MIMIA v QAAH of 2004 & Anor; NBGM v MIMA & Anor

[2006] HCATrans 340

[2006] HCATrans 340

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 TUESDAY, 20 JUNE 2006, AT 10.12 AM

(Continued from 19/6/06)

Copyright in the High Court of Australia

__________________

GUMMOW ACJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, it is our submission that the scheme of which the salient, not the only, parts touched on in the issues between these parties comes from sections 36, 65 and 116 of the Act and in particular focus upon Articles 1A(2) and 1C(5) of the Convention as picked up by the Protocol, do not have the combined effect in circumstances such as apply in our client’s case of instituting a de novo application to be recognised as a refugee by the functional equivalent of requiring that again to be satisfied simply by reason of the expiry under a regulation of the time limited for the currency of a visa.

In that opening statement your Honours will have noticed section 116 as well as Article 1C(5).  Little more need be said about 116 in the argument in this case so far as determines the outcome of the issues because, of course, section 116 was not being availed of, but the administrative scheme which includes the regulations which condition and provide the terms of particular classes and subclasses of visa is very important because of the role section 116 plays as a backstop, as a failsafe.

KIRBY J:   But is not the weakness of that theory of the Act that the scheme of the Act seems to be that if you are in Australia you are either a citizen or a national for that class of British subjects or a visaed person?

MR WALKER:   Far from being a weakness, your Honour, it is in order to maintain that essential dichotomy that section 116 operates.  It says if the circumstances cease to exist upon the basis of which, for a case such as the present, a visa of a particular class has been issued to a person, then steps may be taken to change that person’s position or relationship with the authorities in this country ultimately of course so as to convert a person who is on conditional liberty to be here and to take part in various aspects of community life such as work, welfare, education, et cetera to somebody who is liable to be detained and removed.

KIRBY J:   But the cancellation of a visa is with a view either to removing them from Australia or giving them a different visa, is it not?

MR WALKER:   Your Honour, I am simply pointing out that 116 in one sense does not arise in this case at all because this is not ‑ ‑ ‑

KIRBY J:   I realise that.  You are putting it into the equation for the scheme.

MR WALKER:   It is an essential part of the scheme because it is the statutory method by which in this country a state of affairs that led to the issue of a visa itself is central to alter the relation between a non‑citizen who is here and Australia from one of, as I say, conditional liberty to be here and to act here to one of no liberty to do either of those things.  In a sense section 116 is one of the manifestations and is to a degree a working out of the position created by Article 1C(5) to which I will be coming back later.

What this case centres on in terms of the issues between the parties, given the way the Tribunal approached the matter and given the way the Commonwealth has framed its appeal points, is whether or not the position that applied by reason of section 65, to which your Honours have already been taken and which is uncontroversial, as it operated through section 36(2) of the Act meant that there was in the history of my client already the meeting of the criterion set down by section 36(2) in such a way as to require positive resort to Article 1C(5) in the manner that resort to that article would mandate, namely being satisfied of cessation, that matters had ceased to exist.  That is the issue.  It has enormous practical effect ‑ ‑ ‑

GUMMOW ACJ:   Sorry, can you just explain that issue again, Mr Walker.

MR WALKER:   The issue comes down to this.  Because of section 65 and the requirement it imports upon certain matters of administration occurring, in this case meeting of a criterion, the question comes down to whether under section 36(2) the administrative history of my client’s dealings with Australia meant that he met that criterion at the time when he was refused the new visa.  We submit, for the reasons the Full Court has demonstrated, he had.

KIRBY J:   You say that in order to get to the temporary visa the Minister has to, and the record shows that in this case the Minister did, be satisfied that Australia has protection obligations to that person and that once that is done, 36(2)(a) is fulfilled?

MR WALKER:   Yes, and it remains something which is true in the present tense until either at an earlier time, that is before a renewal application under section 116 – it does not apply in this case – or without section 116 an Article 1C(5) approach can be taken which would remove the person from the class of persons which comprises the criterion in section 36(2). 

