d) that the persecution is for a Convention reason: in this case either for reasons of the Applicant's race or his belonging to a particular social group; and
e) that the applicant is unable, or owing to fear of the persecution, unwilling to avail himself or herself of the protection of the country where the persecution takes place.
Application of those principles to the facts of this case
54. As we have said, it was agreed that the Applicant had described himself in his application for a protection visa as belonging to the ethnic group of "Timorese Chinese" and it was not argued before us that this description was incorrect. It was, however, submitted that the evidence of persecution at best only related to "ethnic Chinese Indonesian business people" or to "Chinese business people" rather than to Chinese generally. The evidence of the Applicant's brother, who is not a business person, and that of other witnesses, who admittedly fall in that category, do not support the contention that discrimination is confined to business people of Chinese ethnicity. In a briefing to the United Nations Security Council on 27 June 2000, the Special Representative of the Secretary-General of the United Nations and Transitional Administrator of UNTAET, Sergio Vieira de Mello, defined the minority communities who are attacked and harassed as "the Muslims, the ethnic Chinese and the Protestants" (Annexure PH2 to Exhibit A7). We are satisfied on the evidence that persecution suffered by the ethnic Chinese in East Timor, if established, would constitute persecution for reasons of race under the Convention. We are also satisfied on the evidence that the Chinese community in East Timor constitutes a "particular social group" as defined by the Full Court of the Federal Court in Zamora.
55. We agree with the Respondent that there is no evidence to suggest that "East Timorese who left and were not present for the vote on 30 August 1999" constitute a "particular social group" or that they are discriminated against for that reason. Nor is there any evidence to support the contention made for the Applicant that he may be imputed pro-Indonesian political views because of his long absence from the territory.
The fear of persecution on the part of the Applicant
56. In an affidavit (Exhibit A1), the Applicant expressed fears about returning to East Timor because it was unstable and violent. He has been told by a number of sources about anger being directed at Chinese Timorese by ethnic Timorese residents. For example, his brother who still lives in East Timor had told him about a death threat that he had experienced and he also described to the Applicant many instances of verbal abuse and threats against ethnic Chinese Timorese. As well as expressing fear about suffering racist attacks from ethnic Timorese, the Applicant expressed concerns about Indonesian people still living in Timor. He also stated that he did not believe that the current administration could protect people from the violence. None of this evidence was challenged in cross-examination. We accept his evidence as a truthful account of his subjective fear of persecution.
57. An affidavit was provided by the director of a non-government organisation assisting refugees in East Timor (Exhibit A7). He described a level of tension in the East Timorese community as a result of a number of social and economic factors. He said there had been various incidents of violence and harassment directed at particular groups including ethnic Chinese people and he stated that he had been given confidential information that the authorities had received a number of complaints in relation to such incidents involving minority groups. He said he was not willing to provide specific details of the complaints received because those who gave the information were worried about the danger of being identified as complainants. He gave details of street violence, violence directed at business people and particularly ethnic Chinese business people as well as Protestants. This witness came to the conclusion that there were problems with law and order in East Timor. The violence and harassment in his view is unable to be controlled and he expressed the opinion that it was not possible to predict the future, particularly when the United Nations mission leaves the area.
58. Another witness, a businessman of ethnic Chinese Timorese origin but now an Australian citizen (Exhibit A8), gave evidence that the ethnic Chinese Timorese were discriminated against prior to the arrival of Indonesian forces in 1975. He said that, as a businessman in East Timor since November 1999, he had heard of incidents of attacks on ethnic Chinese in East Timor. He has been informed by trusted friends permanently living in East Timor that it is not safe for ethnic Chinese Timorese in that country because they are harassed, intimidated and discriminated against. He concludes by saying that in spite of his strong support for the rebuilding of the economy of East Timor he does not consider it safe for ethnic Chinese people to return to East Timor at this stage. This witness swore that he did not know the Applicant personally although he knew the Applicant's family. His evidence was not challenged by the Respondent in these proceedings.
59. The Respondent has not challenged by evidence the existence of lawlessness and attacks on ethnic Chinese in East Timor but submits that it is sporadic and not sufficiently serious to amount to persecution. It relied strongly on reports from the Department of Foreign Affairs and Trade ("DFAT") to support this submission (Exhibits R1 and R2). Press reports tendered by the Applicant suggested that there is still a large number of ongoing incidents of violence and other acts of persecution (Exhibit A10). The Respondent submitted that we should treat such reports with circumspection and give greater weight to the more optimistic DFAT reports. Even taking this course we are satisfied that there is a problem for ethnic minority groups of the kind to which this Applicant belongs in East Timor and we rely particularly in coming to this view on the information provided by Special Representative de Mello to the Security Council of the United Nations in the briefing on 27 June 2000 where he said:
While the law and order situation remains relatively calm, I am concerned by attacks on minority communities, namely the Muslims, the ethnic Chinese and the Protestants. ... UNTAET is working with local communities on the protection of minorities and is meeting with top East Timorese political and church leaders to ensure that a message of tolerance, frequently expressed in public statements, becomes more than a rhetorical refrain.
