Sivaneeswaran v Minister for Immigration & Multicultural Affairs [2000] FCA 322

IMMIGRATION - Protection visa - Refugee status in France - Applicability of Articles 1E and 33 of the Convention to a claim for refugee status in Australia

Migration Act 1958 (Cth) s 476(1)(e)

United Nations Convention relating to the Status of Refugees 1951 Arts 1E and 33

Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 118 - considered

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 - applied

Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 - considered

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

SELLADURAI SIVANEESWARAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 116 OF 1999

JUDGE: MERKEL J

DATE: 22 MARCH 2000

PLACE: MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 116 OF 1999

BETWEEN:

SELLADURAI SIVANEESWARAN APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE: MERKEL J

DATE OF ORDER: 22 MARCH 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1.     The application is dismissed.

2.     The applicant pay the respondent's taxed costs of the application.

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

V 116 OF 1999

BETWEEN:

SELLADURAI SIVANEESWARAN APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE: MERKEL J

DATE: 22 MARCH 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Background

1. The applicant and his wife, who are citizens of Sri Lanka, were granted refugee status in France in 1991. They arrived in Australia in 1994, holding a Titre de Voyage issued under Art 28 of the United Nations Convention relating to the Status of Refugees 1951 as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"), accompanied by their two children. The younger child also held a Titre de Voyage but the older child held a French passport.

2. The applicant applied for a protection visa for himself and the members of his family on the ground that they were political refugees to whom Australia had protection obligations under the Convention. The application was refused by a delegate of the Minister and the decision of the delegate was affirmed by the Refugee Review Tribunal ("the RRT").

3. The applicant did not apply for the review of the RRT decision until 1999. In the meantime he pursued applications under other provisions of the Migration Act 1958 (Cth) ("the Act") which, if successful, would have enabled his family to remain in Australia. After the applications were unsuccessful the applicant applied in the High Court for the review of the decision of the RRT pursuant to s 75(v) of the Constitution. The application, which was made out of time, was remitted to the Federal Court by an order made by Hayne J on 26 May 1999.

4. Senior counsel for the Minister did not suggest that the Minister was prejudiced by the delay. In the circumstances, including the finding of the RRT that the applicant and his family were refugees, I considered it appropriate to grant the leave sought by the applicant to enable the application for review to be heard and determined on its merits.

5. The applicant seeks to review the decision of the RRT, primarily, on the ground that it erred in law: see s 476(1)(e) of the Act.

The RRT decision

6. The RRT identified the issue for it to determine as whether it was satisfied that the applicant and members of his family were persons to whom Australia had protection obligations under the Convention. The RRT, accepting that the applicant and his family were refugees within the meaning of Art 1A(2) of the Convention, proceeded to consider whether, notwithstanding that finding, the applicant and his family were not persons to whom Australia has protection obligations under the Convention by reason of Art 1E. Article 1E provides:

"This Convention shall not apply to a person who is recognized 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."

7. The RRT made the following findings concerning the applicant's legal status in France:

within a maximum qualifying period of five years the applicant would be eligible to apply for French citizenship under the same rules as any other residents;

the applicant, as a person accorded refugee status, shared the same restrictions as other non-citizen residents in relation to voting, acquisition of citizenship by children born in France and eligibility to work in certain occupations such as the French Public Service;

the applicant is entitled to reside in France with members of his family on the basis of their recognition as refugees and will remain under the protection of the French authorities as long as they have not obtained the protection of another country;

the applicant and members of his family were protected from refoulment to Sri Lanka as they held French travel documents that permitted them to return to France where they were entitled to reside;

the applicant had the same "nominal" rights and obligations as a French national, save for citizenship and the inability to work in certain occupations that required the employee to be a French citizen;

after residence in France for a maximum period of five years the applicant would be eligible for citizenship and would thereupon be granted political rights and unrestricted access to employment.

8. Although the findings only related to the applicant it is plain that the RRT acted on the basis that his wife was entitled to the same rights.

9. On the basis of the findings the RRT stated that:

"...while [the applicant] faces a real chance of persecution should he return to Sri Lanka, he has taken residence in France and has the rights and obligations which are attached to the possession of the nationality of that country. Thus, by the operation of Article 1E of the Convention, he is not a person to whom Australia has protection obligations under the Convention and Protocol."

10. The RRT also considered whether the applicant and his family faced a real chance of persecution in France by members of the Liberation Tigers of Tamil Elan ("LTTE"). After considering the evidence of the applicant and of his wife concerning LTTE harassment whilst they were resident in France, the RRT found that:

the fears of harm at the hands of the LTTE in France expressed to have been held by the applicant and his wife "were exaggerated";

the evidence indicates that the LTTE threats of the kind made to the applicant and his wife were not carried out and the applicant and his wife "did not believe they would be carried out";

notwithstanding the threats that had been made by the LTTE the applicant and his wife on an earlier occasion, after visiting Australia, returned to Paris on the basis that the applicant believed that "he could obtain adequate protection from the Police in the event of being harassed by the LTTE";

although the RRT accepted that certain threats against, and harassment of, the applicant and his wife had occurred at the hands of the LTTE the French authorities were willing and able to take appropriate action to protect the applicant and his family.

