MIMIA v QAAH of 2004 & Anor; NBGM v MIMA

[2006] HCATrans 339

[2006] HCATrans 339

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B2 of 2006

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Appellant

and

QAAH OF 2004

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Office of the Registry
  Sydney  No S145 of 2006

B e t w e e n -

NBGM

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

GUMMOW ACJ
KIRBY J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 19 JUNE 2006, AT 2.18 PM

Copyright in the High Court of Australia

__________________

MR S.J. GAGELER, SC:   If the Court pleases, I appear for the appellant with MR S.B. LLOYD.  (instructed by Clayton Utz)

MR B.W. WALKER, SC:   May it please the Court, I appear with MR M.O. PLUNKETT for the first respondent.  (instructed by Terry Fisher & Co)

GUMMOW ACJ:   Yes, thank you.  There is a submitting appearance for the second respondent which is the Tribunal.  Call the second matter and then we will come back to the question of intervention.

MR G.C. LINDSAY, SC:   May it please the Court, I appear with MR L.J. KARP for the applicant.  (instructed by Legal Aid Commission of New South Wales)

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR S.B. LLOYD for the first respondent.  (instructed by Sparke Helmore)

GUMMOW ACJ:   Putting aside questions of intervention for a minute, we were minded to hear from you first, Mr Gageler, in both matters and then from Mr Walker and Mr Lindsay.  Does that seem suitable?

MR GAGELER:   Yes, your Honour.

GUMMOW ACJ:   Yes, Mr Escourt.

MR S.P. ESTCOURT, QC:   May it please your Honour, I appear with MR J.A. GIBSON on a summons from leave to appear on behalf of the United Nations High Commissioner for Refugees as amicus curiae.  (instructed by Mallesons Stephen Jaques)

GUMMOW ACJ:   Yes.  We have your written submissions obviously and we have read them.  That is to present written and oral submissions, is it?

MR ESTCOURT:   Your Honour, we are not breathless to be heard in such august company but we are ready to be heard should the Court call upon us and we would like our written submissions to be received.

GUMMOW ACJ:   Yes, very well.  We have considered the matter and by majority you have leave to appear as amicus to present the written submissions and, if having heard Mr Gageler, Mr Walker and Mr Lindsay, you are minded to renew any application or to make any application for oral submissions we will deal with that when it is made.

MR ESTCOURT:   Yes, thank you, your Honour.

GUMMOW ACJ:   Yes, Mr Gageler.

MR GAGELER:   Your Honours, may I start with the Migration Act, Reprint No 9, and remind your Honours of the provisions centrally relevant to the appeal and the application before the Court.  If your Honours go to section 29(1), page 34 of the reprint, it ‑ ‑ ‑

GUMMOW ACJ:   Is this the right reprint for both matters?

MR GAGELER:   Yes, your Honour.  It provides that:

Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to -

relevantly-

remain in Australia -

the broader scheme of the Act, as your Honours are aware, being that a non‑citizen in Australia without a visa is liable to detention under section 189 and removal under section 198.  Section 30 then says that:

A visa to remain in Australia . . . may be a visa, to be known as a permanent visa . . . 

or –

a temporary visa –

and section 31(1) and (2) provide for the existence of classes of visa including, relevantly, the class provided for by section 36.  Section 31(3) provides:

The regulations may prescribe criteria for a visa or visas of a specified class –

including, again relevantly, the class provided for by section 36 and extending when section 31(3) is read with section 33(3A) of the Acts Interpretation Act to allow for the prescription of different criteria for visas within different subclasses of that specified class.

KIRBY J:   Which is the provision that provides for visa free entry to Australia for certain nationalities?

MR GAGELER:   I am not sure that there is, your Honour.

KIRBY J:   Visa waiver systems – the United States, Japan and other countries.

MR GAGELER:   Yes, I do not think there is any provision for entry without a visa; there are circumstances in which persons can obtain visas fairly readily but I will check if there is a more specific answer to that.  If your Honours then go to section ‑ ‑ ‑

GUMMOW ACJ:   We have the benefit of a visa waiver system with the United States, for example.  I am not sure it is reciprocal. 

MR GAGELER:   I am not sure either – I will find out the answer to that, your Honour, I just do not know.  If your Honours then go to section 45, it provides that “a non-citizen who wants a visa must apply for a visa of”
a specified class, the validity of that application being governed by section 46.  Under section 47, then, the Minister must “consider a valid application” which brings us to section 65 that your Honours have considered on numerous occasions and section 65 provides that:

After considering a valid application for a visa, the Minister –

must grant the visa, relevantly, if satisfied that the criteria for the visa –

prescribed by this Act or the regulations have been satisfied –

that is section 65(1)(a)(ii), and must refuse to grant the visa if the Minister is not so satisfied – that is section 65(1)(b), a delegate under section 496 and the Tribunal under section 415 being placed by the Act in the same position as the Minister in relation to the function required by section 65.

Your Honours, could I then go back to section 36.  Section 36(1) and (2) your Honours considered in some detail in NAGV 213 ALR 668. Section 36(1) provides:

There is a class of visas to be known as protection visas -

as originally inserted in 1992 – and this by Act No 184 of 1992 – subsection (1) provided there is a class of temporary visas to be known as ‑ ‑ ‑

GUMMOW ACJ:   Sorry, which section, Mr Gageler?

MR GAGELER:   Section 36(1) as originally introduced in 1992 provided there is a class of temporary visas to be known as protection visas.  The word “temporary” was deleted in 1994; it was deleted by Act No 60 of 1994 and the purpose of the deletion as revealed in the explanatory memorandum to the Act in 1994 was so that refugees would be able to, and I quote, “access permanent residence in Australia”.  The effect of the amendment in ‑ ‑ ‑

KIRBY J:   Could I just ask you to pause there.  I have a recollection that there was at some earlier stage before the 1990s some more specific reference to the Convention and the Act was not there and the Convention was annexed to the Act.  Is that right or wrong?

MR GAGELER:   There was a more specific reference, yes.  The history is actually surveyed pretty thoroughly in your Honour’s judgment but also in the joint judgment in NAGV.  But, your Honour, yes, I do not think the Convention was ever annexed to the Act.

GUMMOW ACJ:   No, it has been a cause of awkwardness for years that it is not.  Anyhow, we have it at the moment in the materials, I think.

MR GAGELER:   Your Honours do.

GUMMOW ACJ:   Under tab 26.

MR GAGELER:   Your Honours have it several different forms.  Your Honours have it in our materials behind tab 26 and I am going to go to it in just a little while.

GUMMOW ACJ:   But, anyhow, we took you off your course.  Where were you going?

MR GAGELER:   Your Honours, I had got to 1994, the word ‑ ‑ ‑

GUMMOW ACJ:   Then the temporary business came back in 1999, did it not?

MR GAGELER:   No, not in the Act, in the regulations.

GUMMOW ACJ:   I see.

MR GAGELER:   What happened was that the deletion of the word “temporary” in 1994 had the effect of leaving it to the regulations to determine whether visas or a particular subclass or subclasses of visas falling within the description in section 36(1) would be temporary or permanent.  What happened, in fact, was that between 1994 and 1999 protection visas were all permanent visas and then in 1999 the regulations were amended, in fact, took effect from 20 October 1999, to take what in substance has remained their form since then and that is to create two subclasses of the class of protection visas for which section 36(1) provides.

Those two subclasses are a permanent protection visa, the criterion for the grant of which is that a person be lawfully in Australia – the terminology is “immigration cleared at the time of application” – that is a criterion for the grant of a permanent protection visa and a temporary protection visa that is available to a person who is not immigration cleared at the time of application.  If granted, a temporary protection visa remains in effect for up to three years or until determination of any subsequent application for a permanent visa.  In circumstances where a person with a temporary protection visa applies for a permanent protection visa, it is a criterion for the grant of the permanent protection visa that the person have held the temporary visa for a period, usually 30 months.

GUMMOW ACJ:   Is there not a sunset to the permanent visa as well?

MR GAGELER:   No, there is an ability to remain in Australia permanently.  That is the effect of the permanent visa.

CALLINAN J:   And to apply for citizenship after a certain time, but it is under the Citizenship Act?

MR GAGELER:   That may be so.  The visa has two aspects ‑ ‑ ‑

GUMMOW ACJ:   I am looking at page 131 of the application book in the matter that Justice Kirby referred here, NBGM, which is Justice Allsop’s judgment.  At line 1, paragraph 194 it says “five years”.