Other affidavits tendered in evidence confirm these facts.
60. Relying on, in particular, the opinions of the director of the non-government organisation assisting refugees in East Timor and Special Representative de Mello, we find that there is an objective basis for the Applicant's genuine fear and we do not accept the submissions of the Respondent that the fact that a number of witnesses continue to go to East Timor for business purposes prevents the conclusion that there is persecutory conduct happening in East Timor which is directed from time to time at ethnic Chinese groups.
61. We also find that this conduct is of sufficient seriousness to amount to persecution and that it is directed against the particular social group to which the Applicant belongs, namely Chinese Timorese.
Is there effective protection from persecution for the Applicant in East Timor?
62. Even though we have concluded that the Applicant has a real fear of persecution if he is required to return to East Timor and that fear is well-founded, we must also consider in determining whether there is a real chance of such persecution the issue of whether there is effective protection available to him from this persecution. There is no suggestion in this case that UNTAET perpetrates persecution in any form, nor that it actively or passively tolerates or condones the incidents which the Applicant relies on to support his claim. UNTAET has made provision for the setting up of courts in East Timor with criminal and civil jurisdiction (UNTAET Regulation No. 2000/11 promulgated on 6 March 2000 as amended by UNTAET Regulation No. 2000/14 promulgated on 10 May 2000) and the creation of the Public Prosecution Service in East Timor (UNTAET Regulation No. 2000/16 promulgated on 6 June 2000). UNTAET relies in non-military matters on an international civil police force known as CIVPOL. We further accept that UNTAET has an express charter to protect human rights in accordance with the United Nations Conventions and to act as protecting authority for the people of East Timor, including minority groups.
63. However, there appears to be uncertainty about the law to be applied by the courts in dealing with offenders. According to the first regulation promulgated by UNTAET (No. 1999/1) the East Timorese Judiciary was to employ Indonesian law in so far as not inconsistent with international human rights conventions and UNTAET Regulations. Later evidence, however, indicates that UNTAET has started on a process of completely reforming the legal system which has resulted in uncertainty: Dodd M, 'Frustration grows over Timor delays', The Age, 27 May 2000 and Dodd M, 'UN draft legal code for East Timor "abysmal"', The Age, 7 June 2000 (Exhibit A10). The first criminal hearing did not take place in East Timor until 31 May 2000 (Exhibit RLMI1 to Affidavit of Mr RLM Illingworth entitled 'Legal Overview: Current as at 1 July 2000'.)
64. The Applicant says that UNTAET is unable, at the present time, to protect the Applicant relying on the following evidence.
1. The large number of ongoing incidents of violence, particularly against minority groups.
2. The practical impediments which exist to seeking the protection of UNTAET.
3. The lack of confidence (expressed in the evidence) among ethnic Chinese of the availability of effective state protection. In particular, the use of self-help systems based on private protection set in place by resident ethnic Chinese and the fear of reprisal if complaints are made about the incidents.
4. The failure of the enforcement system to respond to incidents which are documented in newspaper reports provided to us.
5. The inability of the justice system, at this stage to ensure that those committing criminal acts are prosecuted, particularly if the criminal activity amounts to less than murder or rape.
65. In paragraph 22 of his affidavit (Exhibit A7), the director of the non-government organisation assisting refugees in East Timor says, relevantly:
From the reports I have heard, and which I believe to be true, I believe there are problems with law and order in East Timor. The criminal justice system has been slow to develop. Because of poor communication systems, it can be difficult to contact CIVPOL to report acts of violence or intimidation. CIVPOL have lacked resources and the capacity to attend many incidents, let alone make adequate investigations. Currently the criminal code to charge people against is being developed. Courts are only just starting. As far as I know there has only been one case determined so far. The capacity to detain or incarcerate is limited because there are few prisons. These circumstances make it difficult for UNTAET to adequately protect people from the sort of violence and harassment that I have described above.
66. The Applicant in this case is not entitled to demand that if he returned he will remain unharmed. As the case law referred to above and discussed indicates, the standard of effective protection is not a guarantee of protection: Prathapan at 681 per Lindgren J. On the contrary, the authorities support the submission made by the Respondent that in order to conclude that there is ineffective protection there must be before us clear and convincing confirmation of this fact: otherwise effective protection should be assumed. Applying these principles, we have however concluded that there is sufficiently convincing confirmation that the current system is ineffective to provide protection to this Applicant. We rely on the concerns expressed by Special Representative de Mello, the reports of inaction of the police at present in relation to less serious crimes, and the virtual non-operation of the justice system, which lacks even the most basic facilities.
67. The country reports provided to us by the Respondent stress that the development and training of the police force has commenced, that there are plans for a 150-man rapid reaction unit, that UNTAET had ordered the arrest of people carrying machetes in Dili and that they armed the UN civilian police to enable it to deal with gang violence. On 26 May 2000 Special Representative de Mello reiterated the Mission's commitment to protecting ethnic minorities in the territory (Exhibit R2, p. 287). There is evidence of some murders of returnees, the Respondent says, but no systematic pattern of murder. However, the country reports conclude that the police force has neither a resident presence in sub-districts nor sufficient resources to provide permanent protection for all returnees. The reports also confirm that some ethnic Chinese business owners have been and are now the target of some "social jealousy" (Exhibit R2, p. 293), however these reports suggest that the situation is improving.
