FEDERAL COURT OF AUSTRALIA Velauthampillai v Minister for Immigration & Multicultural Affairs [2000] FCA 1015 MIGRATION – refugees – application for protection visa – review of decision by Refugee Review Tribunal – whether Tribunal had jurisdiction to make its decision – whether applicant entitled to enter and reside in safe third country – whether applicant, as holder of Reiseausweis (Convention travel document) and Aufenthaltsbefugnis (residence permit), could return to Germany after 6 month period – whether material before Tribunal on which it was reasonably open to Tribunal to reach its decision. Migration Act 1958 (Cth), s 476(1)(b) Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, referred to Corporation of the City of Enfield v Development Assessment Commission (2000) 169 ALR 400, referred to Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 170 ALR 553, referred to Aronson & Dyer Judicial Review of Administrative Action 2nd ed. 2000 at pp.203-04 Crock "Abebe v Commonwealth; Minister for Immigration and Multicultural Affairs v Eshetu Of Fortress Australia and Castles in the Air: The High Court and the Judicial Review of Migration Decisions" (2000) 24 MULR 190 at pp. 210-11 TH Huxley "Biogenesis and Abiogenesis" http://aleph0.clarku.edu/huxley/CE8/B-Ab.html POOMANY VELAUTHAMPILLAI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1284 of 1999 KATZ J 31 JULY 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1284 of 1999 BETWEEN: POOMANY VELAUTHAMPILLAI APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE OF ORDER: 31 JULY 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for review be dismissed. 2. The applicant pay the respondent's costs of the proceedings. 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 N 1284 of 1999 BETWEEN: POOMANY VELAUTHAMPILLAI APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE: 31 JULY 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision made on 7 October 1999 by the Refugee Review Tribunal ("the Tribunal"). That decision affirmed an earlier decision refusing to grant a protection visa to Ms Poomany Velauthampillai. The earlier decision had been made on 22 February 1999 by a delegate of the Minister for Immigration and Multicultural Affairs ("the delegate"). The delegate's decision had determined a protection visa application which had been lodged by Ms Velauthampillai on 5 January 1999. 2 According to her protection visa application, Ms Velauthampillai was a Sri Lankan national. In December 1994, she had travelled from Sri Lanka to Germany, the purpose of such travel being described in her protection visa application as "refugee". At that date, her husband and a number of their children were already in Germany. After her arrival there, Germany had then remained her country of residence until 8 October 1998, when she had travelled to India, the purpose of such travel being described in her protection visa application as "visit". She had remained in India until 22 November 1998 and had then travelled to Australia, arriving here on 23 November 1998 on a three-month visitor visa which had been issued to her in New Delhi on 12 November 1998. It was almost two months into her three-month visit to Australia that Ms Velauthampillai lodged her protection visa application. (Incidentally, Ms Velauthampillai's visit to India and then Australia beginning in October 1998 had not been the first time that she had left Germany while a resident thereof. She had travelled to New Zealand for a visit from August 1996 to November 1996, to India for a visit from January 1997 to May 1997 and to Australia for a visit from July 1997 to August 1997. The latter trip may have been to visit a daughter and a cousin, both of whom were said in Ms Velauthampillai's protection visa application to be in Australia at the time of that application and both of whom may also have been here at the time of her visit from July 1997 to August 1997.) 3 All of Ms Velauthampillai's travel to which I have referred above which occurred after she had begun residing in Germany took place on a "Reiseausweis", a type of travel document, which had been issued to her by the German authorities on 2 November 1995. That "Reiseausweis", which was before the Tribunal and is before me, is a travel document of the type referred to in Art 28 of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (ATS 1954 No 5) ("the Convention"), by which Convention Germany has at all material times been bound. The obvious inference from the granting of such travel document by the German authorities to Ms Velauthampillai is that she was considered by them to be a refugee within the meaning of the Convention. 