Husein Ali Haris & Ors v Minister for Immigration & Multicultural Affairs [1998] FCA 78 (12 February 1998)

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - whether stateless person was refugee - necessity for existence of well founded fear - issue earlier determined by single judge - whether persecution must relate to nationality of a particular country

Migration Act 1958

Bank of Western Australia Limited v Commissioner of Taxation (1995) 55 FCR 233 at 255 applied

Rishmawi v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 366 considered

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 71 ALJR 381 referred to

Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 referred to

Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 57 FCR 565 referred to

HUSEIN ALI HARIS & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 128/97

MOORE J

SYDNEY

12 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 128 of 1997

BETWEEN:	HUSEIN ALI HARIS & ORS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MOORE J
DATE OF ORDER:	12 FEBRUARY 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicants pay one half of the respondent's costs.

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

.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 128 of 1997

BETWEEN:	HUSEIN ALI HARIS & ORS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MOORE j
DATE:	12 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application under s 476 of the Migration Act 1958 ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") of 30 January 1997. The Tribunal decided that Husein Ali Haris ("the applicant"), his wife, Nasmah Saleh Thalib, and his first child, Nabel Haris, were not refugees. It affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant them protection visas.

In order to understand the issues it is necessary to set out a number of the findings of the Tribunal in its reasons for decision of 30 January 1997 though the essential facts are not disputed. The applicant arrived in Australia on 5 May 1989 on another person's passport and under that person's name. The applicant's wife had arrived in Australia on 27 May 1988. The applicant is a stateless person though his wife is an Indonesian national. The Tribunal's finding that the applicant was a stateless person was based on an early finding made by a Tribunal differently constituted on 14 November 1995. That earlier decision was the subject of proceedings in this Court. Those proceedings led to consent orders remitting the matter to the Tribunal for further hearing and determination though the precise terms of the consent orders are not presently before the Court. A related finding was that Indonesia was the applicant's country of former habitual residence and the applicant would now not be able to enter Indonesia. That was expressed at one point in the Tribunal's reasons as arising from Indonesian nationality laws which barred the applicant from entry into Indonesia at least in the foreseeable future. Elsewhere it was said "that in all likelihood the Applicant and his first child will remain unable to enter Indonesia". The Tribunal appears to have accepted that if the applicant fails in his application for a protection visa then the likely effect is that his family would be separated in the sense that his wife would re-enter Indonesia though the remainder of the family could not and would not.

The issues raised in the application are twofold. The application for a protection visa was to be determined by reference to s 36 of the Act and item 866 of the Migration Regulations. Both require a consideration of whether the applicant is a person to whom Australia owes protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention") and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Protocol") amending the Convention. The first issue concerns the scope of the definition of refugee found in art 1A(2) of the Convention. It provides:

(A) For the purposes of the present Convention, the term "refugee" shall apply to a person who:

...

(2) 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; or who, not having a nationality and being outside of the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.

It can be seen that the structure of this aspect of the definition of "refugee" involves two clauses. One preceding the semicolon after the word "country" and the other following it. It was submitted on behalf of the applicants that the clause following the semicolon concerns a person in the position of the first applicant, that is, a person who did not have a nationality. It was submitted that such a person was a refugee if one of two further criteria was satisfied. Such a person had to be either outside the country of his former habitual residence and unable to return to it or unwilling to return to it owing to a fear of persecution of the type referred to in the first clause of the paragraph. Thus, it was submitted, the applicant satisfied the definition by being firstly a person who did not have a nationality and was outside the country of his former habitual residence and secondly was unable to return to the country of his former habitual residence by operation of Indonesian law. It was submitted that to satisfy this aspect of the definition it was not necessary to demonstrate that the applicant had a well founded fear of the type elsewhere referred to in the definition to satisfy that part of it following the semicolon.

The application for review was filed on 20 February 1997. This first issue it raised was considered by Cooper J in Rishmawi v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 366 in a judgment delivered on 15 August 1997. It is an issue that had not, it appears, been considered by a court in this country before that date. His Honour concluded that the word "unable" in the later part of the definition of refugee in art 1A(2) concerns an inability based on a presently held well founded fear of persecution for a Convention reason. Counsel for the applicant accepted that I needed to be persuaded that either the observations of Cooper J were obiter dicta or that his Honour's judgment was clearly wrong: see Bank of Western Australia Limited v Commissioner of Taxation (1995) 55 FCR 233 at 255 and the cases cited by Lindgren J.