GUMMOW ACJ:   Sorry, removes the applicant ‑ ‑ ‑

MR WALKER:   The person from the class which is the criterion.  Membership of that class is the criterion which section 36(2) imposes.  Your Honours, can we go to the elements of the scheme ‑ ‑ ‑

KIRBY J:   Can I ask is a weakness in that theory of the class that we know that the class for which the Minister has been satisfied is fulfilling a peculiar Australian temporary visa entitlement and that therefore the Minister is only reaching the satisfaction of protection obligations on a temporary basis as distinct from on a permanent basis?

MR WALKER:   No, it does not.  Section 36(2) is not so expressed and one would certainly not or could not read some interstitial qualifications as to the degree of satisfaction in, depending upon whether 36(2) was applying to a temporary or a so‑called permanent visa.

GUMMOW ACJ:   Are you not reading the phrase “to whom the Minister is satisfied” in paragraph (a) as “remain satisfied”?

MR WALKER:   No, I am reading it ‑ ‑ ‑

GUMMOW ACJ:   Has not become unsatisfied.

MR WALKER:   In a sense “yes” is the answer to your Honour’s question.  Can I explain how we get there.  Being satisfied of course is a discrete fact of a mental operation.  At one moment you are not satisfied, you have finished your cogitations and you become satisfied.  At that point obligations under section 65 are imposed by statute.  They are obligations – and I wish to develop this by going to the scheme slightly differently from the way my learned friend went to it but with the assistance of the fact that he has been to the detail already.  By reason of that scheme we seek to persuade your Honours that it cannot be in the nature of the state of satisfaction and its operation, the way it operates, so as to govern the relations between the parties, that it is evanescent, that is it is a moment to moment thing, that the instant after the Minister or the delegate was so satisfied administrative matters go back to taws, so to speak, and one can no longer say in the present tense the Minister is satisfied. 

So yes, in brief the answer to Justice Gummow’s inquiry is that we submit that properly understood the state of affairs which brings about a relation between a person and Australia, which is a visa which is a permission to do something which extends much more than moment to moment, to stay, rights of education, rights of work, et cetera to which I will come, that is a state of affairs which remains true in the present tense until 116 intervenes or Article 1C(5) intervenes.

GUMMOW ACJ:   You say the article intervenes?

MR WALKER:   Yes, and I say that ‑ ‑ ‑

GUMMOW ACJ:   How?

MR WALKER:   ‑ ‑ ‑ for reasons of the scheme to which I am about to come.  It does not of course intervene of its own force.  I am going to come to how it does.

CRENNAN J:   If you are right, Mr Walker, what would be left to be done when there is an application for a permanent protection visa?

MR WALKER:   What is left to be done – and that was what happened here of course – is to ask the 36(2) question.  We know that in the run of cases of which my client is an example that it will have to be at least 30 months after it was first asked.  The 36(2) question, however, comes to be answered in light of the administrative history which is that the person has had a temporary protection visa.  That could only, by reason of sections 65, 36(2) and the relevant regulations, come about because of the ministerial satisfaction which is the administrative act which continues to operate, as I say, subject to 116 and subject to 1C(5) in the manner to which I am about to come.

So that what remains to be done administratively and practically will be for the administrators to ask themselves:  is this a case where 1C(5) presents its operation?  If it does, to marshal the material at the level of the decision‑maker, be it Minister, delegate or Tribunal, which shows or does not show, as the case may be, cessation of the circumstances.  I keep using the noun “cessation”.  I should really say which shows that the circumstances have ceased to exist.  That is, in our submission, a proper reading of 36(2) in relation to the protection obligations to which I am about to come and giving proper weight to the nature of the international obligations in the particular setting of the way Australia has split up these visas into temporary and permanent.