4 The form of Ms Velauthampillai's "Reiseausweis" follows that set out for Convention travel documents in the Annex to the Schedule to the Convention. Accordingly, on page one thereof, it says (in English), "The holder is authorized to return to the FEDERAL REPUBLIC OF GERMANY on or before 02.11.97 unless some later date is hereafter specified". On page five thereof, some later date than 2 November 1997 is specified, namely, 8 September 2000. That latter date is the date to which Ms Velauthampillai's "Reiseausweis" was extended on 8 September 1998. Thus, Ms Velauthampillai's "Reiseausweis" authorised her, as of the date of the Tribunal's decision on 7 October 1999, to return to Germany on any date until 8 September 2000. 5 On page seven of Ms Velauthampillai's "Reiseausweis" appears an "Aufenthaltsbefugnis", a type of residence permit, which was issued to her by the German authorities on 8 September 1998 (the same date as that on which they extended her "Reiseausweis"). That "Aufenthaltsbefugnis" is said to be valid until 8 September 2000 (the same date as that to which her "Reiseausweis" was extended). Thus, on its face, Ms Velauthampillai's "Aufenthaltsbefugnis" appeared, as of the date of the Tribunal's decision on 7 October 1999, to authorise her to reside in Germany until 8 September 2000, if she should return there on her "Reiseausweis" on any date until that date. 6 Before the Tribunal, however, a question was raised as to whether it should treat Ms Velauthampillai's "Aufenthaltsbefugnis" as having the effect which it appeared on its face to bear. Ms Velauthampillai claimed before the Tribunal that her "Aufenthaltsbefugnis" should not be so treated. Her position was that, regardless of what one might infer from its face, her "Aufenthaltsbefugnis" had ceased to have effect once she had left Germany and had remained outside thereof for more than six months. As she had last left Germany on 8 October 1998, it therefore followed, according to her, that, as of 8 April 1999, she had ceased to have a right to reside in Germany pursuant to her "Aufenthaltsbefugnis" if she should return there on her "Reiseausweis" and would therefore have no such right on the date on which the Tribunal made its decision with respect to her protection visa application. 7 In its statement of findings and reasons, the Tribunal rejected Ms Velauthampillai's position to which I have just referred. Its conclusion on that matter was an essential step towards its ultimate conclusion, which was that Ms Velauthampillai was not a non-citizen in Australia to whom Australia had protection obligations under the Convention. Australia had no such obligations, according to the Tribunal, because Ms Velauthampillai had an entitlement to enter and reside in a country other than Australia or her country of nationality, from which third country she would not be at risk of return to her country of nationality in circumstances in which she would be persecuted there for a Convention reason. 8 Focusing specifically now on the Tribunal's finding regarding the continuing effect of Ms Velauthampillai's "Aufenthaltsbefugnis", under the heading "FINDINGS AND REASONS FOR DECISION", what the Tribunal said was as follows: "[T]he Applicant travelled to Australia on a Reiseausweis (Convention travel document) issued by the German Government for the purpose of the Refugees Convention. The document is valid until 8 September 2000 and contains a two year Aufenthaltsbefugnis (residence permit) valid until the same date. As I put to the Applicant in the course of the hearing before me, the most recent advice of the Australian Department of Foreign Affairs and Trade indicates that the holders of such travel documents have an automatic right of re-entry up until the expiry date of the relevant document (DFAT Report 0115 of 28 January 1999). Accordingly I consider that the Applicant has the right to reside in, enter and re-enter Germany until 8 September 2000." 9 A reader of the passage which I have just quoted from the Tribunal's statement of findings and reasons might infer from the Tribunal's reference in it to what was indicated by "the most recent advice of the Australian Department of Foreign Affairs and Trade" that there existed a belief on the part of the Tribunal that some less recent advice of that Department had indicated something different. Such an inference would be correct. In an earlier part of its statement of findings and reasons, under the heading "Background", the Tribunal had said, "The Australian Department of Foreign Affairs and Trade (DFAT) has advised that a Reiseausweis (Convention travel document), such as that on which the Applicant travelled to Australia, serves in lieu of a national passport and permits the holder to return to Germany while the holder's Aufenthaltsbefugnis (residence permit) is valid (DFAT cable BO6011, dated 2 June 1995, CX 26858). The Department has in the past advised that if the holder of an Aufenthaltsbefugnis leaves Germany and does not return within six months the permit expires and the holder does not have the right to return to Germany (DFAT cable BO13574, dated 5 June 1998, CX30206). However in more recent advice the Department has said that holders of German travel documents have an automatic right of re-entry up to the expiry date of the relevant document (DFAT Report 0015 of 28 January 1999)." 