Al-Sallal v Minister for Immigration & Multicultural Affairs [1999] FCA 369 (8 April 1999)

Last Updated: 15 April 1999

FEDERAL COURT OF AUSTRALIA

Al-Sallal v Minister for Immigration & Multicultural Affairs

[1999] FCA 369

MIGRATION - application for a protection visa - judicial review of decision of Refugee Review Tribunal - meaning of "country of former habitual residence" - whether applicant has "effective protection" in a third country - meaning of "effective protection" - whether necessary for third country to be party to Refugee Convention to accord "effective protection".

Migration Act 1958 (Cth) - ss 36, 476(1)(e)

Saket v Minister for Immigration and Multicultural Affairs [1999] FCA 301 (unreported; 25 March 1999; Whitlam J), cited

Maarouf v Canada (Minister of Employment and Immigration) [1994] 1 FC 723, considered

Koe v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 289, cited

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, followed

Rajendran v Minister for Immigration and Multicultural Affairs (unreported; 4 September 1998; von Doussa, O'Loughlin and Finn JJ), followed

Minister for Immigration and Multicultural Affairs v Gnanapiragasam (unreported; 25 September 1998; Weinberg J), followed

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, cited

Al-Zafiry v Minister for Immigration & Multicultural Affairs (unreported; 25 March 1999; Emmett J), cited

Minister for Immigration & Multicultural Affairs v Kabail [1999] FCA 344 (unreported; 31 March 1999; RD Nicholson J), cited

Al-Anezi v The Minister for immigration and Multicultural Affairs [1999] FCA 355 (unreported; 1 April 1999; Lehane J), cited

MOHAMAD ABDULLAH AL-SALLAL v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1306 of 1998

KATZ J

SYDNEY

8 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1306 of 1998

BETWEEN:	MOHAMAD ABDULLAH AL-SALLAL Applicant
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	KATZ J
DATE OF ORDER:	8 APRIL 1999
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal dated 20 November 1998 be set aside and the matter to which the decision related be referred to the Tribunal for further consideration.

2. The respondent pay the applicant's costs of the proceeding.

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 1306 of 1998

BETWEEN:	MOHAMAD ABDULLAH AL-SALLAL Applicant
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	KATZ J
DATE:	8 APRIL 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 Section 486 of the Migration Act 1958 (Cth) ("the Act") confers on this Court jurisdiction with respect to "judicially-reviewable decisions". Among the decisions which are reviewable by this Court in the exercise of that jurisdiction are decisions of the Refugee Review Tribunal ("the Tribunal"): see par 475(1)(b) of the Act.

2 In this proceeding, review of a decision of the Tribunal is sought.

3 The decision concerned is one which was made by the Tribunal on 20 November 1998, consequent upon an application for review which had been made to it on 14 September 1998 by Mr Mohamad Abdullah Al-Sallal. The Tribunal's decision affirmed an earlier decision made by a delegate of the Minister for Immigration and Multicultural Affairs ("the delegate" and "the Minister" respectively) on 11 September 1998, consequent upon an application for a protection visa which had been made to the Minister by Mr Al-Sallal on 8 July 1998. The delegate's decision on that application had been one to refuse to grant it.

4 Protection visas are dealt with in s 36 of the Act, which provides as follows:

"36(1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

(The Refugees Convention referred to in subs 36(2) of the Act is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, while the Refugees Protocol referred to is the Protocol relating to the Status of Refugees done at New York on 31 January 1967: see the relevant definitions in subs 5(1) of the Act. Subsequently in these reasons for judgment, when I wish to refer to the Refugees Convention as amended by the Refugees Protocol, I will use the term "the Convention".)

5 As well as the criterion for a protection visa appearing in subs 36(2) of the Act, additional criteria for a protection visa in appear in Sch 2 to the Migration Regulations (Cth), under the heading "Subclass 866--Protection". All such criteria, both that in subs 36(2) and those in Sch 2, apply to decision-making by the Tribunal, just as much as they do to decision-making by the Minister: see subs 415(1) of the Act. However, for present purposes, the only relevant criterion is that set out in subs 36(2).

6 Australia can have no protection obligations under the Convention to a non-citizen in Australia unless that non-citizen is a "refugee" within the meaning of Art 1A(2) thereof. That provision defines a "refugee" (relevantly) as a person who, not having a nationality and being outside the country of that person's former habitual residence, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is unwilling to return to that country.

7 Mr Al-Sallal, a person who, it appears, has never had a nationality, is a Bedoon. (In Saket v Minister for Immigration and Multicultural Affairs [1999] FCA 301 (unreported, 25 March 1999) at par 4, Whitlam J said of the word "Bedoon", "Apparently this is the Arabic word for `without', which is occasionally spelled in English as bidun or bidoon, and is used as an abbreviation of the phrase `without nationality' or `without citizenship'.") Mr Al-Sallal was born in Kuwait in 1973, left Kuwait for Iraq in 1991 and left Iraq for Jordan in 1996. Then, having lived in Jordan for two years, he left that country for Australia in 1998. Mr Al-Sallal had claimed before the Tribunal to be unwilling to return to either Iraq or Kuwait, owing to well-founded fear of being persecuted in each of those countries for various Convention reasons. (Although Mr Al-Sallal was also unwilling to return to Jordan, he made no claim that that unwillingness was owing to fear of being persecuted in that country for any Convention reason.)

