Nbgm v Minister for Immigration and Multicultural Affairs and Another
[2006] HCA 54(2006) 81 ALJR 337
(2006) 231 ALR 380
(2006) 93 ALD 43
(2006) 231 CLR 52
(Judgment by: Callinan J, Heydon J, Crennan J)
Nbgm
vMinister for Immigration and Multicultural Affairs and Another
Judges:
Gummow ACJ
Kirby J
Callinan J
Heydon J
Crennan J
Legislative References:
Migration Act 1958 (Cth) - s 36(3); s 91X
Border Protection Legislation Amendment Act 1999 (Cth) - The Act
Judiciary Act 1903 (Cth) - The Act
Migration Act 1958 (Cth) - The Act
Judgment date: 15 November 2006
Sydney
Judgment by:
Callinan J
Heydon J
Crennan J
[37] This application for special leave to appeal was heard at the same time as the appeal in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [50] because it raised similar questions to those for determination in the latter. These reasons should be read with the reasons in that case.
The facts
[38] The applicant is a citizen of Afghanistan, a Shi'a Muslim and of Hazara ethnicity. He arrived in Australia in October 1999 without a passport or a visa. He was granted a temporary protection visa on 24 March 2000. A week or so later he applied for a permanent protection visa. On 16 September 2003 a delegate of the first respondent refused that application. The applicant then sought review of the delegate's decision by the Refugee Review Tribunal (the tribunal). The tribunal affirmed the decision of the first respondent's delegate on 5 April 2004.
The tribunal's reasoning
[39] The tribunal accepted that at the time when the applicant first applied for a visa he was a person to whom Australia owed obligations of protection under the Convention relating to the Status of Refugees, [51] taken with the Protocol relating to the Status of Refugees [52] (together "the convention"). The question, the tribunal said, however, was whether the applicant was, in accordance with Art 1C(5) of the convention, a person who could continue to refuse to avail himself of the protection of Afghanistan because the circumstances in connection with which he was recognised by Australia as a refugee had ceased to exist.
[40] At the hearing conducted by the tribunal it was suggested to the applicant that the Taliban, the oppressive extremist movement in Afghanistan, had been removed from power by mid-November 2001, and was no longer a political or other force. It was further suggested that such of the Taliban as were active did not pose a direct threat to the civilian population and that its targets were members of the government and its security forces, and international aid workers. The tribunal put these matters to the applicant in terms, as well as the suggestion that the Taliban was not in any event active in the applicant's region. The applicant sought to reject this last suggestion, referring to some deaths that had occurred in his region not long before.
[41] The tribunal made findings generally in accord with the suggestions that it had made to the applicant, that the Taliban was no longer in a position to massacre people in the manner referred to in the decision of the delegate of 16 September 2003, and that the Taliban was unlikely to re-emerge as a viable political movement in Afghanistan in the reasonably foreseeable future. On the basis of those circumstances, the tribunal concluded that Art 1C(5) of the convention applied to the applicant. It also gave consideration to the question whether, assuming that Art 1C(5) of the convention was not applicable, s 36(3) of the Migration Act 1958 (Cth) (the Act) applied to the applicant. The answer to that question, the tribunal decided, was the same as the answer to the question that it had first posed, that Australia had ceased to owe obligations of protection to the applicant because of the changed circumstances in Afghanistan.
[42] There was apparently a further hearing undertaken by the tribunal to consider other claims made by the applicant, in substance that because his uncles had been active in a Sepah faction of the Wahdat he would be at risk of the opposing Nasr faction of the Wahdat. The applicant elaborated upon that claim by saying that before the Taliban had taken control of his region the two factions had fought over it. He alleged that unless he were prepared to join one of the factions he would be accused by the other of being against it. It was part of his claim that the government was not in control of the region, that the Pashtun and Tajik people were, and that they would be likely to persecute him because he was a Shi'a Muslim.
