FEDERAL COURT OF AUSTRALIA Mylvaganam v Refugee Review Tribunal [2000] FCA 718 MIGRATION – Protection visa – Refugee status in France – Applicability of Articles 1E and 33 of the Convention to a claim for refugee status in Australia Migration Act 1958 (Cth) s 476(1)(e) United Nations Convention relating to the Status of Refugees 1951 Arts 1E and 33 Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 118 – considered Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 - applied Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 – considered MYLVAGANAM v REFUGEE REVIEW TRIBUNAL AND ANOR VG 192 of 1999 JUDGE: MERKEL J DATE: 30 MAY 2000 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 192 of 1999 BETWEEN: SIVAMALAR MYLVAGANAM APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS SECOND RESPONDENT JUDGE: MERKEL J DATE OF ORDER: 30 MAY 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's taxed costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 192 of 1999 BETWEEN: SIVAMALAR MYLVAGANAM APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS SECOND RESPONDENT JUDGE: MERKEL J DATE: 30 MAY 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant is a Sri Lankan citizen and resident of France. She left Sri Lanka and arrived in France in January 1993. She was recognised by the French authorities as a refugee and resided there until January 1995, when she travelled to Australia holding a visitor's visa. The applicant holds a French Carte de Resident valid until July 2004 and, at the relevant time, she also held a Certificat de Refugie ou Apatride and Titre de Voyage. 2 On or about 21 March 1995 the applicant lodged with the Minister for Immigration and Multicultural Affairs a Form 866 application for a protection visa. The relevant criterion for the grant of the visa was that the Minister was satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention: see cl 866.221 of Sch 2 of the Migration Act 1958 (Cth) ("the Act"). 3 A delegate of the Minister refused to grant the visa. The Refugee Review Tribunal ("the RRT") reviewed the delegate's decision on the application of the applicant. On 15 March 1996 the RRT decided that: "…the applicant is not a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees 1951 (the Convention) as required by sub-section 36(2) of the Migration Act 1958. Therefore the decision of the primary decision-maker, which has the effect of refusing the deemed application for a protection visa is affirmed." 4 During April 1996 the applicant lodged an application for an order of review by the Court of the RRT's decision. The review was adjourned pending resolution by the High Court of the issues that had arisen in Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9. 5 In its Reasons for Decision, the RRT accepted that the applicant had "provided a history of harassment and persecution in Sri Lanka" but did not make a specific finding as to whether she was entitled to refugee status in relation to Sri Lanka under the Refugees Convention. Rather, the RRT was primarily concerned with whether Australia had protection obligations to the applicant by reason of Art 1E of the Refugees Convention. Article 1E provides: "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." 6 The RRT made the following findings in respect of Art 1E: "Based on the above evidence, and bearing in mind the applicant's own situation, that is, that she has a valid Carte de Resident, Certificat de Refugie ou Apatride and Titre de Voyage, the Tribunal finds that the applicant has a right of return to France, and has a right to reside there. She is protected from refoulement to Sri Lanka. She also has rights which are similar to those of a citizen, with restrictions on the right to vote or work in certain professions. The applicant is therefore excluded from the protection offered by the Convention by operation of Article 1E of the Convention. It is therefore not necessary for the Tribunal to consider whether the applicant has a well-founded fear of persecution in Sri Lanka. The Tribunal must however, consider whether the applicant has a well-founded fear of persecution in France." 7 The RRT stated that the applicant did not claim to have a well founded fear of persecution in France, but accepted that, if such a fear were established, Australia could have protection obligations to the applicant. It acknowledged that the applicant had experienced practical difficulties in France concerning the practice of her religion, ability to obtain work and access to social security benefits. However, the RRT considered that, while these factors were legitimate concerns of the applicant, they did not "constitute a well-founded fear of persecution in the sense of the Convention". Accordingly, the RRT was not satisfied that there was a real chance that the applicant would face persecution on any Convention ground should she be returned to France. The RRT concluded: "The applicant is a Sri Lankan Tamil female, who was granted refugee status in France. She has the right of residence in France, is protected from refoulement, and has most of the civil and economic rights of a national of France. She is therefore covered by the provisions of Article 1E of the Convention. The applicant would encounter difficulties associated with resettlement, in particular, language and lack of family support if she returns to France. She would prefer to live in Australia where she has a supportive family and services are more generally available. There is not a real chance that the applicant would be persecuted in France should she be returned there. Based on the evidence available, and the findings made on that evidence, the applicant does not satisfy the definition of refugee in that: Although she is outside her country of nationality, and is unwilling to avail herself of the protection of that country, she does not have a well-founded fear of persecution, in the sense that there is no real chance that she will be persecuted." 8 Recently, in Sivaneeswaran v Minister for Immigration & Multicultural Affairs [2000] FCA 322, I considered issues similar to those which have arisen in the present case. In particular, at [14]-[22] I considered the principles arising from the decision of the Court in Thiyagarajah at first instance (1997) 143 ALR 118 (Emmett J), on appeal (1997) 80 FCR 543 (von Doussa, Moore and Sackville JJ) and finally in the High Court [2000] HCA 9. It is unnecessary, for present purposes, to repeat the matters set out there. Although the decision in Thiyagarajah in the RRT, and at first instance, turned on Art 1E, the appeal to the Full Court turned on Art 33, which had not been considered by the RRT. 9 Article 33(1) of the Refugees Convention 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." 