8 Although it did not say so explicitly, the Tribunal appears to have considered both Iraq and Kuwait to be countries of former habitual residence for Mr Al-Sallal for the purpose of the definition of "refugee" in Art 1A(2) of the Convention; however, the Tribunal found it unnecessary to decide whether Mr Al-Sallal was a "refugee", concluding that, even if he was, nevertheless he was not a non-citizen in Australia to whom Australia had protection obligations under the Convention. That was, in substance, because of an ability which it found that he had to return to Jordan, a third country (in the sense that it was neither Australia nor a country as to which Mr Al-Sallal claimed to fear persecution for a Convention reason) in which the Tribunal found he would have "effective protection" (in the sense in which that term is used in a number of decisions to which I will later make reference).

9 (I should point out something regarding the circumstances of the Tribunal's apparently considering Iraq to be a country of former habitual residence for Mr Al-Sallal for the purpose of the definition of "refugee" in Art 1A(2) of the Convention. In Maarouf v Canada (Minister of Employment and Immigration) [1994] 1 FC 723 at 739 (Fed TD) (referred to with apparent approval by Tamberlin J in Koe v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 289 at 298), Cullen J said that the concept of habitual residence,

"... seeks to establish a relationship to a state which is broadly comparable to that between a citizen and his or her country of nationality. Thus the term implies a situation where a stateless person was admitted to a given country with a view to a continuing residence of some duration, without necessitating a minimum period of residence."

Similarly, according to Goodwin-Gill, The Refugee in International Law (2d), at 309, "Habitual residence for a stateless person would necessarily seem to imply some degree of security, of status, of entitlement to remain and to return...." According to Mr Al-Sallal's account of his time in Iraq, while there, he had had no degree either of security, status or entitlement to remain and to return; on that account, therefore, Iraq could not be a country of former habitual residence for him for Art 1A(2) purposes. However, the Tribunal disbelieved his account in the relevant respect, saying,

"In considering all of the above, I am not satisfied that the applicant's evidence is credible. I am of the opinion that he has tailored his evidence to give an impression of coming covertly into Iraq, thus having to live there covertly, thus having to escape from that country, thus having to seek refuge elsewhere. I consider that his true circumstances were different: that he was able to live freely in Iraq as a Bedoon from Kuwait and that he left Iraq for Jordan either because the authorities might have wished Bedoons, like other [sic] Iraqis, to fulfil a military service obligation or because he wanted a more confortable [sic] life in Jordan without the distractions of military activity or the economic travails brought about by the foreign trade embargoes against Iraq."

It was only the Tribunal's disbelief of Mr Al-Sallal's account of the circumstances of his stay in Iraq which led it apparently to treat that country as one of former habitual residence for him for Art 1A(2) purposes.)

10 In reaching the conclusion that Mr Al-Sallal's ability to return to Jordan with "effective protection" once there meant that, even if he was a refugee, nevertheless he was not a non-citizen in Australia to whom Australia had protection obligations under the Convention, the Tribunal stated, in its statement of findings and reasons, that it relied upon "the principles set out in" three decisions of this Court arising out of decisions of the Tribunal, namely, Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 (von Doussa, Moore and Sackville JJ); Rajendran v Minister for Immigration and Multicultural Affairs (unreported; 4 September 1998; von Doussa, O'Loughlin and Finn JJ); and Minister for Immigration and Multicultural Affairs v Gnanapiragasam (unreported; 25 September 1998; Weinberg J). (I note that, on 4 March 1998, the Full Court which had decided Thiyagarajah gave supplementary reasons for judgment and made final orders in the matter (unreported) and that, on 11 December 1998, the High Court (McHugh and Kirby JJ) granted special leave to appeal from those final orders (unreported); however, the ground upon which special leave to appeal was granted is of no present relevance.)

11 It is convenient that, at this point in my reasons for judgment, I summarise the facts and holding in each of those three cases.

12 Of those three cases, Thiyagarajah was the foundation case. It concerned a Sri Lankan national who had sought a protection visa in Australia, claiming to have a well-founded fear of being persecuted in Sri Lanka for a Convention reason. At the time of the Tribunal's decision in the matter, he had already been granted by France the status of both a refugee under the Convention (France being a party to the Convention: see par 27 below) and a permanent resident. Further, although he had not been granted the status of a French citizen, he was already qualified to apply therefor. He also then held a French travel document of the type referred to in Art 28 of the Convention, expressly allowing his re-entry to France.

13 von Doussa J, with whose reasons for judgment the other members of the Court agreed (see at 570), held (at 562) that a State which is a party to the Convention does not, in certain circumstances, breach its protection obligations thereunder if it returns to a third country a person claiming refugee status without determining that claim. Without seeking to define those circumstances exhaustively, his Honour said that they included circumstances in which (emphasis added),

"... it is proposed to return the asylum seeker to a third country which has already recognised that person's status as a refugee, and has accorded that person effective protection, including a right to reside [in], enter and re-enter that country. The expression `effective protection' ... [i]n the context of the obligations arising under the Refugees Convention ... means protection which will effectively ensure that there is not a breach of Art 33 if the person happens to be a refugee."

(I note that, in its statement of findings and reasons in the present matter, the Tribunal, when discussing the law on "effective protection", repeated in substance the last sentence which I have just quoted from Thiyagarajah.)

