Minister for Immigration & Multicultural Affairs v Gnanapiragasam (includes corrigendum dated 13 October 1999) [1998] FCA 1213

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 61 of 1998

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

AND:            THIAGARAJAH GNANAPIRAGASAM First Respondent

PATHMADEVI GNANAPIRAGASAM Second Respondent

KAJALINY GNANAPIRAGASAM Third Respondent

KAJANAN GNANAPIRAGASAM Fourth Respondent

KAJANITHEN GNANAPIRAGASAM Fifth Respondent

JUDGE: WEINBERG J

DATE: 25 September 1998

PLACE: MELBOURNE

CORRIGENDUM

Amendments to the Reasons for Judgment of Weinberg J delivered 25 September 1998.

On page 3 under the heading "The decision of the delegate" point 2 should read "have a well founded fear of persecution".

On page 16 delete the second paragraph:

"There is no reason in principle why Art 33 should rest upon nothing less than an entitlement to "permanent residence" in the third country. Such an entitlement happened to exist in both Thiyagarajah and Rajendran. Once back in that "safe third country" the claimants in those cases could make their claims for refugee status where, it should be assumed, these would be determined in accordance with the requirements of Art 1A(2) of the Convention."

And replace with:

There is no reason in principle why Art 33 should rest upon nothing less than an entitlement to "permanent residence" in the "safe third country". Such an entitlement happened to exist in both Thiyagarajah and Rajendran. In Thiyagarajah the claimant had previously been granted refugee status in the "safe third country", France. Once back in that "safe third country" the claimant could make his or her claim to refugee status or, as in Thiyagarajah, rely upon the previous grant of that status. Any claim to refugee status would then be determined in accordance with the requirements of Art 1A(2) of the Convention, assuming that the "safe third country" was a signatory thereto.

On page 25 Counsel for the Applicant should read "Mr AL Cavanough QC".

Lisa Bingham

Associate to Justice Weinberg

13 October 1999

FEDERAL COURT OF AUSTRALIA

MIGRATION - application for protection visa - respondents of Sri Lankan origin - respondents granted permanent resident status in Germany before entering Australia - uncertainty as to respondents' claim to refugee status in Germany - failure of RRT to address Art 33 - whether protection obligations owed by Australia to respondents - whether "effective protection" available to respondents in Germany - whether Germany "safe third country".

Migration Act 1958, ss 36, 65, 476(1)

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

Migration (1994) Regulations, Sch 2, Part 866

Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 176

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685

Nguyen Tuan Cuong v. Director of Immigration [1997] 1 WLR 68

Bugdaycay v Secretary of State for the Home Department [1987] AC 514

Rajendran v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Mansfield J, 4 May 1998)

Rajendran v Minister for Immigration and Multicultural Affairs (unreported, Full Court, Federal Court, 4 September 1998)

Barzideh v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 417

Servos v Repatriation Commission (1995) 56 FCR 377

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v THIAGARAJAH GNANAPIRAGASAM & ORS

VG 61 OF 1998

WEINBERG J

MELBOURNE

25 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 61 of 1998

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant

AND:

THIAGARAJAH GNANAPIRAGASAM First Respondent

PATHMADEVI GNANAPIRAGASAM Second Respondent

KAJALINY GNANAPIRAGASAM Third Respondent

KAJANAN GNANAPIRAGASAM Fourth Respondent

KAJANITHEN GNANAPIRAGASAM Fifth Respondent

JUDGE: WEINBERG J

DATE OF ORDER: 25 September 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1.  The decision of the Refugee Review Tribunal be set aside, and the matter remitted to the Tribunal to be reconsidered according to law in accordance with the principles stated in these reasons.

2.  There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 61 of 1998

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant

AND:

THIAGARAJAH GNANAPIRAGASAM First Respondent

PATHMADEVI GNANAPIRAGASAM Second Respondent

KAJALINY GNANAPIRAGASAM Third Respondent

KAJANAN GNANAPIRAGASAM Fourth Respondent

KAJANITHEN GNANAPIRAGASAM Fifth Respondent

JUDGE: WEINBERG J

DATE: 25 September 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT

This is an application by the Minister for Immigration and Multicultural Affairs pursuant to s 476(1) of the Migration Act 1958 ("the Act") to review a decision of the Refugee Review Tribunal ("the RRT"). That decision was given on 27 January 1998. The RRT held that the respondents are persons to whom Australia has protection obligations under the Refugees Convention ("the Convention"), and that they therefore satisfy the criterion set out in subs 36(2) of the Act for protection visas. The Minister contends that the RRT erred in law in so holding.

Background

The first and second respondents are husband and wife. The third, fourth and fifth respondents are their children. The respondents are Sri Lankan Tamils, originally from the northern region of that country.

The first respondent was born in Jaffna. He is forty-six years of age. He was employed as a salesman in Jaffna between 1973 and 1981. In October 1981, together with his wife and first born child, he left Sri Lanka for Singapore. There he became involved with various Tamil separatist groups including in particular the Liberation Tiger Tamil Eelam ("LTTE"). He provided money and accommodation to members of that organisation who passed through Singapore.

He returned with his family to Sri Lanka in 1984. He claims to have been threatened, and physically mistreated by the Sri Lankan securities forces. As a result, in August 1984, he fled to Germany. His wife and children remained for a time in Sri Lanka. They continued to experience harassment, however, and eventually in 1985 his wife sold their home and other property and together with the third and fourth respondents joined her husband in Germany.

There is some uncertainty as to the respondents' initial status in Germany. They claim that they sought refugee status from the German Government but say that refugee status was refused. The applicant does not accept this contention, but submits rather that at least the first and second respondents were granted refugee status in 1984 and 1985. I shall return to this dispute later in these reasons for judgment.

There is no doubt that the respondents were granted permanent resident status in Germany. The first respondent secured regular employment. He continued for a time to provide support and assistance to LTTE but he maintained that this ceased after the assassination in 1991 of the former Indian Prime Minister Rajiv Gandhi.

