Case: NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 6 ; (2005) 222 CLR 161
Outcome: discussed
was submitted by the applicant that by virtue of Australia being a signatory to the Refugee Convention and following from the judgment of Kirby J in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 6 ; (2005) 222 CLR 161 at [89] , the Court ought to read s 261A in a way which conforms with Australia's international obligations and should not be read to punish refugees. There are two primary problems with this submission. As the Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ found (at [15]) in NAGV , ...the Convention is an example of a treaty which qualifies what under classical international law theory was the freedom of States in the treatment of their nationals; but the Convention does not have the effect of conferring upon the refugees to which it applies international legal personality with capacity to act outside municipal legal systems. [footnotes omitted] Crucially, their Honours said at [17], ...Gibbs CJ and Brennan J in Mayer and Stephen J in Simsek v Macphee pointed out that the determination of the status of refugee is a function left by the Convention to the competent authorities of the Contracting States which may select such procedures as they see fit for that purpose. [footnotes omitted] It follows that the legal concept of 'refugee' is a status which is not conferred upon a person merely by the existence of circumstances sufficient to support such a claim. This status must positively be found, and it must be found according to the standards set by the particular state, in this case, Australia. Such concept is consistent with international law only having effect within Australia by virtue of its positive adoption into municipal law. Accordingly, the passengers on the ship were not refugees until such time as they were granted that status from the Australian authorities pursuant to s 36 of the Migration Act (dealing with protection visas), and that was not until well after the facts giving rise to the contravention had occurred. At their time of entry into Australia (and thus the time when the forfeiture occurred) the ship's passengers were no more than unlawful non-citizens by force of s 14 of the Migration Act . Therefore it could not be said that forfeiture of the ship would punish the applicant as a refugee, because at the relevant time he was not a refugee, and nor was anyone else on the ship. After the fact events such as the granting of refugee status cannot affect the validity of the forfeiture. Secondly, the passage relied upon by the applicants at [89] of NAGV states, ' where the words of a statute are susceptible to an interpretation that is consistent with international law, that construction should prevail over one that is not .' The key word is ' susceptible '. Section 36 is clearly intended to operate subsequently to s 261A because s 261A will occur automatically the moment a vessel enters Australia. There is nothing in s 261A that suggests that it should be limited in its operation by s 36 of the Migration Act so that it has no application to people to whom s 36 applies. Whether s 36 applies to an unlawful non-citizen may not be known until years after a vessel's entry in Australia, and s 261A is phrased as to operate instantaneously. Reading s 261A in the way the applicant submits completely ignores the wording of the section. It must therefore be concluded that it is not a provision which can be said to be ' susceptible ' in the manner discussed by Kirby J. Compensation