68. In his briefing to the United Nations Security Council on 27 June 2000, Special Representative de Mello said (Exhibit R2, p. 295):
... words can only feebly reflect the challenges we have to face each day in East Timor, challenges which I must confess we are often ill equipped to deal with.
His report expresses anxiety about the low priority and the absence of United Nations budgeting for prisons and courts and contains a plea from the Special Representative to change this so that, before independence, the goal will be reached to "put into place a credible legal system, one which respects fundamental human rights and is such that it is suited to maintaining order" (Exhibit R2, p. 297).
69. We have concluded that the administration in East Timor is committed to developing a system which will provide effective protection to returnees to the territory. A judiciary and prosecutors have been appointed. However, to date, this system does not operate effectively because it is still in the embryonic stage. There is confusion about the relevant law, and regulations have only recently been given or passed for police to have powers of investigation. On 6 June this year there were further amendments to the regulations to provide for dealing with serious crime and particularly war crimes. The evidence shows an overwhelming challenge being imposed on the policing and justice system. We have concluded that at this stage it is not possible to meet the demands made upon it in an effective manner. This will be achieved when the budget allows it and other priorities have been attended to.
70. The Respondent argues that the fact that East Timor has a code of criminal law and a developing judicial system together with a functioning and expanding police force supports the conclusion that the authorities in East Timor are neither unwilling nor unable to provide effective state protection to this Applicant. They submit that we live in an "imperfect world" and that we should take, in coming to a conclusion about this matter, a practical and realistic approach. We are urged to give great weight to the commitment of the current administration to comply with international human rights standards and a functioning and developing law enforcement system comprising, among other things, a criminal code, a police force and a judicial system. We are in no doubt that UNTAET is committed to the goal of an effective justice system.
71. The Respondent referred us to a recent decision of the House of Lords in Horvath. It is not for us to determine the authority of this decision in Australia. However, we note with interest the minimum conditions defined by Lord Clyde in that case to ensure "effective protection". It reads as follows (at 398):
There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery.
72. We consider however that, even adopting a practical and realistic approach and acknowledging the bona fides of the administration, the overwhelming task facing those entrusted with rebuilding the democratic infrastructure in East Timor (which was totally destroyed in the immediate past) together with the limitations on funding and the other constraints, eloquently described by Special Representative de Mello to the United Nations Security Council, lead us to the conclusion that, at this time, there does not exist a system of domestic protection from persecution in East Timor which could effectively protect this Applicant from the persecution he fears. It may be that in the future, if the hopes of Special Representative de Mello are eventually realised, this situation will improve, but at the moment the system is not one which we could be satisfied offers effective protection to this Applicant from persecution by reason of his ethnicity. We cannot therefore exclude a real chance of persecution should the Applicant return to East Timor as matters stand at this point of time. That is to say, we accept that there is a real and substantial basis for the Applicant's fear of persecution. It is, therefore, a well-founded fear of persecution.
Is there effective protection available to the Applicant in a third country?
73. We have reached the conclusion that UNTAET cannot at this stage give adequate protection to the Applicant from persecution by reason of his ethnicity. This then leads to the question of whether effective protection is available in another country. Here again one must start with the principle laid down by the Full Court in Thiyagarajah as discussed above. Thus, to paraphrase the test laid down by von Doussa J in Thiyagarajah for the purposes of the present case, Australia will not be in breach of its obligations under the Convention if it requires the Applicant to go to a third (and in this case possibly a fourth) country of which he is a national and which will accord him effective protection, including a right to enter, reside in and re-enter that country. Of course, as the passage indicates, the right to enter that country is not the sum total of "effective protection". If the Applicant has a well-founded fear of persecution for a Convention reason as regards the country of his nationality, Australia's obligation under Article 33(1) will be directly engaged.
74. Since we have concluded that the Applicant has a well-founded fear of persecution for a Convention reason in relation to East Timor as his country of primary reference, two other countries with which he has possible links of nationality must be considered: Indonesia and Portugal.
Is there effective protection available to the Applicant in Indonesia?
75. As we noted above, the Applicant arrived in this country with an Indonesian passport issued on 19 June 1990. At that time East Timor was under Indonesian administration. In his application for a protection visa, the Applicant described his current citizenship as "Indonesian". The Tribunal is entitled to deduce from the fact that an Indonesian passport was issued to him by the Indonesian authorities in 1990 that he was at that date an Indonesian citizen according to Indonesian law: see Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, 2nd edition, Geneva, 1992, paragraph 93.
76. Leaving aside for the moment the question of whether in view of the changed international status of East Timor in 1999 international law requires Indonesia to withdraw its nationality from the Applicant - a point which will be discussed later - the issue of continued application of Indonesian nationality to the Applicant must depend on Indonesian law.