In 1993 the respondents went on a pilgrimage to India. Unfortunately, they lost their passports, money and air tickets back to Germany. They were obliged to go back to Sri Lanka to obtain new passports. They spent a short time in Colombo while awaiting those new passports. They claimed to have spent every moment of this short stay in a hotel room in Colombo in a state of grave fear and anxiety until they received their new passports and could return to Germany.

With the unification of East and West Germany the influence of what were said to be Nazi groups spread rapidly throughout the country. The first respondent had been promoted in his workplace, and had been put in charge of a number of workers of German origin. This prompted an outburst of racial vilification towards him. He was threatened and physically assaulted. His house and his car were both damaged. His wife was also physically assaulted. Nazi symbols were daubed upon the door to the family home.

Although he had permission to remain in Germany permanently, and he had secure employment, the first respondent decided that he could no longer continue to live under these conditions. His brother-in-law resided in Australia. He sought assistance from his brother-in-law in sponsoring the respondents as immigrants. They did not, however, qualify for permanent resident status. As a last resort the family applied for tourist visas. They arrived in Australia on 12 July 1995. They lodged their protective visa applications on 4 September 1995.

The decision of the delegate

The delegate gave his decision rejecting the respondents' claim under the Refugees Convention on 31 January 1997. In substance, the delegate found that:

1.  Though the respondents had permanent resident status in Germany, it was highly unlikely that they would be permitted to return to that country, even if they sought to do so. They did not therefore have the rights and obligations which were attached to the possession of the nationality of that country, and Art 1E of the Convention did not operate to exclude them from its coverage.

2.  They did not, however, have a well founded fear of prosecution if returned to Colombo, as distinct from Jaffna.

3.  They did not meet the criteria prescribed in para 866.222 of Schedule 2 of the Migration Regulations for the grant of a protection visa.

The decision of the RRT

The RRT delivered its reasons for decision on 27 January 1998. It held that the respondents had a well founded fear of persecution for a Convention based reason. It found that they were persons to whom Australia had protection obligations under the Convention, and that they therefore satisfied the criterion set out in s 36(2) for protection visas.

The RRT accepted the findings of the delegate in so far as those findings related to the respondents' prospects of returning to Germany. It did so in one short and somewhat cryptic sentence. It stated:

"The Tribunal accepts that the applicants do not have any residence rights in Germany and therefore it is necessary to assess the cases in relation to Sri Lanka."

Though the RRT did not, as the delegate had done, expressly link this finding with Art 1E of the Convention, it is reasonably clear that what was meant by this sentence was that the respondents were not prevented by the operation of that Article from having their claim to refugee status determined in accordance with Art 1A(2).

Art 1E provides as follows:

"This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country."

The finding that the respondents "do not have any residence rights in Germany" was presumably a shorthand, somewhat elliptic, method of restating the delegate's finding that it was highly unlikely that they would be permitted to return to that country, even if they sought to do so. Doubtless such a finding was thought to take the respondents outside the ambit of the exclusionary operation of Art 1E, since the rights and obligations attached to the possession of German nationality must at least include the right to enter that country.

The RRT then proceeded to determine that the respondents had a well founded fear of persecution for a Convention based reason if they returned to Sri Lanka. The distinction which had been drawn by the delegate between Jaffna, which was unacceptable, and Colombo which was acceptable, was rejected. Though Colombo was somewhat less dangerous to Tamils than was Jaffna, there was still a sufficient basis for believing that the respondents, or at least their two eldest children, would suffer mistreatment and persecution were they to be relocated to Colombo. This made it unreasonable to expect them to reside in that city.

The case for the applicant

Senior Counsel for the applicant contends that the decision of the RRT should be set aside because it involved the following errors of law:

1.  The RRT failed to address a question which was both fundamental, and logically anterior to the question whether the respondents fell within Art 1A(2) of the Convention -namely whether by reason of Art 33 of the Convention there was no basis for proceeding to consider whether or not the conditions of Art 1A(2) were fulfilled.

2.  The RRT failed to consider whether the respondents could be returned to some part or parts of Sri Lanka other than Jaffna or Colombo.

Legislative framework.

Section 36 of the Act provides as follows:

"36(1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

Paragraph 866.22 of Schedule 2 of the Migration Regulations (SR 268 of 1994) provides, in part:

"866.22 Criteria to be satisfied at time of decision

866.221 The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention ..."

Art 1A(2) of the Convention provides, in part:

"... and 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."

The Article 33 contention

The contention that the RRT erred in law in failing to have regard to the operation of Art 33 is based upon a decision of the Full Court of the Federal Court which was delivered on 19 December 1997, approximately one month prior to the decision of the RRT in this case.

In Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685 the Full Court allowed an appeal from a decision of Emmett J which is reported as Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 176. There his Honour had set aside a decision of the RRT which had affirmed the Minister's decision to refuse a protection visa. The RRT was held to have erred in law in its construction of Art 1E of the Convention and in having made no findings as to the difference between the applicant's status and his entitlement to re-enter France, and that of a French national.

Thiyagarajah concerned a Sri Lankan Tamil who, until he entered Australia on 12 December 1994, had been resident in France where he had been granted refugee status. On 18 April 1995 he lodged an application for a protection visa under s 36 of the Act. That application had been refused.

Before Emmett J, Art 33 of the Convention was not mentioned. The only issue before his Honour was whether Art 1E had the effect that the applicant would not be entitled to the grant of a protection visa. Since the applicant had taken up residence in France after leaving Sri Lanka the only question so far as his Honour was concerned was whether he was recognised by the competent authorities of that country as having the rights and obligations which are attached to the possession of French nationality. Emmett J found that the RRT had erred in its approach to this question.

