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Federal Court of Australia |
STATUTORY INTERPRETATION - Discussion of approach to construction of Convention Relating to the Status of Refugees.
Migration Act 1958 (Cth), ss 5,36,65,475,476
Convention Relating to the Status of Refugees, Section 1C,1D,1E
"Applicant A" & Anor v. Minister for Immigration and Ethnic Affairs & Anor (High Court of Australia) 24 February 1997 unreported
Attorney-General of Canada v. Ward 103 DLR(4th) 1
Barzideh v. Minister for Immigration and Ethnic Affairs (1996) 139 ALR 710
Chan v. Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Nagalingam v. Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 470; (1992) 38 FCR 191
No. 341 of 1996
VARATHARAJAH THIYAGARAJAH v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Emmett J
Sydney
3 March 1997
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IN THE FEDERAL COURT OF AUSTRALIA
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| NEW SOUTH WALES DISTRICT REGISTRY | ) No. NG 341 of 1996 |
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| GENERAL DIVISION
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BETWEEN:
Applicant
AND:
CORAM:
VARATHARAJAH THIYAGARAJAH MINISTER FOR
IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
EMMETT J
PLACE: SYDNEY
DATED: 3 March 1997
The Court orders that:
1. The decision of the Refugee Review Tribunal of 28 March 1996 be set aside.
2. The matter be remitted to the Refugee Review Tribunal for further consideration and decision according to law.
3. The respondent pay the applicant's costs.
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4. IN THE FEDERAL COURT OF AUSTRALIA
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) |
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| NEW SOUTH WALES DISTRICT REGISTRY | ) No. NG 341 of 1996 |
| ) | |
| GENERAL DIVISION
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BETWEEN:
Applicant
AND:
CORAM:
VARATHARAJAH THIYAGARAJAH MINISTER FOR
IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
EMMETT J
PLACE: SYDNEY
DATED: 3 March 1997
The Applicant therefore availed himself of the right of a hearing before the Refugee Review Tribunal ("the Tribunal)". That hearing took place on 14 March 1996 before J.C. Blount, Member, who affirmed the Minister's decision to refuse to grant a visa.
Section 476(1) of the Act provides that an application may be made for review by the Federal Court of a judicially reviewable decision made under the Act on the limited grounds specified in that section. It is common ground that the decision of the Tribunal affirming the Minister's decision is a judicially reviewable decision within the meaning of section 475 of the Act.
This proceeding is an application for review of the decision of the Tribunal on the ground specified in section 476(1)(e) of the Act. That ground is as follows:
"that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision."
Section 65(1) of the Act provides that after considering a valid application for a visa the Minister must grant the visa if he is satisfied as to certain things, including that the criteria prescribed by the Act or the Regulations have been satisfied. If he is not so satisfied, the Minister must refuse to grant the visa.
Section 36(2) of the Act provides that a criterion for the grant of a Protection Visa is that an applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as defined in section 5(1) of the Act ("the Convention"). Under Clauses 866.211 and 866.221 of Schedule 2 to the Regulations made under the Act, the criteria which must be satisfied include that an applicant is a person to whom Australia has protection obligations under the Convention. That provision reflects section 36(2) of the Act.
The only issue before this Court is whether Article 1E of the Convention, had the effect that the Applicant would not be entitled to the grant of a Protection Visa. Article 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."
Since the Applicant has taken residence in France, the question in issue is whether the Applicant was recognised by the competent authorities of France as having the rights and obligations which are attached to the possession of the nationality of France.
The grounds stated in the application to this Court for an order of review were that the Minister erred:
1. when he concluded that the Applicant possesses the rights and obligations attached to the possession of nationality in accordance with Article 1E.
2. by determining the application of Article 1E of the Convention by reference to the adequacy of state protection and by failing to take into account the risks to the Applicant caused by the activities of the LTTE (a Tamil separatist group) present in Paris.
3 in deciding that Article 1E of the Convention applied to the circumstances of the Applicant.
Grounds 1 and 3 appear to raise the same question of principle and fall fairly within s.476(1)(e) of the Act. However, ground 2 does not fall within s.476(1)(e) because it raises questions of fact which are not open to review in this Court. There is no other paragraph of s.476(1) into which that ground would fall.
The Applicant contended, in relation to ground 2, that the reasoning of the Tribunal was erroneous. It was said that, in the light of the findings of fact which were made by the Tribunal, a reasonable hypothesis was open that the rights and obligations which the Applicant has in France are not equivalent to those of a French national. The contention was that the findings demonstrated that the Applicant had not received the level of protection which a French national of an identifiable group would receive if that group were under serious threat.