11. The RRT concluded that:

"...the chances that the Applicant faces harm at the hands of the LTTE in France are remote. In the event that he is harassed, he can obtain effective protection from the French authorities, in the same manner as a French national can access such protection."

12. Accordingly, the RRT affirmed the delegate's decision that the applicant, his wife and their two children were not entitled to protection visas.

13. Counsel for the applicant contended that the RRT erred in law in a number of respects. It was said that:

it erred in interpreting and applying Art 1E;

it failed to properly apply the real chance test to the applicant's claim of persecution in France;

it failed to state its findings on material facts and the evidence upon which the findings were based as required by s 430 of the Act.

Thiyagarajah's case

14. Counsel for the applicant accepted that the combined effect of the decisions at first instance ((1997) 143 ALR 118 (Emmett J)), on appeal ((1998) 80 FCR 543 (von Doussa, Moore and Sackville JJ)) and finally in the High Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 presented a substantial difficulty for his client. The Minister contended that the facts and decision in the present case were indistinguishable from Thiyagarajah. Consequently, it was said that the review sought by the applicant must fail, as no error of law had been made in respect of the decision of the RRT that the applicant and his wife were not persons to whom Australia had protection obligations.

15. Thiyagarajah concerned a claim by a Sri Lankan national who, until he entered Australia in December 1994, was resident in France where he had been granted refugee status. The RRT affirmed the delegate's decision refusing Thiyagarajah's application for a protection visa. Emmett J set aside the decision of the RRT on the ground that it had erred in law in its construction and application of Art 1E of the Convention. In particular, Emmett J concluded that there was evidence before the RRT that the employment disabilities suffered by Thiyagarajah in France by reason of his non-citizenship were "not insignificant" and that the rights of re-entry enjoyed by him may be significantly less than those enjoyed by a French national. Although his Honour did not determine whether those matters were sufficient to attract Art 1E he expressed the view that it was "by no means self evident" that the disabilities suffered by Thiyagarajah in France were "minimal". Emmett J was satisfied that the RRT did not err in law in concluding that there was no real chance that the French authorities were unable or unwilling to provide Thiyagarajah with protection should he fear or encounter persecution in France. Nevertheless, he concluded that the decision was to be set aside on the basis of error of law in relation to Art 1E.

16. In the present case there was material before the RRT that employment and re-entry restrictions similar to those considered by Emmett J apply to the applicant and his wife. Thus, the first instance decision in Thiyagarajah affords strong support for the applicant's criticism of the failure of the RRT to consider, and make findings in respect of, the employment and re-entry restrictions operative against the applicant and his wife in France.

17. The appeal to the Full Court in Thiyagarajah turned on Art 33, which had not been considered by the RRT. Article 33(1) provides:

"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."

18. von Doussa J (with whom Sackville and Moore JJ agreed) observed (at 565):

"In the present case the possible application of Art 33 was not in terms referred to by the RRT, nor was any issue concerning the Article raised before the primary Judge. However, the question of fact whether France was able to provide effective protection to the respondent was raised in the context of the conclusion of the RRT that there was an implied proviso to Art 1E to the effect that Art 1E could not apply if there were evidence of a failure of protection in the country of residence. The finding of fact made by the RRT (set out earlier in these reasons) was that it can confidently be said that, if sought, the degree of protection normally expected of a government would have been forthcoming and that `there is no real chance that the French authorities are unable or unwilling to provide such protection'."

19. His Honour then concluded (at 565):

"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."

and (at 567-568):

"1. Subject to consideration of Art 33, Australia did not owe protection obligations to the respondent as he had been recognised as a refugee in France and had been accorded the rights and obligations of a refugee under the Refugees Convention in France, including travel documents under Art 28.

2. Under Art 33 the `well founded fear' test which applies under Art 1A(2) should be applied.

3. The RRT has found as a fact that effective protection is available to the respondent in France, and that there is no real chance that the French authorities are unable or unwilling to provide such protection. This finding involves no error of law. It determines adversely to the respondent the question whether there was any potential for Art 33 to have application to the respondent, if he were a refugee. Accordingly, Australia did not owe the respondent protection obligations, and the criterion laid down in s 36(2) of the Act for a protection visa was not fulfilled.

4. As there was no real chance that the respondent would suffer persecution in France, Australia was entitled as a Contracting State to deport the respondent to France without considering the substantive merits of his claim to be a refugee."

20. Accordingly, the Full Court considered that the RRT did not err in law as it arrived at the correct decision by reason of Art 33, rather than Art 1E.

21. However, an issue arose as to whether Thiyagarajah's travel documents had expired since the RRT's decision, and may no longer entitle him to return to France. After further consideration of this question the Court delivered supplementary reasons for judgment on 4 March 1998. von Douss and Moore JJ (with Sackville J dissenting) remitted the matter back to the RRT for further hearing, stating that it was essential that this factual issue be resolved.