When the matter came on appeal to the Full Court, counsel for the Minister sought to invoke an argument which had not been advanced before Emmett J. He contended that because the respondent Thiyagarajah had effective protection in France, including the right to reside in, and enter and re-enter that country, to work in most occupations, and to apply for French citizenship, he was not entitled to claim protection from Australia under the Convention. He submitted that this was so in part, but not merely, because Art 1E applied to the respondent, and operated to obviate the need for an investigation into his possible refugee status. Independently of Art 1E, however, the protection obligations under the Convention did not apply to a person who had established residence, and acquired effective protection as a refugee in another country while en route to Australia.

The judgment of the Full Court was delivered by von Doussa J, with whom Moore and Sackville JJ agreed. Justice von Doussa noted at 692 that the Minister's written submissions had focused upon the first argument relating to Art 1E, and said very little about the second contention.

Nonetheless his Honour found it convenient to consider the second limb of those submissions first. As his Honour noted at 692:

"If it is the case that, independently of Art 1E, Australia as a Contracting State does not owe protection obligations to a person who has established residence and acquired effective protection as a refugee in another country (a "third country"), it is not necessary to determine the scope of Art 1E, since the respondent would not have satisfied the criterion identified in s 36(2) and Pt 866 of Sch 2 of the regulations." (emphasis added)

Justice von Doussa noted that there had been important changes made to the Migration Act 1958 by the Migration Reform Act 1992. In the case of the Convention, the Act as it stood prior to the 1992 amendments incorporated the definition of "refugee" from the Convention into domestic law. It did so in s 4(1) by defining "refugee" as having the same meaning as it has in Art 1A of the Convention.

The Migration Reform Act 1992 (which came into operation in 1994) repealed the definition of "refugee" which had hitherto existed, and substituted definitions of the Convention and the Protocol thereto in s 5. A new regime of "protection visas" was created. By this process, the existence of protection obligations under the Convention became the central criterion in s 65 of the Act and in Pt 866 of the Regulations, the fulfilment of which required the Minister to grant the protection visa.

The question which had to be determined was whether the respondent Thiyagarajah was a non-citizen in Australia to whom Australia had protection obligations under the Convention. That was a very different question to that which had to be addressed under the repealed provisions of the Act. There the relevant enquiry was whether the asylum seeker satisfied the Minister that he had the status of a "refugee". As von Doussa J observed at 694:

"This case illustrates the significance of the change which the 1992 amendments have introduced. If the second limb of the submissions of the Minister is correct, the respondent might be a refugee within the meaning of Art 1A(2), since he continues to hold a well-founded fear of being persecuted for a Convention reason if he were to be returned to Sri Lanka yet he is not necessarily a person to whom Australia presently owes protection obligations under the Refugees Convention."

His Honour went on at 696 to identify two questions which had to be addressed concerning the obligations of Australia, as a Contracting State, under the Convention. His Honour stated:

"It would appear that these questions have not yet been considered by the courts in Australia, probably because the mechanism by which the Act offered protection before the 1992 amendment directed primary attention to whether the asylum seeker had the status of a refugee. The first question is whether Australia is under an obligation to assess the refugee status of a non-citizen who has come to Australia from a third country which has recognised that person as having the status of a refugee under the Refugees Convention. One of the consequences of being recognised as a refugee by a third country is that the applicant will probably have travelled to Australia on travel documents issued by that country pursuant to Art 28 of the Refugees Convention. In accordance with the requirements of the schedule to the Refugees Convention the travel documents should contain a right of re-entry to the third country. This was so in the present case.

The second question is related to the first. It is whether under the Refugees Convention, Australia is obliged not to deport a non-citizen asylum seeker from Australia to the third country from whence he or she came if that person falls within the definition of "refugee" in Art 1." (emphasis added)

His Honour then turned to Art 33 of the Convention. He described that Article as imposing the "principal obligation" required by the Convention on a Contracting State. The Contracting State must not expel or return a refugee 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. His Honour noted that Art 33 refers to "territories" generally, not just to the country of the refugee's nationality. He noted also that the description of the potential harm to the refugee is expressed in terms which are significantly different to the description in Art 1A(2). While the terms of Art 33 do not refer to a well-founded fear of persecution held by the refugee, his Honour expressed the view that a similar test to that which arises under Art 1A(2) should be applied in determining whether a proposed expulsion or return of the refugee to another territory contravenes Art 33.

His Honour went on at 698 to observe:

"The obligations imposed by Art 33 fall short of creating a right in a refugee to seek asylum, or a duty on part of the Contracting State to whom a request for asylum is made, to grant it, even if the refugee's status as such has not been recognised in any other country."

He then referred to a passage from the Advice of the Privy Council in Nguyen Tuan Cuong v Director of Immigration [1997] 1 WLR 68 at 79 in which Lord Goff of Chieveley and Lord Hoffmann delivered a dissenting opinion. Their Lordships addressed Art 33 in terms which indicated that it was applicable to a person claiming refugee status who had passed through a third country without having been accorded refugee status by that country. The majority of the Privy Council did not address Art 33 at all.

Justice von Doussa also referred to the decision of the House of Lords in Bugdaycay v Secretary of State for the Home Department [1987] AC 514 an appeal involving a refugee from Uganda who had lived in Kenya for a period before arriving in the United Kingdom where he first sought entry as a visitor, and on being refused entry, sought asylum as a refugee from Uganda. Justice von Doussa noted that the House of Lords had held that if the appellant could be returned to Kenya without danger of being sent back to Uganda by the Kenyan authorities, there could be no breach of obligations imposed on the United Kingdom by the Convention. The appellant in that case had not been granted recognition in Kenya as a refugee. Justice von Doussa observed:

"Lord Bridge's statement of principle was not dependent upon the person claiming to be a refugee in the United Kingdom having been so recognised, or having even made application to the third country for recognition as a refugee. In the "ordinary case" the person could be returned to the third country without the United Kingdom considering the merits of the claim to be a refugee. The "ordinary case" is one where the return of the person claiming to be a refugee does not offend Art 33.