10 In her application for review of the Tribunal's decision, Ms Velauthampillai relied on one ground of review only, namely, that the Tribunal did not have jurisdiction to make its decision: see par 476(1)(b) of the Migration Act 1958 (Cth). In argument before me, her position with respect to that ground of review was essentially that the Tribunal had exceeded its jurisdiction in making its decision, because it had not been reasonably open to it on the material which had been before it to find that her "Aufenthaltsbefugnis" would continue to have effect until 8 September 2000. 11 In making the particular argument of excess of jurisdiction to which I have just referred, Ms Velauthampillai relied heavily on certain obiter passages from the reasons for judgment of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. Those obiter passages dealt with the correct approach to judicial review of administrative fact-finding when the exercise of an administrative decision-making power is expressly conditioned on the holding by the decision-maker of an opinion whether a certain fact exists. (The administrative decision-making power there under consideration was the same one as is here under consideration, namely, the power to decide whether to grant a protection visa to an individual.) (For a discussion of what Aronson and Dyer describe as "some interesting departures" by Gummow J in Eshetu from "[t]he notion of jurisdictional fact" as "the traditional concept of a fact whose existence can be authoritatively declared only by the reviewing court, which is not strictly bound by the primary decision-maker's views", see their Judicial Review of Administrative Action 2nd ed. 2000 at pp. 203-04; see also Crock, "Abebe v Commonwealth; Minister for Immigration and Multicultural Affairs v Eshetu Of Fortress Australia and Castles in the Air: The High Court and the Judicial Review of Migration Decisions (2000) 24 MULR 190 at pp. 210-11.) 12 As well as relying on Gummow J's approach in Eshetu to which I have just referred, Ms Velauthampillai submitted before me that that approach had afterwards received the imprimatur of a Full Court of the High Court of Australia in Corporation of the City of Enfield v Development Assessment Commission (2000) 169 ALR 400 at 411, [34] (Gleeson CJ and Gummow, Kirby and Hayne JJ) and at 416, [53] (Gaudron J). (It may be noted, however, that, as with the passages from Gummow J's reasons in Eshetu on which Ms Velauthampillai relied, the passages in Enfield on which she relied were also obiter.) She made the same submission concerning Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at 563, [41] (Gleeson CJ and Gaudron, Gummow and Hayne JJ) and at 565, [52] (Kirby J). (I note, however, that I am unable to read the passages in Chen relied on by Ms Velauthampillai as having been intended to deal with the question of the correctness or otherwise of Gummow J's approach in Eshetu.) 13 It will be noticed that the two extracts which I have quoted from the Tribunal's statement of findings and reasons (see [8] and [9] above) referred to three source documents, all of them being cables from the Department of Foreign Affairs and Trade ("the DFAT"). Those cables were dated respectively 2 June 1995, 5 June 1998 and 28 January 1999. As to those cables, Ms Velauthampillai's written submissions before me, which were in substance repeated in her oral submissions before me, were as follows: "The cable of 2 June 1995 left open the inference that an absence from Germany for more than 6 months would not affect the validity of an Aufenthaltsbefugnis. The cable of 22 June 1998 ['5 June 1998' was meant] explicitly stated that [sic] opposite. The Tribunal inferred from the most recent cable [that is, the cable of 28 January 1999] that an absence from Germany for more that [sic] 6 months no longer meant [that] an Aufenthaltsbefugnis ceases to be valid. That inference was not open. There was nothing in the facts [set out in it] or in its terms to suggest that that cable was addressing the implication of an absence from Germany for more than 6 months for an Aufenthaltsbefugnis. There was also no basis for preferring the inference from the cable of 2 June 1995 to what was stated in the cable of 22 [sic] June 1998. Both cables came from the same source and were equally authoritative. Any apparent conflict could obviously be due to a change in the law in the intervening period. The latter expressly addressed the issue before the Tribunal." 