MR GAGELER:   That is not quite right.  We probably should have corrected that and there is a misconception in some of the other judgments.  The period of five years relates to the ability to enter and return to Australia.  Your Honours will recall that visas cover two things, remaining in Australia and travelling to and entering Australia.  The five‑year period is the travel to and enter Australia.  The visa so far as it relates to remaining in Australia is permanent.  It does not have a five year time ‑ ‑ ‑

GUMMOW ACJ:   I see, and then after five years you go out, you might not get back.  Is that right?

MR GAGELER:   You have to get another visa.  You have to get a resident return visa if you are going to do that.

KIRBY J:   That is in short of five years.  Within the first five years you cannot come and go but after the first ‑ ‑ ‑

MR GAGELER:   Within the first five years you can come and go, but after five years, if you still find yourself on a permanent protection visa and you have not obtained some other visa or become a citizen, you will need to obtain another visa if you want to leave Australia and get back again.

KIRBY J:   So the theory of it is that you become naturalised?

MR GAGELER:   That is the theory.  Once you obtain a permanent visa then ‑ ‑ ‑

GUMMOW ACJ:   And paragraph 192 on page 130 dealing with the temporary visas, any inaccuracies there?

MR GAGELER:   No.  Your Honours have been given the regulations in our material but I did not want to take you to the details.  It is a little tedious.

GUMMOW ACJ:   Thank you.

KIRBY J:   Is this the only place in the Act where the word “protection” is used?

MR GAGELER:   In the Act, no.  There are other provisions relating to protection visas, but this is the fulcrum for all the provisions that ‑ ‑ ‑

KIRBY J:   In other words, is “protection” only used in the context of refugees?

MR GAGELER:   Yes.

KIRBY J:   Where does that word come from?  Is that a word in the Refugees Convention?

MR GAGELER:   No, I do not think it comes from the Refugees Convention itself.  It is used in section 36(2) which I will need to come to, your Honour, to describe at least certain of Australia’s obligations under the Refugees Convention.  If I can just explain, your Honours, the purpose of the amendment to the regulations that occurred in 1999.  Its purpose is explained in the explanatory statement that was prepared at the time.

We have given your Honours a copy of that as well, but it is extracted in our written submissions in NBGM in paragraph 30 and the purpose was to exclude unauthorised arrivals from having immediate access to protection visas which provide for permanent residence, and the significance of that again, matter of detail, is that the absence of permanent residence carried with it under the regulations an inability to sponsor family members making Australia obviously a less attractive destination than it might otherwise have been.

KIRBY J:   I do not think your answer to my question was quite right there.  The word “protection” is used in the Convention.  It is, for example, used in paragraph D in the definition.

GUMMOW ACJ:   It is in the definition.  It talks about protection of country and nationality or the lack of it.

KIRBY J:   It talks of:

When such protection or assistance is ceased for any reason -

in D.  It looks as if it is a Convention word.

MR GAGELER:   Yes, your Honour is right.  It is used in the Convention.  Your Honours, a criterion ‑ ‑ ‑

GUMMOW ACJ:   But is one right in thinking that as the Act stands for this case the Convention is in terms brought in only through the regulations?

MR GAGELER:   No, the Convention is in terms brought in through section 36(2)(a).

GUMMOW ACJ:   Yes, thank you.

MR GAGELER:   When we say the Convention of course we mean just the definition of “refugee” that appears in Article 1 of the Convention.  That was the interpretation afforded to section 36(2)(a) in NAGV, paragraphs [42] and [43].  Your Honours held that the reference in section 36(2)(a) to a person to whom Australia has protection obligations under the Convention is a person to whom the definition in Article 1 of the Convention applies.  The criterion in section 36(2)(a) importing the whole of the definition in Article 1 of the Convention remains a criterion prescribed for the grant of both classes of protection visa, a temporary protection visa and a permanent protection visa.  Your Honours, the question that arises in ‑ ‑ ‑

GUMMOW ACJ:   Just before you go to that, Mr Gageler, the power to cancel in section 116, is there any statement in those sections around 116 as to the significance of the power to cancel?  I suppose it turns one back to section 15, does it?

MR GAGELER:   Your Honour needs to read 116(1)(a), which allows for a cancellation if satisfied that circumstances permitting the grant “no longer exist”, with the qualification to that in section 117(2)(b).  So a permanent visa cannot be cancelled under section 116 if the holder was “immigration cleared” ‑ that is, lawfully in Australia – “on last entering Australia”.  So the effect of that is once you have a permanent visa it is not going to be cancelled under section 116.

GUMMOW ACJ:   That is 117(2)(b)?

MR GAGELER:   Yes.  Your Honours, the question that arises in QAAH is given that the grant of a temporary protection visa involves recognition of a person as a refugee under Article 1A(2) of the Convention, whether Article 1C(5) of the Convention requires some different test or perhaps different onus to be applied in granting or refusing a subsequent application for a permanent protection visa.  Our answer to that question – if I can state it in a nutshell and develop it in due course – is that for the reasons stated most succinctly by Justice Emmett and Justice Stone in NBGM the answer is, no, and the answer is really in two parts.

The first part is that on the proper construction of Article 1A(2) and Article 1C(5) they express in different words the same substantive requirement and that requirement is to be a refugee a person must have a current well‑founded fear of persecution for a Convention reason.  That is the first part of the answer, and the second part of the answer is that as imported into the Act by section 36(2) as a criterion for the grant of a protection visa, the question that arises for the Minister, for the delegate or the Tribunal, as the case may be, under section 65 of the Act is in all cases in substance the same, and the question is:  “Am I satisfied that this applicant at this time has a well‑founded fear of persecution?”

Now, your Honours, the additional question that arises in NBGM is a separate and purely statutory question and it concerns the effect of section 36(3) and (4) of the Act.  Those subsections had been inserted by the time your Honours came to decide NAGV but they were not material to the issues raised by that case.  They were inserted with effect from 16 December 1999, that is, within two months of the change to the regulations that I have referred to.  They were inserted by Act No 60 of 1999, the Border Protection Legislation Amendment Act.

Your Honours, our answer to that additional question that is raised in NBGM is that essentially for the reasons most succinctly stated by Chief Justice Black and Justice Mansfield in NBGM, whether or not it accords with the Convention definition of “a refugee” for the purposes of the Act and, in particular, for the purpose of applying under section 65 the criterion referred to in section 36(2)(a) - and here I am picking up the language of section 36(3):

Australia is taken –

that is, deemed -

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 -

another country – importantly, after the comma, including a country of that person’s nationality.  That is qualified by subsection (4).  Relevantly, one can add unless the person “has a well‑founded fear of” persecution for a Convention reason.  The way that is achieved very simply, subsection (3) applies with automatic deeming effect unless the application of subsection (3) is excluded relevantly by subsection (4).

Now, the applicant suggests that there is some narrower purpose to deal only with third countries.  That emerges from the explanatory material and that those provisions should be read down.  In our submission, no such narrower purpose emerges from the explanatory material.  Looking at the explanatory material one gets a sense that Parliament intended the words to mean what they say, but in any event the language, in our submission, is unambiguous and therefore should not be read down.

GUMMOW ACJ:   Does not the case simply turn on 36(2), “A criterion ‑ ‑ ‑

MR GAGELER:   QAAH turns exclusively ‑ ‑ ‑

GUMMOW ACJ:   Both of them:

A criterion for a protection visa is that the applicant for the visa is:

(a)a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations ‑ ‑ ‑

KIRBY J:   But as I understand it, the reading that is suggested is that if you read that and a temporary visa has been granted on a basis that the person is a refugee and thence has protection, we have protection obligations to them that that decision has already been made, and the only way to unmake it is to resort to 1C(5).

MR GAGELER:   QAAH of course, only turns on section 36(2)(a) as importing Article 1 of the Convention.  There are two ways in which the other case, NBGM, can be decided.

GUMMOW ACJ:   What are they?

MR GAGELER:   The Tribunal acted in the alternative under section 36(2)(a) applying Article 1C(5) as one alternative, and then under section 36(3) and (4) as a separate alternative.  It really quite specifically made alternative findings.  But your Honour’s question, going back to section 36(2)(a), is it sufficient that (2)(a) uses the present tense, we do not think that we can go that far because (2)(a) takes one, using the present tense, to Article 1 of the Convention which itself speaks in the present tense, but one still has to find that the person currently falls within Article 1 of the Convention.

GUMMOW ACJ:   Yes, but at the time you are asking the question?

MR GAGELER:   Yes, that is right.

GUMMOW ACJ:   The time you are asking the question is when there is an application on the table for a protection visa.

MR GAGELER:   Yes, and we say that is entirely consistent with the Convention which also speaks at the present, yes.

