Tharmalingam v Minister for Immigration & Multicultural Affairs [1999] FCA 559 (20 April 1999)

Last Updated: 18 May 1999

FEDERAL COURT OF AUSTRALIA

Tharmalingam v Minister for Immigration & Multicultural Affairs [[1999] FCA 559

ADMINISTRATIVE LAW - review of decision of Refugee Review Tribunal - application for protection visa.

Migration Act 1958, ss 420, 425(1)(b), 476(1)(e), 476(1)(g), 476(4)(a)

Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 118, cited

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

Karthigesu Rajendran v Minister for Immigration and Multicultural Affairs, unreported, Federal Court, Mansfield J, 4 May 1998, cited

YOGARAJAH THARMALINGAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1192 OF 1998

JUDGE: BEAUMONT J.

DATE: 20 APRIL 1999

PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1192 OF 1998

BETWEEN:	YOGARAJAH THARMALINGAM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	BEAUMONT J
DATE OF ORDER:	20 APRIL 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed, with 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 1192 OF 1998

BETWEEN:	YOGARAJAH THARMALINGAM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BEAUMONT J
DATE:	20 APRIL 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1 This is an application for review of a judicially reviewable decision, brought pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act"), to review the decision of the Honourable Peter Nygh, acting Principal Member of the Refugee Review Tribunal ("the Tribunal"), that the applicant is not a person to whom Australia owes protection obligations pursuant to the Convention on the Status of Refugees 1951 ("the Convention").

2 The applicant is a Sri Lankan citizen who arrived in Australia on 12 January 1996.

BACKGROUND

3 The background to the matter is as follows.

4 By application to the Department of Immigration and Ethnic Affairs lodged on 14 February 1996, the applicant, claiming to be a refugee, applied for a Protection Visa (866). He claimed protection in Australia, so that he did not have to go back to France and Sri Lanka. He stated that he had left Sri Lanka and had gone to France -

"...as there was danger to [his] life on account of [his] political views. Unfortunately, in France too, after some time, [he] was faced with the same problems that [he] tried to escape from when [he] was in Sri Lanka. Therefore, [he] had to leave France and seek refuge in Australia."

5 The applicant then stated that, when in Sri Lanka, he had become a member of "EROS", a Tamil organisation opposed to the LTTE, another Tamil group, and the dominant militant organisation in the Tamil areas in Sri Lanka; that his brother had been killed by the LTTE in 1991; that the applicant was twice arrested by the police in 1992; that, on his release in May 1992, he was wanted by the LTTE; and that in October 1992, he fled from Sri Lanka to France, where he sought asylum.

6 The applicant then went on to say that he lived amongst a large population of Sri Lankan Tamil refugees in Paris, writing poems and plays and acting; that his literary works were critical of the LTTE; and that he acted in a play directed by a close friend of Mr Sabalingam who, it was suspected, was murdered by the LTTE in Paris.

The applicant then said:

"If I return to France, the fate that befell Mr Sabalingam in Paris is sure to befall me. I was very upset by the warning given to me by the LTTE in Paris. At the time my uncle Mr Gurasingam came to see me. I knew I was in danger in Paris and pleaded with him to take me on a holiday to Australia. I am glad that I was able to escape from France before anything happened to me."

The applicant then claimed that:

"The authorities in Paris are unable to provide protection to those Tamils who are being victimised by LTTE members there."

7 The applicant there stated that he held a "French travel document"; and that he was "able to travel to all countries except Sri Lanka (my home country)".

8 The applicant said, in his application, that when interviewed in connection with his visit to Australia, he gave as his reason for wanting to go to Australia the following - "to visit... my uncle's family".

9 On 22 October 1996, a delegate of the Minister refused to grant a Protection Visa. On 11 November 1996, the applicant sought a review of that decision. The Tribunal, then constituted by Mr Jack Hoysted, set aside the delegate's decision on 24 July 1997. The Minister then sought review of that decision by this Court. On 6 February 1998, this Court, by consent, ordered that the Tribunal's decision be set aside and the matter remitted to the Tribunal to be determined according to law.

