Case: NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6 ; (2005) 222 CLR 161
Outcome: cited
In NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6 ; (2005) 222 CLR 161 ('NAGV') the High Court considered s 36(2) of the Act in the form in which it existed prior to the passage of the Border Protection Legislation Amendment Act 1999 (Cth). Relevantly, for present purposes, Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ said at [31]-[33]: '31 ... a perusal of the Convention shows that, Art 33 apart, there is a range of requirements imposed upon Contracting States with respect to refugees some of which can fairly be characterised as "protection obligations". Free access to courts of law (Art 16(1)), temporary admission to refugee seamen (Art 11), and the measure of religious freedom provided by Art 4 are examples. 32 ... Section 36(2) does not use the term "refugee". But the "protection obligations under [the Convention]" of which it does speak are best understood as a general expression of the precept to which the Convention gives effect. The Convention provides for Contracting States to offer "surrogate protection" in the place of that of the country of nationality of which, in terms of Art 1A(2), the applicant is unwilling to avail himself. That directs attention to Art 1 and to the definition of the term "refugee". 33 Such a construction of s 36(2) is consistent with the legislative history of the Act. This indicates that the terms in which s 36 is expressed were adopted to do no more than present a criterion that the applicant for the protection visa had the status of a refugee because that person answered the definition of "refugee" spelt out in Art 1 of the Convention.' (Footnotes omitted) 30 Article 33(1) of the Convention, to which reference was made in NAGV , provides: '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.' 31 The question of who answers the description of a 'refugee' is relevantly determined by Article 1of the Convention which relevantly provides: 'A. For the purposes of the present Convention, the term "refugee" shall apply to any person who: ... (2) ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence ... is unable or, owing to such fear, is unwilling to return to it.' 47 After the applications for protection visas in NAGV were lodged, new subsections (3)-(7) were inserted into s 36 of the Act by the Border Protection Legislation Amendment Act 1999 (Cth), which new subsections commenced on 16 December 1999. These subsections were included as part of ' Part 6 Amendments to prevent forum shopping'. Another provision inserted into the Act as part of Part 6 was s 91M which formed part of a new 'Subdivision AK Non-citizens with access to protection from third countries'. That section provided: '91M This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.' 48 The legislative purpose recorded in s 91M is consistent with the legislative intention which is evident in s 36(3) of the Act i.e. to tighten up the circumstances in which non-citizens in Australia may become entitled to the grant of protection visas. 49 Section 36(3) of the Act provides: '36(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.'