14 von Doussa J's reference to "Art 33" was a reference to Art 33(1) of the Convention, which, he had earlier said (at 557), "imposes the principal obligation" on States which are parties to the Convention. Art 33(1) provides,

"No Contracting State shall expel or return (`refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

15 von Doussa J then construed the obligation imposed by Art 33(1), holding, in effect (at 565), that the obligation which it imposes on a State which is a party to the Convention is not to refoule a refugee to a territory if the refugee has a well-founded fear of being persecuted in that territory for a Convention reason. The question of the well-foundedness of any such fear is to be determined by the application of the same test as is applied under Art 1A(2) of the Convention, that is to say, by what is generally described as the "real chance" test and not, for instance, by the application of the stricter test (from the refugee's point of view) of the balance of probabilities. (For a discussion of the "real chance" test in the Art 1A(2) context, see, in particular, Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 576-77 (Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ).)

16 In construing the obligation imposed by Art 33(1), von Doussa J (at 564-65) rejected as erroneous decisions both of a single Judge of the Canadian Federal Court and of the American Supreme Court, in so far as those decisions would support a conclusion that the well-foundedness of the refugee's fear has to be determined for Art 33(1) purposes by the application of a stricter test (from the refugee's point of view) than the "real chance" test. (Incidentally, the Canadian decision, Kaberuka v Canada (Minister of Employment and Immigration), said by von Doussa J (at 561) to be unreported, is reported in, among other places, [1995] 3 FC 252 (Fed TD).) It would seem to follow from von Doussa J's rejection of the approach of the Canadian and American courts that neither Canada nor the United States can be a "safe third country" for present purposes so far as Australia is concerned. That is because a claimant for refugee status in Australia sent to either of those countries would, if a refugee, be at risk of being refouled by that country, in breach of Art 33(1) (on its proper construction), to a territory as to which the claimant had a well-founded fear of persecution for a Convention reason. (Perhaps I should add here that, strictly speaking, such a person could not be at risk of being refouled in breach of Art 33(1) if in the United States, because the United States is not directly bound by Art 33(1), that provision being in the Refugees Convention, to which the United States is not a party (see par 27 below). However, the Refugees Protocol, to which the United States is a party (again, see par 27 below), relevantly adopts by reference, in Art 1(1) thereof, Art 33(1) of the Refugees Convention, so that the position is in substance the same as if the latter provision had bound the United States of its own force.)

17 Von Doussa J then (relevantly) concluded (at 565),

"As a matter of domestic and international law, Australia does not owe protection obligations to the respondent as he is a person who has effective protection in France which has accorded him refugee status. Moreover, when his application for a protection visa was determined by the RRT, he had been a resident in France for a long period, he had the right to apply for citizenship in France, and he held travel documents that entitled him to return to France. These added matters are not essential to the finding that Australia did not owe him protection obligations, but serve to illustrate that the respondent's claim for protection is far removed from the object and purpose of the Refugees Convention."

18 I turn next to Rajendran's Case. It, like Thiyagarajah's Case, concerned a Sri Lankan national who had sought a protection visa in Australia, claiming to have a well-founded fear of being persecuted in Sri Lanka for a Convention reason. At the time of the Tribunal's decision in the matter, Rajendran had already been granted by New Zealand the status of a permanent resident. Further, although he had not been granted by New Zealand the status of a citizen, he would shortly have the right thereto if he returned to New Zealand and met a residency requirement. He also then held a Sri Lankan passport containing a New Zealand Returning Residence Visa, which guaranteed that he could travel to New Zealand and on application be granted a residence permit. A potentially important respect in which Rajendran's position differed from that of Thiyagarajah was that the former had not, at the time of the Tribunal's making its decision in respect of him, been recognised by the third country concerned as a refugee within the Convention (although New Zealand, like France, was a party thereto: see par 27 below).

19 The Court said (at 5-7),

"The trial judge in this matter concluded, correctly in our view, that where an applicant for a protection visa has already secured rights and entitlements in a third country the operation of Thiyagarajah ought not be restricted to cases where those rights and obligations result from that country's grant of refugee status to that person. His Honour concluded that it should extend at least to cases where the visa applicant is entitled to permanent residence, and, in time, to become a citizen, and has been accorded that `effective protection' referred to in Thiyagarajah ... by the third country to which it is proposed to return the applicant. And in light of the Tribunal's findings his Honour concluded that New Zealand offered such entitlements and protection and that, in consequence, the principles of international law did not preclude Australia as a Contracting State from returning Mr Rajendran to New Zealand. We would note specifically that his Honour considered that the Tribunal did not regard Mr Rajendran as being exposed to any real risk or real chance of being returned by New Zealand to Sri Lanka.

...

.. Mr Rajendran considers that he is in a situation in which there is a real chance of his being returned to Sri Lanka from New Zealand. We have already noted the trial judge's conclusion on the effect of the Tribunal's findings and of their being inconsistent with such a chance. We agree with his Honour's conclusion but consider it appropriate to add this much. ... [I]t was not impermissible for him to advert to the responsibility New Zealand had as a signatory to the Convention and to assume that it would honour its obligations thereunder including its Art 33 obligation...."

20 Finally, I mention Gnanapiragasam's Case. That case concerned spouses of Sri Lankan nationality who had sought protection visas in Australia, claiming to have well-founded fears of being persecuted in Sri Lanka for a Convention reason. At the time of the Tribunal's decision in the matter, the spouses had earlier been granted by Germany the status of permanent residents, but, having left that country, had forgone such status. Further, it was unclear whether Germany had earlier recognised the Gnanapiragasam spouses as refugees within the Convention (although Germany, like France and New Zealand, was a party thereto: see par 27 below).