KIRBY J:   I asked Mr Gageler yesterday whether any other countries have done that.  I rather gather from the written material that it is not unknown for countries to have temporary visas for mass influx.  Have any other countries adopted for individual assessment temporary protection visas?

MR WALKER:   I do not think that we are unique but I think we belong to what is still a very small class.

KIRBY J:   There are other countries that have temporary individual protection visas.

MR WALKER:   I cannot give you a categorical answer, your Honour.

GUMMOW ACJ:   How many States’ parties are there?  There is 140, are there not?  It is a large number.

MR WALKER:   There are a lot and there is ‑ ‑ ‑

GUMMOW ACJ:   That could be varying from minute to minute.

MR WALKER:   Not quite but they vary.  As I understand it, and when I last looked at the material which was very recently, there was no other party with a scheme quite like ours.  That is, a full‑blown 1A(2) determination which results in the issue of a permission – call it a visa – upon recognition as a refugee, to use the Convention language, which visa ceases, throwing up the question:  what happens to the anterior recognition as a refugee?  It is the relation between the anterior recognition as a refugee, which happens to be the criterion in 36(2), and the administrative issue of whatever the sovereign nation decides to have as its arrangement, a visa here ‑ ‑ ‑

GUMMOW ACJ:   By “recognition” you mean satisfaction of the Minister of the existence of protection obligations?

MR WALKER:   Yes.  That is why I have to explain why it is accurate and not merely convenient paraphrase to treat that as recognition as a refugee.

KIRBY J:   You do not put an argument, at least in your written submissions, that the regulations providing for temporary protection visas are inconsistent with section 36(2).

MR WALKER:   No, we do not.  However, pondering on what fell from your Honour yesterday, may I simply flag this position about that to which I may come back, time permitting, briefly later.  My learned friend has not put in, so to speak, full‑blooded terms an argument that the regulation created subclasses of visas with their time limits, their expiries, the temporary protection visas, has worked a reversal of the position which the consensus gives to Article 1C(5), namely that it has to be shown that circumstances have ceased to exist as opposed to the recognised refugee having to show de novo that circumstances do exist.

So it may be that I am boxing at shadows but your Honour’s question, with respect, does raise this thought.  If a regulation purported by the operation that might be the logical outcome of my friend’s position of the time limit of a temporary protection visa, namely that you have to remake your 1A(2) case, then it would appear that that regulation is impinging upon the expression of the criterion in 36(2).  I have to make that good by going to the scheme as to why that is so, recognising that the strength, such as it is, of my learned friend’s position comes from what we will call the grammatical approach, the so‑called present tense emphasis to which he draws attention and which I have to confront.

Your Honours, could I then say in relation to the scheme that the historical course of events to which you have been taken by my friend is obviously in the order Convention, Protocol and statute.  If your Honours will forgive me, I have left out of that sequence travaux preparatoire about which I will have little to say but I will say it later.

KIRBY J:   There is nothing in the Protocol we were taken to.  That is not relevant, is it?

MR WALKER:   It is not only relevant; it is the heart of things.  I will come to why it is.  In terms of legal analysis, the proper order is the reverse of course.  In order to recognise the primacy of the Australian law which this Court is administering, one starts with the current form of the Act, the applicable form of the Act.  One goes, as it happens, to the protocol not as an irrelevant staging post but as the critical matter and then one ends up in the Convention.  Much of what I have just said is a matter of strict form.  There is no difference of substance between my friend and me that you end up at 1A(2) and 1C(5) in the context of 36(2) of the Act.

Could I show how that works.  First of all, in section 36(2) of the Act, as your Honours are aware, an expression is used which was commented upon by this Court in NAGV.  It is an expression which is strictly inaccurate in terms of the nature of international obligations because the language of subsection (2)(a) posits the idea of Australia having protection obligations under treaties to a non‑citizen.  All those words are accurately reproduced, though rearranged, from the expression in section 36(2)(a).  Treaties are simply not between nations and individuals relevantly.  So that, as this Court has already observed, one may as well ‑ ‑ ‑

GUMMOW ACJ:   It is preferable to read “to whom” as ‑ ‑ ‑

MR WALKER:   “With respect to whom”.