The Applicant referred to findings made by the Tribunal that the LTTE knew of the Applicant's presence in Paris and made threatening contact in June 1993 and during 1994. Reference was also made to two incidents at an asylum seekers hostel in 1986 and to the fact that in May 1994 an anti-LTTE activist and four other Tamils were murdered in Paris. It was contended that the findings of fact showed that the French Government did not recognise that Tamils were under threat in France.
However, the Tribunal considered those matters and reached a conclusion of fact which is not open to review. Thus, while the Tribunal accepted that the LTTE is active in France, it concluded that there was nothing to suggest that the French authorities were unable or unwilling to protect the Applicant (see the Tribunal's reasons at page 16.7). The Tribunal did not accept that a casual police attitude towards two incidents in 1986 of itself demonstrated that there was a real chance that the French authorities would, in 1996, withhold protection from a permanent resident who faced real threats of serious harm (at page 17.3). The conclusion of the Tribunal was that it could confidently be said that, if sought, the degree of protection normally expected of a Government would have been forthcoming for the Applicant and that there was no real chance that the French authorities were unable or unwilling to provide such protection (at page 19.4).
That conclusion indicates an appreciation on the part of the Tribunal of the appropriate test in the circumstances. In considering whether an applicant has a well founded fear of persecution for the purposes of determining whether that applicant is a refugee under the Convention, it is necessary to consider whether there is "a real chance" that the Applicant will be persecuted if he returns to his country of nationality (see Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 at 389, 398, 407 and 429).
The Tribunal reached the conclusion that there was no real chance that the French authorities would not afford protection to the Applicant when considering the question of persecution of the Applicant in France. The Tribunal observed that, although there is nothing in the words of Article 1E to suggest that it cannot apply if there is evidence of a failure of protection in the country of residence, such a result must be assumed. It was considered to be anomalous if a strict interpretation would preclude a third state (in this instance Australia) from offering protection to a person at risk of persecution in both his country of nationality and that where he had taken residence.
Accordingly, the Tribunal considered that it was appropriate to consider whether the Applicant would have recourse to the protection of the authorities in France should he fear or encounter persecution in France. It was in that context that the Tribunal reached the conclusion referred to above that there is no real chance that the French authorities are unable or unwilling to provide such protection. The Tribunal considered that "protection" by no means implies that the authorities must, or can, provide absolute guarantees against harm. The conclusion reached by the Tribunal does not involve an error in the interpretation of the applicable law. Nor does it involve an error in the application of that law to the facts as found by the Tribunal.
Some reliance was placed by the Applicant, in support of ground 2, on the decision of the Supreme Court of Canada in Attorney-General of Canada v Ward (103 DLR(4th) 1). In that case, the Supreme Court of Canada was called upon to consider whether the appellant, Ward, was entitled to refugee status in Canada. A question arose as to whether the Republic of Ireland could protect Ward if he were returned to Ireland. The Court considered how, in such a case, a claimant could prove a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out the protection.
Proof of that issue was unnecessary as representatives of the authorities of the Republic of Ireland's conceded their inability to protect Ward. The Supreme Court observed, however, that where such an admission is not available, clear and convincing confirmation of a state's inability to protect must be provided. For example, it was suggested that a claimant might advance testimony of similarly situated individuals let down by the state's protection arrangement, or the claimant's testimony of past personal incidents in which state protection did not materialise. In the absence of some such evidence, it was considered that a claim should fail since nations must be presumed capable of protecting their citizens (at page 23).
The evidence relied upon the Applicant was directed to establishing such a state of affairs in France in relation to the Applicant as a Tamil. That evidence, however, was considered by the Tribunal and an adverse conclusion reached as indicated above. Accordingly, insofar as the present application is based on ground 2, it must fail.
In relation to the issue raised by grounds 1 and 3, reliance was placed by the Applicant on the decision of Hill J. in Barzideh v The Minister for Immigration and Ethnic Affairs (139 ALR 710). That decision was given after the decision of the Tribunal in the present case. The Minister contended that Hill J.'s conclusion was incorrect and the argument in this case proceeded on the basis that the decision of the Tribunal could not stand with the reasoning of Hill J. in Barzideh's Case.
