Minister for Immigration and Multicultural Affairs v Savvin
171 ALR 48398 FCR 168
[2000] FCA 478
(Judgment by: Drummond J)
Between: Minister for Immigration and Multicultural Affairs
And: Savvin
Judges:
Spender J
Drummond JKatz J
Subject References:
migration
protection visa
stateless person
whether definition of 'refugee' requires that stateless person be outside country of former habitual residence owing to well-founded fear of persecution for Convention reason
whether 1967 Refugees Protocol amends 1951 Refugees Convention
use of Refugee Handbook in construing Convention and Protocol
applicability to Refugees Convention and Protocol of Vienna Convention on the Law of Treaties
use of implementing legislation of party to Convention or Protocol to construe Convention or Protocol
whether Art 1A(2) of Convention to be construed in light of Arts 1A(1) or 33(1) of Convention
Legislative References:
Migration Act 1958 (Cth) - 36
Immigration Act, RSC 1985, c I-2 - 2(1)
Case References:
Adan v Secretary of State for the Home Department - [1997] 1 WLR 1107
Rishmawi v Minister for Immigration and Multicultural Affairs - (1997) 77 FCR 421
Joyce v Director of Public Prosecutions - [1946] AC 347
Ex parte Lo Pak - (1888) 9 NSWLR 221
Applicant A v Minister for Immigration and Ethnic Affairs - (1997) 190 CLR 225
Adan v Secretary of State for the Home Department - [1999] 1 AC 293
R v Chief Immigration Officer[,] Gatwick Airport[;] ex parte Harjendar Singh - [1987] Imm AR 346
President
&
c of the Shire of Charlton v Ruse - (1912) 14 CLR 220
Peter Pazmany University v Czechoslovakia - (1933) Series A/B, No 61, p 208, discussed
Re Collins; Ex parte Hockings - (1989) 167 CLR 522
Hanlon v The Law Society - [1981] AC 124
Chew v The Queen - (1992) 173 CLR 626
Re Dingjan; Ex parte Wagner - (1995) 183 CLR 323
Victrawl Pty Ltd v Telstra Corporation Ltd - (1995) 183 CLR 595
Haris v Minister for Immigration and Multicultural Affairs - (FCA: Moore J, unreported, 12 February 1998)
Al-Anezi v Minister for Immigration and Multicultural Affairs - [1999] FCA 355; [1999] FCA 556
Diatlov v Minister for Immigration and Multicultural Affairs - (1999) 167 ALR 313
Chan v Minister for Immigration and Ethnic Affairs - (1989) 169 CLR 379
Somaghi v Minister for Immigration, Local Government and Ethnic Affairs - (1991) 31 FCR 100
Morato v Minister for Immigration, Local Government and Ethnic Affairs - (1992) 39 FCR 401
Rocklea Spinning Mills Pty Limited v Anti-Dumping Authority - (1995) 56 FCR 406
Suggested reading:
James Hathaway, The Law of Refugee Status, Butterworths 1991
Frances Nicholson & Patrick Twomey ed, Refugee Rights and Realities, Cambridge University Press 1999
Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, 1992
Canadian Council for Refugees, Statelessness - Addressing the Issues, November 1996
1951 Convention Relating to the Status of Refugees
1954 Convention Relating to the Status of Stateless Persons
1969 Vienna Convention on the Law of Treaties
1967 Protocl Relating to the Status of Refugees Hearing date: 15 February 2000
Judgment date: 12 April 2000
Brisbane
Judgment by:
Drummond J
I have had the advantage of reading in draft the reasons of Katz J. I agree with the orders his Honour proposes and, subject to what follows, with his reasons.
There is, in my opinion, much to commend the conclusion reached by the learned primary judge. "(R)efugee 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." James Hathaway, The Law of Refugee Status, Butterworths 1991, at p 124.
A person is entitled to call on the state of his nationality for protection. Only if he has good reason for not being held to his national state as his protector should he be entitled to claim the protection of another state, that has agreed to be bound by the 1951 Convention Relating to the Status of Refugees ("the Refugees Convention"), by being recognised as a refugee by that other state. Article 1A(2) of the Refugee Convention accepts that good reason to claim refugee status exists in the case of a national if he is outside his national state owing to well-founded fear of persecution and is either unable to avail himself of the protection of his nation state or unwilling, owing to such fear, to do that. A stateless person, however, has no state to which he can look for protection (though the general rule of international law, reflected in domestic laws, is that an alien resident in a country is entitled while so resident, to the protection of that country's laws: see Art 2 of the Refugees Convention and Art 2 of the Convention Relating to the Status of Stateless Persons and Joyce v Director of Public Prosecutions [1946] AC 347 at 374; Ex parte Lo Pak (1888) 9 NSWLR 221 at 236, 245). If a stateless person is outside his country of habitual residence and is unwilling, due to fear of persecution, to return to that country, then there is good reason for according him refugee status. And, if a stateless person is outside his country of habitual residence and is unable, ie, unable for reasons extraneous to himself, to return to that country, he, too, might be thought by reason of his unprotected status to have a good claim to be a refugee though he has not faced and will not face persecution there. Moreover, Art 1A(1) shows that the Convention does treat as refugees certain stateless persons not subject to Convention persecution.