KIRBY J:   But on the argument of the respondent it is that the Convention speaks in the present, but on an assumption of one decision and, if you have made that decision, the only way to unmake it is to invoke 1C(5) and that you read the Act with the Convention, that being the standard way of reading an Act of the Australian Parliament which is designed to carry into force in this country an international treaty.

MR GAGELER:   Yes.  Your Honour, the argument of the respondent in substance is that once a person has been recognised as a refugee, that is a status which under the Convention the person retains until Article 1C(5) requires that status to cease to apply.  For Article 1C(5) to require the status to cease to apply, one, it appears it must be in some way formally invoked by a State and, two, once invoked it requires the State to assume some burden of demonstrating a significant and enduring change in the circumstances of that person, and that test is something different from being simply the flipside of saying that the person has a well‑founded fear of persecution.  That is the argument that I really need to meet.

KIRBY J:   Your theory is that the scheme of the Act means with the temporary visas in Australia that you never got out of 1A(2)?

MR GAGELER:   I am sorry, the scheme of the Act, looking only at sections 36(3) and (4) is, without needing to bother with the precise interpretation of the definition in the Convention, for both classes of visa you need to find a present well‑founded fear of persecution to get the visa.  That is the effect of subsection (4), in our submission, but quite separately from that, in our submission, when one goes through section 36(2)(a) to the Convention, on the proper interpretation of the Convention what one finds ‑ ‑ ‑

GUMMOW ACJ:   You say, to the Convention, but what ‑ we are talking about a definition all the time.

MR GAGELER:   Yes, to the definition in the Convention, I am sorry, your Honour.

GUMMOW ACJ:   What obligations under the Convention are discharged through this system under the Act other than 33?

MR GAGELER:   Through the grant of a protection visa, none, and that is an important aspect of our case.

GUMMOW ACJ:   For example, take Article 3 or Article 4, there is nothing about non‑discrimination, nothing about rights of religion.

MR GAGELER:   No.  The effect of the grant of a visa is to prevent the return or expulsion of a person and therefore to prevent the circumstances to which Article ‑ ‑ ‑

GUMMOW ACJ:   As an unlawful non‑citizen?

MR GAGELER:   Yes, as an unlawful non‑citizen, which would otherwise be required to occur under the Act.  So the only aspect of the Convention to which the Act through the grant of a visa speaks is Article 33, and therefore, whether or not ‑ ‑ ‑

GUMMOW ACJ:   Is that disputed by your opponents, do you know?  I could not quite work it out on their written submissions.

MR GAGELER:   I should include 32 and 33, which are really ‑ ‑ ‑

GUMMOW ACJ:   Article 32?

MR GAGELER:   Article 32, “EXPULSION”, and 33.  I think it may be disputed by the applicant in NBGM, your Honour.

KIRBY J:   The refugee there is equivalent, as this Court has said, a person to whom protection obligations apply.

MR GAGELER:   That is right, yes.  But, your Honour, the point is this, that if section 36(3) and (4) are interpreted in the way that we suggest they should be interpreted, that is, literally, and that produces a result that a person may be a refugee within the Convention but not obtain a protection visa under Australian law, that is if there is a disconformity, then in between the Convention definition and the circumstances in which a person can obtain a protection visa in Australia, it is not a disconformity which can produce any breach of any obligation by Australia under this Convention.

KIRBY J:   Do you submit that the Australian regulations are consistent with the Convention?

MR GAGELER:   We submit two things.  We submit that the only effect of granting a visa under the Act is to ensure compliance with Australia’s obligation under Article 33 and perhaps 32.  That is the only obligation that comes into play at all, and I think otherwise in answer to your Honour’s question, we would submit, in any event, that the point that is reached under section 36(3) and (4), that is, of requiring a person to have a current “well‑founded fear of” persecution to be able to obtain a protection visa, whether it be a permanent protection visa or a temporary protection visa, is one that accords entirely with the definition of “refugee” in Article 1 of the Act, that is, in our submission, on a proper interpretation one must have the current well‑founded fear to be a refugee within Article 1 of the Convention.

GUMMOW ACJ:   What is the relation – I do not know the answer to this, that is why I am asking it, I suppose – what is the relation between Article 33(2), which talks about security dangers and serious crimes, and paragraph F of the definition?  We do not have to solve it in this case, but it seems odd drafting.

MR GAGELER:   Yes, Mr Lloyd suggests that paragraph F, there may be a different temporal aspect to paragraph F and section 33(2).

KIRBY J:   Paragraph F is at the gateway, is it not, when you are getting recognition as a refugee and 33(2) is later on when you are past the gateway but you turn out to have, security or other reasons, been unwelcome.

MR GAGELER:   Yes.  Your Honours, we do not have to resolve it in this case and I do not think I can resolve it on my feet, but if I have a better answer I will, on reflection, give it to your Honours.

GUMMOW ACJ:   All right.

KIRBY J:   Do you know, are there any other countries that have temporary protection visas?  It is said that in some of the material that there are, as it were, broad protection visas for very large numbers, but that our individual protection visas are unique.  Is that correct or not?

MR GAGELER:   I think it to be correct.  I will take precise instructions on that, your Honour.

KIRBY J:   Because the suggestion, as I understand the submissions, is that it is unique because it is cutting across what is the scheme of the Convention which is that if it is decided that you have a well‑founded fear and therefore are owed protection visas, and the scheme of the Convention is that you then can only lose that status, not because of the passage of three years, but if you are a refugee in international law, once that is established and accepted, that you only then can lose it by invoking, amongst other things, 1C(5), and that therefore, if that is the scheme of the Convention, and that is what is a refugee in international law, we would endeavour to read the Australian Act and regulations so as to not get a discordancy between our law and the international law of refugees.

MR GAGELER:   Yes.  Your Honour, to repeat myself really, three answers to that.  One is that is not the proper construction of the Convention.  Secondly, in any event, the statutory language is clear and, thirdly, even if it were the proper construction of the definition provision in the Convention, there would be no breach of any relevant Convention obligation by refusing ‑ ‑ ‑

KIRBY J:   So 1 and 3 are it conforms with the Convention, on the proper construction of the Convention, but No 2 is, if it does not conform, too bad.  You apply the Australian law, is that it?

MR GAGELER:   It conforms with the Convention, correct and 2 is – I would not put it in those words, your Honour.

KIRBY J:   No, you might not put it that way, but that is the essence of it?

MR GAGELER:   In substance, yes.  Your Honours, can I make good, I hope, the first of those propositions by taking your Honours to the Convention.  In the appellant’s materials behind tab 25 we are concerned, of course, with Article 1 which alone is picked up by section 36(2)(a) of the Act, and Article 1 itself is concerned only, if I may put it this way, with definition not obligation, and with substance not procedure.  By that I mean that Article 1 does no more than to set out a definition for the purpose of the obligations that otherwise appear in Articles 2 to 34 of the Act.

The definition that it sets out is one that is stated in substantive or objective terms, it being contemplated by Article 9 of the Convention that the determination of whether a “person is in fact a refugee” – that is the language of Article 9 – will be a matter for a “Contracting State” and recognition of a person as a refugee – to use the language of Article 1 itself – recognition of a person as a refugee, simply in our submission, within the scheme of the Convention, being recognition of an existing state of fact, not the conferral of some right or status.

Your Honours may also note that it is no part of the Convention to govern the process or procedures by which the determination referred to in Article 9 will occur.  That is something that is simply beyond the scope of any obligation laid down in the Convention.  Going then to the structure ‑ ‑ ‑

GUMMOW ACJ:   Looking at Article 9 then, the words “pending a determination by the Contracting State” do not posit any particular method or procedure for determination?

MR GAGELER:   No, that is correct, yes.

GUMMOW ACJ:   It might be purely administrative and I imagine in very many countries it is.

MR GAGELER:   Yes, it can take any number of forms.  It could even be judicial depending on the domestic system of law.

KIRBY J:   But depending on the construction point, if 1C(5) requires a different, separate and later decision to take away that which has been decided giving a person refugee status in international and national law, then the procedures would be governed by that aspect of the Convention.

MR GAGELER:   By that aspect of Article 1 ‑ ‑ ‑

KIRBY J:   You have to do it in two bites.

MR GAGELER:   That would be the consequence, your Honour, yes.

KIRBY J:   Can I just ask a question there, and I am not clear of this because there is an awful lot of material to read with the added case.  I am not sure whether or not it is your submission that if the construction is as the respondents put it that even then the majority or the Full Court has applied 1C(5).  In other words that there has been specific attention in the manner required by 1C(5) to whether or not there is an established firm change of circumstances in Afghanistan that would conform to 1C(5).

MR GAGELER:   Yes.