Hill J. concluded in Barzideh's Case that the Tribunal had erred in the approach to the construction of Article 1E which the Tribunal adopted in that case. Hill J. summarised the Tribunal's approach (at page 715.8) as being that Article 1E would operate to exclude an applicant from refugee status "where an applicant had most, but not all, of the rights normally enjoyed by nationals". Hill J. considered that that approach was wrong because "the rights and obligations of which the article speaks must mean all of those rights and obligations and not merely some of them" (at page 722). The only exception which he was prepared to make was in respect of "matters of a political kind", such as the entitlement to vote.
In the present case, the Tribunal found (at page 15) that there were certain disabilities attaching to the Applicant in France. Thus, only nationals are entitled to enter the French public service. Further, refugees with resident status cannot enter certain professions reserved for nationals of France, such as general insurance agents, publicans and directors of entertainment enterprises. Finally, other professions, such as architects, certified public accountants, pharmacists and the medical professions are accessible only after obtaining a special authorisation.
It was contended by the Applicant that, in the light of the conclusions of Hill J. in Bardizeh's Case, the Applicant is not recognised as having the same rights as are attached to the possession of French nationality because of those disabilities. However, the Tribunal considered that those disabilities "are not inconsistent with the status of a permanent resident or a status which generally includes the rights and obligations of nationals" and concluded that Article 1E operated to exclude the Applicant from the protection of the Convention.
The Applicant relied, in addition, on evidence before the Tribunal which, it was contended, indicated that the Applicant would not be permitted to re-enter France if he is outside that country when his travel document expires. That was said to be "presumably a restriction not placed on French nationals". It was also contended that evidence before the Tribunal suggested that, as a refugee in France, the Applicant's right of residence may not be permanent and that the possible application of the cessation clauses of the Convention would be a significant restriction on a refugee's rights to remain in France, a disability which would not apply to nationals.
The Applicant's contention was that the question is not whether the Applicant is currently affected by those matters, but whether he stands to be affected in a realistic set of circumstances. To say that the Applicant has the right to return to France or to stay in France at a particular time says nothing about his rights in comparison to those of nationals. Nationals have permanent residence. The Applicant, so it was argued, could only be said to have temporary residence if either of the eventualities referred to in those two contentions were to come about. Those matters are said lead to the conclusion that the Applicant does not have the same rights and obligations as are attached to the possession of French nationality.
The scheme of the Convention makes clear that a person who falls within Article 1E could well have rights and obligations which are different from the rights and obligations attached to the possession of nationality. So much flows from Article 1C(3) of the Convention which provides that the Convention shall cease to apply to any person falling under the terms of Article 1A if he has acquired a new nationality and enjoys the protection of the country of his new nationality.
That is to say, it is clear enough that Article 1E applies in cases where the person concerned possesses something less than nationality. If that were not so, Article 1E would have no purpose in view of the provisions of Article 1C(3) (See Nagalingam v Minister for Immigration [1992] FCA 470; 38 FCR 191 at 200). Thus, the question appears to be one of identifying those rights and obligations which are attached to the possession of the nationality of the host country and which it is not necessary for an applicant for refugee status to possess.
As Hill J. observed in Barzideh's Case, if the task is approached as one of seeking to find the ordinary meaning of the words in the language used in Article 1E, there would be little scope for argument. That is to say, Article 1E will apply only where the claimant has (or is accepted by the competent authorities as having) the same rights and obligations as a national but is not, in fact, a national. The ordinary meaning of the words does not suggest that Article 1E will apply where the claimant has some only of the rights and is subject to some only of the obligations, of nationals, but does not have other of the rights and is not subject to other of the obligations of nationals (per Hill J at 717.31). Hill J. therefore embarked on a consideration of the Travaux Préparatoires in relation to the Convention.
Those materials led him to conclude that the primary purpose of Article 1E was to deal with the situation of the Volkesdeutsche, people who had, in German law, the same status as German nationals living in West Germany. Accordingly, Clause 1E should be construed so that the rights and obligations with which it was concerned had to include all of the rights and obligations of a national, rather than some of them. The proper test, therefore, is whether, either by force of a general law or by force of a recognition given by the relevant competent authorities on an individual basis, the person seeking to be classified as a refugee enjoys the same rights and comes under the same obligations as does a person who is a national without actually being a national of the territory (per Hill J at 719.12).