21 Weinberg J said (at 16; emphasis in bold added),

"There is no reason in principle why [Australia's ability to return a refugee claimant to a third country without breaching] Art 33[(1)] should rest upon nothing less than an entitlement to `permanent residence' in the third country. Such an entitlement happened to exist in both Thiyagarajah and Rajendran. Once back in that `safe third country' the claimants in those cases could make their claims for refugee status where, it should be assumed, these would be determined in accordance with the requirements of Art 1A(2) of the Convention.

(I interpolate that Weinberg J's statement that, once back in France, Thiyagarajah could make his claim for refugee status, where, it should be assumed, that claim would be determined in accordance with the requirements of Art 1A(2) of the Convention, was, of course, a slip, since, as I have already mentioned twice above, Thiyagarajah had already been accorded such status by France; however, nothing turns on that slip for present purposes.)

The question to be addressed, therefore, is whether Germany, which is of course a signatory to the Convention, is a country in which the life or freedom of the respondents would not be threatened (within the meaning of Art 33[(1)]) and the Government of which would not send the respondents elsewhere in a manner contrary to the principles of the Convention."

22 Later, his Honour continued (at 21-23; emphasis in bold added),

"While the material before the RRT demonstrates that the respondents have lost their rights to permanent residence in Germany, and are unlikely to regain those rights without being able to establish that, at the very least, there is suitable employment available to the first respondent, it does not follow that the `effective protection' to which reference was made in Thiyagarajah including a right to reside in, enter and re-enter Germany is unavailable to them. Those who are admitted as temporary residents may also have rights which provide them with `effective protection' in a `safe third country'....

...

It cannot be assumed ... that merely because the respondents are unlikely now to be accorded permanent resident status in Germany they cannot therefore re-enter that country at all. They have a long established connection with that country.... Temporary residence status may not, in fact, be precluded.... Nor should it be assumed that the respondents would be denied the `effective protection' of that country were they to be permitted to re-enter as temporary residents while their claim to refugee status was considered. It should not be assumed that Germany would do other than comply fully with its obligations under the Convention in this regard.

...

The failure by the RRT to consider the possible application of Art 33[(1)] of the Convention as rendering it unnecessary for the delegate to have determined the respondents' claim to refugee status constitutes an error of law on its part. That makes it necessary to set aside its decision. The RRT is required to ascertain as clearly as it can whether or not the respondents would be permitted to re-enter Germany, at least on a temporary basis, thereby enabling their claim to refugee status to be considered by that country. Neither Thiyagarajah nor Rajendran should be taken as stipulating as a minimal basis for the applicability of Art 33[(1)] that a person who has been resident in a third country before coming to Australia must be shown to have a continuing right to reside there permanently in order for the third country to be able to accord that person `effective protection'.

It seems to me that a right to re-enter, albeit temporarily, the country in which the claimant has previously lived, together with the right, while proper consideration is given to any claim for refugee status, to leave and re-enter that country thereafter, renders Art 33[(1)] potentially applicable. Australia can then require the claimant to return to that `safe third country' without the need first to consider his possible refugee status under Art 1A(2). The right to reside temporarily is capable, in any given case, of meeting the `effective protection' criterion no less than the right to resume permanent residence.

That is not to say that a right to return to temporary residence will, of itself, be sufficient in any given case. Art 33[(1)] requires that there be `effective protection' in the third country. Australia must be satisfied that the third country will consider any claim to refugee status in accordance with the Convention, and will not simply refuse entry and, without giving the claim any such consideration, return the claimant to the country from which he came originally. These are all matters which must be addressed with care. They cannot be ignored, or passed over, on the basis of such uncertain material as was before the RRT in this case."

23 (I note that, in its statement of findings and reasons in the present matter, the Tribunal, when discussing the law on "effective protection", repeated the substance of the immediately preceding paragraph from the reasons for judgment of Weinberg J, quoting, while doing so, the statement that Australia must be "satisfied that the third country will consider any claim to refugee status in accordance with the Convention" (emphasis added).)

24 Having now summarised each of the three cases upon which the Tribunal stated it relied in reaching its decision regarding Mr Al-Sallal, I turn to the reasoning which the Tribunal employed when concluding that, if he were to be returned to Jordan, Mr Al-Sallal would have "effective protection" there. In that connection, it is necessary that I set out a lengthy passage from the Tribunal's statement of findings and reasons, beginning with extracts which the Tribunal gave of a Jordanian statute, which extracts it introduced by saying that they satisfied it that there existed legislative measures dealing with stateless persons in Jordan (emphasis in original):

"Jordanian Law No. 24 of 1973: The Residence And Foreigners' Affairs Law, from REFWORLD, which is the UNHCR database:

Chapter 1 - Entry of foreigners
Article 4
a) A foreigner shall be authorised to enter or leave the Kingdom [of Jordan] provided either that he holds a valid passport or travel document issued by his country, recognised by the Government of the Kingdom and bearing an entrance or exit visa, or that he holds a travel document issued by the Government of the Kingdom on account of his residence in Jordan, without having a passport or a travel document issued by a Government.

c) International laissez-passers shall be issued to the following categories of persons: 1. Stateless persons and persons with no established nationality; 2. Refugees recognised as such; 3. Persons with an established nationality but who cannot obtain travel documents from their own country or from their country of residence for reasons to be appreciated by the competent Jordanian authorities; 4. The wives and minor children under 16 years of age of persons in the above categories, who do not have an established nationality.

