Toufic Daher v Minister for Immigration & Ethnic Affairs [1997] FCA 729 (5 August 1997)

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Crimes against humanity - Whether Administrative Appeals Tribunal possessed jurisdiction to review decision of Refugee Review Tribunal where protection visa refused in reliance on Article 1F of the Convention relating to the Status of Refugees - Whether Refugee Review Tribunal possessed jurisdiction to consider issues arising under Article 1F - Whether decision of Refugee Review Tribunal should be declared void.

Migration Act 1958 (Cth) ss36, 411, 415, 500.

TOUFIC DAHER v

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

VG 739 of 1996

JUDGES: DAVIES, HILL & HEEREY JJ

PLACE: MELBOURNE

DATED: 5 AUGUST 1997

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY ) VG 739 of 1996

)

GENERAL DIVISION )

On appeal from a Judge of the Federal Court of Australia

BETWEEN: TOUFIC DAHER

Appellant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

JUDGES: DAVIES, HILL & HEEREY JJ

PLACE: MELBOURNE

DATED: 5 AUGUST 1997

MINUTES OF ORDER

THE COURT DECLARES THAT:

The decision of the Refugee Review Tribunal of 25 August 1995 was void ab initio insofar as it relied upon Article 1F of the Convention relating to the Status of Refugees.

THE COURT ORDERS THAT:

1. Leave be granted to amend the notice of appeal.

2. The trial Judge's order as to costs be set aside and in substitution therefor it be ordered that the respondent pay the costs of the application to the Court.

3. The respondent pay the costs of the appeal.

4. The appeal otherwise be dismissed.

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

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY ) VG 739 of 1996

)

GENERAL DIVISION )

On appeal from a Judge of the Federal Court of Australia

BETWEEN: TOUFIC DAHER

Appellant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

JUDGES: DAVIES, HILL & HEEREY JJ

PLACE: MELBOURNE

DATED: 5 AUGUST 1997

REASONS FOR JUDGMENT

THE COURT: Section 36 of the Migration Act 1958 (Cth) ("the Act") provides for a class of visas, known as "protection visas", a criterion for the grant of which is that the applicant is a non-citizen in Australia to whom Australia has obligations under the Refugees Convention as amended by the Refugee Protocol. The Convention is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The Protocol is a Protocol relating to the Status of Refugees done at New York on 31 January 1967.

Article 1A(2) of the Convention and Protocol defines a refugee as a person who:

"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. ..."

Clause F of Article 1 goes on to provide:-

"F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) He has been guilty of acts contrary to the purposes and principles of the United Nations."

The appellant, Mr Toufic Daher, applied for refugee status on 21 March 1994. The application was refused on 18 August 1994 by a delegate of the Minister for Immigration and Ethnic Affairs on the ground that Mr Daher was not a refugee as defined in art. 1A(2) of the Convention & Protocol.

Part 7 of the Act establishes a review tribunal entitled the Refugee Review Tribunal. Section 411(1) provides, inter alia:-

"411. (1) Subject to subsection (2), the following decisions are RRT-reviewable decisions:

...

(c) a decision to refuse to grant a protection visa;

..."

On such a review, the Refugee Review Tribunal has the powers which are specified in s.415 of the Act which provides:-

"415. (1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(2) The Tribunal may:

(a) affirm the decision; or

(b) vary the decision; or

(c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d) set the decision aside and substitute a new decision.

(3) If the Tribunal:

(a) varies the decision; or

(b) sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

..."

Mr Daher applied to the Refugee Review Tribunal for a review of the primary decision. On 25 August 1995, the Refugee Review Tribunal affirmed the affirmed the primary decision but on different grounds. The Refugee Review Tribunal found that Mr Daher fell within the definition of a refugee set out in art. 1A(2) of the Convention and Protocol but that, as he had taken part in the massacre of civilians in the Sabra and Chatila refugee camps, he had committed actions which amounted to crimes against humanity or, alternatively, serious non-political crimes, and he was thereby excluded from protection by art. 1F(a) and (b) of the Convention.

The Migration Act 1975 confers jurisdiction upon the Administrative Appeals Tribunal to review decisions refusing to grant a protection visa relying upon art.1F of the Convention. Section 500 of the Act provides, inter alia:

"500. (1) Applications may be made to the Administrative Appeals Tribunal for review of:

...

(c) a decision to refuse to grant a protection visa or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);

other than decisions to which a certificate under section 502 applies.

...

(3) A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) or (c) unless the person would be entitled to seek review of the decision under Part 5 or 7 if the decision had been made on another ground.

(4) Decisions referred to in subsection (1) are not reviewable under Part 5 or 7.

..."

In reliance upon this section, Mr Daher applied to the Administrative Appeals Tribunal for extension of time to lodge an application for the review of the decision of the Refugee Review Tribunal refusing refugee status in reliance upon art. 1F of the Convention. On 2 February 1996, the Administrative Appeals Tribunal held that it had no jurisdiction to review the decision of the Refugee Review Tribunal. Accordingly, the application for an extension of time was refused.

Two proceedings were then commenced in the Federal Court. One purported to be an appeal under s44 of the Administrative Appeals Tribunal Act (Cth) and the other an appeal under Part 8 of the Migration Act. It is not necessary for present purposes to determine which was the correct proceeding and we make no comment on that point.