A decision to deport [the appellant] was quashed by the House of Lords only because the Home Secretary had not given proper consideration to whether a danger existed that Kenya would return him to Uganda, a course which would effect indirectly what Art 33 prohibited."

His Honour then undertook a careful analysis of various texts and periodical literature concerning the status of refugees in international law - see 699-702. Much of that material dealt with Art 33 of the Convention. A reading of some of the texts to which von Doussa J referred demonstrates that there may be a difference amongst scholars as to whether Art 33 is applicable in circumstances where the applicant claiming refugee status has not previously been accorded that status in the third country in which he resided prior to arriving at his final destination.

Justice von Doussa noted at 701 that in 1993 the United Nations High Commissioner for Refugees ("the UNHCR") stated that the return of those who had obtained effective protection in another country is permissible, subject to the conditions laid down in Executive Commission Conclusion Number 58 (1989) on Irregular Movements. This suggests that prior refugee status is not the test, but rather the existence of proper safeguards to avoid the phenomenon of "refugees in orbit" alleviating the destabilising effect of irregular movements of refugees and asylum seekers.

Professor James Crawford and Associate Professor Patricia Hyndman in their paper "Three Heresies in the Application of the Refugee Convention" (1989) 1 IJRL 155 put the matter in the following terms at 173:

"Australia is not obliged to entertain a claim to refugee status where the claim might more appropriately and with equal moral force be the responsibility of another signatory to the 1951 Convention, provided that there is no reason to doubt that State will consider the claim to refugee status in accordance with the Convention." (emphasis added by the authors)

It is at least implicit in this passage that the learned authors do not consider Art 33 to be applicable only in circumstances where the applicant for refugee status has previously acquired such status in a third country.

Justice von Doussa did not find it necessary in deciding Thiyagarajah to determine definitively whether prior refugee status was a condition precedent to the application of Art 33. It was plain that such prior refugee status existed in that case. His Honour stated 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 not a breach of Art 33 if the person happens to be a refugee." (emphasis added)

There are other passages in the judgment of von Doussa J in which his Honour expressly links the Art 33 question to the fact that the respondent in Thiyagarajah had been recognised as a refugee in France. At 703 his Honour stated:

"In the present case, the respondent after his flight from his country of nationality was recognised as a refugee in France. France accorded him permanent residency and, when requested, provided him with a travel document in accordance with Art 28 of the Convention. Provided France was able to provide effective protection to the respondent at the time of the determination of his application for a protection visa ... it was not inconsistent with the obligations owed by Australia as a Contracting State to effect his deportation from Australia without considering the substantive merits of a claim to refugee status." (emphasis added)

Once again this passage may be taken as being somewhat equivocal in terms of whether it treats prior refugee status as a condition precedent to the application of Art 33. See also the following passage from his Honour's judgment at 705:

"For the reasons given, the second limb of the submission of the minister on this appeal has been made good. As a matter of domestic and international law, Australia does not owe protection obligations to the respondent as he is a person who has effective protection in France which has accorded him refugee status. Moreover, when his application for a protection visa was determined by the RRT, he had been a resident in France for a long period, he had the right to apply for citizenship in France, and he held travel documents that entitled him to return to France. These added matters are not essential to the finding that Australia did not owe him protection obligations, but serve to illustrate that the respondent's claim for protection is far removed from the object and purpose of the Refugees Convention." (emphasis added)

The focus in this passage seems to be upon "effective protection" rather than prior refugee status. The "added matters" which were said by his Honour to be not essential to the finding that Australia did not owe the respondent Thiyagarajah protection obligations did not include his previously having been accorded refugee status. However, the tenor of this passage is one of broad principle. That principle is not expressed in terms which suggest that the prior grant of refugee status is a precondition to the operation of Art 33.

The decision of the Full Court in Thiyagarajah does not hold definitively that Art 33 applies in circumstances where there is "effective protection", but without prior refugee status. Nonetheless the combination of scholarly writing upon this subject to which von Doussa J referred, taken together with the decision of the House of Lords in Bugdaycay, and considerations of general principle, all suggest that Art 33 may obviate the need to consider refugee status without such status having previously been accorded by another country.

If that be a correct statement of principle, the question whether the respondents in the present case ever acquired refugee status in Germany ceases to be a live issue. That it is a correct statement of principle emerges from the judgements of Mansfield J at first instance, and of the Full Court of the Federal Court in Rajendran, set out below.

The decision in Rajendran

After the decision of the Full Court in Thiyagarajah, Mansfield J delivered judgment in Rajendran v Minister for Immigration and Multicultural Affairs (unreported, 4 May 1998). In that case, his Honour dealt with an application to review a decision of the RRT which had affirmed an earlier decision by the delegate of the Minister not to grant a protection visa. The RRT had found that because of the operation of Art 1E Australia did not have protection obligations to the applicant under the Convention.

The applicant was a Sri Lankan Tamil who had left that country in 1985. He travelled to India, and to the United Kingdom, and in January 1987 he went to New Zealand. After some two and a half years in New Zealand, in September 1989 he travelled to the United States and from there to Canada where he again lived for several years. He returned to New Zealand in December 1994, until his entry to Australia in November 1995.

The applicant claimed that he could not return to Sri Lanka because he was suspected by the Sri Lankan armed forces of being a terrorist. He also claimed that the LTTE believed him to have informed upon them in 1979 and had threatened and assaulted him on many occasions thereafter.

On 21 July 1987 he secured permanent residence in New Zealand on humanitarian grounds. He was not regarded as a refugee by the New Zealand Government.

The RRT declined to determine whether the applicant was a refugee within the terms of Art 1A(2) of the Convention. It took the view that he was ineligible for recognition as a refugee by reason of Art 1E.

Mansfield J observed that the applicant's Sri Lankan passport disclosed that he was a permanent resident of New Zealand. It bore a New Zealand returning resident's visa issued on 24 October 1995, which was valid to 14 December 1998. That visa guaranteed that the applicant could travel to New Zealand and, on application, be granted a residence permit.