22. The High Court upheld the Minister's appeal from the majority decision, primarily on the ground that, as no error of law had been made by the RRT in its decision, there was no jurisdiction or power in the Federal Court to set aside the RRT decision or to remit the matter back to the RRT for the purposes of considering matters that had arisen after the date of its decision. It is unnecessary for present purposes to refer in any detail to the judgments in the High Court other than to observe that they did not cast any doubt on the principles stated by the Full Court in relation to Arts 33 or 1E.

23. The findings made by the RRT in the present case concerning the absence of any real risk of persecution faced by the applicant and members of his family if they return to France, as they were entitled to do at the date of the decision of the RRT, are not relevantly distinguishable from the findings made in Thiyagarajah. As pointed out above, in the present case the RRT found that the risk of harm at the hands of the LTTE in France was "remote" and, in the event of harassment, the applicant "can obtain effective protection from the French authorities, in the same manner as a French national can access such protection". As was the case in Thiyagarajah, the RRT's findings in the present case were not made in the context of Art 33. However, the consequence of the findings is that, by reason of that Article, the applicant and his wife are not persons to whom Australia has protection obligations.

24. But for the Art 33 issue, there would be some force in the applicant's contention that he is entitled to succeed on the review of the RRT decision on the ground that it erred in law in its interpretation and application of Art 1E. In Thiyagarajah, although it was unnecessary to consider the Art 1E issue, von Doussa J (at 568) (with the concurrence of Sackville and Moore JJ) was satisfied that Art 1E of the Convention did not exclude Thiyagarajah from the definition of a refugee. His Honour adopted the interpretation of Art 33 of Hill J in Barzideh v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 417 that, short of matters of a political kind, the rights and obligations of which Art 1E speaks must mean all of the rights and obligations of a national and not merely some of them. von Doussa J (at 566) also agreed with Emmett J that a disability suffered by an alien could be so slight as to be negligible. As his Honour stated, whether any of the alleged disabilities are less than those which would be enjoyed by a national was a factual matter for consideration by the RRT.

25. Accordingly, but for the applicability of Art 33 in the present case, there may well have been error of law on the part of the RRT in its approach to Art 1E. In that regard the RRT concentrated more on the ultimate entitlement, in due course, of the applicant and his family to French citizenship, rather than upon whether disabilities in relation to employment and re-entry in the meantime were, relevantly, greater than those suffered by French nationals. For the reasons given by Emmett J in Thiyagarajah the RRT in the present case did not appear to consider, as it was required to do, the nature and extent of the disabilities suffered by the applicant in France.

26. Accordingly, the finding by the RRT to the effect that there was no real chance of persecution of the applicant and his family should they return to France had the consequence that, by reason of Art 33, Australia did not have protection obligations to the applicant or his family. Thus, as was the case in Thiyagarajah, for reasons other than those given by the RRT, the applicant's application must fail.

Other grounds

27. There was no substance in the other grounds relied upon by counsel for the applicant. I am not satisfied that any of the findings of fact that were made by the RRT were not open on the material or that it erred in law in applying the real chance test. In substance the contentions of the applicant on those issues impermissibly seek to reargue the matter on the merits, rather than by reference to error of law.

28. It was also suggested on behalf of the applicant that the RRT failed, separately, to take into account the claims of persecution feared by the applicant's wife. While parts of the RRT decision referred only to the applicant and other parts referred to the applicant and his wife I am satisfied that, on a fair reading of the decision as a whole, the RRT intended to express its findings in terms that covered all of the claims made by the applicant and his wife.

29. I also do not accept that the applicant has made out his contention that the RRT failed to set out its findings and the evidence upon which those findings were based in relation to the LTTE threats against, and assault upon, the applicant's wife. A fair reading of the RRT's decision demonstrates that the findings of the RRT related to all of the incidents involving the LTTE which were relied upon by the applicant and his wife. As explained earlier, for the reasons given by it, the RRT regarded the fears of harm expressed by the applicant and his wife, as a result of the various incidents, to be "exaggerated".

Conclusion

30. For the above reasons the application is to be dismissed with costs.

31. Before departing from the present case it is relevant to observe that the applicant, his wife and one of their children do not any longer hold travel documents that entitle them to return to France. It may well be that, as counsel for the Minister has suggested, there ought to be no difficulty in their re-entry being arranged with the French authorities. If difficulties do arise in that regard, it is significant that the RRT has accepted that the applicant and his wife are refugees under the Convention. It follows that, but for their entitlement to reside in France, the applicant and members of his family would be persons to whom Australia had protection obligations under the Convention. If a problem arises with the French authorities the applicant and his family can request that the Minister permit a further application in Australia for a protection visa: see ss 48A and 48B of the Act. I doubt that the present statutory scheme is so rigid that it could be said to be in the "public interest" that the applicant and his wife be left without a remedy under the Act in the event that they are not permitted to return to France.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated: 22 March 2000

Counsel for the Applicant: Mr A Krohn

Solicitor for the Applicant: Ghandi & Associates

Counsel for the Respondent: Mr RRS Tracey QC

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 14 March 2000

Date of Judgment: 22 March 2000

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