Hill J. observed that it is not correct that the rights, whatever those relevant rights may be, may be some only of the rights of a national or that the obligations be some only of the obligations of a national. The rights and obligations must be the same as those of a national but fall short of a grant of citizenship. He observed that, if a different view of the article were adopted, so that the article refers to some but not all of the rights and some but not all of the obligations of nationals, then there are no criteria at all upon which to decide which of the relevant rights or obligations should be considered (720.45).
Counsel for the Minister, in suggesting that I should decline to accept Hill J.'s view that all rights must be enjoyed, apart only from political rights, referred to Articles 31 and 32 of the Vienna Convention on the Law of Treaties ("the Vienna Convention"). It was suggested that Hill J. placed too much weight on article 32, which was characterised as a supplementary means of interpreting a treaty, and not sufficient weight on Article 31, which was characterised as the general rule of interpretation.
It was said on behalf of the Minister that Article 31(1) contains the general rule of treaty interpretation, namely, that a treaty should be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. In particular, it was said, Article 31 does not state simply that the terms of a treaty are to be given their "ordinary meaning". It requires, in addition, that the context of the treaty be taken into account, as well as its object and purpose, in assessing what is the "ordinary meaning" of the words of the treaty.
After the hearing, the High Court of Australia delivered its decision in "Applicant A" & Anor v Minister for Immigration and Ethnic Affairs & Anor (High Court of Australia, 24 February 1997 unreported). In that case, McHugh J. made observations concerning the principles which govern the interpretation of a treaty provision enacted in, or as part of a domestic statute. Brennan C.J. agreed with those principles.
McHugh J. began by observing that treaties are to be interpreted in accordance with the requirements of the Vienna Convention. In his view, the opinion of Zekia J. in the European Court of Human Rights in Goldei v United Kingdom (1975) 1 EHRR 524 stated the correct approach for interpreting article 31 of the Vienna Convention. Zekia J. emphasised an ordered yet holistic approach. Primacy is to be given to the written text of the relevant convention but the context, object and purpose of the treaty must also be considered. Taking the text as the starting point is consistent with the basic principle of interpretation that courts should focus their attention on the "four corners of the actual text" in discerning the meaning of that text.
The text of the treaty necessarily has primacy in the interpretation process. However, the mandatory requirement 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 were required to construe exclusively domestic legislation. The conclusion of McHugh J was that article 31 requires the courts of Australia, when faced with a question of treaty interpretation, to examine both the "ordinary meaning" and the "context....object and purpose" of a treaty (at page 30).
Gummow J. in "Applicant A"'s Case considered that regard was to be had primarily to the ordinary meaning of the terms used in a convention, albeit in their context and in the light of the object and purpose of the Convention. His Honour considered, however, that recourse could also be had to the Travaux Préparatoires 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. Nevertheless it is important that primacy be given to the text of the treaty (at 54).
Those principles are generally consistent with the approach contended for by the Minister. However, I do not consider that Hill J. adopted any different approach in his reasons in Barzideh's Case. That is to say, although Hill J. had regard Travaux Préparatoires, he was primarily concerned with the text of Article 1E.
Counsel for the Minister contended that the object and purpose of the Convention is to provide international protection to persons fleeing persecution in their country of origin or country of last habitual residence but that the Convention excludes certain persons from being regarded as refugees either because, through their own actions, they are unworthy to be regarded as such or because, through some change in circumstances, those persons no longer require protection as refugees.
Articles 1C, 1D and 1E were said to fall into the latter category. Thus, the protection of the Convention is excluded under Article 1C, where the refugee has acquired a new nationality and enjoys the protection of the country of his or her new nationality and under Article 1D, where persons are receiving protection or assistance from organs or agencies of the United Nations (other than the United Nations High Commissioner for Refugees).
Thus, it was said that, having regard to the object and purpose of the Convention, once a person has acquired refugee status in a particular state, and provided that the person is in fact receiving the protection of that state, the person is no longer in fear of being persecuted by his or her country of origin or former habitual residence and, accordingly, does not require the protection of any other State. That indicates the level of protection that is required to be demonstrated to satisfy Article 1E.
It was suggested that Articles 1C, 1D and 1E set different standards of protection. Thus, Article 1C refers to the level of protection afforded to nationals. Article 1D refers to the protection afforded to certain groups by organs or agencies of the United Nations, being a level of protection which is not as great as the protection afforded to nationals. Article 1E is said to refer to a third level of protection. It is suggested that the approach of Hill J. ignores the level of protection intended by Article 1E.