Before the learned trial Judge, it was put on behalf of Mr Daher that the Administrative Appeals Tribunal had jurisdiction either because the decision of a Refugee Review Tribunal was a decision as described in s500(1)(c) or, alternatively, that the effect of the decision of the Refugee Review Tribunal was to vary the decision of the Minister's delegate and that such decision was therefore, by the operation of s415(3)(b), to be taken to be a decision of the Minister which was reviewable under s500(1)(c). The trial Judge dismissed the application to the Court on the ground that the Act did not authorise the Administrative Appeals Tribunal to review a decision of the Refugee Review Tribunal.

On the hearing of the appeal to the Full Court, counsel for Mr Daher, Ms D. Mortimer, and counsel for the Minister, Mr A. Cavanough QC, repeated the substance of the submissions which had been put before the trial Judge. The Bench raised the further issue as to whether the Refugee Review Tribunal had jurisdiction to consider the issues arising under art. 1F of the Convention. Subsequently, in written submissions, Ms Mortimer adopted this point and sought leave to amend the notice of appeal so as to raise the point and to seek relief directed to the decision of the Refugee Review Tribunal. Mr Cavanough, in his written submissions, supported the validity of the decision of the Refugee Review Tribunal.

The task of reconciling arguably inconsistent statutory provisions is sometimes a difficult one. However, the task is made simpler if attention is given to reading the provisions in a manner which permits each of the provisions to be given an appropriate force and effect. In that way, the objects which the legislation seeks to achieve can usually be achieved consistently with the language used.

In the present case, it is an object of the Act that reviews of decisions taken under art. 1F of the Convention shall be conducted by the Administrative Appeals Tribunal. That object is not merely to be inferred from the Act. The Act makes it explicit by conferring jurisdiction upon the Administrative Appeals Tribunal and by excluding review under Part 7 of the Act. The rationale is not stated but it can be understood. The Administrative Appeals Tribunal is a high ranking review tribunal, the President of which is a judge of this Court. It is a body which is well suited to dealing with the issues which arise under art. 1F. The Act has specified that, for the purposes of reviewing such a decision, the Administrative Appeals Tribunal shall be constituted by a presidential member. High quality decision making is sought.

The Act has, therefore, notionally divided decisions refusing to grant a protection visa into two distinct parts, namely, those parts constituting a refusal in reliance on arts. 1F, 32 or 33(2) of the Convention and those relying on other aspects of the Convention, particularly art. 1A(2). Accordingly, in s.411(1)(c), the term "a decision to refuse to grant a protection visa" must be read as excluding such a decision insofar as it relies upon arts. 1F, 32 or 33(2) of the Convention. The Act makes this explicit by providing in s500(4) that the excluded decisions are not reviewable under Part 7 of the Act, in which s411 appears.

It follows that the only decision which the Refugee Review Tribunal had jurisdiction to review was a decision which did not rely upon arts. 1F, 32 or 33(2). It was only for the purpose of reviewing that limited decision, the elements of which were within its jurisdiction, that the Refugee Review Tribunal was authorised to exercise all the powers and discretions that were conferred by the Act on the person who made the decision. As the question whether Mr Daher fell within the terms of art. 1F was not an issue within the ambit of the decision which the Refugee Review Tribunal had jurisdiction to review, the Refugee Review Tribunal had no cause to enter into that question for the purposes of the review of the decision. Put another way, if the decisions which the Refugee Review Tribunal had jurisdiction to review did not include a decision to refuse to grant a protection visa relying upon arts. 1F, 32 or 33(2), then it follows that the Tribunal could not on review adjudicate upon arts. 1F, 32 or 33(2) issues, even if (or especially if) such issues were advanced for the first time on review.

Having decided that the primary decision was in error insofar as it refused to grant a protection visa in reliance upon art. 1A(2) of the Convention, the proper course for the Refugee Review Tribunal to have taken was to remit the decision for reconsideration in accordance with the direction that the applicant, Toufic Daher, must be taken to have satisfied the criterion for the visa specified in art. 1A of the Convention. That order would have enabled the primary decision-maker then to consider the other issue, namely whether Mr Daher was disqualified from protection by reason of the application of art. 1F of the Convention. If the primary decision-maker were then to decide that Mr Daher was excluded by art.1F from the protection of the Convention, an application for review could be lodged with the Administrative Appeals Tribunal.

As the Refugee Review Tribunal exceeded its jurisdiction, it is proper to allow the amendments to the notice of appeal as sought. An order should be made that the decision of the Refugee Review Tribunal, insofar as it relied upon art. 1F of the Convention, was void ab initio.

It necessarily follows that the Administrative Appeals Tribunal had no jurisdiction to review that decision.

It is unnecessary to consider whether, had the Refugee Review Tribunal acted within its jurisdiction, the Act would have permitted an application to be made to the Administrative Appeals Tribunal from the decision of the Refugee Review Tribunal.

We would grant leave to amend the notice of appeal. We would allow the appeal to the extent of declaring that the decision of the Refugee Review Tribunal was void ab initio insofar as it relied upon art. 1F of the Refugee Convention. We would set aside the trial Judge's order as to costs and would order the respondent to pay the costs of the application to the Court. We would otherwise dismiss the appeal. We would order that the respondent pay the costs of the appeal.

I certify that this and the 8 preceding pages

are a true copy of the reasons for judgment

herein of the Court.

Associate:

Dated: 5 August 1997

Counsel for the appellant: Ms D.S. Mortimer

Solicitor for the appellant: Erskine Rodan & Associates

Counsel for the respondent: Mr A. Cavanough QC

Solicitor for the respondent: Australian Government Solicitor

Date of hearing: 2 June 1997

Date of judgment: 5 August 1997