GUMMOW ACJ:   Yes.

MR WALKER:   Nothing turns upon that here except for what may be a mere rhetorical flourish on our part that your Honours may think goes further, namely the importance of the individual position under the protection obligations which Australia first of all has undertaken as a matter of treaty but, second, the Parliament of Australia has described in terms which probably describe the psychological reality of the relation between Australia and the refugee from the refugee’s point of view, namely obligations called protection obligations, are had by Australia to the refugee.

That compound expression obviously and explicitly calls up for administration by an Australian court of the notion of having obligations under treaties, so it requires the Australian court to look at the treaties and ascertain how one would determine whether a non‑citizen in Australia, a person, to use the jargon, finding themselves in Australia outside their country of origin, how can such a person be described in those terms.  Strictly speaking, as a matter of public international law, inaccurate terms required to be applied by a statute in Australia and to be applied in the sense that Justice Gummow has, with respect, correctly suggested.

The second inaccuracy of no moment whatever is that the Convention is described as having been amended by the Protocol.  It is really no such thing.  Your Honours were informed yesterday by my learned friend of the way in which A(1) and A(2) relate to each other in the Convention, but before we get there and recalling that A(2) is expressed in terms of the result of events occurring before 1 January 1951, one needs to go to the Protocol.  The Protocol is found at tab 26 in the appellant’s materials.  The first of the flaws is in the preamble.  It notes the limitation historically of the Convention, namely 1 January 1951, to which I have noted, notes ‑ ‑ ‑

KIRBY J:   This was the instrument done at New York later.

MR WALKER:   Yes, 1967.  It notes that “new refugee situations have arisen”, a bland but obviously very accurate situation which continued to be true, and then noting that it was considered:

desirable that equal status –

your Honours will note that word “status” –

should be enjoyed by all refugees covered by the definition –

and that expression is used –

in the Convention –

Then Article 1:

1.        The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter defined.

2.        For the purpose of the present Protocol, the term “refugee” shall, except as regards –

the geographic reference with declarations to limit it in 3, which is not relevant –

mean any person within the definition of article I of the Convention as if the words –

and then the words of historical limitation –

were omitted.

So that by concentrating on the omission of those words from 1A(2) the closed class dealt with in 1A(1) is left undisturbed and that is why it is of no direct moment, but 1A(2) has continuing effect.  That is, it may apply to the people who are not only affected by events occurring after 1 January 1951 but it did not apply to people obviously born well after that.  It is contemplated that there will be national legislation:  see Article 3 of the Protocol on the next page.

GUMMOW ACJ:   Going back to 36(2)(a), instead of “as amended”, you would prefer as more accurate “as applied by”?

MR WALKER:   “As applied” is really – as it happens, there is an amendment.  It is very shorthand.  There is an amendment but only in the sense that the terms of the Convention are to be read in a particular way.  I suppose that could be crudely called amendment.  It is not suggested that the Convention is, as it were, altered as an instrument binding its contracting parties.  It is tolerably obvious how it is meant to apply that language.  The importance for present purposes is you go to the Protocol.  The Protocol is the source of the international obligation in this case and in all cases that come before this Court, not the Convention. 

The Convention is incorporated by reference as being that which requires so‑called application.  The Protocol has to be put into effect.  It is contemplated that there is going to be national legislation, as I say, to do that:  see Article 3.  It is the familiar federal clause in the protocol, Article 6, paragraph (c) of which again refers to the possibility of needing to show in certain circumstances how what is called effect has been given to the provision.