Katz J gives convincing reasons for concluding that the Protocol Relating to the Status of Refugees 1967 done at New York on 31 January 1967 (the protocol) did not amend the 1951 Refugee Convention: each, as originally formulated, remains incorporated in Australian municipal law. The full text of the definition of "refugee" in the 1951 Refugee Convention is set out in par 118 of Katz J's reasons.
The various members of the High Court in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 discussed the proper application of the 1969 Vienna Convention on the Law of Treaties ("the Vienna Convention") to the task of interpreting treaties, including treaty provisions transposed into domestic law. For the reasons given by Katz J, the Vienna Convention is not directly available as a guide to the interpretation of the 1951 Refugee Convention. But as his Honour also demonstrates, the principles of interpretation in the Vienna Convention are but a re-statement of the rules of customary public international law for the interpretation of treaties.
In my respectful opinion, Gummow J accurately summarised these rules of interpretation, as re-stated in Art 31, "General Rule of Interpretation" and Art 32 "Supplementary Means of Interpretation" of the Vienna Convention, when he said in Applicant A at 277:
"It is necessary to begin with the construction of the definition as it appears in the Convention and Protocol. Regard primarily is to be had to the ordinary meaning of the terms used therein, albeit in their context and in the light of the object and purpose of the Convention. Recourse may also be had to the preparatory work for the treaty and the circumstances of its conclusion, whether to confirm the meaning derived by the above means or to determine a meaning so as to avoid obscurity, ambiguity or manifestly absurd or unreasonable results."
In Refugee Rights and Realities, edited by Frances Nicholson & Patrick Twomey, Cambridge University Press 1999, it is said at p 19:
"For a number of reasons, interpretation of the refugee definition [in the 1951 Convention] needs to look to the Convention and Protocol's object and purpose. One is that the text cannot otherwise be fully understood, as the Vienna Convention recognises and as case law illustrates. Secondly, an exclusively textual interpretation may undermine the important normative concerns embodied in the refugee definition. Thirdly, the Convention refugee definition is both a product and a part of the history of the twentieth century, and an excessively literal textual approach runs the risk of ignoring that history."
I think it important in order to arrive at a correct understanding of Article 1A(2) of the 1951 Refugee Convention to identify what is referred to by the opening words: "As a result of events occurring before 1 January 1951 and ...". This, in terms, is not a simple limitation provision whose sole operation before the 1967 Protocol was to bar claims to refugee status under the Refugee Convention which arose by reason of events occurring after 1 January 1951. It did operate as such a bar but is also an expression identifying the historical events that resulted in the class of person within the definition of "refugee" in Art 1A(2) coming into existence.
The Handbook on Procedures and Criteria for Determining Refugee Status issued by the United Nations High Commissioner for Refugees is a helpful guide to the interpretation of the 1951 Refugee Convention, as Katz J demonstrates. The commentary in the Handbook in par 36 on the phrase "events occurring before 1 January 1951" in Art 1A(2) is as follows:
"The word 'events' is not defined in the 1951 Convention, but was understood to mean 'happenings of major importance involving territorial or profound political changes as well as systematic programmes of persecution which are after-effects of earlier changes'. (6) The dateline refers to 'events' as a result of which, and not to the date on which, a person becomes a refugee, no(r) does it apply to the date on which he left his country."
This suggests that a person could be entitled to refugee status under the 1951 Convention if made stateless by the territorial or political changes mentioned, without necessarily also being a victim of the systematic programs of persecution referred to. "Statelessness appeared as a mass phenomenon after World War I and the revolutionary upheaval that followed, while World War II left even larger numbers of people stateless.": Statelessness - Addressing the Issues, November 1996, Canadian Council for Refugees. But it is nevertheless clear that those involved in the preparatory work for the 1951 Refugee Convention who adopted this expression, "as a result of events ...", intended that a stateless person would be entitled to refugee status only if he was a victim of persecution by reason of events in Europe between the date on which the United Kingdom declared war on Germany and 1 January 1951.
The passage quoted in par 36 of the Handbook is, as note (6) shows, taken from UN document E/1618. This is the report of the first Ad Hoc Committee on Statelessness and Related Problems dated 17 February 1950. It is one of the preparatory works for the Convention. This Committee produced a draft refugees' convention which ultimately evolved into the 1951 Convention. As the name of the Committee suggests, it was set up to give consideration to the status of both refugees and stateless persons. As appears from par 15 of the Committee Report, the Committee decided that "in view of the urgency of the refugee problem and the responsibility of the United Nations in this field", it would "address itself first to the problem of refugees, whether stateless or not, and to leave to later stages of its deliberations the problems of stateless persons who are not refugees". Annex 1 to this Report contains the Committee's draft Refugee Convention. Article 1 of this draft contains the definition of the term "refugee" then proposed. It was intended to apply to certain stateless persons as well as to state nationals. In the notes to this definition in the Report, the Committee made the comment quoted in par 36 of the Handbook and it also observed, in relation to par A(1)(c) of the proposed definition of "refugee":
"The Committee agreed that for the purposes of this sub-paragraph and sub-paragraph A-2(c), and therefore for the draft convention as a whole, 'unable' refers primarily to stateless refugees, but includes also refugees possessing a nationality who are refused passports or other protection by their own government. 'Unwilling' refers to refugees who refuse to accept the protection of the government of their nationality."