[43] The tribunal did not accept any of these claims. It decided that there was not a real chance of persecution of the applicant by any of the people whom he had identified: if there were any discrimination against Hazara people, it fell short of persecution under the convention. It was the tribunal's opinion that on the basis of the information available to it the situation of Shi'a Muslims in Afghanistan was generally good. It is for these reasons that the tribunal affirmed the decision of the delegate.
The Federal Court
[44] The applicant then made application for certiorari to quash the tribunal's decision and for associated relief. This application was heard at first instance by the Federal Court (Emmett J). [53] After setting out the facts and summarising the reasons of the tribunal his Honour turned to a construction of the convention. He said, correctly in our opinion, this: [54]
[34] Articles 33.1, 1A(2) and 1C(5) of the Refugees Convention turn upon the same basic notion; protection is afforded to persons in relevant need, who do not have access to protection, apart from the Refugees Convention. A person is relevantly in need of protection if that person has a well-founded fear of being persecuted, for Convention reasons, in the country, or countries, in respect of which the person has a right or ability to access. On the other hand, the Refugees Convention is not designed to provide protection to those with no such need. In practical terms, the limited places for, and resources available to, refugees are to be given to those in need and not to those who either can access protection elsewhere or are no longer in need of international protection.
Later his Honour said this: [55]
[36] When Art 33.1 speaks in terms of a territory where the life or freedom of a person would be threatened on account of Convention Reasons , while the language is not identical, the concept is intended to correspond with the concept that underlies Art 1A(2). That is to say, where a person, owing to well founded fear of being persecuted for Convention reasons is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, a contracting state must not expel or return that person to another territory where he or she would have a well founded fear of being persecuted for Convention reasons namely, his or her life or freedom would be threatened on account of any Convention reasons.
[37] There is a similar relationship between Arts 1A(2) and 1C(5). Thus, the latter refers to the circumstances in connection with which a person has been recognised as a refugee. That refers back to the concept that the person has a well founded fear of being persecuted for Convention reasons and is therefore unable, or owing to such fear, unwilling, to avail himself of the protection of his own country. The two provisions should be construed as having some symmetry in their effect.
...
[39] While there is a certain lack of symmetry in the actual language of the three provisions, there is a rationale underlying the basic object and scheme of the Refugees Convention. That rationale is that, so long as the relevant well-founded fear exists, such that a person is unable or unwilling to avail himself or herself of the protection of the country of his or her nationality, he or she will be permitted to remain in the contracting state. However, if circumstances change, such that it can no longer be said that the person is unable to avail himself or herself of the protection of his or her country of nationality owing to well-founded fear of persecution for Convention reasons, the contracting state's obligation of protection comes to an end. That is to say, the obligations to a person that arise under, inter alia, Arts 32.1 and 33.1 continue only for so long as the person is a refugee within the meaning of Art 1A(2).
[40] It may be appropriate, when considering the possible application of Art 1C(5), to assess whether a change in circumstances in the country of nationality is such as can properly be characterised as "substantial, effective and durable". However, the object of the inquiry is to determine whether the person who has been recognised as a refugee can
still claim to have a well-founded fear of being persecuted, for a Convention reason, in his or her country of nationality such that there is justification for his or her being unable or unwilling to avail himself or herself of the protection of that country.
[45] His Honour then gave consideration to whether under Art 1C(5) relevant changes in circumstances must be "substantial, effective and durable". This language is the same language as used in a paper prepared by the first respondent's department, entitled "Interpreting the Refugees Convention -- an Australian Contribution" [56] and elsewhere. The answer to the question was, his Honour said, that the convention does not actually refer to the need for the change in circumstances to be "substantial, effective and durable". All that it does refer to is "particular circumstances ceasing to exist".
[46] His Honour's next step was to consider at some length the evidence which had been before the tribunal, concluding that: [57]
[54] It is not for the court to second guess the significance attached by the tribunal to the evidentiary material before it. That, in essence, is what the applicant has asked the court to do. It was open to the tribunal, on the material before it, to conclude, as it did, that the applicant did not, as [at] April 2004, have a [ well-founded ] fear of being persecuted for one of the Convention reasons if he returns to Afghanistan now or in the reasonably foreseeable future.