10 In deciding that the applicant had satisfied the criterion set out in s 36(2) of the Act for the grant of a Protection Visa, Mr Hoysted followed the decision of Emmett J at first instance in this Court in Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 118. However, an appeal from that decision was subsequently allowed (see Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543). There, von Doussa J (Moore and Sackville JJ agreeing) held (at 565) that, as a matter of domestic and international law, Australia did not owe protection obligations to the respondent to the appeal as he was a person who had effective protection in France, which had accorded him refugee status.

11 Von Doussa J went on to hold (at 565) that when the respondent's application for a Protection Visa was determined by the Tribunal, he had been a resident of 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. Von Doussa J said (at 565):

"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."

12 On 13 October 1998, the Tribunal, then constituted by Mr Nygh, affirmed the Minister's decision not to grant a Protection Visa. As has been noted, the applicant now seeks review of this decision.

13 In order to understand the issues that now arise it will be necessary to refer, in some detail, to the Tribunal's findings and reasoning.

THE TRIBUNAL'S FINDINGS AND REASONING

14 In noting the applicant's claims and the evidence, the learned Acting Principal Member said:

"The applicant resided in France until 8 January 1996. Since the required five year residence period had not expired when he left France, he could not apply for French citizenship, even if he had wished to do so. On 15 March 1994 he was granted refugee status in France through the issue of a certificat de refugie valid for 3 years, but renewable, and on 12 April 1994 he was provided with a carte de resident valid until 11 April 2004. This document allows him to reside and work in metropolitan France. On 10 June 1994 the French authorities issued him with a travel document called titre de voyage valid until 9 June 1996. This document was issued in pursuance of Article 28 of the 1951 UN Convention in relation to the Status of Refugees and the Schedule attached thereto. It was originally limited to 2 years, but makes provision for a large number of renewals. He used this document to obtain an Australian visa, ostensibly to visit his uncle who is an Australian citizen and resident, arriving here on 12 January 1996. He applied for a protection visa on 20 February 1996 and has not sought to renew his French travel document which has now expired. When asked why he had not made any application for renewal, he replied that he did not wish to return to France as he feared for his life there."

15 Mr Nygh went on to consider the applicant's position vis-a-vis France by reference to a body of evidence from the French Consulate in Sydney (to be described further below) and found that -

"...provided an application for renewal of the travel document is made within three years from the date of departure from France and there is no likelihood of the applicant receiving protection in this country, the renewal will be granted."

16 In expressing its findings and reasons, the Tribunal stated that, broadly speaking, Australia does not owe protection obligations to a person who has been accorded refugee status and effective protection in a third country (see MIMA v Thiyagarajah, above) or to a person who has not been accorded refugee status, but has permanent residence and effective protection in a third country (see Karthigesu Rajendran v Minister for Immigration and Multicultural Affairs, unreported, Federal Court, Mansfield J, 4 May 1998). Effective protection, in this context, the Tribunal said, is a protection which will -

"...effectively ensure there is not a breach of Article 33 of the Convention which prohibits the return of a refugee to the frontiers of territories where his or her life or freedom would be threatened for one of the five Convention reasons. If the return of an applicant to a third country would not expose Australia to a breach of Article 33 then Australia does not owe protection obligations to the applicant: Karthigesu Rajendran (at 14)."

17 The learned Acting Principal Member said that in determining whether an applicant has effective protection in a third country relevant considerations will be:

"...[1] whether the applicant has the right to reside in, enter and re-enter the third country; [2] whether there is a risk that the third country will return the applicant to his or her country of nationality; and [3] whether the applicant has a well-founded fear of persecution in the third country itself."

18 The Tribunal went on to consider, but reject, a contention put on behalf of the applicant that he had a well-founded fear of persecution from the LTTE in France. (The applicant does not, in the present proceeding, challenge this finding.) The Tribunal also found that the applicant had refugee status in France. At the time of the decision the applicant had a current carte de resident which would allow the applicant the right to live and work in France until the year 2004, should he have the right to enter the country. (The applicant does not challenge either of these conclusions in the present proceedings.)

19 The Tribunal then turned to the third issue, that is, the right to return to France. It is upon this issue that the applicant's submissions in the present proceedings have focussed.