77. Evidence of the Indonesian Law No. 62/1958 on Citizenship was provided for the Tribunal by Associate Professor Timothy Charles Lindsey on behalf of the Applicant (Exhibit A11). His qualifications were not disputed, nor was his presentation and translation of the relevant provisions of the Law placed in issue. The Respondent did not, however, necessarily accept the conclusion which Professor Lindsey sought to draw in the application of the relevant Indonesian provisions to the facts of this case.
78. The relevant provisions on the loss of Indonesian nationality are found in Article 17 of Law No. 62/1958. In so far as relevant for present purposes, it provides:
Indonesian nationality is lost if the person in question:
b) had the opportunity to refuse or relinquish foreign nationality, but did not do so;
h) takes an oath, or makes a pledge of, allegiance to a foreign country or a part thereof;
k) for purposes other than those for an Indonesian government agency, is domiciled overseas for a period of five consecutive years without stating his or her desire to remain an Indonesian national during that period and every two years thereafter. The desire to remain an Indonesian national must be declared to a Representative of the Republic of Indonesia in the place of residence of the person in question. For Indonesian nationals under the age of 18, except if married, the five and two year time periods mentioned above come into force on the date he or she reaches the age of eighteen.
79. As regards paragraph b) Professor Lindsey referred to the Applicant's statutory declaration of 16 December 1997 (see Annexure A to Exhibit A2) in which the Applicant had stated that he considered himself to be of East Timorese nationality. Professor Lindsey considered it arguable that this constituted a failure to refuse or relinquish foreign nationality when he had the opportunity to do so. The obvious problem with this argument is that in 1997 and up to this date there was and is no such thing as an East Timorese nationality to refuse or to relinquish.
80. As regards paragraph h) Professor Lindsey refers to the same statement by the Applicant and considers it arguable that the reference to East Timorese citizenship by the Applicant constitutes an oath of allegiance to the East Timorese State which came into being on 19 October 1999. Again this argument suffers from the obvious difficulty of giving proleptic effect to a declaration made in 1997 with respect to events occurring in 1999 which were hardly foreseeable in 1997.
81. Finally, Professor Lindsey refers to paragraph k). It was not disputed that as at the date of hearing the Applicant had resided in Australia for 6 consecutive years and had not returned to Indonesia or East Timor during that period. In his affidavit of 14 July 2000 (Exhibit A2) the Applicant stated that he has never expressed his desire to remain an Indonesian national to representatives of Indonesia or any one else since his arrival in Australia in December 1994. He is over the age of 18. There is no suggestion that he worked at any stage for an Indonesian government agency while in this country.
82. For the Respondent it was argued that the Applicant could not be said to have been "domiciled" overseas for a period of five consecutive years. Obviously what "domiciled" means in this context is a matter for Indonesian law, especially when it is likely that the Indonesian text uses a Bahasa Indonesia word for which "domiciled" is a close approximation in English. In the absence of evidence of Indonesian law, the Tribunal may assume that it does not differ from Australian law as defined in the Domicile Acts.
83. According to section 10 of the Domicile Act 1982 (Cth) the intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his home indefinitely in that country. On the evidence, that describes the intention and conduct of the Applicant since 1994. In so far as it is relevant, we find that the Applicant has been domiciled within the meaning of the Domicile Act 1982 in Australia since 1994. Since on his evidence he has not made the required declaration, he has under Indonesian law lost the nationality of that country. The Tribunal cannot make a finding that the Applicant has a right to enter Indonesia. The Tribunal is not satisfied therefore that the Applicant has effective protection available to him in Indonesia.
84. Even if the Applicant still retained Indonesian nationality, the ultimate test is whether Indonesia would afford him effective protection should he return to that country. According to paragraph 13 of the Statement of Agreed Facts, the Applicant claimed in his original application for a protection visa to fear for his life because of the brutal and discriminatory treatment by the Indonesian authorities in East Timor of East Timorese people, particularly those seen as anti-Indonesian, including himself and members of his family.
85. Although this claim was not considered by the delegate of the Minister in the decision on 23 August 1996, counsel for the Respondent did not put in issue the truth of that statement and inferentially appeared to concede that the Applicant could well have had a well-founded fear of persecution on a Convention ground from the Indonesian authorities. The return of the Applicant to a country which regarded the Applicant and members of his family as anti-Indonesian would not afford him effective protection, regardless of his national status.
Is there effective protection available to the Applicant in Portugal?
As a matter of domestic law
86. The Respondent tendered evidence on the Portuguese law of nationality consisting of copies of the Portuguese Nationality Laws of 1959 and 1981 respectively and legal advice in respect of Portuguese nationality received from Professor Rui Manuel Moura Ramos, then Professor of Law at the University of Coimbra, Portugal (see Exhibit R2). The evidence of Professor Ramos was that the question of "whether persons born in East Timor are Portuguese nationals by birth is defined by the law of Portuguese nationality in force at the time of birth of the person concerned" (Exhibit R2, p. 211). The law in force at the time of the Applicant's birth in 1969 was Law No. 2098 of 1959. Chapter 1, Section 1, Part 1 provides (Exhibit R2, p. 179):
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.