Article 14
The managers of hotels, guesthouses and similar establishments and any person providing or renting lodging or accommodation to foreigners shall, within 48 hours of the time of arrival or departure of a foreigner, notify the foreigner's name and address to the Directorate or one of its branch offices or to the police station covering the area where the foreigner resides.

Article 16
a) No Jordanian national or Jordanian company or body shall employ a foreigner unless he has a permit to reside in the Kingdom ...

Chapter 3 - Residence permits
Article 20
The Director may authorise a foreigner to stay in the Kingdom for a period not exceeding three months and may ... extend the said period for three more months against payment of a fee of one Jordanian dinar. Such authorisation shall extend to his wife or wives and to all his children ...

Article 23
The fee for a residence permit shall be ten Jordanian dinars for the first year, and the fee for its renewal shall be six Jordanian dinars for each year thereafter.

Chapter 4 - Exemptions
Article 29
The provisions of this Law shall not apply to:
f) Persons exempted by virtue of international agreements to which the Kingdom is a party, subject to the scope of such agreements;
h) Persons exempted by the Minister on account of special considerations connected with international or humanitarian courtesy or of the right to political asylum or yet [sic] in application of the principle of reciprocity.

Article 30
The following shall be exempt from the payment of residence permit fees:
a) Foreigners working as nurses in government hospitals;
d) Arab nationals, on the basis of reciprocity.

Chapter 5 - Penalties and violations
Article 31
Any person entering the Kingdom in violation of Articles 4 and 5 of this Law [regarding possession of travel documents, including refugee laissez passers, and check-stamped entry through border checkpoints) shall be arrested without further notice and shall be brought before the administrative authority which may either order his expulsion or recommend the Minister to grant him a residence permit or yet refer him to a Justice of the Peace. On conviction by a Court, he shall be liable to a term of imprisonment of between one and six months or to a fine of between 10 and 50 dinars, or to both penalties.


Article 32
The competent administrative authority may, after the Court has passed judgement on a foreigner, order his expulsion from the Kingdom or recommend the Minister to grant him a residence permit.

Article 34
Any foreigner who enters the Kingdom lawfully but who fails to obtain a temporary residence permit or who overstays his permitted period of residence shall be liable to a fine of ten dinars for each month overstayed or any part thereof.

The above independent evidence demonstrates that Jordan is willing to extend support [to] and consider refugee claims of stateless people such as the applicant ..., including giving them international laissez-passers or other travel and visa documents, that normal residency permits of three months are issued and are renewable, that Arabs such as the applicant can renew them without even paying fees, and that even if one were to overstay a visa the fine is small, 10 dinars, and a jail term, if imposed, not excessive - between one week to six months, and that Jordan keeps control of foreigners within its borders by requiring employers to register such persons. It also shows that refugees, and other persons allowed to stay for humanitarian reasons, are exempted from the requirements named above.

The information given above is supported by other independent evidence (given in precis below) that Jordan's legislative assurances on this matter are enacted [sic] in practice, and that considerable leeway is given to visa overstayers who are allowed to stay on and work off whatever fees they might have amassed, and that tens of thousands of foreign Arabs live and work in Jordan under this system even if they do not choose to apply for refugee status:

* Jordan has been generous in receiving hundreds of thousands of refugees, including refugees and asylum-seekers from Iraq. While many refugees face economic hardship in Jordan, the right to asylum is respected under UNHCR's mandate and they are not deported/refouled (Department of Foreign Affairs cable AM1923 of 31/3/97, CX22577). [There is one known exception to this policy: in March 1995 Jordan forcibly repatriated one politically active Iraqi national without allowing UNHCR to mediate in the matter; since the applicant is not an Iraqi government official that exception is irrelevant to his circumstances] (World Refugee Survey 1996, pp.117-119, Immigration and Refugee Services of America, CX21740; Amnesty International Report 1996, pp.193-5 on human rights abuses in 1995, CX20936). Almost all refugees live in Amman. Jordan is `a world leader in its generosity towards refugees and displaced persons' and `bears the distinction of having the highest ratio of refugees to indigenous population of any country in the world' (Iraqi Refugees May Have No Place To Run, US Committee For Refugees press release of 18/2/98, REFINFO).

* People from Iraq are permitted to enter Jordan. If they do not have the necessary papers they are interviewed and given three-month visas which can be extended for a further three months. In this time, they can attempt to get a residency permit or appeal for refugee status. Relatively few of the 50,000 - 200,000 Iraqis in Jordan have sought recognition as refugees. Visa overstayers can pay a fee or, alternately, come to an arrangement with the authorities to work as cheap labour in service industries (Department of Foreign Affairs cable AM2244 of 31/10/97, CX26100).

Given the above independent evidence, the Tribunal does not propose, in the circumstances of this individual applicant, to make a finding as to whether he can reasonably be expected to return to either Kuwait or to Iraq. Instead, the Tribunal considers that the applicant has found effective protection from any harm he might have feared in Kuwait and Iraq in Jordan....