The ultimate submission on behalf of the Minister is that Article 1E does not require that the person in question be granted identical rights to those of a national, but that the provisions of the Article will be satisfied if the person were to be granted "essentially the same rights" or "the fundamental rights of a national."
Thus, the Minister contends that a question of degree arises. The question is whether the host state affords "basic social and economic rights" to the refugee. The Minister contends that it is not necessary to identify any precise border between those rights and obligations which fall within Article 1E and those which do not. Wherever the line is to be drawn, the Tribunal was entitled to be satisfied that, if the only disqualification, apart from political matters was the disqualification in relation to employment referred to above, it was open to the Tribunal to conclude that the rights and obligations of the Applicant were generally the same as a French national.
Insofar as that interpretation is said to be borne out by the purpose and object of the Convention, I am not persuaded by the argument. I find Hill J.'s reference to the Travaux Préparatoires much more compelling as indicative of the extent of the intended operation of Article 1E. Gummow J., in "Applicant A"'s Case, confirmed (at p.54) that recourse may be had to the Travaux Préparatoires and to the circumstances of the conclusion of a treaty in order to confirm the meaning derived from the ordinary meaning of terms used in the treaty or to determine a meaning so as to avoid obscurity, ambiguity or manifestly absurd or unreasonable results.
Certainly, the Convention in its final form makes no reference to the Volkesdeutsche. Nevertheless, the language employed in Article 1E is really consistent only with the grant of all of the rights of a national other than actual citizenship.
While there may conceivably be difficulty in characterising rights as political or non-political, such an exercise of characterisation appears to me to be more consistent with the scheme of the Convention than an endeavour to determine the rights which are "essentially" the same as those of a national or to determine what are the "fundamental rights" of a national. It is political rights which flow from citizenship or nationality. They are the only rights which the Convention contemplates may be denied to a person in order to exclude the benefit of the Convention.
The test propounded by the Minister may be similar to that adopted in Goodwin-Gill, The Refugee in International Law (2nd ed. 1996). The view is there expressed that Article 1E does not require that the individuals in question should enjoy the full range of rights incidental to citizenship. No attempt is made, however, to identify the rights incidental to citizenship which may be missing. Rather, the authors go no further than to postulate that, whatever else might be necessary in order to attract Article 1E, the right of entry to, and freedom from removal from, the state are to be considered essential.
Logically, there may be no inconsistency between the view expressed by Goodwin-Gill and that of Hill J. On the other hand, Hill J. is prepared to identify the only rights which might be excluded, namely political rights, whereas Goodwin-Gill leaves unsaid the nature of rights which may be excluded. In Hathaway, The Law of Refugee Status (1991), it is suggested that the exclusion, based as it is said on de facto nationality, is "truly an exceptional occurrence which implies the effective legal assimilation of the refugee to her host population" (at 212).
It is said that de facto nationality is qualitatively distinct from long-term residence "since it requires a consequential guarantee of rights to the refugee on terms at least as favourable as those which follow from Convention refugee status" (at page 213). The authors of Hathaway cite Grahl-Madson, The Status of Refugees in International Law (1966) to the effect that, in order to be excludable under Article 1E, a person must be granted a status which, in no respect, is inferior to that of a "convention refugee"(p.270). Hathaway also adopts the conclusion of Goodwin-Gill that, most critically, the rights of entry and of freedom from removal or expulsion must be clearly conferred and respected (at 213).
The reference to rights at least as favourable as those which follow from convention refugee status involves, on one view, a non sequitur. It appears to refer to the rights which, under the Convention, a contracting state is obliged to guarantee to a person who falls within the term "refugee" as defined in Article 1A. In other words, the assumption is that if the state in which an applicant has taken residence already confers the rights which the Convention would require a second state to confer, by reason of the refugee status, Article 1E operates to exclude any obligation on the part of the second state.
In Nagalingam, Olney J. observed (at 198-9) that the question which requires determination is whether recognition by a host country of a person as a refugee confers upon the refugee the same rights and imposes upon him the same obligations, which are attached to the possession of nationality of that country. Olney J. observed that a consideration of the terms of the Convention shows that refugees in a country which is a contracting state are, in some respects to be accorded the same treatment as nationals, but in other respects the status of refugees confers only the same rights as an alien. In contrast, Article 1E refers only to the rights of a national.
