Rajendran, Karthigesu v The Minister for Immigration & Multicultural Affairs [1998] FCA 1085

FEDERAL COURT OF AUSTRALIA

MIGRATION – Refugee – returning visa applicant to third country in which he had a right to permanent residence without assessing his status as a refugee – whether return would constitute a breach of Art 33 of the Convention.

Migration Act 1958 (Cth) s 36, s 65 Convention Relating to the Status of Refugees 1951, Arts 1E, 28, 31, 32, 33 Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685 (applied) Re Attorney-General of Canada and Ward (1993) 103 DLR (4th) 1 (referred to) KARTHIGESU RAJENDRAN (Applicant) v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS (Respondent)

SG 61 of 1998

VON DOUSSA, O'LOUGHLIN, FINN JJ

ADELAIDE

4 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 61 of 1998

BETWEEN: KARTHIGESU RAJENDRAN

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGES: VON DOUSSA, O'LOUGHLIN, FINN JJ

DATE OF ORDER: 4 SEPTEMBER 1998

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 61 of 1998

BETWEEN: KARTHIGESU RAJENDRAN

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGES: Von DOUSSA, O'LOUGHLIN, FINN JJ

DATE: 4 SEPTEMBER 1998

PLACE: ADELAIDE

REASONS FOR JUDGMENT The appellant, Karthigesu Rajendran, a Sri Lankan national, left his home country in March 1985. After periods in India and England he went with his family to New Zealand in January 1987. On 21 July of that year he was granted permanent residence status in New Zealand, a status the entitlement to which he presently retains. After living for several years in that country, he travelled to the United States and then to Canada where he lived for several years. He returned to New Zealand in late 1994. While there he renewed his Sri Lankan passport. In November 1995, he entered Australia on a visitor's visa. On 23 January 1996 he applied for a protection visa under the Migration Act 1958 (Cth) ("the Act"). His failure to secure the grant of such a visa and his lack of success both in administrative appeal and judicial review proceedings have led to his present appeal to this court. Mr Rajendran's claim to refugee status stemmed from persecution he alleges he suffered in Sri Lanka then in Canada and New Zealand, at the hands of both the Sri Lankan Army (in Sri Lanka) and the LTTE (in all three named countries), on account of his being a Tamil. The matter that has proved fatal to his application both in the Refugee Review Tribunal ("the RRT") and at first instance in this court, has been the connection Mr Rajendran has with New Zealand. In the RRT that connection was viewed as being such as to satisfy the requirements of Art 1E of the 1951 Convention Relating to the Status of Refugees ("the Convention") and hence to exclude him from the scope of the Convention. In this court at first instance the trial judge found it unnecessary to consider the application of Article 1E, it being found that, consistent with its Convention obligations under Art 33, Australia could return Mr Rajendran to New Zealand without the need first to consider his possible refugee status under Art 1. His Honour's decision was founded on the reasoning of the Full Court of this court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685, a decision that was delivered after the Tribunal's decision, but before that of the trial judge. To appreciate the varying approaches taken below, as also the submissions put to us by Mr Rajendran, it is necessary to refer briefly to the Migration Act and the Convention as also to the Thiyagarajah case. The Act and the Convention The scheme of the Act is to make the existence of protection obligations under the Convention the central criterion to be fulfilled if a protection visa is to be granted to a person claiming to be a refugee: see s 36, s 65, Pt 866 of the Migration Regulations and Thiyagarajah's case, above, at 693. The Convention in Article 1 defines who is a refugee for its purposes. That definition contains both inclusionary and exclusionary criteria. Article 1E is of the latter kind. It provides: "E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country." It was in reliance upon this Article, that the Tribunal concluded that, in light of Mr Rajendran's right to permanent residence in New Zealand and the rights and obligations attaching to that status, the Convention did not apply to him. Under international law the primary obligations imposed upon a Contracting State in relation to a refugee who seeks asylum are to be found in Arts 31, 32 and 33. Only the latter two are of present relevance. They provide: "Article 32 Expulsion 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. 3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary. Article 33 Prohibition of expulsion or return ("refoulement") 1. 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. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country." As noted earlier, the trial judge found that the return of Mr Rajendran to New Zealand would not be in breach of Art 33 and that it was not necessary to assess his claim to refugee status before so doing. For the sake of completeness given Mr Rajendran's submissions in this appeal it is appropriate to note the provisions of Art 28: "Article 28 Travel documents 1. The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such documents. The Contracting States may issue such a travel document to any other refugee in their territory; they shall in particular give sympathetic consideration to the issue of such a travel document to refugees in their territory who are unable to obtain a travel document from the country of their lawful residence. 2. Travel documents issued to refugees under previous international agreements by parties thereto shall be recognized and treated by the Contracting States in the same way as if they had been issued pursuant to this article."