On the applicant's own evidence the Tribunal is satisfied that the applicant has no well-founded fear of persecution in Jordan over his Bedoon ancestry. Given independent evidence the Tribunal is satisfied that Jordan will not refoule the applicant to Kuwait, and given the provisions of Jordanian law No. 24 of 1973 (see: Chapter 1, Article 4a and 4c and Chapter 3, Article 20) and other independent evidence quoted above, the Tribunal is satisfied that applicant has the right to reside in, enter and re-enter Jordan either on the basis of renewable visas, with the option of applying for naturalisation under Chapter 3, Article 12 of Jordanian law No. 6 of 1954 on Nationality (`Any person other than a Jordanian who is not incapable ... may apply ... for grant of a certificate of Jordanian naturalisation if: 1) He has been regularly resident in [Jordan] for ... four years ...; 2) He intends to reside in [Jordan]' - Refworld) or nationality within 15 years under Chapter 1, Articles 4 and 5 of the same law. Therefore, on the basis of the principles set out in Thiyagarajah, ... Rajendran and Gnanapiragasam discussed above, the applicant is not a person to whom Australia has protection obligations under the Refugees Convention.

...

... I find that ... having regard to the Jordanian law and its application ... there is no reason why the applicant could not re-enter Jordan and find refuge there.

Since Jordan has adequate, functioning mechanisms to assess any claim the applicant might put up for refugee status, legislative assurances that such claims are entertained, and a liberal attitude towards Arabs who choose to enter and stay there on residency visas without claiming refugee status, I find that it affords the applicant effective protection from the harm he fears in Kuwait or Iraq, with the result that Australia is under no obligation to give him refugee status.

In sum, for all the reasons given above, I am satisfied that the applicant does not have a well-founded fear of persecution in Jordan, that he has effective protection in Jordan from the harm he might have feared in Kuwait [scil, and Iraq], and ... that he can return to Jordan ... and be allowed to remain there.... He may choose to avail himself of the Jordanian legislative process to apply for permanent residency or nationality, or apply to stay as a refugee and be given the consideration Jordan grants by law to stateless persons (see independent evidence above). I find that his circumstances do not evoke an obligation by Australia to give him protection under the terms of the UN Convention on Refugees."

25 Now that I have set out all of the above material, I am almost in a position to turn to the bases upon which Mr Al-Sallal challenged before me the lawfulness of the Tribunal's decision to affirm the delegate's decision to refuse to grant him a protection visa.

26 Before, however, doing so, there remains one matter to which it is necessary for me to draw attention.

27 As was acknowledged before me by the Minister, Jordan was not, at the date of the Tribunal's decision (nor, so far as I am aware, is it yet), a party to either the Refugees Convention or the Refugees Protocol: for a list of the 133 States which are currently parties to the Refugees Convention, see, at the United Nations World Wide Web site, http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/v_boo/v_2.html and for a(n almost, but not exactly, identical) list of the 133 States which are currently parties to the Refugees Protocol, see, at the same site, http://www.un.org/Depts/Treaty/final/ts2/ newfiles/part_boo/v_boo/v_5.html (both pages accessed 24 March 1999). (One hundred and twenty-nine States (including Canada, France, Germany and New Zealand, to all of which countries I have referred above for one purpose or another) are parties both to the Refugees Convention and the Refugees Protocol; four others are parties to the Refugees Convention only, while a further four (including the United States, to which country I have also referred above) are parties to the Refugees Protocol only.)

28 It was Jordan's not being, at the date of the Tribunal's decision, a party to the Convention which formed the first basis upon which Mr Al-Sallal challenged before me the lawfulness of the Tribunal's decision. It was submitted on his behalf that, in those circumstances, it had not been open to the Tribunal to conclude that Jordan was a "safe third country" for present purposes. The response made on the Minister's behalf to that submission was to deny that being a party to the Convention was a pre-condition to being a "safe third country" for present purposes. As it was put in the written submissions on the Minister's behalf (and repeated in substance on his behalf orally), all that was necessary in that respect was having "the necessary legislative processes in place to enable an applicant to apply these [scil, there] for either permanent residency, nationality or to stay there as a refugee, etc."

29 In dealing with the issue which I have just described, I propose to proceed by first asking myself whether the decision of this Court in either Thiyagarajah or Rajendran (by both of which decisions I am, of course, bound) requires me to conclude that Jordan can be a "safe third country" for present purposes.

30 I find nothing in the outcome of either of those cases which requires me to reach that conclusion. As I have already mentioned in the course of summarising those cases, in each of them, the country which it was held by this Court it had been open to the Tribunal to conclude was a "safe third country" for present purposes, namely, France and New Zealand respectively, was a party to the Convention. Further, I find nothing in the reasoning of either of those cases which, whether explicitly or implicitly, appears to me to require me to reach that conclusion.

31 I next propose to ask myself whether the reasoning of either of those two cases permits me to conclude that Jordan can be a "safe third country" for present purposes.

32 In my view, the reasoning in one of those cases, namely, Thiyagrarajah, does not permit me so to conclude, an outcome which is not affected by the other of those cases, Rajendran.

33 I have already set out in par 13 above the definition which von Doussa J gave in Thiyagrarajah's Case of the concept of "effective protection" in a third country for present purposes. According to von Doussa J, the concept meant protection in the third country concerned which would effectively ensure that there would not be a breach of Art 33(1) of the Convention by that country if the person concerned happened to be a refugee. It appears to me that to speak, as von Doussa J did, of the need for there to be effective insurance that there would be no breach of Art 33(1) by the third country concerned if the person concerned happened to be a refugee necessarily implied that that country would be a party to the Convention. A country could hardly be in breach of Art 33(1) otherwise.

