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

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(Judgment by: Kirby J)

Nbgm
vMinister for Immigration and Multicultural Affairs and Another

Court:

Judges: Gummow ACJ

Kirby JCallinan 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

Hearing date: 9 June 2006
Judgment date: 15 November 2006

Sydney

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Judgment by:
Kirby J

[6] This is an appeal from orders of the Full Court of the Federal Court of Australia, exceptionally constituted by five judges. ^[4] The Full Court had been so constituted because of doubts that had arisen in respect of the divided decision of an earlier Full Court in QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs . ^[5] By inference, it was hoped that a Full Court of larger numbers would settle clearly the point upon which the Full Court in QAAH had divided.

[7] In the result, however, the Full Court in the present matter was also divided. ^[6] The same issues that had led to the divisions in QAAH re-emerged and, indeed, were sharpened. Accordingly, when this court granted special leave to the minister to appeal in QAAH , an order was made returning an application for special leave to appeal on the part of the putative refugee in the present matter, NBGM (the applicant) ^[7] to be heard at the time as the appeal in QAAH .

[8] Argument in the appeal in QAAH , and in the application in NBGM , was accordingly heard together. Substantially, the issues are common. The outcome in QAAH controls the outcome in NBGM's application. In my opinion, that application should succeed. Special leave should be granted. NBGM's appeal should be allowed and a new hearing, before the Refugee Review Tribunal (the tribunal), should be ordered.

Interpretative principles

[9] Recourse to the convention and Australian law : In Plaintiff S157/2002 v Commonwealth , ^[8] Gleeson CJ, in stating the first of "established principles ... relevant to the resolution of the question of statutory construction" presented by that case, observed:

[29] ... [W]here legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia's obligations.

[10] This was by no means a new idea. It is orthodox, and the same principle has been stated by this court, and applied, many times. It was so expressed in Chu Kheng Lim v Minister for Immigration ^[9] and in Minister for Immigration and Ethnic Affairs v Teoh , ^[10] where the principle was identified in even wider language. ^[11]

[11] In the context of the Refugees Convention, ^[12] this court has hitherto accepted that, through s 36, the Migration Act 1958 (Cth) has "transpose[d] the text of a treaty or a provision of a treaty into the statute so as to enact it as part of domestic law". ^[13] Obviously, the Act did not incorporate the convention in its totality. But it did so for the purpose of giving meaning to the status of a person (a "refugee") in respect of whom Australia has protection obligations. To that extent, the Act is the vehicle for fulfilling Australia's obligations as a state party to the convention and giving its provisions effect in this nation's domestic law. This is why, in countless cases, Australian courts faced with the interpretation of s 36 of the Act have proceeded directly to the convention provisions concerning refugee status. ^[14] Because those provisions appear in a treaty, this court has consistently interpreted them in accordance with the rules contained in the Vienna Convention on the Law of Treaties. ^[15]

[12] In Applicant A , ^[16] a case which dealt with a claim to Australia's protection based on the applicant's alleged refugee status, Gummow J said: ^[17]

It is necessary to begin with the construction of the definition as it appears in the Convention and Protocol. Regard primarily is to be had to the ordinary meaning of the terms used therein, albeit in their context and in the light of the object and purpose of the Convention. Recourse may also be had to the preparatory work for the treaty and the circumstances of its conclusion, whether to confirm the meaning derived by the above means or to determine a meaning so as to avoid obscurity, ambiguity or manifestly absurd or unreasonable results. However, as McHugh J demonstrates by the analysis of the subject in his reasons for judgment, with which I agree, it is important to appreciate the primacy to be given to the text of the treaty.

[13] In a footnote to these observations, ^[18] Gummow J made reference to the fact that "[t]hese rules of interpretation are applicable both under customary international law and as it is now stated in the Vienna Convention on the Law of Treaties: ^[19] see Thiel v FCT ^[20] ". His Honour's reference, in the cited passage, to the reasons of McHugh J, imports a lengthy and oft-cited passage in Applicant A ^[21] containing "interpretative principles" for the ascertainment of the meaning of the term "refugee", as that word is used in the Act. The Act incorporates the concept of "refugee", as defined in the convention and Protocol (together "the convention"), both of which Australia has signed and ratified.

[14] Practice of this and other courts : Countless cases in this court have proceeded in the foregoing manner. They have addressed immediately the meaning of the composite notion of "refugee" as provided in the convention. In doing so, they have not bypassed Australian municipal law. That law has uncontested primacy in Australian courts. ^[22] No one doubts that. But by proceeding directly to the convention definition, those courts have not questioned that primacy. On the contrary, they have done what Australian law itself requires in defining the persons relevantly entitled (and not entitled) to protection as "refugees" under Australian law.