Mansfield J noted that the decision of the RRT had been made before the Full Court decided Thiyagarajah. He referred to a passage in the judgment of the Full Court in Thiyagarajah at 706 where, referring to the judgment of Hill J in Barzideh v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 417, von Doussa J had stated:

"... its practical significance is limited by the conclusion that Australia does not necessarily have protection obligations to a person who has rights of residence in a third country (that is not his or her country of nationality)."

Mansfield J concluded that it was significant that in that passage von Doussa J had referred to the existence of "rights of residence" without qualifying such rights by requiring that there be recognition of refugee status in the third country. Mansfield J concluded, therefore, that Art 33 of the Convention was not restricted in its operation to cases where the visa applicant had in fact been granted refugee status in a third country en route to Australia.

His Honour summarised the effect of Thiyagarajah in the following terms:

"In substance, the Full Court decision is to the effect that, for the purposes of determining whether Australia has protection obligations under the Convention, it is necessary to look to the individual circumstances of a particular visa applicant to determine whether, if Australia were to return that person to the third or intermediate country, Australia might be in breach of one of the operative Articles of the Convention (relevantly, Art 33). If not, then whether or not the visa applicant is a "refugee" under Art 1, Australia has no protection obligations in respect of that person. If Australia would be in breach by such action, then it will be necessary to determine whether that person is a "refugee" under Art 1."

His Honour also stated:

"In my view, the effect of the Full Court decision in Thiyagarajah is that the Court must, as a matter of domestic law, in a matter such as the present first consider whether Australia has the obligation to assess the refugee status of the applicant having regard to the content of the obligations imposed by the Convention, relevantly Art 33. If the return of the applicant to New Zealand would not expose Australia to a breach of Art 33 in relation to him, then the applicant is not a person towards whom Australia has that obligation. In that event, it is not to the point to turn first to the definition of "refugee" under Art 1, or specifically to Art 1A(2) or to Art 1E. It is unnecessary. If, on the other hand, the applicant is a person to whom Australia has such an obligation under Art 33, then to assess the claim to refugee status, it may be necessary to address Art 1A(2) or Art 1E or both. There is no necessary sequence in which those Articles need be addressed, although if Art 1E applies to exclude the applicant from the description of "refugee", it would be unnecessary to address Art 1A(2) at all.

I conclude that it is not correct to restrict the operation of Thiyagarajah to cases where the third country has granted the visa applicant refugee status. The fundamental question is whether the status and legal entitlements of the visa applicant in the third country have the consequence that Australia is not obliged to assess the claim to refugee status. The critical Article is Art 33 as it prescribes, for present purposes, whether Australia has such an obligation. That emerges not just from the particular passages in Thiyagarajah to which I have referred above, but to the reference in the Full Court's reasons with apparent approval to Bugdaycay v Secretary of State for the Home Department [1987] AC 514; Nguyen Tuan Cuong v Director of Immigration [1997] 1 WLR 68 at 79; R v Secretary of State for the Home Department; Ex parte Abdi [1996] 1 WLR 298, and to the Court's consideration of those authorities and other materials at 698-702."

The decision in Rajendran was affirmed by the Full Court of the Federal Court in Rajendran v The Minister for Immigration and Multicultural Affairs (unreported, 4 September 1998). In a joint judgment, their Honours von Doussa, O'Loughlin and Finn JJ held that Mansfield J had concluded correctly that where an applicant for a protection visa has already secured rights and entitlements in a third country the operation of Thiyagarajah ought not be restricted to cases where those rights and obligations result from that country's grant of refugee status to that person.

The principles in Thiyagarajah extend at least to cases where the visa applicant is entitled to permanent residence, and, in time, to become a citizen, and has been accorded that "effective protection" referred to by von Doussa J in Thiyagarajah (supra) at 702 by the third country to which it is proposed he return.

It follows that whether or not the respondents in the present case, or any of them, were ever accorded refugee status in Germany is not determinative of whether Art 33 of the Convention operates to render unnecessary any consideration of their possible refugee status by the Minister or his delegate.

The Tribunal's failure to address Art 33

It is common ground in this case that the RRT did not address the question whether Art 33 operated to render it unnecessary for the delegate to consider whether or not the respondents fell within the scope of Art 1A(2) of the Convention, or indeed, save in passing, whether Art 1E operated to oust them from the scope of Art 1A(2). Senior Counsel for the applicant submitted that Art 33 raised a question which was logically anterior to the issue of their possible refugee status, and which had to be addressed - and that question was not considered by the RRT at all.

As noted above, the RRT found that the respondents "do not have residence rights in Germany" and that it was therefore necessary to assess the cases in relation to Sri Lanka. The question to be determined is whether a finding in those terms operates per se to prevent Art 33 from being given its Thiyagarajah application and validates the RRT's decision to move immediately to a consideration of the claim to refugee status in relation to Sri Lanka.

Senior Counsel for the applicant submitted that this one sentence finding by the RRT was cryptic, and incapable of overcoming its failure to have addressed the critical question which arose in this case. If the return of the respondents to Germany, a "safe third country" which could provide "effective protection", would not expose Australia to a breach of its obligations under Art 33, then the respondents are not persons to whom Australia has any protection obligations. Australia is not, therefore, obliged to consider their claims to refugee status.

Senior Counsel for the applicant accepted that if the RRT had found that the respondents could not, under any circumstances, re-enter Germany, even on a temporary basis, there would be no requirement that the RRT consider the operation of Art 33. However, he submitted that the single sentence finding of the RRT did not go so far, and that properly understood, it was no more than a finding that it was unlikely that the respondents would be permitted to re-enter Germany as permanent residents. Such a finding, he contended, was insufficient to address properly the issues which arise under Art 33. It might be, for example, that the respondents would be permitted to re-enter Germany on a temporary basis. Even a six month residence entitlement, which is now common throughout Europe, coupled perhaps with a right to leave and re-enter that country might well be sufficient to constitute "effective protection" under Thiyagarajah. To put the matter another way, Germany might be a "safe third country" to which the respondents could lawfully be returned.

