Minister for Immigration and Multicultural Affairs v Savvin

171 ALR 483
98 FCR 168
[2000] FCA 478

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(Judgment by: Spender J)

Between: Minister for Immigration and Multicultural Affairs
And: Savvin

Court:

Judges:
Spender JDrummond J
Katz 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

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Judgment by:
Spender J

This appeal raises the question of whether a stateless person presently unable to return to that person's country of former habitual residence is entitled to the status of refugee, or whether there is an additional requirement that the person have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion.  That question depends on the proper construction of Article 1A(2) of the Convention relating to the status of refugees done at Geneva on 28 July 1951.

I have had the benefit of reading the reasons for judgment in draft form of Katz J.  I agree with the orders his Honour proposes.  Since I am disagreeing with the view of the learned primary Judge I want shortly to state my own reasons.

Article 1A(2) of the Convention is not happily expressed, as the cases referred to by Katz J make plain.  The treaty was the result of compromise and diplomatic tradeoffs, and it is not surprising that the treaty as finally formulated lacks the precision of, say, domestic legislation.  If a camel is a horse designed by a committee, it is unremarkable, given the development of the treaty, that there should be serious problems of interpretation as to its intended operation.

Simon Brown LJ in Adan v Secretary of State for the Home Department [1997] 1 WLR 1107 said at 1117:

"So far as the stateless are concerned,...the latter part of article 1A(2)...construed literally, requires of those presently unable to return home nothing more...."

The view of the learned primary Judge in the present case is in accordance with that literal construction.

Clearly, Article 1 concerns two categories of persons: those outside that person's country of nationality, and those who did not have a nationality and are outside the country of former habitual residence.

If inability to return is sufficient for a stateless person (i.e. a fear of persecution is not necessary) the words "such fear" are inappropriately included after the semicolon.  The presence of that phrase indicates to me that the fear of being persecuted for a Convention reason is the talisman of the definition, and applies to both categories of persons to whom the definition is directed.  This accords with the definition of "refugee" proposed in the draft Refugee Convention annexed to the report of the first Ad Hoc Committee on statelessness and Related Problems, dated 17 February 1950 which is set out in the reasons for judgment of Drummond J.

I respectfully agree with the reasoning of Cooper J in Rishmawi v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 421 , and in particular with his conclusion that Article 1A(2) is not be construed literally but in accordance with the object and purpose of the Convention as disclosed by the preparatory work for the 1951 version of it and with the context in which Article 1A(2) appears.  The conclusion is that Article 1A(2) is to be construed as including the requirement that a stateless person, being outside the country of his former habitual residence, have a well-founded fear of being persecuted for a Convention reason.

As earlier indicated, I agree with the orders proposed by Katz J.