One then goes back to the Convention.  Obviously enough, in order to apply Articles 2 to 34 one must read that in context, which is why the preamble to the Convention does not, as it were, fall out of the way as if one pretends it does not exist.  Naturally enough, Article 1 is called up in express terms as the so‑called definition.  Before I go to the definition, however, could I touch briefly upon words in the preamble and then Articles 2 to 34, bearing in mind that the Australian legislative expression is “protection obligations”.  In the preamble, second clause, one sees that there is reference to the United Nations having:

manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise –

et cetera.  Those are exercises of the kind of rights and freedoms which include working, education, religion, movement, access to justice, et cetera.  The next clause:

it is desirable to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and protection accorded by such instruments by means of a new agreement.

CONSIDERING that the grant of asylum –

So there is something which is granted.  We would submit that asylum is by definition something of a more or less continuing nature.  It is not a moment to moment thing.  That of course comes about from the very context in which it is mentioned in that part of the preamble because it refers to it placing unduly heavy burdens on certain countries.  Then in the last of the clauses of the preamble, second line in the print:

NOTING that the United Nations High Commissioner for Refugees –

who is before this Court –

is charged with the task of supervising international conventions providing for the protection of refugees –

I pass over as the heart of the argument, to which I will come back, Article 1.  Articles 2 to 34 are those which under the Protocol Australia took on obligations to apply.  Your Honour Justice Gummow asked my friend towards the beginning of my friend’s address about what in the Australian statute and the visas issued under the statute and regulations could be seen to be giving effect to or according protection in accordance with what the statute calls protection obligations.  It was suggested that perhaps it was only 32, maybe a few others, that applied.  On reflection the position may be more expansive or generous than that.  True it is that the principal function of a visa of the kind in question here is to turn one from somebody liable to detention and removal into somebody who is entitled to stay.  The word “stay” is used in the Convention from time to time.

As it happens, the particular visa in point here has what is called nil conditions.  One gets that from clause 866.6 of the regulations which have been given.  Nil conditions has the effect, among other things, of removing what would otherwise be a plethora of possible restrictions upon what one can actually do in this country.  There are also, I am instructed, though I do not have the detail to hand, of course the way in which that fits in then with other forms of domestic legislation and regulations such as social security, et cetera, et cetera.  In other words, the possession of certain classes of visas entitling one to certain benefits or not, as the case may be.  So that a visa can be seen as more than simply a permission to stay.  When one then looks at the obligations which the protocol requires ‑ ‑ ‑

GUMMOW ACJ:   But that requires other acts. 

MR WALKER:   It may well require other acts.  Nil conditions of course, at least in a country like Australia, if you are permitted to stay, presumably means, one hopes means, that you are at liberty, that is you are at liberty to behave by travel, by work, by procreation, by education, by practise of religion, et cetera.

KIRBY J:   Not go and return?

MR WALKER:   No – well, that depends upon the conditions of the particular visa.  I will come to the five‑year limit on the permanent protection visa in a moment, which will be apropos I think Justice Kirby’s last remark.

Rapidly going through the catalogue in order simply as they appear of Articles 2 to 34, in our submission, first of all it can be said that most of them are in the nature of protection obligations as those words would be understood as a matter of English and in the context provided by the terms as used in the preamble to which I have just gone and, second, one can see how the issue of a visa entitling you to stay and being at liberty with nil conditions or having other connections to other provisions of bounty by the Commonwealth Parliament can be seen to be subserved by the issue of that visa.

Article 2 is not a protection obligation owed but it is apropos something that Justice Gummow also asked about yesterday.  Article 2 is one of those matters that will intersect with Article 33.2 to which I will come in a moment.  Article 3, non‑discrimination, it may be that that is in the nature of protection understood sufficiently widely; it may be not.  Article 4 would appear to be in the nature of protection, bearing in mind what one contemplates if there were not the treatment accorded in relation to religion which is required by Article 4.

Article 5 is, as it were, a non‑derogation provision which in an extended sense, but only perhaps in an extended sense, is protection.  Article 6 is definitional.  Article 7 is in a sense protective against what might otherwise emerge from bilateral international relations.  Article 8 is manifestly and importantly protective.  Article 8 prevents, as it were, the spectacle of a refugee from a regime being tarred with the same brush as the worst proponents of the regime.