[47] Notwithstanding the conclusions which he had already reached, his Honour dealt with an argument advanced by the applicant with respect to the operation given by the tribunal to s 36(3), (4) and (5) of the Act, as to the first of which it had been submitted that it was directed to a person who had entered Australia to seek protection only in circumstances in which there were other countries in which that person could have sought protection, whether they were countries in which he had been on his journey to Australia or in which he had a right to enter and reside, whether temporarily or permanently. It was part of the applicant's argument with which his Honour dealt that s 36(3) could in effect only have operation if a question of "forum shopping" [58] arose, an expression which had been used in the explanatory memorandum of the Bill for the amendments that were made to the Act [59] inserting s 36(3), (4) and (5). Emmett J rejected the argument, holding that recourse to the memorandum was neither necessary nor desirable in view of the absence of any ambiguity of s 36. [60] As to Art 1C(5) his Honour said that the scheme of the Act which contemplated fresh applications when temporary visas expired, while it might not necessarily sit comfortably with the framework of the convention, was clear: Art 1C(5) was an article that could be invoked by the first respondent as circumstances changed, albeit that in practice a contracting state might seek to apply it sparingly. [61] That, it may be inferred, was the operation which Art 1C(5) had. It could not in argument be used to contradict clear language of the Act.
[48] His Honour, in the result, was unable to identify any jurisdictional error on the part of the tribunal and refused to grant the applicant any of the relief claimed.
The Full Court of the Federal Court
[49] The applicant appealed to the Full Court of the Federal Court, which was constituted by five judges (Black CJ, Marshall, Mansfield, Stone and Allsop JJ). [62] The appeal was heard after a differently constituted Full Court (Wilcox, Madgwick and Lander JJ) had decided the appeal in QAAH v Minister for Immigration and Multicultural and Indigenous Affairs . [63]
[50] The Full Court in these proceedings was divided in the result, the majority (Black CJ, Mansfield and Stone JJ) disallowing the appeal. The reasoning of the members of the majority differed somewhat.
[51] Both Black CJ and Mansfield J were of the opinion that the words in s 36(3) "any country apart from Australia, including countries of which the non-citizen is a national" should be construed according to its ordinary meaning and could not be confined, as the applicant argued, to situations in which an applicant had a right to enter and reside in a "third country". [64] Black CJ pointed out, correctly, that by s 36 the legislature has laid down the test, as a matter of domestic law, that must be satisfied under s 36(2) of an applicant's entitlement to a visa: that "[t]he circumstances to be established are presently existing circumstances, as to which the past may well illuminate the present; but the question remains in the present." [65]
[52] It was his Honour's opinion, as it was of Mansfield J, that the reasons of the tribunal did disclose that it had properly undertaken the task prescribed by s 36 of the Act and that it had neither misunderstood nor misapplied the law: that even if the tribunal's processes and reasons were insufficient to enliven Art 1C(5) of the convention, s 36 was an independent foundation for the tribunal's decision. [66] Black CJ and Mansfield J were satisfied, however, that if the convention fell to be applied in an unqualified way the analysis and meaning of it adopted by Allsop J were correct. [67]
[53] It is unnecessary to refer any further to the reasons of Mansfield J because they were generally in accord with those of the Chief Justice.
[54] The other member of the majority, Stone J, referred to a number of other provisions of the Act and regulations, including some of those to which we referred in QAAH and which are concerned with statutory temporal limitations on visas.
[55] Her Honour, correctly, pointed out that the convention does not apply directly and in an unqualified way in Australia, and that the fundamental question was the proper construction of the Act. She then discussed [68] a number of authorities of this court [69] in which the construction of international and other instruments had been considered, concluding that it was difficult to discern any material difference between the principles governing the interpretation of international treaties and domestic legislation.