In my opinion, his Honour's conclusion concerning the construction of art 1A(2) was plainly central to his determination of the application and not merely obiter dicta. The applicant in Rishmawi sought to raise three issues. The second was whether the Tribunal had erred in concluding that the applicant's acknowledged fear could not be well founded because she was unable to return to her former country of habitual residence. It was common ground that in approaching the matter this way the Tribunal erred and its decision should be set aside and the matter remitted to the Tribunal to be determined according to law. However his Honour addressed two other issues though, in substance, they are the one issue. It is the issue sought to be raised in these proceedings. His Honour's order involved remitting the matter to the Tribunal "to be determined in accordance with (his) reasons and law". It appears to me that his Honour intended that when the matter was remitted to the Tribunal it would be, and the parties would be, bound by his Honour's determination of the proper construction of art 1A(2) and its application to the circumstances of the applicant.

The applicant's counsel also sought to persuade me that Cooper J's judgment should not be followed by pointing to what were said to be deficiencies in his Honour's reasoning process. It was submitted that Cooper J relied on observations of Gummow J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 71 ALJR 381 which are not reconcilable with observations of his Honour, when a judge of this Court, in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100. It was also submitted that Cooper J relied on the 1988 handbook of the Office of the United Nations High Commission of Refugees and the 1953 commentary on the Convention of Nehemiah Robinson, both of which did not pay regard to the amendments made to art 1A(2) by the Protocol in 1967. It was also submitted that Cooper J should not have had recourse to the travaux preparatoires and failed to give primacy to the text of the Convention.

None of these criticisms have substance. The reference to the 1988 handbook and the remarks of Robinson were part of a careful consideration by his Honour of what was comprehended by art 1A(2) in its original and amended form. The observation of Gummow J in Applicant A quoted by Cooper J at 148 ALR 373 speak of several conditions which are said to be cumulative. One is that a person is outside his or her country of nationality by reason of (owing to) a well founded fear of persecution. Counsel for the applicant submitted that this construction of art 1A(2) is inconsistent with the accepted notion of a refugee sur place, that is, a person who, when outside his or her country of origin, is exposed to circumstances which give rise to a well founded fear. However the contention there is inconsistency between the judgments of Gummow J in Applicant A and Somaghi depends on the reference in the former case to "by reason of (owing to)" as a reference to the cause of the departure of the person claiming refugee status. However Gummow J was referring to the reason why the person was unable to return and obtain protection, not the cause of initial departure. So understood the observations of Gummow J in Applicant A were entirely consistent with Somaghi and Cooper J's reliance on them was unexceptionable.

As to the use by Cooper J of the travaux preparatoires, it was also unexceptionable. Article 32 of the Vienna Convention authorises recourse to the travaux preparatoires to determine the meaning of the instrument when its meaning is ambiguous or obscure. The primary focus of the Convention viewed as a whole concerns the position of people who cannot obtain the protection of their country of nationality and habitual residence because they might be persecuted were they to return to it. The construction of art 1A(2) contended for by the applicant in this matter and the applicant in Rishmawi denies this element of fear of persecution in relation to stateless persons. Such a construction points to ambiguity or obscurity in the definition and justifies, in my opinion, recourse to the travaux preparatiores and justified Cooper J doing so. For these reasons I am not satisfied that Cooper J's judgment is obviously incorrect.

The second ground of challenge to the Tribunal's decision concerned its assessment of the applicant's fear of persecution. It was submitted that the Tribunal wrongly viewed the matter as requiring a consideration of the subjective intention of those effecting the persecution. Thus the Tribunal, it was submitted, misapplied the test in Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 57 FCR 565. It did not, in my opinion, do so. The Tribunal assessed whether the applicant had a characteristic which attracted the attention of the alleged perpetrations of persecution, actual or potential, and whether because of that characteristic, the applicant had been or might be persecuted.

A related issue was whether a law that prevented the entry into Indonesia of people who were not Indonesian nationals, persecuted against the group comprised of non-Indonesian nationals for reasons relating to their nationality. That is, their nationality in the sense that they were not Indonesian nationals but nationals of another country or not a national of any country. This submission, in my opinion is untenable. As is apparent from the judgments of both McHugh J at p 398 and Gummow J at p 413 in Re Applicant A, the Convention is directed to persecution for reasons relating to a particular nationality. It is where the characteristic of an applicant being a national of a particular country has led to persecution that the definition applies. The absence of that characteristic is not a matter upon which the Convention was intended to operate. I dismiss the application.

The question of costs is less straightforward. The application was made in circumstances where there was plainly a live issue about the correctness of the Tribunal's approach which had not been addressed by this Court or any other court in Australia. Accordingly the applicant was seeking to raise an important and unresolved issue at the time the application was filed. This aspect of his application changed when judgment was given in Rishmawi in August 1997. Hearing dates were set in the matter on 29 August 1997. At any point thereafter the applicants could, on advice, have decided to discontinue the application or consent to orders dismissing it. In my opinion, some allowance should be made for the circumstances in which the application was commenced. Accordingly I propose to order that the applicants pay one half of the costs of the respondent.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate:

Dated:

Counsel for the Applicants:	M G Craddock
Solicitor for the Applicant:	Kessels & Associates
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 December 1997
Date of Judgment:	12 February 1998