87. There is no dispute that East Timor was part of Portuguese territory in 1969. No evidence was led to suggest that either the Applicant's father or his mother were in the service of a foreign State at the time of his birth. Professor Ramos gave evidence that, with the exception of the child of a father, or in certain cases a mother, who was in the service of a foreign State at the time, all children born in Portuguese territory were Portuguese citizens by birth, regardless of the nationality of their parents.
88. According to Professor Ramos, the Law of 1959 was replaced on 10 October 1981 by the subsequent Nationality Law No. 37 of 1981. According to Chapter 1, Article 1 of that Law (Exhibit R2, p. 195) only children born of a Portuguese parent in Portuguese territory or "a territory under Portuguese administration" automatically acquire Portuguese nationality at birth: Art. 1 cl. (a). Children born abroad of Portuguese parents must either declare that they wish to be Portuguese or have their births registered at the Portuguese Civil Registry: Art. 1 cl. (b). Children born of foreign parents "in Portuguese territory" must "declare that they wish to be Portuguese": Art. 1 cl. (c). The evidence of Professor Ramos was that persons born in Portuguese territory before 10 October 1981 of foreign parents would remain Portuguese citizens, although those born after that date might not have that status. This evidence had been before the RRT in Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695 and the Full Court of the Federal Court held (at 700) that the Tribunal had not erred in accepting the evidence of Professor Ramos. The Full Court did not refer to any other material on Portuguese nationality available to the Tribunal.
89. However, as the Applicant rightly pointed out, the Full Court in Jong also acknowledged (at 700) that Portuguese law was a question of fact. In each case the court or Tribunal can consider the issue afresh in the light of the evidence before it. In the subsequent decision of Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681, Finkelstein J considered further evidence and documents relating to the issue of nationality which had been before the RRT in that case. That case involved an applicant who was born in East Timor in 1964 and came to Australia in 1992. This material is also in evidence before us. Prominent amongst this further material was a letter written by the then Portuguese Ambassador to Australia on 1 June 1995 in response to an inquiry made on 21 April 1995 by the Department of Immigration and Ethnic Affairs (Exhibit R1, p. 106). In that letter the Ambassador wrote:
I am instructed to inform you that, being East Timor [sic] 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 [sic] himself of the Portuguese nationality and, therefore, to apply for relevant Portuguese documentation and protection.
90. It may be interpolated at this stage that under the Portuguese Constitution of 1976, as amended, Article 5 defines Portugal as comprising the territory on the European continent and the archipelagos of the Azores and Madeira. It therefore omits the territory of Macao which remained under actual Portuguese administration until 1999 and the territory of East Timor. Article 293 of the Constitution, which was inserted in the revision of 1989, refers specifically to East Timor: see Blaustein and Flanz, Constitutions of the World - Portugal, Oceana Publications, 1991. It is entitled "Self-determination and independence of East Timor" and provides:
1. Portugal shall remain bound by her responsibilities under international law to promote and safeguard the right to self-determination and independence of East Timor.
2. The President of the Republic and the Government shall have the powers to perform all acts necessary for achieving the aims set forth in the preceding paragraph.
Article 292 deals with the Statute of Macao "while under Portuguese administration". It may be noted that there is no reference to "Portuguese administration" in Article 293.
91. On 7 August 1995 two officers of the Department called on the Ambassador (at his request) to discuss the issues. According to a file note of that discussion dated 8 August 1995 (Exhibit R1, pp. 107-108):
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 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 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 into 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.
92. In a further letter dated 5 December 1995, the Department posited to the Ambassador the hypothetical case of an East Timorese born in 1973 who had come to Australia in 1992 and asked whether such a person would be issued with a Portuguese passport enabling him to travel to Portugal (Exhibit R1, pp. 110-111). On 19 December 1995 the Ambassador replied (Exhibit R1, p. 112):
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.
93. Finkelstein J in Lay drew the following conclusions from the above further evidence (at 696):
(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 [sic] as automatically a national of Portugal under Art 1 cl (a) but as subject to Art 1 cl (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".
94. His Honour also referred to a press statement issued by the Embassy of Portugal in June 1998 following the determination by the RRT of the Jong Kim Koe case upon its remittal by the Full Court of the Federal Court in Jong. The RRT had applied the conclusion reached by the Full Court that Mr Jong, born in East Timor in 1973, was a Portuguese citizen by birth and had further found that Mr Jong had effective protection in Portugal. The communique commented (Exhibit R1, p. 140):
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, Mr. 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 Art 293 of the Portuguese Constitution and international law.
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.
95. This statement had not been before the RRT, but had been accepted by Finkelstein J over the objections of the Minister. It was in evidence before us. His Honour commented (at 697-698):
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.
96. For the Applicant it is argued that this Tribunal should take the same approach to the evidence before it as did Finkelstein J. The Respondent, however, argues that this interpretation of the evidence was mistaken. Instead, the Respondent urges, we should accept the evidence of Professor Ramos. As his Honour so rightly remarked, this Tribunal cannot avoid the obligation to determine this issue. Since foreign law is a question of fact, a finding by one court or tribunal cannot be binding as a precedent on another. The evidence before Finkelstein J was more extensive than that before the Full Court of the Federal Court in Jong. In this case there is further evidence produced which was not available previously.