10 The Full Court decision in Thiyagarajah is authority for the proposition that, although there may be a legitimate dispute as to whether Art 1E applied to an applicant for a protection visa, Australia does not have protection obligations to such an applicant if the country where the applicant is resident was able to provide effective protection to the applicant in accordance with its obligations under the Refugees Convention. In that regard the conclusions (at 567-568) of von Doussa J (with whom Sackville and Moore JJ agreed) were as follows: "1. Subject to consideration of Art 33, Australia did not owe protection obligations to the respondent as he had been recognised as a refugee in France and had been accorded the rights and obligations of a refugee under the Refugees Convention in France, including travel documents under Art 28. 2. Under Art 33 the 'well founded fear' test which applies under Art 1A(2) should be applied. 3. The RRT has found as a fact that effective protection is available to the respondent in France, and that there is no real chance that the French authorities are unable or unwilling to provide such protection. This finding involves no error of law. It determines adversely to the respondent the question whether there was any potential for Art 33 to have application to the respondent, if he were a refugee. Accordingly, Australia did not owe the respondent protection obligations, and the criterion laid down in s 36(2) of the Act for a protection visa was not fulfilled. 4. As there was no real chance that the respondent would suffer persecution in France, Australia was entitled as a Contracting State to deport the respondent to France without considering the substantive merits of his claim to be a refugee." 11 His Honour's conclusions, which were not doubted in the High Court, are applicable to the present claims of the applicant. The RRT, as the tribunal of fact, has found that effective protection, in the sense discussed in Thiyagarajah, is available to the applicant in France and that there is no real chance that the French authorities are unable or unwilling to provide that protection. Indeed, no evidence to the contrary appears to have been presented by the applicant. Thus, it must follow from the findings of fact made by the RRT that Australia did not owe the applicant protection obligations and that the criterion laid down in cl 866.221 of Sch 2 of the Act was not satisfied. 12 To the extent that it is suggested that the travel documents of the applicant might have lapsed since the decision of the RRT, that consideration cannot assist her. The decision of the High Court in Thiyagarajah establishes that matters arising since the RRT's decision cannot assist an applicant's claim for refugee status. In any event, the applicant's Carte de Resident is valid until July 2004. 13 Counsel appearing for the applicant accepted that it was necessary for him to establish that the RRT erred in law in arriving at its conclusion that there was not a real chance that the applicant would face persecution should she be returned to France. The error said to have been made was the failure of the RRT to address a claim by the applicant that she feared being victimised or discriminated against by the French authorities for having applied for refugee status in Australia. 14 In my view there is no substance in that contention. It is true that the applicant expressed some apprehension to the RRT as to the response of the French authorities to her absence from France, and as to the possibility that the authorities might not allow her to return to, or remain in, France. However, the RRT found that the applicant had a right to return to and reside in France, was protected from refoulement to Sri Lanka and did not fit the profile of persons of Tamil origin who were at risk of repatriation from France. In my view the RRT's findings addressed the apprehension expressed by the applicant. 15 In any event, the apprehensions expressed by the applicant fell short of a fear of persecution, on a Convention ground, in France. Thus, the RRT was correct in stating that the applicant did not assert a claim to fear of persecution, on any Convention grounds, in France. 16 I am not satisfied that any of the findings of fact that were made by the RRT were not open on the material, or that it erred in law in arriving at its findings, in so far as they related to issues relevant to Art 33. As a result of the Full Court decision in Thiyagarajah, it is unnecessary to consider whether the RRT erred in law in its approach to Art 1E. 17 For the above reasons the application is to be dismissed with costs. 18 Before departing from the present case it is relevant to observe that the applicant has resided in Australia for over five years and, according to the material accepted by the RRT, has been needed in Australia to assist her sister, who suffers from poor health. The RRT also observed that if the applicant is asked to return to France "she will be sad and lonely without family support". Plainly, the RRT was conscious of the personal issues involved in the application before it. However, the RRT was required to act in accordance with law and was not entitled to have regard to those matters in its determination of the applicant's entitlement under the Act to a protection visa. 19 The Court has a similarly restricted role. The only issue determined in the present case is that the applicant has not established that the RRT's determination that the applicant is not a person to whom Australia has protection obligations under the Refugee's Convention, was not made in accordance with law. Thus, if difficulties do arise in relation to the applicant's re-entry to France, or if there are special compassionate grounds, it may be possible for her to make a further application for an appropriate visa to enable her to reside in Australia. I have no doubt that any further applications made by the applicant (whether in Australia or in France) will be considered in accordance with law, if and when they are made. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 30 May 2000 Counsel for the Applicant: Mr R Skinner Solicitor for the Applicant: Jay & Co Counsel for the Respondent: Mr PRD Gray Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 May 2000 Date of Judgment: 30 May 2000