14 It is apparent that, in order to deal with those submissions of Ms Velauthampillai's which I have just set out, it will be necessary for me to go in some detail into the contents of the three source documents concerned. 15 Dealing first with the DFAT cable of 2 June 1995, its general subject matter was the types of residence permits and travel documents given to refugees and asylum seekers in Germany. Among the types of residence permits with which the cable dealt was the "Aufenthaltsbefugnis". As to that type of residence permit, the following points were made: it was not unlimited; it was issued to persons who could not return to their homeland for "humanitarian, legal and other reasons"; and it contained a re-entry facility. As to the types of travel documents, the cable said the following, so far as concerned persons holding "Aufenthaltsbefugnisse" (capitalisation edited): "The 'Reisedokument' is a small grey travel document which can only be obtained if the person is the holder of an Aufenthaltsbefuegnis [sic] … and cannot be expected to obtain a passport from his/her homeland[.] If the holder of a Reisedokument is outside Germany for a period longer than six months, he/she loses the right to re-enter Germany unless an extension has been obtained prior to departure or whilst overseas[.] In order to use the Reisedokument to travel overseas, the document must be endorsed[.] A 'Reiseausweis' (Convention travel document) is a larger blue travel document which is issued to persons who hold an Aufenthaltsbefuegnis [sic]…. It serves in lieu of a national passport and permits the holder to return to Germany while the residence permit is valid (eg, two years)." 16 Dealing next with the DFAT cable of 5 June 1998, it concerned a particular individual who was then before the Tribunal. As to that individual, who was a Somali, the information supplied in the cable was that he had applied for asylum in Germany in January 1995. His application had been refused in October 1995. However, the situation in Somalia had prevented his being returned there and so he was granted a "Duldung" (a toleration permit). Having held the "Duldung" for two years, he was then entitled, "in accordance with a special ruling", to obtain an "Aufenthaltsbefugnis", which he did in October 1997. His "Aufenthaltsbefugnis" was valid until October 1999. He was also issued with a "German travel document". The cable did not state whether that travel document was a "Reiseausweis" or a "Reisedokument". The cable did, however, state (capitalisation edited) that, "… if he departs Germany and does not return within a period of six months the permit expires and he does not have a right to return to Germany. If the applicant re-enters Germany within the given period of six months his status remains the same." 17 Dealing finally with the DFAT cable of 28 January 1999, it also concerned a particular individual who was then before the Tribunal. The DFAT had been asked by email whether that individual could then return to Germany. Unfortunately, the terms of the email in which the question had been put to the DFAT were not before the Tribunal in the present matter and are not before this Court, so that the factual context in which the question was being asked is not available to me. Further, the DFAT cable itself provided very little of that factual context. In any event, the answer which was given to the question was (capitalisation edited): "Past enquiries with German authorities have confirmed that holders of German travel documents (usually blue or grey coloured) have protection status in Germany and have an automatic right of re-entry up to the expiry date of that document. As [name deleted]'s document expires on 31.1.99, she can re-enter Germany with right of residence up to that date." 18 In his presidential address in 1870 to the British Association for the Advancement of Science, TH Huxley spoke of "the great tragedy of Science … which is so constantly being enacted", namely, "the slaying of a beautiful hypothesis by an ugly fact" (see "Biogenesis and Abiogenesis", accessible at http://aleph0.clarku.edu/huxley/CE8/B-Ab.html (accessed 21 July 2000)). Similar language can be used to describe the fate of Ms Velauthampillai's argument before me based on Gummow J's reasons for judgment in Eshetu. Her "beautiful hypothesis" is, in my view, slain by the "ugly fact" that it had been reasonably open to the Tribunal on the material before it to find that Ms Velauthampillai's "Aufenthaltsbefugnis" would continue to have effect until 8 September 2000. In those circumstances, it is unnecessary for me to decide whether or not I should adopt in the present case the approach of Gummow J in Eshetu. 