20 In considering this issue the Tribunal said:

"As the Full Federal Court pointed out in Jong Kim Koe v MIMA (1997) 74 FCR 508 at 522, in determining whether a State offers effective protection it is necessary to take into account several factors, including: whether that State is able to offer the applicant effective protection in Australia or the means of obtaining effective protection, or, if effective protection can only obtained in that State, whether the applicant, as a matter of fact, is reasonably able to travel to that State to obtain protection there. The exact nature of the relevant questions will, of course, vary with the circumstances of the case since essentially it is a question of fact for the tribunal to determine. But there is a similarity between the two fact situations: in each case the question was whether the applicant could get to the country which offered protection. As a practical matter, if the applicant cannot obtain a titre de voyage from the French authorities here in Australia, it will not be possible for him to travel to France to claim its protection. Unlike the applicant in Karthigesu Rajendran v MIMA the applicant in the present case does not have a valid Sri Lankan passport and the practicalities of obtaining and travelling on such a passport (with the need, presumably, to obtain a visa) were not explored.

The question therefore is whether there is a real chance that France will refuse the applicant the renewal of his titre de voyage in the event that he is refused a protection visa in this country. The most recent information supplied by the French Consulate indicates that provided he applies for renewal within three years from his departure from France, a period which expires on 11 January 1999, the renewal of the travel document will be granted on the basis that he still has a right of residence in France. The earlier information suggested that France would not consider the issue until the application in Australia is resolved. So far as this Tribunal is concerned, the issue has been resolved on 13 October 1998 well before the relevant period runs out. Paragraph 13.1 of the Schedule to the Convention imposes an obligation on the contracting State of issue of the travel document to re-admit the refugee to its territory `at any time during the period of its validity'. As long as the document is not renewed or re-issued, France has no obligation to re-admit the applicant."

21 Mr Nygh went on to consider the operation of par 6 of the Schedule to the Convention as follows.

22 By par 6.1, it is provided that the renewal or extension of a travel document issued to a refugee lawfully staying in the territory, is a matter for the authority which issued it, so long as the holder has not established lawful residence in another territory, and resides lawfully in the territory of the said issuing authority. In the present case, the applicant holds a bridging visa here, and whilst that is valid, it follows that he is "lawfully present" in Australia. However, "lawful residence" indicates those who are, as it were, enjoying asylum in the sense of residence and lasting protection. In the Tribunal's opinion, the applicant was not lawfully resident in Australia, in that sense, unless and until his application is granted and he still had the right of lawful residence in France.

23 The Tribunal next referred to the provisions of par 6.2 of the Schedule to the effect that the applicant does not have to be physically present in France for this purpose, because diplomatic or consular authorities are empowered to grant extensions; and the information from the French Consulate suggested that they have that power subject to referral to France.

The Tribunal then said:

"Para 6.1 does not in terms impose an obligation on Contracting States to renew the travel document, but since paragraph 6.3 provides that Contracting States shall give sympathetic consideration to renewal to refugees no longer lawfully resident in their territory who cannot obtain a travel document from the country of lawful residence, one can infer that Contracting States should give more than sympathetic consideration where the applicant has not changed his or her lawful residence to another country.

The evidence referred to above indicates that France will observe its obligations under the Convention. France continues to have an obligation to the applicant as long as the applicant retains a right of lawful residence in its territory and has not acquired a lawful residence elsewhere. It is understandable that France may suspend its obligations while an application for lawful residence in this country is pending. But, once that application is refused, it can be assumed that France as the country primarily responsible for the applicant, will issue the necessary documentation to allow him to return, provided the application for renewal is made within the three year period.

The applicant has indicated that he does not wish to apply for renewal because of his subjective fear, even if not `well-founded', that he will come to harm in France. But, as Burchett J pointed out in MIMA v Prathapan at p. 1, `unwillingness alone is not enough'.

These considerations, as well as the obligation which Article 33 of the Convention imposes on France to avoid Refoulement to Sri Lanka, make it, in my view, highly unlikely that France will refuse to renew the titre de voyage if Australia refuses the application for a protection visa: see the remarks of von Doussa J in Thiyagarajah at [563 - 565]."

24 Mr Nygh then mentioned another circumstance which, in his view, was not decisive, but that in the circumstances of the present case the applicant had refrained deliberately, even though not in bad faith, from applying for renewal of the French travel document and had thereby sought to unilaterally determine his refugee status as between Australia and France.

25 The Tribunal concluded that it was satisfied that the applicant had effective protection in France and that accordingly Australia did not owe protection obligations to that applicant. It was therefore unnecessary, the Tribunal said, for it to undertake an assessment of the substantive merits of the applicant's claim for refugee status.