97. A copy was produced of a statement made by the Director of the Portuguese Immigration Department in January 1996 (Exhibit R2, p. 239). A translation of that statement reads as follows (Exhibit R2, p. 240):
The Timorese who want to go to Portugal are considered by the Lisbon authorities to be full Portuguese citizens.
They do not go through the Immigration Office unlike other applicants for asylum and Portugal does not grant them "political asylum" which is only granted by third countries where they have sought refuge (in this case either the United States, French and Dutch embassies etc ...)
It is incorrect to say that Portugal "grants political asylum" to such people for whom it has juridical responsibility. As soon as these East-Timorese citizens arrive, they are immediately given a Portuguese identity card as they do not have any Portuguese documents, and a passport upon application.
98. Since the transfer of East Timor to United Nations control, a statement has been received from Ambassador Antonio Santana Carlos, Head of the East Timor Office in Portugal, by letter dated 23 March 2000. A translation of that letter reads as follows (Exhibit R2, p. 241):
I wish to advise you that Law No. 37/81 of 3 October (the "Nationality Law") remains in force, and that the recent events in East Timor have not altered the legal application of this law in any way.
Therefore, Portugal accepts the principle of dual nationality by which Timorese citizens will be able to acquire Portuguese nationality, through the presentation of documents which adequately satisfy the relevant legal requirements, which would then be scutinised [sic] by the responsible department.
The Ambassador also advised that Portugal has no intention of altering the nationality law in future as a result of the recent political changes in East Timor and Macao.
99. The conclusion that Finkelstein J reached on the evidence in Lay can be summarised as follows. In the view of the Portuguese government, the operation of the Portuguese nationality laws operate on the following bases:
a) At least in its application to East Timorese, the provisions of Article 1 of Law No. 37/81 have replaced with retrospective effect the provisions of the Law of 1959.
b) Portugal does not consider East Timor to be a part of the territory of Portugal, either now or in the past.
c) Hence the applicable provision of Portuguese nationality law is Art. 1 cl. (b) of the Law No. 37/81 which deals with children born of a Portuguese mother or father outside Portuguese territory.
d) This means that a person born in East Timor at any time must declare that he or she wishes to become a Portuguese national before that nationality will be conferred.
e) As a result, an East Timorese who has not made such a declaration, either is not a Portuguese citizen under Portuguese domestic law, or is not recognised by the Portuguese authorities as such. In the latter case Portugal denies the Applicant "effective protection". An essential element of the concept of "effective nationality" is the recognition of the existence of nationality by the State of nationality: Lay at 696 per Finkelstein J.
100. Under the Constitution of 1976, even after the 1989 amendment, East Timor is not part of the territory of the Republic of Portugal. Neither is it described as a territory under Portuguese administration, as was the case with Macao. Article 293 merely reflects the Portuguese position that it has certain responsibilities towards the people of East Timor. According to the opinion of Professor Goodwin-Gill which we accept in this regard, those responsibilities, other than those of a member of the United Nations, came effectively to an end when the United Nations assumed administrative control of East Timor on 25 October 1999. Hence, when Law No. 37 of 1981 came into effect on 10 October 1981 East Timor was not a part of the territory of Portugal or a territory under Portuguese administration. Indeed, under the Portuguese Constitution East Timor has not been regarded as part of Portugal since the adoption of the Constitution of 1976. It follows that, at least as regards persons born in East Timor since 10 October 1981, Art. 1 cl. (b) of Law No. 37/81 applies if one of their parents is a Portuguese citizen and that such persons must specifically apply for Portuguese citizenship. This issue was not adverted to by Professor Ramos and hence there is no conflict.
101. This case does not concern a person born after 10 October 1981 but a person born in 1969 when East Timor was indisputably Portuguese territory. As Finkelstein J held in Lay (at 687), the RRT did not err in finding that a person born in East Timor in 1964 would at that time have acquired Portuguese citizenship at birth by reason of the provisions of Law No. 2098 of 1959. The evidence of Professor Ramos was that this nationality once acquired would continue to be recognised under Portuguese law notwithstanding changes in political control over the territory and the change of law in 1981. But the opinion of Professor Ramos does not take into account the fact that since 1976 the Portuguese Constitution does not consider East Timor to be part of Portuguese territory, or even under the 1989 amendment, a territory under Portuguese administration. To the contrary, the opinion of Professor Ramos, especially in answer to question 3 (Exhibit R2, p. 212), proceeds on the basis that up to 1981 East Timor remained Portuguese territory and that under the law of 1981 it is a territory under Portuguese administration. This assumption appears to be in conflict with the Constitution.