The definition of "refugee" then proposed was:
- "A.
- For the purposes of this Convention, the term 'refugee' shall apply to:
- (1)
- Any person who:
- (a)
- As a result of events in Europe after 3 September 1939 and before 1 January 1951 has well-founded fear of being the victim of persecution for reasons of race, religion, nationality or political opinion; and
- (b)
- Has left or, owing to such fear, is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence; and
- (c)
- Is unable or, owing to such fear, unwilling to avail himself of the protection of the country of his nationality.
- ..."
The three criteria for refugee status here proposed are cumulative. They clearly require, for both nationals and stateless persons, a well-founded fear of persecution for a specified reason as a condition of refugee status.
There are good textual reasons given by Katz J for reading Art 1A(2), in so far as it applies to stateless persons, as requiring them to be victims of persecution before they are entitled to the status of refugee under the Convention. The travaux to the Convention to which I have referred show that this was the intention of those involved in the drafting of what became the 1951 Convention. Hathaway propounds the same view of the entitlement of stateless persons to claim refugee status under the Convention: see pp 59 - 63. These considerations are sufficient to displace the considerations which I have referred to above that favour a reading of the definition of "refugee" in the Convention that would extend its reach to stateless persons unable to return to their country of habitual residence even though they never faced possible persecution there.
Though I generally agree with what Katz J has written, I doubt that the House of Lords decision in Adan v Secretary of State for the Home Department [1999] 1 AC 293 is entitled to the weight his Honour gives to it: Lord Lloyd, at 304, appears to have only been identifying the conclusions that flowed from the view of Art 1A(2) that was common ground in that case. I doubt that his comment is a reasoned consideration of the proper construction of the Article. Though I respectfully agree with much of Katz J's analysis of the text of the definition of "refugee", I do not think that as much weight can be given to the semicolon in the Article as he ascribes to it in the task of interpreting an international treaty. In Adan, Lord Lloyd said at 305C:
"... one is more likely to arrive at the true construction of Article 1A(2) by seeking a meaning which makes sense in the light of the Convention as a whole, and the purposes which the framers of the Convention were seeking to achieve, rather than by concentrating exclusively on the language. A broad approach is what is needed, rather than a narrow linguistic approach."
In Applicant A, Brennan CJ said at 230 - 231:
"If a statute transposes the text of a treaty or a provision of a treaty into the statute so as to enact it as part of domestic law, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty. To give it that meaning, the rules applicable to the interpretation of treaties must be applied to the transposed text and the rules generally applicable to the interpretation of domestic statutes give way.
In interpreting a treaty, it is erroneous to adopt a rigid priority in the application of interpretive rules. The political processes by which a treaty is negotiated to a conclusion preclude such an approach. Rather, for the reasons given by McHugh J, it is necessary to adopt an holistic but ordered approach. The holistic approach to interpretation may require a consideration of both the text and the object and purpose of the treaty in order to; ascertain its true meaning. Although the text of a treaty may itself reveal its object and purpose or at least assist in ascertaining its object and purpose, assistance may also be obtained from extrinsic sources. The form in which a treaty is drafted, the subject to which it relates, the mischief that it addresses, the history of its negotiation and comparison with earlier or amending instruments relating to the same subject may warrant consideration in arriving at the true interpretation of its text.
In the present case, I would interpret the definition of 'refugee' in Art 1A(2) of the Convention as amended by the Protocol in the light of the object and purpose appearing in the preamble and the operative text and by reference to the history of the negotiation of the Convention."
Dawson J stated, at 240, the correct approach to the interpretation of a domestic statute that incorporates the text of an international treaty in similar terms; he concluded by observing that by reason of this approach:
"... technical principles of common law construction are to be disregarded in construing the text."
The most detailed exposition of the proper approach to interpreting treaties, including treaties incorporated into Australian municipal law, is contained in the judgment of McHugh J at 251 - 254. His Honour's conclusion at 254 was that:
"Primacy is to be given to the written text of the Convention but the context, object and purpose of the treaty must also be considered."
In the course of explaining what he meant by the need to adopt the "ordered yet holistic approach", his Honour at 255 said:
"... the mandatory requirement [of par 1 of Art 31 of the Vienna Convention] that courts look to the context, object and purpose of treaty provisions as well as the text is consistent with the general principle that international instruments should be interpreted in a more liberal manner than would be adopted if the court was required to construe exclusively domestic legislation."
To accord to punctuation marks the dominant weight which they might have in the interpretation of an ordinary domestic statute as pointers to the true meaning of a treaty provision is, in my opinion, inconsistent with these dicta.