The expression "safe third country" appears to derive from a policy statement made by the Government of the United Kingdom to Parliament on 25 July 1990 relying on an asserted "internationally accepted concept" that "a person fleeing persecution should normally seek refuge in the first safe country reached" - see Professor D Jackson, Immigration: Law and Practice 1996 at 353 where this policy is discussed and criticised. The "first country reached" approach which had been adopted in the United Kingdom and other parts of Europe was criticised also by the UNHCR in 1993. It is said to be the product of confusion with a different principle, that of "first country of asylum" (ie a State may refuse to consider an asylum application if refugee status has already been granted in another State).

There is no reason in principle why Art 33 should rest upon nothing less than an entitlement to "permanent residence" in the third country. Such an entitlement happened to exist in both Thiyagarajah and Rajendran. Once back in that "safe third country" the claimants in those cases could make their claims for refugee status where, it should be assumed, these would be determined in accordance with the requirements of Art 1A(2) of the Convention.

The question to be addressed, therefore, is whether Germany, which is of course a signatory to the Convention, is a country in which the life or freedom of the respondents would not be threatened (within the meaning of Art 33) and the Government of which would not send the respondents elsewhere in a manner contrary to the principles of the Convention.

The material before the RRT which bore upon the question whether the respondents could return to Germany was limited to several key documents. These were as follows:

1.  Facsimile transmission from Consulate General of the Federal Republic of Germany to Ms Ranee Jayawardena, Onshore Refugee Program, Department of Immigration and Multicultural Affairs dated 27 September 1996, responding to request for information concerning permits contained in respondents' Sri Lankan passports.

"Dear Madam,

The document appears to be a Travel Document issued as per the Geneva Refugee Convention.

...

Foreigners whose refugee status has been unchallengeable [sic] recognised, are granted a `unbefristete Aufenthaltserlaubnis' (residence permit with indefinite validity) according to Section 68 Asylverfahrensgesetz. If the refugee leaves Germany, the `unbefristete Aufenthaltserlaubnis' does not expire as long as the refugee holds a valid Travel Document for Refugees issued by a German authority (section 69 para 1 AsylVfG). The refugee is not entitled to return to Germany if the Travel Document has expired and competence to issue a new Travel Document has passed over to another country (section 69 para 2 AsylVfG).

The `unbefristete Aufenthaltserlaubnis' is usually put inside of the Travel Document as a visa sticker. Please note that on the pages faxed by you, there is not such visa sticker, it might be on one of the following pages.

On page 2 of the Travel Document there should be a remark that the holder is entitled to return to Germany within validity of his Travel Document. In this particular case, the Travel Document expired on 03.02.1995. Accordingly, the holder's right to return to Germany has expired on that day, too.

...

I trust the above information will be of assistance to you.

Yours sincerely,

Henning Hansen

Vice-Consul"

2.  Facsimile from the Department of Immigration and Multicultural Affairs to Ms Hulke, Visa Section, Consulate General of the Federal Republic of Germany, Melbourne dated 10 December 1996.

"Further to our telephone conversation, enclosed please find the relevant pages from the applicants' passports. In order to assist me with the processing of their Visa application, I would be most grateful if you could clarify the following:

1. What kind of a residency permit is held in this instance? (the permit holders resided in Germany from 1985-1995).

2. Have the residency permits been terminated by virtue of the holders' absence from Germany (of more than 12 months)?

3. Can the holders apply for a temporary re-entry permit (at the Consulate)? Would they be granted such a permit in order to allow them to re-enter Germany?

5. [sic] One of the family members was born in Germany. Does this have any bearing on his (and his family's) residency permit and/or their re-entry rights?

I apologise for such a `general' form of my inquiries. Should you require any clarification in relation to the above, please feel free to contact me on 9235-3920.

With kind regards,

Waleria Siuta"

3.  Letter from Henning Hansen, Vice-Consul, Consulate General of the Federal Republic of Germany to Ms Waleria Siuta, Department of Immigration and Multicultural Affairs dated 12 December 1996.

"Dear Madam,

Please refer to your fax dated 10.12.96 and our telephone conversation on 11.12.96. I would like to answer your questions as follows:

1. The fax copy shows two "Aufenthaltserlaubnis" issued in Bremen on 15.09.93 and 16.02.1994 respectively and valid indefinitely ("unbefristet") and one "Aufenthaltsbefugnis" issued on 21.07.1994 in Bremen valid until 20.07.1996. From our conversation I understand that those different residence permits belong to members of the same family.

An "Aufenthaltserlaubnis - unbefristet" is a permanent residence permit granted to different categories of foreigners, e.g. those who live with their German spouse in Germany or refugees whose refugee status has been unchallengeably recognised.

An "Aufenthaltsbefugnis" denotes a temporary residence permit granted to foreigners for urgent humanitarian or political reasons and who do not meet with the requirements for a "Aufenthaltserlaubnis". Asylm [sic] seekers whose application for refugee status has been unchallengeably rejected can be granted a "Aufenthaltsbefugnis" if their expulsion is exchanged for legal or factual reasons not caused by themselves. A "Aufenthaltsbefugnis" is issued for a period not exceeding two years and can be renewed.

2. Both an "Aufenthaltsbefugnis" and an "Aufenthaltserlaubnis" expire

- if the holder is expelled from Germany

- if the holder leaves Germany for other than temporary reasons (e.g. migration to another country)

- if the holder, after leaving Germany, does not return within a period of six months (or a longer period authorized by the competent German alien authority).

As you can see from this, even the "unbefristete Aufenhaltserlaubnis" does not really give the indefinite right to return to Germany.

Accordingly, the resident permits faxed by you have terminated if their holders have been away from Germany for more than 6 months and did not obtain approval for a longer period of absence prior to their departure.