KIRBY J:   The grounds of appeal do not seem to – in one case – I am not sure which ‑ ‑ ‑

MR GAGELER:   In QAAH we do not put it on that basis.  In NBGM we do – that is, if you look at the findings of the Tribunal in NBGM, even on the individual – in that case the applicant’s construction of Article 1C(5), what the Tribunal did was enough.

KIRBY J:   Perhaps at the end of your argument if you would come to that because that, in a sense, is a fourth issue that has to be decided if it is within the grounds of appeal.

MR GAGELER:   Yes.

KIRBY J:   I looked at the grounds of appeal in one of them and it did not seem to be within the ‑ ‑ ‑

MR GAGELER:   We have not raised that in QAAH.  We have kept the issue with a level of generality.  Your Honours, can I deal with the structure of Article 1 of the Convention.  It is relevantly only sections A and C with which we are concerned.  What your Honours will see in section A, the definition of “refugee” applies automatically to two distinct categories of person.  They can be described in a shorthand way as historical refugees and current refugees, that is by section A(1), the Convention definition applies to a person who has “been considered a refugee under” a previous international agreement there specified, but under paragraph (2) it applies only to a person who is – present tense –

unable or . . . unwilling –

for a Convention reason -

to avail himself of the protection of that country –

of his nationality.

KIRBY J:   Well, A(1) is spent, now, I assume, is it?

MR GAGELER:   Unless there are some very old people who are left, for practical purposes A(1) is spent, but its presence is highly significant, your Honours, to the construction of C and by section C the Convention then ceases to apply automatically to any person falling within either or those two categories in section A if the person meets the description in any of paragraphs (1) through to (6).

GUMMOW ACJ:   The phrase in C “This Convention shall cease to apply” is awkward, is it not?

MR GAGELER:   It is awkward, yes.

GUMMOW ACJ:   You can see in there the germs of an argument for an accrued right‑type situation.

MR GAGELER:   It can be explained historically.  That sort of language had appeared at least in the last of the instruments referred to in paragraph A(1), that is the Constitution of the International Refugee Organisation and it is understandable that in putting together this definition elements of the earlier drafting had been carried over.  I will say something to your Honours a little later about the draft history, but it is an awkward provision.

What one can see if one looks for a moment at section C(1) to (4) is that there can be no doubt that those provisions are self‑executing, that is, they do not in their terms need to be invoked against a person.  They carry no element of onus and they refer to factual scenarios that either exist or do not exist and there is also no doubt that if you look at paragraphs (1) through to (4) they provide that a person “shall cease” to be a refugee in circumstances where applying Article 1A(2) those circumstances would stop the person being inside that description in any event, that is, they express very much the converse of the situation that is brought within Article 1A(2).  They obviously have more work to do in respect of Article 1A(1) refugees.  In respect of Article 1A(2) refugees they expressed not much different from the converse of Article 1A(2) itself.

CALLINAN J:   The proviso, Mr Gageler, to (5) would appear fairly clearly to cast the onus there on the refugee.

MR GAGELER:   On the refugee.

CALLINAN J:   Because it refers to his invoking “compelling reasons”.

MR GAGELER:   Yes.  There may or may not be a question of onus.  There are two ways of reading that, your Honour.  One is to read it as simply referring to an existing state of affairs, so as a person “who is able to invoke compelling” circumstances rather than referring to an actual implication.

CALLINAN J:   Except it is a proviso to (5), is it not?

MR GAGELER:   Yes.

CALLINAN J:   It is not a proviso to the rest, is it?

MR GAGELER:   No.  It is actually a proviso to one aspect of (5), and that is quite important.  If you look at (5) we say they are to be read really in the same way as (1) to (4).

KIRBY J:   Why does that proviso cross‑refer to A(1) which is the historical treaties?

MR GAGELER:   Yes, that is the point.  Article 1C(5) refers to the whole of the definition so when you read the words:

the circumstances in connection with which he has been recognized as a refugee –

you are reading a deliberately generic expression which covers 1A(1) refugees and 1A(2) refugees, but when you get to the proviso, the proviso covers only 1A(1) refugees.  They are the historical refugees.  So if there is any element of onus in that case, it is one that is confined to those historical refugees, your Honours.  The result of Article 1C(5), leaving out the proviso which has no application to Article 1A(2) refugees, is that if and when the circumstances in connection with which a person has previously been recognised as a refugee under Article 1A(2) have ceased to exist, that is when the person no longer has a well‑founded fear of persecution within the meaning of Article 1A(2), the Convention ceases to apply.

In our respectful submission, that is the simple effect of Article 1C(5) in respect of a person previously recognised as an Article 1A(2) refugee.  Putting it in very simple terms, Article 1C(5) is the mirror image.  It expresses the negative corollary of the requirement of Article 1A(2) that to be a refugee a person must have a current well‑founded fear.  Indeed, in our submission, that requirement is a manifestation of a broader intention that the obligations imposed on a contracting State by the Convention should exist for only so long as they are needed in a particular case.

Now, in our submission, that approach to the construction of the Convention is supported by such authority as exists in this Court and in the House of Lords.  In our submission, Hoxha has been to some extent misinterpreted in some of the judgments in the court below.  It is supported by the drafting history and it is also supported by some, perhaps not all, of the writings of the UNHCR.  Can I attempt to deal with the material in that order.  If your Honours could look to the two authorities.  The first is Chan 169 CLR 379 in this Court and the second is Hoxha in the House of Lords. 

GUMMOW ACJ:   Was this issue of temporal character before the Court in Chan?

MR GAGELER:   Not exactly, nor was it really before the court in Hoxha but they are very, very similar cases, your Honour.  Given the weight that has been attached to some of the dicta in Hoxha in the judgment below it just bears spending 10 minutes on the two cases in a combined way.  Chan and Hoxha are very similar cases in many ways.  In each case it was accepted that the person concerned, when he left his country of nationality, had a well‑founded fear of persecution within the meaning of Article 1A(2) and in each case it was argued that the consequence of that past or historical well‑founded fear of persecution meant that the person had acquired the status of a refugee under Article 1A(2) and had not lost that status under Article 1C(5).  That was the argument that was put.

GUMMOW ACJ:   What does the word “status” mean in this connection?

MR GAGELER:   We say it means nothing more than the fact of falling within the definition, nothing more than that.  But that was the argument that was put.  In the case of Mr Chan it was said that Article 1C(5) had simply not been thought about by the delegate and that was enough to show error in the case of Mr Hoxha and the argument was incredibly ambitious in the House of Lords.  The argument was, well, despite being expressed only to apply to Article 1A(1) refugees, there was at least a binding State practice that said the proviso applied also to Article 1A(2) refugees.  So, having been a 1A(2) refugee, he remained within the Convention because of the proviso to Article 1C(1).

GUMMOW ACJ:   We need to understand, I think, how the Convention intersected with the then municipal law of the United Kingdom.

MR GAGELER:   To some extent, your Honour, although I think I can present the arguments by reference to the Convention itself, but in each case those arguments, it is important to recognise, were unanimously rejected.  In the judgments in both Chan and Hoxha in our submission what one sees is two strands of thought which, in our submission, are not in tension, neither dominant and both reflect different aspects of the language of Article 1C(5).

One strand of thought is you do not get to Article 1C(5) in the absence of prior State recognition, that is some formal Act on the part of the State recognising the person as a refugee at a prior point in time.  That is one strand of thought.  The other strand of thought that one finds in both cases is that even if you get to Article 1C(5) then, absent the proviso, the test is the same as for Article 1A(2).  If I can deal with that, first, in Chan 169 CLR 379 we think it is the first strand alone that one finds in the judgments of Justices ‑ ‑ ‑

GUMMOW ACJ:   Just remind me what the first strand is again?

MR GAGELER:   That is to say you do not get to Article 1C(5) at all unless you have prior State recognition, that is, “has been recognized as a refugee” means has been recognised by the contracting State as a refugee in the past.  It is not sufficient to get to Article 1C(5) simply to point out that at some time in the past one has in fact fulfilled the definition in Article 1A(2).

KIRBY J:   But is not the theory here that by decision in order to grant the temporary visa that the Minister has recognised the status of the person as a refugee in international law and that status does not change?  Just because we have ‑ ‑ ‑

MR GAGELER:   We accept part of that.  We accept that in circumstances where the Minister or a delegate has granted a temporary protection visa on the basis of being satisfied that a person meets the definition in Article 1A(2) there has been recognition of the person as a refugee within the meaning of Article 1C(5).  We accept that, yes.  That is the first strand of the reasoning in Chan and the second strand, as I said is, really which is what this case is about, once you get to Article 1C(5) the test is the same as for Article 1A(2), in any event.