102. Likewise the interpretation given by Finkelstein J in Lay to the letter of the Ambassador of 1 June 1995 may be mistaken. The reference to "every East Timorese to whom Law 37/81, of 3 October, is applicable" may be taken to mean as his Honour did, that Law No. 37/81 is applicable to every East Timorese, regardless of his or her date of birth, including Article 1 which defines Portuguese nationality at birth. Alternatively, and possibly more likely, it refers to a specific category of East Timorese, namely, those born after 10 October 1981, leaving those born earlier to be covered by a different regime: see Piotrowicz R, 'Lay Kon Tji v Minister for Immigration & Ethnic Affairs - The Function and Meaning of Effective Nationality in the Assessment of Applications for Asylum', (1997) 11 IJRL 544 at 553.
103. However, the press communique issued by the Embassy of Portugal in June 1998 is much more specific and is unambiguous. It is issued in the name of the Portuguese Government. It refers to the case of Jong Kim Koe who was born when East Timor was a Portuguese territory. It specifically states that East Timorese are not automatically Portuguese nationals. It also states that Portuguese nationality laws must be applied "as required by Article 293 of the Portuguese Constitution and international law" (Exhibit R1, p. 140). It finally states that Portugal will consider "on a case by case basis" all applications for Portuguese nationality by persons born in East Timor.
104. The inference from this statement is that the Portuguese government does not regard persons born in East Timor at any time as automatically entitled to Portuguese nationality. Even if the nationality laws, as expounded by Professor Ramos, do not specifically provide for the loss of Portuguese nationality of East Timorese who once acquired it by birth under the Law No. 2098 of 1959, the statement indicates that the application of that law is now treated as modified by Article 293 of the Constitution which specifically recognises the right of self-determination of the people of East Timor. It has been argued that this statement is wrong as a matter of Portuguese law: see Piotrowicz, ibid., at 555. It is very difficult for this Tribunal to determine that issue with any confidence. The overriding or modification of a statute in general terms by a higher ranking constitutional provision is not unknown to our law. In addition there is the question of Portugal's obligations under international law to which Article 293 makes specific reference. This will be discussed below. For those reasons we are unable to make a positive finding that the Applicant is a Portuguese citizen under Portuguese domestic law.
105. At the very least the statement issued by the Embassy of Portugal in June 1998 is a statement of government policy and practice which may, or may not, be in accordance with the law. The statement is at odds with that made by the Director of the Portuguese Immigration Department cited above. However, it is entirely consistent with the letter from Ambassador Santana Carlos of 23 March 2000 which speaks of Timorese "citizens" being able to "acquire" Portuguese nationality. Those applications will then be "scutinised [sic] by the responsible department". It shows that, at least in practice, the Portuguese government does not treat East Timorese "citizens" as automatically entitled to Portuguese citizenship. They must apply to acquire it, comply with the necessary requirements, and, according to the statement of June 1998, their applications will be considered "on a case by case basis".
106. As the Full Court of the Federal Court held in Jong (at 706-707), it is not sufficient that the Applicant has the formal nationality of another country if that country is not in fact willing to afford protection against return to the country of persecution. This is but an application of the general principle that the fundamental obligation of Australia under the Refugees Convention is that of non-refoulement under Article 33(1). Even if the Portuguese law was correctly stated by Professor Ramos, it is in the words of Finkelstein J in Lay (at 696) difficult:
... 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.
107. That is to say, if the State of formal nationality does not in fact recognise the existence of that nationality with its attendant rights to travel documents and to enter its territory, that State does not afford effective protection. According to the Full Court of the Federal Court in Thiyagarajah (at 702) the issue is whether the Applicant has a right to reside, enter and re-enter Portugal. In Tharmalingam v Minister for Immigration and Multicultural Affairs  FCA 1180, the Full Court of the Federal Court accepted (at paragraph 12) that "the approach taken by the Full Court in Thiyagarajah requires a finding that the applicant has a right to re-enter the third country before the Tribunal is relieved of the necessity to consider the merits of the application". On the other hand, the Full Court of the Federal Court in Jong stressed the importance of the availability of effective protection in practice. As it said (at 708):
Relevant matters include whether Portugal is able to offer him in Australia effective protection or the means of obtaining effective protection or whether, on the other hand, if effective protection is available it can be obtained only in Portugal; and, if the latter, whether, as a matter of fact, Mr Jong is reasonably able to travel to Portugal to obtain protection there and whether, if he were to travel there, he would be admitted; and whether, having been admitted he would satisfy the Portuguese authorities that he is indeed a Portuguese national entitled to Portuguese protection. Of particular relevance would be the practical operation, in Mr Jong's case, of Portuguese law and administrative procedures in circumstances in which a person whose Portuguese nationality is said to derive from birth in a former colony travels voluntarily to Portugal or, to take a different case, is sent there unwillingly.
108. The last sentence is of particular relevance. It refers to the "practical operation" of the law, that is to say, the way it is administered whether rightly or wrongly. The practical operation of Portuguese law, according to the statement of June 1998, is that an East Timorese must apply for Portuguese citizenship before he or she can enjoy protection from the Portuguese authorities, even in the case of Mr Jong Kim Koe who was born before 1975. Applications are considered on a case by case basis. It is not an automatic process: see Katkova v Minister of Citizenship and Immigration (Canada) (1997) 40 Imm LR (2d) 117. The Ambassador has made it very clear throughout the various statements and interviews that Portugal will not receive East Timorese who are sent there against their will.
