Last Friday in SZOQQ v Minister for Immigration and Citizenship  HCA 12, the High Court considered questions of statutory interpretation and the intersection of Australian domestic law and Art 33(2) of the 1958 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention). The matter raised the specific question of whether there is a power to refuse to grant a Protection (Class XA) visa on the basis that the applicant for the visa is a person to whom Art 33(2) of the Refugees Convention applies.
The Court's judgment establishes that there is no such power. The 'protection obligations' referred to in section 36(2)(a) of the Migration Act 1958 (Cth) (the Act) are not limited to the non-refoulement obligation in Art 33(1) of the Refugees Convention. Section 91U of the Act, which defines 'particularly serious crime', does not limit the scope of persons to whom Australia has protection obligations in section 36(2)(a). As such, an applicant who satisfies the definition of 'refugee' in Art 1 of the Refugees Convention thereby satisfies the criterion in section 36(2)(a) of the Act.
The appellant SZOQQ is a male citizen of Indonesia who was born in West Papua. On 22 January 1996 the appellant was granted a protection visa. On 17 September 2001 the appellant was convicted of manslaughter. The appellant killed his 28 year-old de facto partner by hitting her about the head with a child's bicycle. At the time, the victim was 15-weeks pregnant. The appellant killed her spontaneously while drunk. He pleaded guilty to manslaughter and was imprisoned for seven years.
The appellant's protection visa was cancelled on character grounds by the then Minister for Immigration, on 5 March 2003. The appellant was later permitted, by way of an exercise by the Minister of the section 48B discretion, to lodge a second application for a protection visa. He did so on 19 December 2008.
The Minister's delegate accepted that the appellant had a well-founded fear of political persecution as defined by Art 1A(2) of the Refugees Convention. However the delegate found that Art 33(2) of the Convention applied to the appellant, such that he was not a person to whom protection obligations were owed.
The appellant sought merits review of the delegate's decision by the Administrative Appeals Tribunal (AAT). The AAT's decision was handed down on 2 September 2010. The AAT affirmed the Minister's delegate's decision. The AAT's decision was upheld by the Federal Court (Stone J) and Full Federal Court (Flick, Jagot and Barker JJ). The AAT and courts below did not consider the issue agitated by the appellant before the High Court.
The legislative regime and the Minister's arguments
The prohibition of expulsion or return is found in Art 33 of the Refugees Convention, which 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.
- 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 judgment of a particularly serious crime, constitutes a danger to the community of that country.
Various provisions of the Act deal with aspects of how the Refugees Convention is to be taken to operate for the purposes of section 36(2). One of these is section 91U, which defines a 'particularly serious crime' for the purposes of Art 33(2) to include a crime that consists of the commission of a 'serious Australian offence' (which is, in turn, defined in section 5 of the Act).
The Minister sought to defend the appeal by distinguishing the treatment of the 'particularly serious crime' limb of Art 33(2) of the Refugees Convention. He argued that section 91U of the Act modifies section 36(2), and operates so as to bring the 'particularly serious crime' limb of Art 33(2) into effect.
- It was submitted that the reasoning of the plurality in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 222 CLR 161 (NAGV), which was taken to be correct by a majority of the Justices in Plaintiff M47-2012 v Director-General of Security (2012) 86 ALJR 1372, does not apply equally to the second limb of Art 33(2) of the Refugees Convention by virtue of the operation of s 91U of the Act.
- In this respect, the Minister relied on the fact that section 91U was not part of the Act as considered in NAGV. He argued that the only sensible understanding of the intended effect of Art 33(2), provided for in section 91U, is that it was to apply as part of the consideration of whether Australia has 'protection obligations' in relation to a person for the purposes of section 36(2) of the Act.
All of the Justices agreed with Keane J. In rejecting the Minister's arguments, his Honour found as follows:
- The argument that section 91U is apt to confine the scope of persons to whom Australia has 'protection obligations' in section 36(2)(a) has no textual basis (at ).
- Section 91U is not expressed in terms which are apt to translate into the terms of section 36(2) the operation of Art 33(2) (at ).
- If accepted, the Minister's argument would produce the odd outcome that the two limbs of Art 33(2) have different applications via section 36(2)(a) (at ).
- His Honour did not accept that section 91U would be otiose unless it was construed as working an alteration of section 36(2)(a). His Honour considered that section 91U could aid the operation of section 499 and could aid the making of regulations under section 31(3) (at -).
- The Minister's Second Reading Speech did not assist, noting that it predated the decision in NAGV v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161, which was not challenged before the court (at ).
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