[56] As to the argument advanced by the applicant that Art 1C(5) would be otiose on the construction given to it by the primary judge, her Honour said that on the occurrence of events, that is, relevant changes of circumstances, predicated by it and not inconsistently with it, the cancellation provisions of the Act will apply notwithstanding that an applicant may hold a visa for a period which is still not expired. [70] Her Honour then went on to say that she agreed with the interpretation of the convention and the statutory scheme prescribed by the Act and regulations adopted by the primary judge: she was not prepared to, and did not, regard herself as bound, sitting as a member of the Full Court, to apply the reasoning and decision of the majority in QAAH , preferring the reasoning of the primary judge there, Dowsett J, which was in substance the same as that of Emmett J, at first instance in this case.
[57] Allsop J (in dissent) embarked first upon a detailed consideration of the use which might be made of extrinsic materials in aid of the interpretation of the convention. [71] As to the proper interpretation of the Act and regulations, he said that in understanding their operation it was "of central importance to appreciate the content and intended operation of the Convention". [72] His Honour then set himself the task of construing Arts 1A(2) and 1C(5), citing and adopting [73] the approach and words of Lord Brown of Eaton-under-Heywood in R (Hoxha) v Special Adjudicator : [74]
[60] The whole scheme of the Convention points irresistibly towards a two-stage rather than composite approach to 1A(2) and 1C(5). Stage 1, the formal determination of an asylum-seeker's refugee status, dictates whether a 1A(2) applicant ... is to be recognised as a refugee. 1C(5), a cessation clause, simply has no application at that stage, indeed no application at any stage unless and until it is invoked by the State against the refugee in order to deprive him of the refugee status previously accorded to him.
[58] His Honour took as supporting the position, which he ultimately adopted, the United Nations High Commission for Refugees 1979 Handbook (the handbook), and Lord Brown's references to and uses of it. [75]
[59] Allsop J then said this: [76]
[171] The cessation of the Convention, and the cessation of the obligations of the host state to afford the person the benefits and protections provided for by the Convention (through its domestic law) can be seen to be a matter of great seriousness, and likely finality. The circumstances which have given rise to the recognition of the person as a refugee may raise matters of life and death. Section C(5) can be seen to operate to the disadvantage of someone who has been recognised as a refugee, in a way which can be seen to be final and irrevocable: "he can no longer ... continue to refuse" the protection of his country of nationality.
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[174] As Lord Brown set out at [65] in Hoxha , the two stage approach to the operation of ss A(2) and C(5) contemplates the possibility of cessation. It does not contemplate, within its terms, multiple determinations of the application of s A(2). Domestic law could, of course, provide for recognition of application of s A(2) to lapse and for such recognition to be reapplied for. It might provide for yearly, monthly, weekly or even daily reassessments in which, on each occasion, the applicant would be required to make out afresh his or her claims for protection. The Convention does not contemplate that. It contemplates recognition as a refugee (with the engagement thereupon of the Convention) and cessation of the application of the Convention thus recognised, in circumstances provided for in s C, one of those being s C(5).
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[181] The text and purposes of the Convention, reinforced by the views of jurists (based, in part, on international jurisprudence), the Handbook viewed as the work of jurists, and the unanimous view of the House of Lords all point to the same way of viewing the Convention. Once the host state recognises the application of s A(2) that the applicant is a refugee, the protection provided for by the Convention is engaged and is only lost by an application of a cessation clause, here s C(5). Nothing in Mayer [77] or Simsek [78] is to the contrary of this.
[60] Having said that, his Honour acknowledged that "[t]he context of domestic law in Australia is, however, somewhat different". [79] One difference is that Australian law holds that the proceedings before the tribunal were inquisitorial and its function is simply to decide whether a claim is made out. His Honour next referred [80] to s 36 of the Act, having first said that the content and intended operation of the convention was the framework against which the Act and delegated legislation under the Act may be read. [81]
[61] It is appropriate to point out at this stage that to approach the matter in that way was to invert the steps which an Australian court should take in situations in which international instruments have been referred to in, or adopted wholly or in part by, enactments. The first step is to ascertain, with precision, what the Australian law is; that is to say, what and how much of an international instrument Australian law requires to be implemented, a process which will involve the ascertainment of the extent to which Australian law by constitutionally valid enactment adopts, qualifies or modifies the instrument. The subsequent step is the construction of so much only of the instrument, and any qualifications or modifications of it, as Australian law requires. The first step is not, contrary to his Honour's express holding, [82] to derive an understanding of the proper interpretation and operation of the convention.