In Chan, the first strand alone, we think, one finds in the judgment of Justice Gaudron at page 414 and the judgment of Justice McHugh at page 432, but the second strand as well, in our submission, emerges in the judgments of Justice Toohey at page 405 and Justice Dawson at page 398.  Can I take your Honours very briefly to those two passages.

KIRBY J:   Can I just get clear your answer to the question a few minutes ago?  You accept that where for the purposes of Australian temporary protection visas a person is granted that visa, that person has been recognised as a refugee?

MR GAGELER:   Yes.

KIRBY J:   The only occasion, as I understand it, where that phrase “has been recognized as a refugee” appears in the Convention definition is in C(5), the first paragraph, and at least ‑ ‑ ‑

MR GAGELER:   To be precise, and (6), your Honour.

KIRBY J:   At least textually, one would then think that the scheme of the Convention which one would assume Australian law is mirroring is to provide that where that recognition occurs it will not be derecognised except in accordance with the Convention under C(5) that “the circumstances . . . have ceased to exist” and that you do it in that category as distinct from A(2).

MR GAGELER:   Your Honour, we say that in doing it in that category, that is, asking whether the circumstances in connection with which the person has been recognised as a refugee has ceased to exist one asks, first, what are the circumstances in which the person has been recognised as a refugee?  Answer:  the circumstances of that person having a well‑founded fear of persecution for a Convention reason.  The question then becomes, does that person’s well‑founded fear of persecution continue to exist or has that well‑founded fear ceased to exist?  The question under Article 1C(5) is just the converse of the question under Article 1A(2).  That is the answer, and it is no more complicated than that.

KIRBY J:   I am not sure that it is the answer and I am trying to understand the practical difference between you and the refugee applicants because at least on one view the Tribunal in both cases did go through a type of – maybe an imperfect type of – 1C(5) exercise.

MR GAGELER:   Yes.

KIRBY J:   And, because they asked, “Well, now, is the Taliban still in - he was granted the temporary visa on that basis, “Is the Taliban still in control?”  “Well, it is in little pockets but it is not in general control” and so on.  I am just trying to understand if the applicants win, as against the Minister, what is the practical difference for the way the Tribunal deals with a particular case?

MR GAGELER:   In our submission, it is sufficient when one is under Article 1C(5) as when one is under Article 1A(2) to ask and answer the question, “Am I satisfied that this person currently has a well‑founded fear of persecution?”  On the respondent’s view ‑ ‑ ‑

KIRBY J:   Justice Wilcox used a phrase – he said it is not legal onus but it has to be comfortably satisfied although there was an adjective which suggested that it was a strong satisfaction because you are taking away a status which has been recognised and it is an international law status.

MR GAGELER:   Yes, which in our submission is the wrong way of looking at it, but, in practical terms, in an attempt to answer your Honour’s question, what I think the respondent in the appeal and the applicant in the special leave application are saying is that when you get to 1C(5) the inquiry is different as a matter of substance and different as a matter of procedure.  As a matter of substance I think they say that the inquiry is whether there has been a fundamental and durable change in the country of nationality.

CALLINAN J:   Did he not say, “substantial, effective and durable”?

MR GAGELER:   That is one formulation, your Honour, yes.

CALLINAN J:   And there had to be positive evidence.

MR GAGELER:   The two aspects of it, yes.

KIRBY J:   That “substantial and durable” seems to be the language of the international scholars and others who looked at this issue.

MR GAGELER:   Your Honour, we do not have any difficulty with it but it really begs the question of how substantial and how durable and when you analyse that, substantial enough to remove a real chance of persecution and durable ‑ ‑ ‑

GUMMOW ACJ:   You say it is not much different from what Chan said?

MR GAGELER:   And durable enough to exist into the foreseeable future.  It is the exact converse of the circumstances which Article 1A(2) say make a person a refugee.  There is no difference in substance.

KIRBY J:   There is this difference and this, I think, was relevant to the views of Justice Wilcox, Justice Madgwick and Justice Allsop, that you have to recognise that you are taking away a status which has been accepted and recognised by an Australian official and that that is a serious step.

MR GAGELER:   Your Honour, that is part of the problem.  It is, in our submission, a fundamentally wrong way to read the Convention and certainly to read the Act, to treat recognition of a person as a refugee under the Convention as conferring some status on a person.  It simply does not.  Under the Act, the process of granting a visa has a very limited effect, the effect I have already explained.  It is wrong to read the Act and the Convention as being concerned with taking away a status.  It is simply wrong.

Your Honours, I was about, I think, to come to Justice Toohey in Chan at page 405 and given the little time that I have I will not read the entirety of the passage.  It is the passage that begins at the middle of the page:

In effect the appellant was saying:  “Once a refugee, always a refugee”, subject to the cessation ‑ ‑ ‑

KIRBY J:   What page is this, I am sorry?

MR GAGELER:   Page 405, 169 CLR.  That captures the essence of the argument that was being put and your Honours will see the response of Justice Toohey towards the bottom of that page invoking the joint judgment in Mayer.

GUMMOW ACJ:   Have you set out these extracts – all of them – in your submissions?  I am looking at paragraph 28 which seems to give Justice Dawson and Justice Toohey but not the other judges.

MR GAGELER:   No, we did not set out the other judges.

GUMMOW ACJ:   All right.

MR GAGELER:   The other judges deal with the other strand that is not presently relevant, your Honour.  I thought I should draw your Honours’ attention to them.

GUMMOW ACJ:   Yes, I think so.

MR GAGELER:   Yes, and I have done so, in any event.  My point is, they are not contradictory.  They are dealing with different aspects of the same article.  Justice Dawson at the bottom of page 398 – if I can pick up the last three lines of 398 to the top of the next page where, after referring to Article 1C(5) and one aspect of it, it is said:

Similarly Art. 1C speaks of the circumstances in connexion with which he has been recognized as a refugee having ceased to exist, suggesting that refugee status under the Convention may come and go according to changed conditions in a person’s country of nationality and is to be determined according to existing circumstances whenever a determination is required.  This view, which appears to me to be correct, was adopted by the majority in Minister for Immigration and Ethnic Affairs v Mayer –

In essence, that captures, in our submission, the correct construction and also captures correctly the view of the majority in Mayer.  Your Honours will see that, 157 CLR.  The case begins at page 290 and the relevant passage, in addition to the longer passage at page 302, your Honours will find at page 300.  At page 300 at about point 2 of the page what is said in the joint judgment is this:

There is nothing in the Convention or Protocol which expressly or impliedly calls for a general determination by a State Party that a person enjoys the abstract “status of refugee within the meaning of” the Convention or Protocol.  The most that the Convention and Protocol do is to require that a State Party determine whether or not a person who is within or is claiming or seeking entry to its territory is a “refugee” at the particular time and, if he or she is, to define what that State’s actual obligations are in respect of that particular person in the particular circumstances in which he or she is placed.

That is Chan.  Can I go very briefly, your Honours, to Hoxha?  What one finds, as in Chan, in Hoxha is again those two strands of thought, you do not get to Article 1C(5) in the absence of prior State recognition - one sees that in Lord Hope’s judgment – but the strand that says even if you do get to Article 1C(5) the test is the same as for Article 1A(2), in our submission, one finds elements of in Lord Hope’s judgment.  One finds it strongly in Lord Brown’s judgment and, significantly, the other members of the House of Lords agreed with both.

Hoxha, your Honours have, I hope, [2005] 1 WLR 1063. I ask your Honours to turn to 1066. In the speech of Lord Hope there is, very usefully, a reference to the drafting history of the Convention in paragraph 10 and paragraph 11, flowing through to paragraph 12. I do not have time to read any of that. It is said in the last three sentences of paragraph 12:

It is plain from the drafting history that –

a certain step:

was no accident.  The appellants are unable to establish a current well‑founded fear, so they are unable to bring themselves within the wording of article 1A(2).

13       A similar approach was taken to the cessation provisions which were derived from the Statute.  As Lord Lloyd of Berwick observed in Adan . . . the cessation provision in article 1C(5) takes effect naturally when the refugee ceases to have a current well‑founded fear.  This is in symmetry with the definition in article 1A(2) -

and so on.  The quotation or the reference to the passage in the speech of Lord Lloyd in Adan your Honours will find set out ‑ ‑ ‑

GUMMOW ACJ:   Just before we leave Hoxha, I am still at a loss to find out what was the municipal law their Lordships were construing?

MR GAGELER:   Yes, it certainly does not emerge from the ‑ ‑ ‑

GUMMOW ACJ:   They seem to have just jumped into the Convention.

MR GAGELER:   Yes.

KIRBY J:   They assume that we know it as well as they do.  No doubt like us they have had lots of it.