19 In order to explain why I hold the view that it had been reasonably open to the Tribunal on the material before it to find that Ms Velauthampillai's "Aufenthaltsbefugnis" would continue to have effect until 8 September 2000, it will be necessary for me now to return to the contents of the three cables. 20 It is apparent from the earliest of the three cables (see [15] above), that the holder of an "Aufenthaltsbefugnis" might be granted one of two different types of German travel document. It appears to me to be reasonably open to read that cable as having stated that, if the holder of an "Aufenthaltsbefugnis" left Germany on a German travel document, then the continuing effect of that "Aufenthaltsbefugnis" could depend on which of the two types of German travel document the holder of the "Aufenthaltsbefugnis" had been granted. 21 If, on the one hand, the holder of the "Aufenthaltsbefugnis" had been granted only a "Reisedokument", then, in the absence of an extension of that "Reisedokument", obtained before departure or while overseas, the "Aufenthaltsbefugnis" would continue to have effect only for a maximum of six months after its holder had left Germany. That was because, in the absence of an extension of one's "Reisedokument", one lost the right to use it to re-enter Germany after six months and so one's "Aufenthaltsbefugnis", whatever its named expiration date, was no longer of any avail. 22 If, on the other hand, the holder of the "Aufenthaltsbefugnis" had been granted a "Reiseausweis", then the "Aufenthaltsbefugnis" would continue to have effect until its named expiration date (provided, no doubt, that its holder's "Reiseausweis" also remained current), which might be much longer than six months after its holder had left Germany. 23 Turning now to the second of the three cables (see [16] above), it appears to me to be reasonably open to read that cable as having stated that the "Aufenthaltsbefugnis" held by the individual concerned would cease to have effect six months after he had left Germany. No information was supplied in that cable as to the type of German travel document which the individual held, but it would obviously be reasonably open to infer, consistently with had had been said in the earliest of the three cables, that that German travel document was a "Reisedokument", rather than a "Reiseausweis". 24 Turning now to the last of the three cables (see [17] above), it appears to me to be reasonably open to read that cable as having stated that the individual concerned was the holder both of an unnamed type of German travel document and of an unnamed type of German residence permit, that both had the same named expiration date and that both remained effective until that named expiration date. 25 On those readings of the three cables concerned, which readings, as I have already said, I regard as reasonably open, there was thus material before the Tribunal, namely, the DFAT cable of 2 June 1995, on which it was reasonably open to the Tribunal to reach the conclusion which it did, namely that Ms Velauthampillai's "Aufenthaltsbefugnis" would continue to have effect until its named expiration date, 8 September 2000. Further, and contrary to Ms Velauthampillai's submissions, there was no necessary contrariety whatever between the first and the second of the three cables. 26 I add that it is, of course, the case that the Tribunal did not reach its relevant conclusion by reading the last two of the three cables in those ways which I have said above I consider it reasonably open to read them. However, that does not affect the circumstance that there was material before the Tribunal on which it was reasonably open to the Tribunal to reach the conclusion under challenge by Ms Velauthampillai, so that that challenge must fail on its own terms. 27 In the circumstances, the application for review should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. Associate: Dated: 31 July 2000 Counsel for the Applicant: Mr Craig Colborne Solicitor for the Applicant: Siva Logan Solicitors Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 May 2000 Date of Judgment: 31 July 2000