[62] Notwithstanding the repeated references in the Act and regulations to the respective durations of various visas and a non-citizen's obligation to apply for a visa, his Honour stated this view: [83]
[196] Thus, read together, s 36(2) and the Regulations place Art 1 (as a whole) at the centre of the granting of both temporary and permanent protection visas. Importantly, the Regulations themselves, in terms, require the decision-maker to assess, by reference to the Convention (properly interpreted), whether Australia has protection obligations at the time of the decision. Thus, both the Act and the Regulations require the assessment of the relevant question (the existence of protection obligations at the time of decision) to be undertaken according to the Convention and its operation based on its proper interpretation.
[63] Allsop J added this: [84]
[197] The visa being applied for had its limitations, but the recognition of the applicant as a refugee was not in terms of the Act or Regulations an interim, provisional, interlocutory or temporally limited recognition. Through the minister's decision, the applicant was recognised by Australia as a refugee. There is nothing in the Act or Regulations to the effect that that recognition lapsed or ceased to be relevant at any particular point in time, or, perhaps more importantly, that the recognition had a more limited effect or consequence than contemplated by the Convention. The legislative regime provided for the further application for a permanent visa. It is important to ascertain whether this regime is to be seen as intended to operate differently to the operation of the Convention and, in particular, Art 1 as a whole. There was a need, or opportunity, to apply for a different and longer protection visa (5 years -- reg 866.511). The temporary protection visa would expire in the context of that further application.
[198] The whole of Art 1 was at the centre of both applications (for a temporary protection visa and a permanent protection visa) as providing the content for the phrase "a person to whom Australia has protection obligations under the Refugees Convention". At the time of the determination of his application for a permanent protection visa, the [applicant] had been recognised as a refugee. He was not a claimant seeking recognition of the application of s A(2). He had that recognition. No provision of the Act or Regulations stated that that recognition ceased to have relevance to the operation of the Convention and to the question whether Australia had protection obligations to him under the Convention (though indirectly as obligations under international law as a host state) and under the Act and Regulations.
...
[212] Thus, unless and until the Convention ceases to apply by operation of s C(5), s 36(3) does not operate in respect of the [applicant] because s 36(4) makes it inapplicable, there being an existing recognition of the matters with which s 36(4) is concerned.
[64] With respect to the reasons of the tribunal, his Honour was of the opinion that they did not "disclose a direction to itself as to the clarity with which it must be satisfied of the change of circumstances". [85] Further, he said, the reasons exhibited an approach "whereby it was for the applicant to show that there was a real chance of persecution, rather than it being necessary for the tribunal to be satisfied that durable change in the relevant circumstances had been revealed with the necessary clarity". [86]
[65] Accordingly it followed, his Honour concluded, that the primary judge had erred in deciding that the tribunal's reasoning and approach were correct. With this view, general reasoning and conclusion, Marshall J agreed. [87]
Disposition of the application by this court
[66] The applicant made application for special leave to appeal to this court.
[67] It is unnecessary to repeat what we have said in QAAH , as our reasoning there applies to this application, and produces the result that if special leave were granted the appeal would fail.
[68] It is desirable to say something further, however, about the proper approach to the construction of the Act and the convention. Section 36 of the Act must be considered in context. The context is provided by other provisions of it. Some of those provisions, particularly the ones which we emphasised in QAAH , make it clear that a grant for a protection visa offers no promise or obligation to continue to afford protection or grant residence, whether permanent or otherwise, in the event that circumstances change.
[69] The convention does not provide any of the framework for the operation of the Act. The contrary is the case. That does not mean that the convention in and to the extent of its application to Australia should be narrowly construed. It simply means that Australian law is determinative, and it is that which should be clearly ascertained before attention is turned to the convention.
[70] This application for special leave should be granted but the appeal should be dismissed with costs leaving the Full Court to determine the question of costs reserved in order 3 of the orders of 12 May 2006.