THE GROUNDS OF THE APPLICATION FOR REVIEW

26 The applicant's grounds for an order of review as stated in his amended application are as follows:

"1. There was no evidence or other material to justify the making of the decision.

Particular

In the circumstances of this case the Tribunal was required by law to reach the decision that the applicant had effective protection in France only if it could be established that there was no real chance that the French authorities would refuse to renew his titre de voyage, there is no evidence or other material upon which the Tribunal could reasonably be satisfied that this matter was established.

2. The Tribunal failed to observe procedures which it was required to observe.

Particular

The Tribunal failed to obtain information on a central issue for determination which it knew to be readily available, being information as to liklihood [sic] of the French authorities renewing the titre de voyage of a person in the position of the applicant.

3. The Tribunal erred in law being an error in the interpretation of the law, and an error in the application of the law to the facts as found by the Tribunal.

Particular

The Tribunal mis stated [sic] and mis applied [sic] the law as to effective protection."

CONCLUSIONS ON THE APPLICATION

27 It will be convenient to deal with the grounds advanced by the applicant in turn.

1. No evidence or other material?

28 As I have previously mentioned, there was before the Tribunal some evidence from the French Consulate in Sydney. That evidence was summarised by the Tribunal in its reasons in the following terms:

"So far as his position vis a vis France is concerned, the position was clarified for the Tribunal in a conversation with M. Magniadas, supervisor of the visa section at the French consulate in Sydney and an officer of the RRT on 13 August 1996, as follows:

The applicant had violated the conditions under which he was granted protection (by not returning to France or applying for a renewal of his Titre de Voyage within the specified time). The French government would need to decide if he was still under their protection. To return to France, the applicant would have to gain permission to renew his Titre de Voyage. The possession of a valid Carte de Residence is not sufficient for him to renew his Titre de Voyage. He can apply to renew his Titre de Voyage at the French Consulate, but the matter must be referred to France for a decision and M. Magniadas thinks the process will take at least 2 months. If the renewal is granted he can return to France (as a resident since his Carte de Residence is still valid). He could then apply in France for a renewal of his Certificat de Refugie. M. Magniadas could give no opinion on the likelihood of the Titre de Voyage being renewed.

In a further conversation on 31 October 1996, the same officer advised the Tribunal:

If the applicant made an application for refugee status in another country, then France considers that the applicant is now under the protection of that country until the application is decided. If the application is refused, then the French authorities will consider whether they will renew his Titre de Voyage, but they will not consider such a renewal while he has an unresolved claim for refugee status in Australia. As he put it, France considers that, under international law, responsibility for the applicant has transferred from France to Australia.

On 18 August 1998 a further message was received from M. Dominique Lopez, Deputy Consul General of France in Sydney addressed to Mr Allan Foster of the RRT. Since the message relates to another person, the name and gender references of that person have been omitted. It reads as follows:

The French authorities have just advised me that if [blank] left France for a period of time exceeding three years, [blank] no longer has the right to reside in France, and, consequently, the renewal of [blank] travel document would not be considered a `mere formality'.

Furthermore, [blank] prolonged stay in a country where [blank] is likely to receive protection will not improve [blank] chances of returning to France'."

29 It is submitted, on behalf of the applicant, that upon analysis, the message received from M. Lopez does not communicate a statement to the effect that the travel document will be renewed. It is submitted that a statement to the effect that a particular person will not be entitled to automatic renewal of a travel document where that person has been outside France for three years, does not mean that such a document will be automatically renewed if the period of stay is less than three years.

30 I have difficulty accepting this submission, which is sought to be grounded upon the provisions of s 476(1)(g) of the Act.

31 It is true that the material from the Consulate, whether looked at separately or collectively, does not contain in its terms a commitment to renew the travel document in the case of the applicant. However, that circumstance was not, of itself at least, a pre-condition of the decision-making process undertaken by the Tribunal. It may be accepted that the Consulate had made it clear that renewal was not automatic in the sense that it was no "mere formality", but the relevant question before the Tribunal was a broader one.

32 As has been noted, the Tribunal found that it was "in [its] view highly unlikely that France will refuse to renew the titre de voyage if Australia refuses the application for a protection visa". In my opinion, there was evidence in the form of the material from the French Consulate which made this conclusion one that was open.