Article 9 may or may not be considered protective; it probably should not be.  Article 9 does not have direct application to this case but there is language in it to which we draw attention.  Your Honours will see in the print, third and fourth lines, the reference in the phrase to “a determination . . . that [a] person is in fact a refugee”.  That picks up the notion that a 1A(2) exercise, being the first time a person is outside their country in Australia seeking recognition as refugee, involves something regarded as a determination by Australia that that person is in fact a refugee.  Being a refugee, we submit, is in context and by definition a more than moment by moment proposition. 

Article 10 is of no moment and is historical for present purposes.  Article 11 is clearly protective, as this Court has I think already observed in NAGV.  Article 12 is in a sense protective by reason of what it does concerning matters of personal status, as is Article 13.  Article 14, the same.  Article 15, in this country at least, would be correctly regarded as protective, and Article 16 is manifestly most importantly protective.  Article 17 is protective except in a country that can rely entirely upon charitable institutions to look after refugees, as is Article 18 and 19 for subclasses of persons wishing to work.

Chapter IV one can run through quickly, not so as to deprecate the importance, but because it is also obviously important as protection obligations.  We are not suggesting that 36(2) and the visa issued in the particular subclass in question carries with it all the Chapter IV welfare matters by way of according protection obligations, but they are clearly within that class of obligations called protection obligations which 36(2) has selected as being that benefit or state of affairs or relationship with Australia by which one knows the class of persons who will meet the criterion in 36(2).

When one looks at all of those, they do not bespeak moment by moment status.  They are continuity of residence in a community in a country:  rationing, housing, public education, public relief, labour legislation, social security.  These are matters of real duration.  Upon being a determination, to use the language of Article 9, that a person is in fact a refugee, or recognition as a refugee, as we will come to later, these are matters which Australia has become obliged to attend to.

Under administrative measures one even finds in Article 25 by way of the assistance in question something that may in a slightly extended sense be regarded as protective.  Certainly Article 26 is something highly prized in this country.  Whether it is highly prized or not, so may Article 27 be, identity papers.  Travel documents certainly are and travel documents are one that in a sense this visa may impart and in a sense may constitute.  Fiscal charges are in a sense, I suppose, protective, as is Article 30 in relation to property.

Article 31 is very clearly protective.  It goes to the very heart of the protection involved.  In other words, a person who is illegally, as our legislative lexicon has it and as the treaty has it, entering or present is not to be the subject of penalties.  That is clearly a most important entrenchment upon sovereign regulation and is a very important protection obligation.  It would be difficult, in our submission, to read that as something which applies, that is that immunity applies, only moment to moment.  The same is true with Article 31.2 in relation to the conditional restriction of internal movement.

KIRBY J:   “Protection” is used in Article 1C(1) and in Article 1D, second paragraph.

MR WALKER:   Yes, and I have noted it is in the preamble as well, of course.  Article 32, expulsion, is an important aspect obviously of what the visa in question in this case does.  I do not need to read it, but one will see, for example, in section 2 that the expulsion of refugees “shall be only in pursuance of a decision reached in accordance with due process of law”.  Then one sees the presently irrelevant but clearly very important reservation of exception in relation to national security, but even there with safeguards of a due process kind familiar to this country. 

Article 33 is that which had at first I think, in answer to Justice Gummow’s question, been selected by my learned friend as the object of the Act and the visa system.  For the reasons we have been putting as we have gone through this catalogue, it may be that, though the most obvious aspect of the protection obligations given effect to by the issue of a visa under 36(2), it is not the only one which is served in that fashion.  There is important wording in 33.1 which prevents it from being simply seen as some converse or protection in relation to the well‑founded fear requirement in 1A(2) and the terms of 1C(5) to which I will be returning. 