Thus, the Convention requires contracting states to accord to refugees rights in relation to various matters. In some matters, the refugee is to be accorded the same treatment as is accorded to nationals. Examples include elementary education (Article 22), public relief and assistance (Article 23), labor legislation and social security (Article 24). Other provisions require contracting states to accord to a refugee treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances. Instances include the acquisition of movable and immovable property (Article 13) and the right to engage in self- employment (Article 18). In other matters, contracting states are required to accord to a refugee the most favourable treatment accorded to nationals of a foreign country in the same circumstances. Instances are the right of association (Article 15) and wage earning employment (Article 17).
It would have been possible for the contracting parties to the Convention to agree that, once refugee status had been accorded to a person by one contracting state, no other contracting state would have the obligation to afford refugee status to that person. Indeed, one could understand that the parties to the Convention might have adopted such an approach. It has some degree of logic to it. However, there is a marked contrast between the language of Clause 1E and the detailed provisions of the body of the Convention. That contrast is inconsistent with the approach suggested by the Minister. That consideration confirms that the particular purpose of Clause 1E is not to exclude a person simply because he or she has obtained refugee status in another state.
Accordingly, Clause 1E must be taken to have only a limited operation. For the reasons indicated above, it is not necessary that a person be treated in all respects as a national in order to attract Clause 1E. Nevertheless, the considerations taken into account by Hill J. indicate that only quasi nationality status was intended to be governed by Clause 1E.
It may be that some disabilities suffered by an alien would be so slight as to be negligible. That is to say, a disability which is minimal may not necessarily be sufficient to exclude the operation of Article 1E. That may raise a factual matter for consideration by the Tribunal in the appropriate case.
However, it is by no means self-evident that the disabilities suffered by the Applicant in France are minimal. They set the Applicant apart from a national of France. While there is no finding that the employment disabilities would have had any effect in the present case on the ability of the Applicant to derive an income, they are not insignificant. In that respect, at least, the Applicant is not recognised by the competent authorities of France as having the rights and obligations which are attached to the possession of nationality of France.
Apart from the evidentiary questions referred to below, similar observations can be made in relation to the rights of re-entry enjoyed by the Applicant in France. If the rights of re-entry are something less than are enjoyed by a French national, as to which there is no express finding, that would appear to set the Applicant aside from a national of France (see Nagalingam at 200). There is no finding that the differences are negligible. Nor is there any indication that such an approach was adopted by the Tribunal.
It was contended that the right of re-entry to France enjoyed by the Applicant was a temporary one and something less than the right afforded to a National. The Minister responded by referring to the findings of the Tribunal (at pages 13.5 and 15.2) to the effect that the Applicant has a current carte-de-resident valid for ten years and automatically renewable and a current travel document issued by the French authorities specifically carrying the right of re-entry to France. The Australian Embassy says a carte-de-resident is equivalent to permanent residence.
The Applicant's contention is that, notwithstanding those findings, that is less than a French National would have. The difficulty, of course, is that there is no finding as to the difference between the status and entitlement of the Applicant on the one hand and that of a national of France on the other. Accordingly, the argument may not be open to the Applicant. Nevertheless, had the Tribunal adopted what I consider to be the correct approach to Article 1E, there may have been other findings made.
It was also suggested by the Applicant that since the Applicant's right of re-entry to France has now expired, Article 1E no longer applies to him. The Minister's response is that the criteria specified in the Regulations must be satisfied at the time of the decision. At the time of the Tribunal's decision, there was still a right of re- entry. The Applicant's contention, however, is that it is sufficient to exclude Article 1E if the right of re-entry afforded to the refugee is subject to a time limit when that of a national is not. Of course, as indicated above, there is no finding as to those matters.
I agree with Hill J. that, if rights other than rights which can be characterised as political are absent, that will be sufficient to exclude the operation of Clause 1E of the Convention. The disability of the Applicant in relation to employment found by the Tribunal and the failure to consider that disability in the light of what I consider to be the correct approach to Article 1E constitutes, in my opinion, an error of law which is capable of review in this Court. It is an error which may also have affected the Tribunal's approach to the question off any disability relating to the Applicant's right of re-entry into France and his travel documents.
Accordingly, I consider that the decision of the Tribunal should be set aside and that the matter should be referred to the Tribunal for decision according to law in accordance with the principles stated in these reasons.
I certify that this and the preceding twenty six pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett
Associate:
Dated:
Heard: 7 February 1997
Place: Sydney
Decision: 3 March 1997
Appearances: Mr S.C.Churches appeared, instructed by McDonells, for the applicant.
Mr N.Williams appeared, instructed by the Australian Government Solicitor, for the respondent.
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