[15] This approach is by no means confined to Australian courts. A similar approach has been taken in the United Kingdom and elsewhere. ^[23] Indeed, until now, the approach to be taken in cases such as the present has been clear. It has obliged the decision-maker to address immediately the convention definition of "refugee" and, therefore, to consider the understanding of that expression as it appears in the convention. ^[24]

[16] In the joint reasons in this court of Callinan, Heydon and Crennan JJ (the joint reasons), Allsop J in the Full Court of the Federal Court is taken to task for proceeding to decide this case by reference to the interpretation of the convention. ^[25] His Honour is criticised for stating that the convention provides the framework within which the Act in this respect is to be understood. ^[26] The joint reasons state that the "Convention does not provide any of the framework for the operation of the Act. The contrary is the case". ^[27]

[17] Facilitation of international law : I cannot agree with these criticisms. They fly in the face of long-established general principles for the construction of municipal legislation referring to treaty provisions which have been ratified by the nation concerned. They are contrary to the long-standing authority of this court and of other courts of high authority throughout the common law world. They are inimical to the effective participation of this country in the growing body of international, regional and bilateral treaties which substantially depend, in Australia, on municipal law to bring them into local effect. The new approach is harmful to the consistent development of international law. And that law is of critical importance for the protection of the peace, security, human rights and economic progress of all humanity.

[18] We in this court, at this time, should not be hostile to the provisions of international law. After all, the treaty expressing the applicable obligations of international law has been ratified by this country in accordance with its Constitution and the requisite legal procedures and practices. Moreover, the Australian Parliament has incorporated the relevant definition of "refugee" by reference in a municipal enactment, and the validity of that enactment has not been challenged in these proceedings. Hostility is entirely out of place. Facilitation and implementation constitute the correct legal approach.

The facts, legislation and issues

[19] The facts and legislation : The facts of NBGM's case are similar to those in QAAH . They are substantially set out in the joint reasons. ^[28] The important fact is that NBGM was granted a temporary protection visa pursuant to the Act on 24 March 2000 by a delegate of the minister. Accordingly, as at that date, a conclusion had been arrived at, in accordance with Australia's own legal procedures, that Australia owed the applicant protection obligations under the convention as a "refugee" (as defined in Art 1A(2) of the convention). In light of the evidence as to his experiences before leaving Afghanistan, as appearing in the record, the acceptance of the applicant's refugee status was scarcely surprising.

[20] In accordance with the convention, and therefore in accordance with the Act, that status could only thereafter be lost (in a case such as the present) by the operation of the cessation provision appearing in Art 1C(5) of the convention.

[21] The joint reasons explain that on 16 September 2003, a delegate of the minister purportedly refused to grant the applicant a permanent protection visa. The delegate refused that visa, finding that NBGM was not a person to whom Australia had protection obligations. ^[29] NBGM promptly applied to the tribunal for review of the delegate's decision. On 5 April 2004, the tribunal affirmed that decision. It refused to grant NBGM a permanent protection visa. ^[30]

[22] Pursuant to the Judiciary Act 1903 (Cth), NBGM then applied to the Federal Court seeking relief in the nature of a constitutional writ, on the ground of error by the tribunal in its understanding of its jurisdiction. ^[31] The primary judge of the Federal Court (Emmett J) ^[32] refused the relief claimed. On appeal, as has been stated, the Full Court by majority upheld those orders. ^[33]

[23] The applicable issues : The decisional history of the proceedings in the Federal Court is described in the joint reasons. ^[34] The same issues emerge in the divided opinions of the judges in NBGM as have been identified in QAAH . ^[35] They include:

•

The proper approach to the relationship between the Act and the convention for the issues presented in the appeal;

•

The propriety and utility of the use of materials produced by, and submitted on behalf of, the United Nations High Commission for Refugees (the UNHCR);

•

The interrelationship between Arts 1A(2) and 1C(5) of the convention in circumstances where a person has already been recognised as a "refugee" within the convention definition (as NBGM had been);

•

The approach to the establishment of changed circumstances in the country of nationality where this is asserted by the minister as a ground for cessation of "refugee" status; and

•

The availability of relief directed to the tribunal, in any event, on the basis that it had correctly considered, and rejected, NBGM's arguments in terms of the way they are now propounded in this court. ^[36]

[24] Identical issues were argued in QAAH , by reference to the facts in that appeal. There is no need for me, in these reasons, to elaborate the statement of the issues; or to repeat the arguments of the parties or the considerations of authority, legal principle and policy relevant to their disposition in this application.

Conclusion: jurisdictional error is established

[25] Identical resolution of issues : I would resolve all of the foregoing issues in these proceedings in the same way as I have resolved them in QAAH . In my opinion, the majority in the Full Court in QAAH ^[37] approached the issues for decision in the correct way. Most especially, they recognised (as the dissenting judges in the Full Court in NBGM also did), ^[38] that the correct starting point for legal analysis was, in accordance with the Act itself, to understand and apply the accurate meaning of the convention provisions by which the status of "refugee" is defined for international, as well as municipal, law, and hence the circumstances in which that status, having been recognised, may cease, by international and municipal law, to apply to the person concerned.