33 It is next submitted for the applicant in this connection that the Tribunal was not justified in inferring from par 6.3 of the Schedule in the Convention that a contracting state should or would:

"...give more than sympathetic consideration (to an applicant for re-issue) where the applicant has not changed his or her lawful residence to another country."

34 Again I have difficulty accepting this submission. In my view the inference drawn from the Schedule is a logical one and, in my opinion, was open to the Tribunal as a factual matter.

35 In the present context, the applicant further sought to invoke the provisions of s 476(4)(a) of the Act. It is there provided that the grounds specified in s 476(1)(g):

"...is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established..."

36 I cannot accept that s 476(4)(a) has any relevant application here. As has been said, the decision-making process to be undertaken by the Tribunal did not depend in any specific sense upon a conclusion being reached that the applicant had an automatic entitlement to a renewal of his titre de voyage. True, it is that the prospects of that renewal was a material circumstance to be taken into account, but it is not the case that the decision-maker was required by law, domestic or international, to reach the decision only if that particular matter, that is, the renewal of the titre de voyage, had been established. There is no explicit provision in the Act or in the Convention to that effect and, in my view, no basis, in logic or experience for making an implication to that effect.

2. Failure To observe procedures?

37 In developing this submission, it was argued on behalf of the applicant that in obtaining some information only from the French Consulate in Sydney, the Tribunal made no attempt to obtain information "pertinent to a person in the position of the applicant". Reliance is sought to be placed upon the provisions of s 476(1)(a), s 420 and s 425(1)(b) of the Act. It may be accepted, as Wilcox and Madgwick JJ said in Sellamuthu v MIMA (1999) FCA 247 (at par 19), that the Tribunal:

"...must ...bear in mind whether it should exercise any of its impressive ancillary powers to supplement the information put before it by either the Department or the applicant."

38 If a Tribunal fails to do this, it may indicate that the Tribunal has not addressed the correct legal question (see Sellamuthu, above, at par 21), or it may indicate that the decision is unreasonable in the Wednesbury sense of being perverse. It may also constitute a failure to take into account relevant material (see Shayea Rahaq Al-Anezi v MIMA (1999) FCA 355 per Lehane J at par 15).

39 Whether such a case can be made out is a matter that must depend upon the particular circumstances of the case. In the present case, I am not satisfied that there is any scope for the operation of any of the provisions of the Act relied upon. It is plain enough that the Tribunal engaged in some dialogue with the consulate for present purposes and endeavoured to obtain information that would be relevant to the circumstances of the case at hand. In my view, it would be wrong to characterise these endeavours as a failure to address the correct legal question or as perverse behaviour. It is true that, to some extent, the information sought and obtained was of a general kind, but it was nonetheless pertinent to the circumstances of the applicant. It may be added that information of this kind is not of a primary character, and that some assumptions would need to be made given the hypothetical character of the approach to be made by the Tribunal to the consulate.

40 It is hardly necessary to say that the Tribunal had no authority in its case (and it was not appropriate) for it to purport to apply to the consulate for a travel document on behalf of the applicant.

3. Error of law?

41 In seeking to ground this challenge upon the provisions of s 476(1)(e) of the Act, the applicant challenges the Tribunal's formulation of the issue as:

"... not a right of re-entry but a means of re[-]entry into France."

42 It is said, further, that the Tribunal failed to consider the issues in the particular context of the case and has thus erred in its interpretation of the law.

43 I cannot accept these arguments.

44 In my opinion, the Tribunal addressed the correct legal question in the present context. That was whether France could offer the applicant effective protection at the relevant time. The Tribunal accepted, during the course of its assessment, that the applicant might have had a subjective fear for his safety in France, but that in all the circumstances, his fear was not well founded. As has been noted, this finding is not challenged. In my view, the questions ultimately addressed by the Tribunal were the correct legal ones. The issues they raised were essentially factual. They did not, in their resolution, disclose any error of law.

45 It must follow, in my opinion, that the application should be dismissed, and I will so order.

ORDERS

46 The application will be dismissed with costs.

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

Associate:

Dated: 20 April 1999

Solicitor for the Applicant:	McDonells Solicitors
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 April 1999
Date of Judgment:	20 April 1999