34 Lest it be thought that, in the construction which I have given in the preceding paragraph of these reasons for judgment to von Doussa J's reasons for judgment, there is a matter which I have ignored, I draw attention again, as I did in par 13 above, to the fact that von Doussa J made plain in his reasons for judgment that he was not seeking to define exhaustively those circumstances in which a State which is a party to the Convention does not breach its protection obligations thereunder if it returns to a third country a person claiming refugee status without determining that claim. It may be said in reply to the construction which I have given in the preceding paragraph of these reasons for judgment to von Doussa J's reasons for judgment that, in construing his Honour's reasons as I have, I have ignored what he had said about the non-exhaustive character of his definition. My rejoinder is that, although I treat his Honour as having contemplated the permissibility of return to a third country in circumstances other than those to which he referred, I also read his Honour as having said that any of those other circumstances necessarily involved, as an irreducible minimum, "effective protection" in the sense in which he defined it. In other words, his Honour was not foreclosing the possibility that a third country could be "safe" for present purposes even though it had not already recognised the status as a refugee of the person concerned; nor was he foreclosing the possibility that a third country could be "safe" for present purposes even though it had not accorded the person concerned, for instance, a permanent right to reside in, enter and re-enter that country. He was, however, foreclosing the possibility that a third country could be "safe" for present purposes if there was not effective insurance that there would be no breach of Art 33(1) by that country if the person concerned happened to be a refugee.

35 I am reinforced in the construction which I have given to von Doussa J's reasons for judgment in Thiyagarajah's Case by my knowledge that, in Gnanapiragasam's Case, Weinberg J also considered that a country could not be a "safe third country" for present purposes unless it was a party to the Convention. I have already set out in pars 21 and 22 above extracts from Weinberg J's reasons for judgment in that case. In those extracts, Weinberg J focussed, not upon any non-refoulement obligation of the third country concerned (such as that which appears in Art 33(1)), but rather upon the third country's making of a determination on a person's claim for refugee status. In that context, however, his Honour did say that Australia had to be satisfied that such determination would be made "in accordance with the Convention", a statement which necessarily implied that the third country concerned would be a party to the Convention.

36 Given the fact, acknowledged before me by the Minister, that Jordan was not a party to the Convention at the date of the Tribunal's decision and given the view which I have taken of Thiyagarajah's Case (reinforced by Gnanapiragasam's Case), it must follow, in my view, that it was not open to the Tribunal to conclude, in determining Mr Al-Sallal's application to it for review of the delegate's decision, that Jordan was a "safe third country" for present purposes.

37 The Tribunal's doing so was characterised in Mr Al-Sallal's amended application for review as an error of law involving an incorrect application of the law to the facts as found by the Tribunal: see the second limb of par 476(1)(e) of the Act. That characterisation necessarily proceeded upon the basis that the Tribunal had made a finding that Jordan was not a party to the Convention, but had been of the view that Jordan's not being a party to the Convention did not disqualify it from being a "safe third country" for present purposes. I must confess to some difficulty with that basis of proceeding. One does not find in the Tribunal's statement of findings and reasons any express finding one way or the other on the question whether Jordan was a party to the Convention at the relevant time. Further, I have already drawn attention in pars 13 and 23 above to the fact that the Tribunal, in its statement of findings and reasons, repeated in substance the very passages from Thiyagarajah and Gnanapiragasam which have persuaded me that those cases stand for the proposition that a country must be a party to the Convention before it can be a "safe third country" for present purposes. It may be possible to infer from those repetitions that the Tribunal acknowledged the necessity for a third country to be a party to the Convention before it could be a "safe third country" for present purposes, but erroneously found as a matter of fact (although without saying so) that Jordan was a party to the Convention.

38 On the other hand, I should repeat now a passage from the Tribunal's statement of findings and reasons which I have already quoted in par 24 above. In that passage the Tribunal was giving a precis of independent evidence which it accepted. The passage was as follows:

"[T]he right to asylum is respected [by Jordan] under [the] UNHCR's [that is, United Nations High Commissioner for Refugees] mandate and they [that is, refugees] are not deported/refouled.... There is one known exception to this policy: in March 1995 Jordan forcibly repatriated one politically active Iraqi national without allowing [the] UNHCR to mediate in the matter; since the applicant is not an Iraqi government official that exception is irrelevant to his circumstances...."

39 My understanding of the words I have just quoted, which understanding I set out below, is based upon the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1992 ed), from which I quote the following material (footnotes omitted):

"14. Pursuant to a decision of the General Assembly, the Office of the United Nations High Commissioner for Refugees ("UNHCR") was established as of 1 January 1951. The Statute of the Office is annexed to Resolution 428 (V), adopted by the General Assembly on 14 December 1950. According to the Statute, the High Commissioner is called upon--inter alia--to provide international protection, under the auspices of the United Nations, to refugees falling within the competence of his Office.

15. The Statute contains definitions of those persons to whom the High Commissioner's competence extends, which are very close to, though not identical with, the definition contained in the 1951 Convention. By virtue of these definitions the High Commissioner is competent for refugees irrespective of any dateline or geographic limitation.

16. Thus, a person who meets the criteria of the UNHCR Statute qualifies for the protection of the United Nations provided by the High Commissioner, regardless of whether or not he is in a country that is a party to the 1951 Convention or the 1967 Protocol or whether or not he has been recognized by his host country as a refugee under either of these instruments. Such refugees, being within the High Commissioner's mandate, are usually referred to as `mandate refugees'.

17. From the foregoing, it will be seen that a person can simultaneously be both a mandate refugee and a refugee under the 1951 Convention or the 1967 Protocol. He may, however, be in a country that is not bound by either of these instruments, or he may be excluded from recognition as a Convention refugee by the application of the dateline or the geographic limitation. In such cases he would still qualify for protection by the High Commissioner under the terms of the Statute.