[26] For the reasons I gave in QAAH , the minority judges in this matter asked the correct questions and came to the correct conclusion in finding jurisdictional error. The majority judges (and the primary judge), by approaching the matter in an incorrect way, and asking incorrect questions, unsurprisingly arrived at erroneous conclusions.

[27] The tribunal decision issue : Only one issue has caused me to pause in reaching this conclusion.

[28] In accordance with the approach that I upheld in QAAH , the tribunal, in NBGM , correctly identified the first question that it had to answer as being posed not (as the minister would assert) as a repeated application of Art 1A(2) but the application of Art 1C(5) dealing with cessation of refugee status. ^[39] The minister now contests that this is the correct approach where questions of cessation arise. However, it is my opinion, for the reasons stated in QAAH , ^[40] that the tribunal was correct in primarily adopting this approach. As I demonstrated in QAAH , this opinion is strongly supported by available materials produced by the office of the UNHCR, by expert and scholarly opinion and by judicial authority in other countries. ^[41]

[29] Can it therefore be said that the tribunal, to this extent, accurately identified the ambit of its jurisdiction and proceeded to exercise that jurisdiction; and that any error which followed was one made within jurisdiction and not one that took it outside its jurisdiction, thus requiring judicial intervention for jurisdictional error? In my opinion, this issue presents the only arguable ground in NBGM's application for refusing special leave or for dismissing an appeal.

[30] In the end, however, I am convinced on this issue (as on the others) by what Allsop J wrote in his dissent in the Full Court. Relevantly, his Honour said: ^[42]

[215] ... The flaw in the approach of the tribunal was its failure to recognise the characteristics of the task before it in assessing whether [Art 1]C(5) led to the cessation of the application of the Convention. The tribunal did not direct itself to, or deal with, the matter exhibiting an appreciation of the need to be satisfied that there had been made out a demonstrably clear and durable change of circumstances to warrant the likely permanent cessation of application of the Convention. This is best revealed by how it treated the killing and beheading of 12 Hazaras by the Taliban in late 2003. The Taliban, it would appear, were still an operating threat in a neighbouring district.

[31] Allsop J then quoted, at some length, from the tribunal's reasons for decision in this case. ^[43] In those reasons, the tribunal described the killing and beheading of 12 Hazaras as "isolated examples". As Allsop J remarked, the reasons given by the tribunal in this respect "exhibit an approach whereby it was for [NBGM] 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". ^[44]

[32] From the text and structure of the convention, ^[45] Allsop J concluded that a clear demonstration of durable change was required to warrant the serious (second) step envisaged by Art 1C(5) of the convention, permitting a conclusion to be reached that the "refugee" status (that had been acknowledged by the initial grant of protection) was now to be treated as having ceased.

[33] In effect, Allsop J's approach to the content of Art 1C(5) of the convention is identical to that accepted by the majority judges in the Full Court in QAAH . ^[46] For the reasons I gave in QAAH , ^[47] this approach was correct. It was not inconsistent with the text of the convention, incorporated in this respect by the provisions of s 36(2) of the Act. On the contrary, the opposite conclusion, now favoured by a majority of this court, is inconsistent with the language, history and purpose of the convention. The majority conclusion is also difficult to reconcile with the policy of the convention that persons accorded refugee status will not be plunged into constant and repeated uncertainty by the grant and later withdrawal of recognition as "refugees", with consequent removal to the country of nationality in potential breach of the basic principle of non-refoulement.

[34] To an Australian decision-maker, in the safety of this country, the established fact that 12 persons of the applicant's particular minority racial and religious identity were killed and beheaded in a district of Afghanistan neighbouring his own might seem an unimportant, "isolated incident". But to a person whose experience had already invoked a "well-founded fear" of persecution, occasioning flight to Australia to seek refuge and official acceptance and recognition of refugee status, such an instance might be indicative of more widespread, systematic violent activity apt to occasion a well-founded fear of continuing persecution. It demonstrates, as Marshall and Allsop JJ concluded in the Full Court, why the tribunal needs to be very sure before deciding that a "change of circumstances" has been established, warranting withdrawal of refugee status and the return of NBGM to his country of nationality.

[35] Conclusion -- jurisdictional error shown : Although, therefore, there are arguments for and against the submission that the tribunal mistook its jurisdiction, I am ultimately persuaded that it did. NBGM's application for judicial review of the tribunal's decision should therefore be upheld. His claim should be returned to the tribunal so that it might, unequivocally, apply the correct standard for cessation of refugee status in accordance with Art 1C(5) of the convention. ^[48] That standard obliges a clear conviction on the part of the tribunal that a suggested change of circumstances has occurred that is "substantial, effective and durable". ^[49]

Orders

[36] The application for special leave to appeal should be granted. The appeal should be allowed. The orders of the Full Court of the Federal Court of Australia should be set aside. In place of those orders, this court should order that the appeal to the Full Court of the Federal Court be allowed; the orders of the primary judge set aside; a writ of certiorari should issue to the Refugee Review Tribunal quashing its decision. The proceedings should be returned to the tribunal with an order that it hear and determine the application before it in accordance with law.