109. In this case, for the reasons given above, we are unable to make a finding that as a matter of Portuguese law the Applicant has a right to enter Portuguese territory because he is a Portuguese citizen. Nor are we satisfied that, as a matter of the practical operation of that law (whatever it may be) the Applicant will, as a matter of course, be given entry to Portugal either if he goes there willingly, and, a fortiori, if he goes there unwillingly. We are therefore not satisfied that the Applicant will receive effective protection in Portugal.
Nationality and International Law
110. The Applicant supplied the Tribunal with the opinion of Professor Goodwin-Gill (Exhibit A12). As counsel for the Minister rightly pointed out, that opinion is not evidence of foreign law in the same manner as the opinion of Professor Lindsey was evidence of Indonesian law. Rather, it is an argument as to the interpretation of international law that the Applicant argues the Tribunal should adopt. In that opinion Professor Goodwin-Gill argued that from the perspective of international law, the Applicant could not be considered a citizen of Portugal. This argument was based on the conclusion with which we agree, that upon UNTAET taking over administrative responsibility for the territory, Portugal's responsibilities as an administering power are effectively at an end. In his opinion he advised:
28. In view of the obligation of UN Member States to accept the authority of the decisions of the Security Council, including the creation of UNTAET and acceptance of its administration of East Timor, it is incumbent on such States to refrain from the claim or exercise of any jurisdiction incompatible with attainment of the internationally agreed objective of independence.
29. This perspective concords with international practice in the past, in which it was generally accepted that administering States should not extend their nationality to the inhabitants of non-self-governing territories for which they were responsible. Rather, the practice was to favour a status which best preserved the link between people and territory. Although most trusteeship agreements made no specific provision for the status of the indigenous inhabitants, the objectives (progressive development towards self-government or independence, based on the freely expressed wishes of the people: UN Charter, article 76) were incompatible with nationality status removed from the territory in question.
111. We are not convinced that this means that Portugal is obliged under international law to withdraw its nationality from persons on whom it was conferred when East Timor was a Portuguese territory by the mere fact that it has ceased to be Portuguese territory (see Jong at 703) as distinct from imposing it on persons born after the end of Portuguese rule. It may be that at some later stage an obligation to withdraw may arise. In this connection Professor Goodwin-Gill referred to the "Draft Articles on Nationality of Natural Persons in relation to the Succession of States" prepared by the United Nations International Law Commission: see Report of the International Law Commission on the Work of its 51st Session: UN doc. A/54/10, paragraphs 34-47. Article 11 deals with the conditions for a change of nationality of inhabitants to that of the successor State. It provides that each State (that is to say the original sovereign and the successor State) shall grant a right to opt for its nationality to persons concerned who have an appropriate connection with that State: Art. 11 cl. (2). When persons entitled to the right of option have exercised such right, the State whose nationality they have renounced shall withdraw its nationality from such persons unless they would thereby become stateless: Art. 11 cl. (4). Counsel for the Minister also referred to Article 20 of the Draft Articles which reads:
When part of the territory of a State is transferred by that State to another State, the successor State shall attribute its nationality to the persons concerned who have their habitual residence in the transferred territory and the predecessor State shall withdraw its nationality from such persons, unless otherwise indicated by the exercise of the right of option which such persons shall be granted. The predecessor State shall not, however, withdraw its nationality before such persons acquire the nationality of the successor State.
112. In relation to East Timor that option has not yet been given, although Indonesia is reported as considering giving it in the near future. It would appear that there is no obligation to grant the option until and unless provision is made for East Timorese nationality. This has not as yet been done.
113. The Tribunal is satisfied that the Applicant is a person whose primary country of reference is East Timor where he has an unqualified right of entry and residence. He is currently outside that country. It is further satisfied on the evidence that the Applicant fears persecution by reason of his Chinese ethnicity should he return to East Timor and there is a real and substantial basis for his fear. He has therefore a well-founded fear of persecution within the meaning of the Convention. Furthermore, the Tribunal has concluded that there is no effective protection available to the Applicant for the purposes of Article 33(1) of the Convention in East Timor, Portugal or Indonesia.
114. The Tribunal is satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant satisfies the criterion set out in s. 36(2) of the Act for a protection visa.
115. The Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention.
I certify that the 115 preceding paragraphs are a true copy of the reasons for the decision herein of
Justice DF O'Connor, President
Dr P Nygh, Principal Member of the Refugee Review Tribunal
Miss SA Forgie, Deputy President
Date/s of Hearing 17, 18 and 19 July 2000
Date of Decision 5 October 2000
Counsel for the Applicant Mr C McDonald QC
Solicitor for the Applicant Mr J Hunyor, Northern Territory Legal Aid Commission
Counsel for the Respondent Mr H Burmester QC
Solicitor for the Respondent Mr GA Mowbray, Australian Government Solicitor