3. If they re-applied at this Consulate for visas to return to Germany their applications would be decided by the local alien authority in Germany, which would take into consideration how they will finance their stay in Germany. Work permits for Non-European Union Citizens are issued only on a restricted basis. Unless one of the parents has a job offer from a German company for a very qualified position they will not have any chance of having their applications approved. The fact that the family lived in Germany previously would play a minor role for the authorities' decision.

4. The fact that a person is born in Germany does not provide any privileges in terms of the right to live (or re-enter) in Germany or towards German citizenship for which a person's place of birth is irrelevant.

Hoping to have clarified the matter, I remain

Yours sincerely,

Henning Hansen

(Vice-Consul)"

The delegate who determined the applications for protection visas in the present case proceeded to consider the respondents' status in Germany, having regard to the documents provided by the Consulate General in Melbourne set out above. The delegate concluded, in the context of determining the Art 1E question:

"In view of the above, I find that despite the fact that the applicants have a resident status in Germany, it is highly unlikely that they would be able to return to Germany, even if they applied for a re-entry visa. Therefore, in effect, they do not have the right of entry to Germany, and I have to conclude that whilst the applicants have taken residence in Germany, they are not recognised by the competant [sic] authorities in Germany as having the rights (and obligations) which are attched [sic] to the possession of German nationality. Therefore applying the test in Nagalingam, they have rights which fall short of those accorded refugees under the Convention."

It seems that the delegate formed the view that the first respondent had been granted refugee status sometime after his arrival in Germany - see Part C para 3 of the Protection Visa Decision Record of 31 January 1997. This was contrary to the claim by the first respondent that he and his wife had applied for refugee status in Germany in 1985, and his assertion that their applications had been refused. For the reasons set out earlier in this judgment it is not necessary that I determine that issue. In deference to the submissions of the parties, however, I make the following observations.

The respondents sought leave to tender before me a letter dated 6 August 1998 from the Consulate General which purported to clarify the uncertainty surrounding the respondents' refugee status in Germany. I received that letter only because Senior Counsel for the applicant expressly disavowed any objection to my doing so, and notwithstanding the general rule that in an application for review of this type, the Court should not receive evidence or other material which was not before the RRT. See generally Servos v Repatriation Commission (1995) 56 FCR 377. The justification for receiving this letter was said to be that it clarified the documentary material which was before the RRT and, so it was contended, demonstrated that the respondents' permanent resident status was consistent with their having been refused refugee status, as they had had maintained throughout.

The letter of clarification was preceded by a letter dated 31 July 1998 sent by the solicitors for the respondents which asked for clarification of the following matters:

"(a) Is the "Aufenthaltserlaubnis - unbefristet" residence permit issued only to "those who live with their German spouse in Germany or Refugees whose refugee status has been unchallengeably recognised?

(b) Our clients who previously held these "Aufenthaltserlaubnis - unbefristet" permits are persons whose applications for refugee status in Germany were refused in October 1984 and April 1985 respectively. They remained in Germany and were granted these permits on 15 September 1993 and 16 February 1994 respectively. Could such a permit have been granted in humanitarian circumstances short of recognition of refuge status?

(c) The "Aufethaltsbefugnis" permits have been issued to the children of the persons who had held the "Aufenthaltserlaubnis - unbefristet" permits. Is the issue of these 2 year temporary residence permits to the children indicative of the category under which the "Aufenthaltserlaubnis - unbefristet" were granted to their parents? Would the children of those granted "Aufenthaltserlaubnis - Unbefristet" permits upon recognition of refugee status ordinarily be granted permanent residence as well?"

Facsimile from Henning Hansen, Vice-Consul, Consulate General of the Federal Republic of Germany to Ambi Associates dated 6 August 1998.

"Dear Madam,

Your Ref: NA. Misc

Please refer to your fax of 31.07.98 which I would like to answer as follows:

Spouses of German citizens and recognized refugees were only given as examples of persons who can be granted an "Aufenthaltserlaubnis". There are indeed also other people to whom an "Aufenthaltserlaubnis" can be granted, e.g. the spouse and minor children of a foreigner who himself has an "Aufenthaltserlaubnis", (in some cases) foreigners who are coming to Germany to work.

It will be of interest to you that an "unbefristete Aufenthaltserlaubnis" can be granted according to § 35 (1) of the Aliens Act to a foreigner who has held an "Aufenthaltsbefugnis" for eight years provided that the person

is able to finance his stay from own income sources

is employed with a valid work permit

has a basic proficiency in the German language

has sufficient accommodation space for himself (and his family)

there are no reasons for expulsion.

Accordingly, it is thinkable that your clients were granted an "Aufenthaltsbefugnis" initially when their applications for refugee status were rejected and (more than) eight years later when then granted an "Aufenthaltserlaubnis" as per § 35 (1) of the Aliens Act.

If their applications for refugee status had been successful they would have received an "Aufenthaltserlaubnis" immediately. Minor children of a recognised refugee are also granted an "Aufenthaltserlaubnis".

The granting of an "Aufenthaltsbefugnis" for two years to the children does not provide an indication to me as to under what exact category the parents' "Aufenthaltserlaubnis" was granted.

Yours sincerely,

Henning Hansen

Vice-Consul"

Senior Counsel for the applicant submitted that this letter did not resolve the question whether the respondents, or any of them, had previously been granted refugee status in Germany. That submission is undoubtedly correct, but having regard to Thiyagarajah and Rajendran is at best of marginal significance.

While the material before the RRT demonstrates that the respondents have lost their rights to permanent residence in Germany, and are unlikely to regain those rights without being able to establish that, at the very least, there is suitable employment available to the first respondent, it does not follow that the "effective protection" to which reference was made in Thiyagarajah including a right to reside in, enter and re-enter Germany is unavailable to them. Those who are admitted as temporary residents may also have rights which provide them with "effective protection" in a "safe third country". Some classes of temporary resident are permitted to find employment. Their rights to leave and re-enter Germany will be adjudged by European law - see D Jackson, supra at 253.