MR GAGELER:   Your Honours, we will see if we can take that further.  There is no guide to it in the ‑ ‑ ‑

CALLINAN J:   Lord Hope says at paragraph 8 a starting point ‑ ‑ ‑

MR GAGELER:   The words of the Convention itself, yes.

CALLINAN J:   I would not have thought it was.  I would have thought municipal law was the starting point.  Mr Gageler, I do not want to interrupt you, I do not know whether this was in issue, but there is just something in Justice Wilcox’s judgment at page 267, paragraph 78, the last sentence.  His Honour is saying, in effect, as I read it, specifying what the Minister must prove and he seems to be casting it in language of proof and onus but he says:

there would have to be positive information demonstrating a settled and durable situation in that district –

and he obviously means the applicant’s home district.  Leaving aside other questions, is that a correct statement of the law because it is the country that has to afford the protection and there are many cases of relocation, are there not?

MR GAGELER:   That is right.  Yes, yes, there are.

CALLINAN J:   Was location argued at all?

MR GAGELER:   No, it was not.

CALLINAN J:   So this is something that Justice Wilcox himself found without the benefit of argument from the parties, is that right, or is that putting it ‑ ‑ ‑

MR GAGELER:   There was certainly no argument in the case about the question of relocation.

CALLINAN J:   It is wrong, is it not, as a statement of fact – as a statement of the position that his Honour said, because you do not have to prove the conditions, on any view, are stable and durable in a particular district, is that not right?

MR GAGELER:   That is correct.  But may I say this, your Honour, that is not an error in his Honour’s judgment that I seek to make good in this appeal.

CALLINAN J:   I understand that, but we have to consider the whole judgment and it does seem to be plainly an erroneous statement of the law on that point, does it not?

MR GAGELER:   On that point, but as I said, that is really not the point we are seeking to press.  The sentence, of course, contains the two other errors as to the wrong test in Article 1C(5) and as to the need for the Minister to be satisfied by positive evidence of that wrong test.  They are the fundamental errors.

CALLINAN J:   I understand that, but, you know, there is such a thing as infection too.

MR GAGELER:   Yes, your Honour is right, yes.  I think your Honour referred to page 78.  It is paragraph 78 of the judgment.  If your Honours go then to Lord Brown’s speech at page 1079 your Honours will see the quotation from the speech of Lord Lloyd and what your Honours will see is that that quotation, indeed, the entire substance of the speech of Lord Lloyd was not only accepted by Lord Brown, but applied by him at page 1080C to D.  It was reliance on the speech of Lord Lloyd which led to his Lordship’s fundamental rejection of the argument that was put in that case.  So, in our submission, there was an acceptance by Lord Brown of the symmetry between Article 1C(5) and Article 1A(2).

Now, what his Lordship then went on to do was to make the separate point that without prior recognition you do not get to Article 1C(5) in any event and when he moved on to make that separate point, in our submission, he was not in any way – or should not be read as contradicting the point that he had already accepted.  If your Honours go to paragraph 60 at page 1082 there is a reference that begins about letter C, and I should read this, to his Lordship saying:

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.

Now, that half sentence at the end of paragraph 60 was picked up and relied upon extensively by Justice Wilcox and by Justice Allsop in the courts below.  In our submission, read in the context of the speech as a whole, his Lordship is saying nothing about the test to be applied under Article 1C(5).  He is not suggesting that the test is different from that in Article 1A(2).  He has already dealt with that.  His Lordship in the last part of the last sentence in paragraph 60 was not attempting to state exhaustively the universe of possibilities in which Article 1C(5) might arise.  He simply was not dealing with the circumstance where you have recognition under the domestic law of a State and the question is not revocation of some status that has arisen under the domestic law, but whether there should be continuing recognition.

One sees that in particular when one turns to paragraph 65 at the next page where his Lordship says some things in justification of the view that he has expressed.  He refers to – I will not read it – the refugee obtaining in some circumstances a legitimate expectation of remaining in a country.  Now, that shows a number of things.  It shows that his Lordship is not contemplating a scenario of recognition and continuing recognition.  He is contemplating a scenario of some sort of grant and then withdrawal of a grant of some sort of status. 

Secondly, by invoking the language of legitimate expectation, which forms no part of the Convention, his Lordship is invoking a notion that may have more currency in English law than it does in Australian law, but it certainly is a notion that can have no content when the only expectation that could arise at the time of the original recognition is that it gives rise to a temporary benefit and not a permanent benefit, that is, the recognition will be followed by a need for continuing recognition if there is to be any benefit to arise to the individual.

KIRBY J:   Do you invite us to disagree with the general propositions of Lord Brown?

MR GAGELER:   If I need to, I am inviting you to do so, but what I am seeking – and our written submissions go that far - to make good is that properly construed his Lordship should not be treated as going so far as expressing a general view which your Honours would need to disagree with to accept our submissions.  All of what his Lordship says ‑ ‑ ‑

GUMMOW ACJ:   They did not have the advantage of any citations with them of Chan or Mayer?

MR GAGELER:   Pardon, your Honour?

GUMMOW ACJ:   The only cases that seem to have been cited by the House of Lords were from the United Kingdom with one exception, I think.
No, perhaps there are no exceptions.

MR GAGELER:   No.

KIRBY J:   But Chan does not solve this problem, does it?

MR GAGELER:   One stream of thought in Chan does solve this problem, yes.  But everything that his Lordship said really is in support of the proposition in the first sentence of paragraph 67:

From all this it follows that, even were the proviso to 1C(5) capable of availing the appellants, their appeals must fail since clearly 1C(5) has no application -

was all in support of that proposition.  Your Honours, as to the drafting history of the Convention, the allocation of time between counsel does not give me very much further time.

GUMMOW ACJ:   How much longer do you think you have?  This is an important case and we need to get all the assistance we can.

MR GAGELER:   So I will keep going.  Your Honours, can I move then from authority to the drafting history of the Convention?

GUMMOW ACJ:   Yes.

MR GAGELER:   I had referred to, without reading, those paragraphs in the analysis of Lord Hope in Hoxha which bear upon that.  We adopt that analysis and the conclusion that his Lordship drew from it.  We have in our written submissions in QAAH taken the drafting history further as a matter of detail, both in its detail ‑ ‑ ‑

KIRBY J:   We looked a lot at the drafting history in Applicant A, did we not?

MR GAGELER:   Yes, you did.

KIRBY J:   I mean, we looked at it on other occasions, but Applicant A was quite an extensive examination of drafting but that was on the recognised social group issue.

MR GAGELER:   Yes.  Your Honours, I think I can encapsulate in about three propositions what one usefully gets from the detail of the drafting history.  It comes down to this.  There is a basic chronology that your Honours will find in the appellant’s materials at page 55, that is the appellant’s materials in QAAH.

GUMMOW ACJ:   This is headed “A CHRONOLOGY OF THE DEVELOPMENT OF THE CONVENTION”?

MR GAGELER:   Correct.

GUMMOW ACJ:   It is under tab 8?

MR GAGELER:   Tab 7.

GUMMOW ACJ:   Yes.

MR GAGELER:   The points that I wanted to draw out are from what occurred from August 1949 through to July 1951 and the first point is this, that during the first session of the Ad Hoc Committee in January 1950 in the drafting of what became Article 1A(2), what one sees repeatedly is the concern expressed most clearly by the United Kingdom representative behind tab 11 at page 65.

GUMMOW ACJ:   What page?

MR GAGELER:   Page 65 using the number on the bottom left‑hand corner, the paragraph numbered 11 on that page.

GUMMOW ACJ:   Sir Leslie Brass.

MR GAGELER:   That is right:

Sir Leslie BRASS (United Kingdom) said he would be prepared to agree to that text as long as sub‑paragraph (c) –

the detail of that does not matter –

meant that there was an ever‑present fear of persecution to warrant the person’s unwillingness to avail himself of the protection of the Government of his country of nationality.

It is very hard to pick out purple passages, but that, in our submission, expresses the sentiment – repeatedly expressed certain – by the English representative and not disagreed with, so far as we can see, by any other representative.  That is the first point.

KIRBY J:   That does introduce an element of instability though in the “status of refugees”, does it not, because you might or you might not?  You might pass in, you pass out.  You might pass in again, just like a revolving door.

MR GAGELER:   Depending on whether there exists a current need for surrogate protection as opposed to being able to avail yourself of the protection of your country of nationality.  Yes.  “Instability” is perhaps the wrong word.  It makes the definition determine on present circumstances and the existence of a present need.  That is the first point.  The second point is that during the second session of the Ad Hoc Committee, which was in August and September of 1950, what one sees as the justification for the existence of the cessation clause, which at that stage did not include Article 1C(5), it came in later, but justification for the existence of the cessation clause as a whole one sees what is said at page 105 behind tab 17.