18. The above mentioned Resolution 428 (V) and the Statute of the High Commissioner's Office call for co-operation between Governments and the High Commissioner's Office in dealing with refugee problems. The High Commissioner is designated as the authority charged with providing inter-national protection to refugees, and is required inter alia to promote the conclusion and ratification of international conventions for the protection of refugees, and to supervise their application.

19. Such co-operation, combined with his supervisory function, forms the basis for the High Commissioner's fundamental interest in the process of determining refugee status under the 1951 Convention and the 1967 Protocol. The part played by the High Commissioner is reflected, to varying degrees, in the procedures for the determination of refugee status established by a number of Governments."

40 In the light of the material which I have just quoted, my understanding of the words of the Tribunal which I have quoted in the next preceding paragraph of these reasons for judgment is that Jordan had a policy, which it had not universally applied, of not refouling those persons within its borders determined by the UNHCR to be "mandate refugees". It is highly unlikely that the Tribunal would have considered that matter to be worthy of repetition in its statement of findings and reasons if it had been of the view that Jordan was a party to the Convention and therefore subject to the non-refoulement obligation under Art 33(1) thereof.

41 I note also that it was not submitted to me on behalf of the Minister that the Tribunal had done other than proceed upon the basis that Jordan was not a party to the Convention

42 In all the circumstances, I am prepared to conclude that the Tribunal's deciding that Jordan was a "safe third country" for present purposes does mean that its decision was made in breach of the second limb of par 476(1)(e) of the Act. (Of course, if the making of that decision was not in breach of the second limb of par 476(1)(e) of the Act, because the Tribunal did not find that Jordan was not a party to the Convention, then there are a number of other grounds upon which the Tribunal's decision could be impeachable, such as that contained in par 476(1)(a) read together with par 430(1)(c) (failure to set out in its statement of findings and reasons its finding on a material question of fact) or par 476(1)(g) read together with par 476(4)(b) (decision based on the existence of a particular fact which did not exist and for the existence of which there was no evidence). However, it is unnecessary to explore those possibilities further in the circumstances.) Accordingly, the Tribunal's decision must be set aside and Mr Al-Sallal's application to it for review of the delegate's decision must be referred to it for further consideration. In those circumstances, it is unnecessary that I deal with the other grounds of review relied upon before me by Mr Al-Sallal.

43 Before, however, I conclude these reasons for judgment, there is one further matter to which I wish to refer. If I had been uninstructed by authority, I would not have held that a country which is not a party to the Convention is disqualified from being a "safe third country" for present purposes. I would have taken the view that a third country is not disqualified from being "safe" for present purposes provided that, if the person being considered for return to it is so returned, that country will be under a non-refoulement obligation with respect to that person, if the person is a refugee, at least as beneficial from that person's point of view as is the non-refoulement obligation under Art 33(1) of the Convention (as that obligation is construed by Australia).

44 Such extra-Convention obligation might arise in a number of different ways. For instance, it might arise from a regional international instrument relating to refugees which is similar to the Convention (see Goodwin-Gill at 20-21) or from an ad hoc agreement regarding the person concerned made with Australia or with the UNHCR (which has international personality: see Goodwin-Gill at 216). It might even arise from the country's own domestic law, whether constitutional or "ordinary".

45 However, even if I had considered myself free to take the approach which I have just described, that would not have availed the Minister in the present matter. There was no material before the Tribunal evidencing a non-refoulement obligation upon Jordan (whether sourced in international or Jordanian domestic law) at least as beneficial from Mr Al-Sallal's point of view, assuming him to be a refugee, as that which appears in Art 33(1) of the Convention (as construed in Thiyagarajah). Admittedly, there was some evidence of Jordanian domestic law, but the only provisions in evidence were not directed to the issue of non-refoulement at all. The only evidence directed to the issue of non-refoulement was of a non-universal policy by Jordan from which, for all one knows, it might choose to depart in future, depending upon political or military exigencies. As was pointed out in Thiyagarajah, the non-refoulement obligation in Art 33(1) is Australia's principal obligation under the Convention. It should not be capable of being avoided by Australia's committing a person to the uncertainties of a third country's non-obligatory policy on non-refoulement.

46 I include this paragraph by way of addendum. Since completing the above reasons for judgment, I have become aware of three recent decisions of single Judges of this Court, additional to those to which I have already referred above, in which the "safe third country" issue has been arisen. They are: Al-Zafiry v Minister for Immigration & Multicultural Affairs, ex tempore reasons for which were delivered by Emmett J on 25 March 1999 (I have been able to see the transcript of his Honour's reasons, but not the written version thereof); Minister for Immigration & Multicultural Affairs v Kabail [1999] FCA 344 (unreported; 31 March 1999; RD Nicholson J); and Al-Anezi v Minister for Immigration & Multicultural Affairs [1999] FCA 355 (unreported; 1 April 1999; Lehane J). I add to these reasons for the sake of completeness that, although, not surprisingly, in the course of their Honours' reasons for judgment in those cases (as well as in the Saket Case, to which I referred in par 7 above), reference was made to (among others) decisions of this Court to which I have referred in earlier paragraphs of these reasons for judgment, in none of those cases was the argument

with which I have dealt above made.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated: 8 April 1999

Counsel for the Applicant:	C. Jackson
Solicitor for the Applicant:	Legal Aid Commission (NSW)
Counsel for the Respondent:	F. Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 February 1999
Date of Judgment:	8 April 1999