If upon further enquiry it emerges that the respondents are not eligible to re-enter Germany, albeit on a temporary basis, the RRT would no doubt proceed to consider their claims to refugee status under Art 1A(2). There seems little doubt that in such circumstances Art 1E would not exclude any finding which might be made as to refugee status.

It cannot be assumed, however, that merely because the respondents are unlikely now to be accorded permanent resident status in Germany they cannot therefore re-enter that country at all. They have a long established connection with that country, and the fifth respondent was born there. Temporary residence status may not, in fact, be precluded notwithstanding the somewhat uncertain terms in which the letters provided by the Consulate General in Melbourne are couched. Nor should it be assumed that the respondents would be denied the "effective protection" of that country were they to be permitted to re-enter as temporary residents while their claim to refugee status was considered. It should not be assumed that Germany would do other than comply fully with its obligations under the Convention in this regard.

The failure by the RRT to consider the possible application of Art 33 of the Convention as rendering it unnecessary for the delegate to have determined the respondents' claim to refugee status constitutes an error of law on its part. That makes it necessary to set aside its decision. The RRT is required to ascertain as clearly as it can whether or not the respondents would be permitted to re-enter Germany, at least on a temporary basis, thereby enabling their claim to refugee status to be considered by that country. Neither Thiyagarajah nor Rajendran should be taken as stipulating as a minimal basis for the applicability of Art 33 that a person who has been resident in a third country before coming to Australia must be shown to have a continuing right to reside there permanently in order for the third country to be able to accord that person "effective protection".

It seems to me that a right to re-enter, albeit temporarily, the country in which the claimant has previously lived, together with the right, while proper consideration is given to any claim for refugee status, to leave and re-enter that country thereafter, renders Art 33 potentially applicable. Australia can then require the claimant to return to that "safe third country" without the need first to consider his possible refugee status under Art 1A(2). The right to reside temporarily is capable, in any given case, of meeting the "effective protection" criterion no less than the right to resume permanent residence.

That is not to say that a right to return to temporary residence will, of itself, be sufficient in any given case. Art 33 requires that there be "effective protection" in the third country. Australia must be satisfied that the third country will consider any claim to refugee status in accordance with the Convention, and will not simply refuse entry and, without giving the claim any such consideration, return the claimant to the country from which he came originally. These are all matters which must be addressed with care. They cannot be ignored, or passed over, on the basis of such uncertain material as was before the RRT in this case.

The applicant's alternative submission

Senior Counsel for the applicant contended that the RRT erred in law in failing to consider the possibility that while Jaffna and Colombo may have been cities to which the respondents could not reasonably be expected to return, there may have been other towns or regions in Sri Lanka to which they could be sent without risk of Convention based persecution. It is sufficient for me to say that I have read with care all of the material which was before the RRT concerning conditions in Sri Lanka generally, and the position of Tamils in that country in particular. I cannot accept the submission.

I do not believe that there was any obligation upon the RRT to conduct an investigation into conditions in each town and region within Sri Lanka in order to see whether there was any enclave which could be found which would permit the respondents to reside in that place with safety. The material before the RRT suggested strongly that though Jaffna and the north of Sri Lanka were areas of particular danger so far as the respondents were concerned, the dangers were widespread, and existed throughout many parts of that country.

It is not reasonable to expect a Sri Lankan Tamil whose family has only ever had ties with Jaffna and Colombo and who has a well-founded fear of persecution in relation to both those cities to relocate to another part of Sri Lanka which might conceivably be less dangerous, if, after an extensive trawling exercise, such a location can be found. Sri Lanka is a small country, and the possibilities of reasonable relocation are necessarily limited - cf Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 270 per Black CJ. I note in particular his Honour's discussion of Professor Hathaway's "internal protection principle". I would reject the applicant's contention that the RRT erred in law in this regard.

Conclusion

The failure of the RRT to have appreciated the significance of Art 33 of the Convention, and the possibility that "effective protection" might be available to the respondents in Germany if they were to be permitted temporary residence in that country while their claims for refugee status were considered requires that the decision of the RRT be set aside. The matter should be remitted to the RRT for clarification of the question whether the respondents could return to Germany, at least as temporary residents, thereby permitting their claims to refugee status to be considered in accordance with the Convention. Should it transpire that they are unable to return to Germany at all, and not merely unable to reassert their previous entitlement to permanent residence, the RRT should proceed to consider their claims to refugee status under Art 1A(2) in accordance with these reasons. That may well mean that those claims would be accepted. That is a matter, however, for the RRT.

Costs

The error into which the RRT fell was in failing to appreciate the significance of Art 33 of the Convention. The importance of Art 33 had been identified for the first time by the Full Court in Thiyagarajah some five weeks prior to the decision of the RRT. If anyone had reasonable access to that judgment, and was in a position to draw it to the attention of the RRT before it handed down its decision, it was surely the applicant Minister in this case together with his legal advisers. Regrettably, the RRT appears not to have become aware of Thiyagarajah during the period between the time that judgment was delivered on 19 December 1997, and the date on which the RRT gave its decision, on 27 January 1998. The fact that these events occurred during the Christmas vacation period provides an explanation, but not an excuse, for the failure of the Minister and his legal advisers to have provided the RRT with a copy of the judgment and to have sought, as a matter of urgency, to be heard in relation to it.

In the circumstances, I do not consider that it would be just to order the respondents to pay the costs of this application. As I foreshadowed in general terms with Counsel during the course of argument, I propose to make no order as to costs. The orders of the Court are:

1.  The decision of the Refugee Review Tribunal be set aside, and the matter remitted to the Tribunal to be reconsidered according to law in accordance with the principles stated in these reasons.

2.  There be no order as to costs.

I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg

Associate:

Dated:

Counsel for the Applicant: Mr T Cavanough QC

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondents: Mr R Appudurai

Solicitor for the Respondents: Ambi Associates

Date of Hearing: 6 August 1998

Date of Judgment: 25 September 1998