KIRBY J:   Which page are you on now?

MR GAGELER:   It is tab 17, page 105 using the number in the bottom right‑hand corner and this is the French representative and the French had proposed ‑ ‑ ‑

GUMMOW ACJ:   Monsieur Rochefort.

MR GAGELER:   Mr Rochefort.  What you see, page 105, right‑hand column in the paragraph beginning “In the circumstances”, the last sentence ‑ ‑ ‑

KIRBY J:   What is this document of which it is the seventh page?

MR GAGELER:   This is the transcript of the proceedings of the Ad Hoc Committee concerned with the drafting of the definition ‑ ‑ ‑

KIRBY J:   It is like a summary of it?

MR GAGELER:   Yes, summary.  In some cases it seems to be verbatim, in some cases pretty much a summary.  Page 67, last sentence of the paragraph:

It has also been felt that the Convention should include articles covering discontinuance of the status of refugee, not, of course, with any intention of driving victims of racial persecution back to their countries of persecution, but so that people no longer in fact refugees and no longer entitled to claim that status should not enjoy its benefits.

GUMMOW ACJ:   He is worried about the French welfare system.

MR GAGELER:   Perhaps he was. 

KIRBY J:   This was 1950 and they would have all been very conscious of the fact that Jews and others in Nazi Germany would have been refugees or entitled to refugee status then because they left that country, but by 1950 with the two Germanys they would be in a different ballpark.

MR GAGELER:   Yes, that is right.  If your Honours then go to what occurred during the Conference of Plenipotentiaries in July 1951, what they did was to start with the text that your Honours will find at page 118.  It really begins at the bottom of page 117 which is the draft text of the Convention, Article 1.  They started with that text and what your Honours will see was that there was a – in what became Article 1A(2), page 118, the text refers to a person being:

unable or, owing to such fear or for reasons other than personal convenience is unwilling, to avail himself of the protection of that country –

Your Honours will see that unlike the final text it referred to reasons other than personal convenience and at least on one view was not confined to the existence of a well‑founded fear.

Similarly, what became Article 1C(5) then B(5) included those words, but also included no proviso.  Then during the Conference of Plenipotentiaries there were two significant amendments that were moved and adopted.  The amendments are usefully collected together in a publication that your Honours see behind tab 20.  It is very hard to get these documents and we have not been able to track down the original documents, but we have found this publication which collects the travaux and reproduces them.  That is the publication referred to behind tab 20.  Chapter III of that publication behind tab 21 ‑ ‑ ‑

KIRBY J:   Do you take us to tab 20 at all?

MR GAGELER:   No, I am just pointing out that is where what is behind tab 21 comes from.  Behind tab 21, just to show your Honours the structure of it, if you look at page 133 what you see is the heading “Article 1.  Definition of the term ‘refugee’” and then there is a statement of what the original text was and then the statement of what the amendments were.  If you move over to page 135 you will see paragraph A(2).  Your Honours will see the original text in the form which I have already taken your Honours to as at page 118.  It still included the words “for reasons other than personal convenience”.  Your Honours will see that there are a number of amendments, the relevant one being the Swedish amendment and the Swedish amendment had two parts.  One was to introduce a reference to a “membership of particular social group”.  That can be left aside for ‑ ‑ ‑

KIRBY J:   That was Mr Petren, I think, who introduced that.  That is what we looked at in Applicant A.

GUMMOW ACJ:   Yes.

MR GAGELER:   Yes.  But it is the second one that is relevant here, that is, to “Redraft the rest of the paragraph” really to remove the reference to “personal convenience” and to confine the paragraph in its current form, that is, to require the present “well‑founded fear” in paragraph A(2).  Then there were separately, your Honours will see, amendments to paragraph C that are dealt with at page 140 through to 141.  Again your Honours will see the form of what was then paragraph B(5) set out at the top of the page 140.  There are a number of amendments.  The relevant amendment is that moved by Israel at page 141 to redraft what became paragraph C(5) by taking out the reference to “personal inconvenience” and by adding the proviso applicable only to the A(1) refugees.

Now, it is significant that those two amendments, the Swedish amendment and the Israeli amendment, were dealt with by the Conference of Plenipotentiaries together and your Honours will see the way in which they were dealt with together in the document behind tab 23 at page 174.  Your Honours will see at the bottom of the first column at page 174:

The PRESIDENT invited the Conference to consider the Israeli amendment . . . to sub‑paragraph (5) of paragraph B of article 1.  The second Swedish amendment . . . also related to that sub‑paragraph.

So the two were dealt with together and they were dealt with over the next page, which I will not read at length, but they were clearly enough seen as both concerned with removing the problem that one does see in the next column, in the second paragraph of the next column, where it was said:

It was clear from the wording of sub‑paragraph (2) of paragraph A of article 1, as it now stood, that the cessation of persecution was not regarded as automatically terminating the status of refugee, but that a refugee could invoke other grounds for retaining that status.  That idea was expressed in the words “for reasons other than personal convenience”.  The Swedish delegation had objected to that phrase on legislative and practical grounds.

So the idea that emerges, in our respectful submission, is that what was occurring was a change in the language of both Article 1A(2) and what became Article 1C(5) to make it clear that a cessation of persecution would automatically terminate the status of refugee.

HEYDON J:   Mr Walker criticises your reliance on Mr Robinson’s speech.  What do you say to his criticism which is in paragraphs 41 and 42 of his written submissions?

MR GAGELER:   Yes, your Honours, I have taken you to the strongest passages.  Nothing emerges in purple, but the amendment being proposed by Mr Robinson for the reasons he set out – I am sorry, the amendment being proposed was accepted and those are the reasons that emerge from the text for that amendment being proposed.  One cannot, of course, be certain that those reasons motivated all of the members of the Conference of Plenipotentiaries.

KIRBY J:   May I ask, I read this passage in your written submissions which you have now taken us through and just reading it, it seemed, and correct me how I am getting this wrong, it seemed to be an argument against you that when they were considering the treaty they thought that you cannot take away the status of refugee and that therefore in order to do that they had to have a particular provision for doing so which became C(5).  Now, where am I missing your point?  In short, this material seems to be against you not for you.

MR GAGELER:   No, the drafting of Article 1A(2) from the beginning, at least from the English perspective, was to be something that made it clear that a current well‑founded fear of persecution was necessary to be within the definition of “refugee”.  The French were saying we need to have a cessation provision to make clear when you stop being a refugee and the amendments to both Article 1A(2) and Article 1C(5) were both dealt with at the same time and were both, as we read it, directed to making clear that the status of refugee would automatically terminate when current persecution no longer existed.  We see them as working in harmony and we read the travaux preparatoires as suggesting that they were intended to work in harmony.  It is not unusual, your Honours ‑ ‑ ‑

KIRBY J:   It just seems that where they have made a particular specific provision to deal with the termination, cessation, as the French were – this is a very typical instance of the French wanting to spell it out and cover it with a particular provision rather than leaving it in the generality, but once they did, they then come into our principles of construction which are that once you have a particular, that particular will be taken as dealing with that point and you are not going to deal with it under the generality of 1A(2).

MR GAGELER:   Your Honour has made a very good point and used very appropriate language when your Honour refers to our principles of construction.  That is an appropriate way in most cases of construing an Act of Parliament prepared by parliamentary draftsmen.  In our submission, it is certainly not the way to construe an international instrument arrived at by a number of people – just take the French and the English, for example – striving to achieve the same result by expressing the same idea in different language and coming at it from different vantage points.  To say that one cancelled the other out really contradicts the intention of both, in our submission.

GUMMOW ACJ:   Except that France was a country of persecution.  The United Kingdom is not a country of persecution.  The French had a great cloud called “Vichy” hanging over their head.

KIRBY J:   And they have a legal ‑ ‑ ‑

MR GAGELER:   I do not really want to go into that but if for present purposes it is clear enough that they were striving to achieve the same result and reading the instrument in the spirit in which it was written, in our respect, one does not apply that canon of domestic interpretation.

KIRBY J:   The French have a legal culture and tradition where, unless you spell it out, it is not the law.  They like to spell it out and that is what they were trying to do here, but once they do and ‑ ‑ ‑

MR GAGELER:   Once they do ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ once that is the only provision that is dealing with cessation ‑ ‑ ‑

MR GAGELER:   No - well, your Honour, we disagree.  The Article 1A(2) in its terms is referring to a current state of affairs, it is referring to “what is”.  Article 1C(5) is saying “when what was has ceased to exist”.  They are dealing with the same thing.  They are dealing with the same thing, they are expressing the same thing in different words and Mr Lloyd reminds me that in anticipating the point of view that your Honour expressed as a possible way of interpreting the Convention we inserted in our submissions in the appeal in NBGM in footnote 34 some relevant authorities on the way in which international instruments ought be construed, that is not by reference to domestic canons of statutory interpretation.

KIRBY J:   Is there any material in the High Commissioner’s documentation which explains how the High Commissioner interprets this?

MR GAGELER:   Yes, your Honour.  If your Honour goes to the first respondent’s book of materials in QAAH and goes to tab 7, that is a different version of the article that we have referred to in our submissions in QAAH, footnote 43.  It has been reproduced in a number of different places and your Honours will see from the first page of that document ‑ ‑ ‑

GUMMOW ACJ:   We have got an Article in volume 20 of the Refugee Survey Quarterly 77.

MR GAGELER:   Yes, that is right.  Same document ‑ ‑ ‑

GUMMOW ACJ:   You supplied that, I think.

MR GAGELER:   We provided that?  I did not realise.  This is another version of exactly the same document.  If your Honours look at paragraph 1, to use medium neutral citation, it says:

1.        The immediate goal of this note -

written in 2001 –

is to elucidate contemporary issues in the interpretation of the terms of Article 1 of the 1951 Convention relating to the Status of Refugees, taking into account recent academic and jurisprudential developments.

That was the goal.  We recognise that the UNHCR was not seeking to state a settled position.  We did not, in our submissions, seek to suggest that it was but there is in paragraph 7 of this document a statement that we see as being a correct interpretation of Article 1.  Your Honours will see paragraph 7:

The Article 1 definition can, and for purposes of analysis should, be broken down into its constituent elements.  Nevertheless, it comprises only one holistic test.  This has been recognised and reflected in various formulations of the “test” for refugee status.  The key to the characterisation of a person as a refugee is risk of persecution for a Convention reason.

GUMMOW ACJ:   Notice that use of the word “characterisation”, not “status”.

MR GAGELER:   Yes.  That is right.

GUMMOW ACJ:   It may be more accurate, I think.

MR GAGELER:   That is right.  It is characterising the facts that relate to that person and then when you get to paragraph 54, we see ‑ ‑ ‑

KIRBY J:   Taken on its own, paragraph 7 is not inconsistent with what the applicants are saying.  They say that that characterisation is made, is made once and then the person is recognised as a refugee.  Then to take it away you have to unmake them and that requires a different procedure under 1C(5).

MR GAGELER:   I will be happy to let the applicants speak for themselves but we agree entirely with what is stated in the text of paragraph 7.  There is a holistic test and, whether one is applying Article 1A(2) or Article 1C(5):

The key to the characterisation of a person as a refugee is risk of persecution for a Convention reason.

That seems to us to be spelt out in what is then said in paragraph 54, your Honour, with respect to Article 1C(5).  This is paragraph 54 ‑ ‑ ‑

HEYDON J:   Why are we reading this though?  I mean this is as good as the force of the reasoning embodied in it, is it not?

MR GAGELER:   Exactly.  For no more than that, your Honour.  For no more.

CALLINAN J:   We would not pay as much attention probably to the Convention Debates in a constitutional case and I would have thought that they would have been less the subject of compromise as in all sorts of national interest than these are and were and very recent experiences ‑ ‑ ‑

MR GAGELER:   I was asked what the UNHCR said about it and this is what they have said - they have said other things as well but, in our submission, insofar as they have said these things, paragraph 7, paragraph  54, that is what they have said, and it is right.

KIRBY J:   This is not the political issue, is it?  This is the secretariat of the UNHCR.  These are the experts.  If you look at page 15 of the document it says “UNHCR Geneva” ‑ ‑ ‑

MR GAGELER:   I think it is the executive of the UNHCR.

KIRBY J:    ‑ ‑ ‑ so this comes from the secretariat.  They are just monitoring what is happening all over the world in these things and ‑ ‑ ‑

MR GAGELER:   What they are doing, and it is no more than this, elucidating contemporary issues and, in our respectful submission, that elucidation in paragraph 7 and paragraph 54 is a correct interpretation of the Convention.  Now, your Honours, can I deal finally with what we say are the ‑ ‑ ‑

GUMMOW ACJ:   Perhaps before we do that, Mr Gageler, overnight you might want to look at a recent article in the (2006) 28 Sydney Law Review 360 by O’Sullivan and in particular what she says at pages 370 and following on this construction question.

MR GAGELER:   Yes.

GUMMOW ACJ:   How much longer are you going to need?

MR GAGELER:   I could finish in about three minutes, I think, subject to the homework, your Honour.  The specific errors ‑ ‑ ‑

GUMMOW ACJ:   Well, you can deal with it in reply if you wish.

MR GAGELER:   Yes, I would prefer to do that and allow Mr Walker to start in the morning.  Your Honours, in relation to section 36(2) and its invocation of Article 1C(5) the majority erred – I am sorry, Justice Wilcox and Justice Allsop in the courts ‑ ‑ ‑

GUMMOW ACJ:   Is there identity of reasoning between Justice Allsop and Justice Wilcox?

MR GAGELER:   We think so and certainly Justice Allsop, who went second, saw himself as having the identical reasoning of Justice Wilcox.  But there are essentially two errors. One is to attribute a different substantive operation to Article 1A(2) and Article 1C(5), that is in the test that they involve.  Justice Wilcox does that at paragraph 60, Justice Allsop at 172.  The second error, and this is a little harder to encapsulate, but it seems to us to treat that difference as flowing through to the nature of the inquiry that is required under section 65 of the Act.  It is really the point in the last sentence of Justice Wilcox’s judgment in paragraph 78 ‑ ‑ ‑

GUMMOW ACJ:   Can we just look at Justice Allsop for a minute?

MR GAGELER:   Yes.

GUMMOW ACJ:   In the application book, page 132, paragraph 199.

MR GAGELER:   Yes.

GUMMOW ACJ:   He sets out an approach there, then 200 he says a different approach, then he says he follows the first at 201.

MR GAGELER:   Yes, that is right.

GUMMOW ACJ:   Then at 202 ‑ ‑ ‑

MR GAGELER:   Can I interrupt there slightly, your Honour.  That appears to us to be really saying in different words what Justice Wilcox said at paragraph 78 of the other judgment.

GUMMOW ACJ:   That is what I wondered.  Yes.  Then at 202 there is some development.

MR GAGELER:   Yes, and ‑ ‑ ‑

GUMMOW ACJ:   I am not sure if that is a new point or not.

MR GAGELER:   We think not.  We think that paragraph 199 really captures the point that is then justified further on and, in our submission, those are the two errors.  If your Honours accept that there is no difference in substance between the two tests required by Article 1A(2) and Article 1C ‑ ‑ ‑

GUMMOW ACJ:   What do you say as to Justice Kirby’s point about what is the practical difference in outcome in these two cases that you seek from us?

MR GAGELER:   If it is sufficient to deny refugee status, that a decision‑maker not be satisfied that a person has a current well‑founded fear of persecution applying Article 1C(5) ‑ ‑ ‑

KIRBY J:   Could I ask you if you then put in brackets “notwithstanding that earlier for a temporary protection visa another decision‑maker had made that decision”?

MR GAGELER:   Put that in brackets.  But if it is sufficient not to be satisfied that a person has a current well‑founded fear of persecution - putting those words in brackets - to deny a visa then we win QAAH.  If it is necessary to be satisfied ‑ ‑ ‑

GUMMOW ACJ:   So what order do we make then in QAAH?  We restore Justice Dowsett?

MR GAGELER:   Yes, that is right.

GUMMOW ACJ:   Yes.

MR GAGELER:   But in NBGM even if it is necessary to be positively satisfied of an enduring and fundamental change to satisfy Article 1C(5), in our submission, that is what the Tribunal satisfied itself of in that case, that is, it did go through that process of being positively satisfied on the evidence that there had been a change.  So we would win in that case on

Article 1C(5) but, in any event, the separate question that arises in NBGM is whether the Tribunal, in any event, correctly applied as an alternative basis for its decision section 36(3) and (4) and, in our submission, it did.

GUMMOW ACJ:   Yes.  Now, have you said what you wanted to say about 36(3) and (4)?

MR GAGELER:   I think so, your Honour.

GUMMOW ACJ:   Very well. 

MR GAGELER:   If the Court pleases.

GUMMOW ACJ:   We will adjourn until 10.15 tomorrow morning.

AT 4.14 PM THE MATTERS WERE ADJOURNED
UNTIL TUESDAY, 20 JUNE 2006