Your Honours will note that the obligation not to refoule does not actually refer in terms to a refugee’s fear or to it being well‑founded; it is a more objective description, although of course it might be highly personal to the particular person:  “where his life or freedom would be threatened on account of” the familiar nefarious discrimens, namely, “race, religion, nationality, membership of a particular social group or political opinion”.  So it is not exactly on all fours with the opposite of the condition which was made out in order to be recognised as a refugee, and Article 33 talks about a refugee.  It assumes you are a refugee.

The exception to that in Article 33.2 is obviously not relevant here and is a national security or particularly serious crime exception.  Yesterday, Justice Gummow asked about the relation between 1F and Article 33.2.  The way we would put it, which will cover but for some detail the difference, is that 1F is largely to do with the consequences of having committed offences in the place from whence you came or at least outside the country of refuge, whereas 33.2 covers the position of people who have committed offences in the place of refuge or are a danger to national security, and of course that would be contrary to Article 2 to which I had drawn your Honours’ attention on the way through.

CALLINAN J:   Mr Walker, could I just ask you a question.  Assuming everything you say about the Convention is right, does section 68(3) of the Act really provide that all visas apart from permanent visas have temporal limits upon them and to that extent qualifies whatever the Convention says?

MR WALKER:   Yes and no.  Yes, what your Honour says is, with great respect, correct.  There is a dichotomy required by the statute between temporary which ‑ ‑ ‑

CALLINAN J:   Which must prevail over, if there is an inconsistency, the ‑ ‑ ‑

MR WALKER:   As I said in opening this exposition of the scheme, your Honour, the primacy is Australian law, yes.

CALLINAN J:   And all temporary visas are for a period.  I think we were told 30 months, is that right?

MR WALKER:   No, this one is three years.

CALLINAN J:   Three years.

MR WALKER:   I will come to the 30‑month requirement in a moment.  Your Honour is correct and “temporary” does mean temporary, thank goodness, although “permanent” may not mean permanent.  “Permanent” is a qualified notion and I can come to that now and, if your Honour will forgive me, I will return from time to time to the point your Honour has raised because, with respect, it goes to the heart of what we have got to persuade the Bench of, namely that this statute has not abrogated or overturned or reversed the way in which 1A(2) and 1C(5) relate to each other in the Convention.

CALLINAN J:   Well, I would be interested to hear in due course.

MR WALKER:   Yes, if I cannot do that, then that goes to the heart of the problem.

CRENNAN J:   In one sense, the corollary to what Justice Callinan says, and I think it is plain, is that the permanent protection visa is a new visa, is it not?

MR WALKER:   There is no doubt about that either, because visas are not creatures of the Convention; visas are the way we select within our liberty of legislation to give effect to obligations.  Now, I am not saying that this is only legislation which is valid under external affairs – it is clearly more than that – and there is no question of validity in what I have just put to your Honour.  We do submit, however, that one would not read the temporal limitation or the instalments approach of protection which this country has selected for refugees as being a legislative technique by which there has been an overturning of the relation between 1A(2) and 1C(5).  That is just a particular use of this Court’s jurisprudence, not unique to this country, but if the words of our statutes permit it, then they will be interpreted so as not to be inconsistent with our international obligations. 

Now, we entirely accept that what Justices Callinan and Crennan have just raised with me goes to the heart of the matter, and it is for those reasons I hope your Honours will forgive me if I do not respond, as it were, completely now, because it really is the whole of my argument, which should not be too much longer.

Your Honours, I had one left in the scheme.  In one sense it might be thought that has nothing to do with this case either, but it is of some moment.  It is Articles 2 to 34 which have to be applied by reason of the Protocol.  Article 34, which is headed “NATURALIZATION”, obliges the Contracting States as far as possible to “facilitate the assimilation and naturalization of refugees”.  In other words, the set of protection obligations culminate in assimilation and naturalisation.  Refugees cease to be, as it were, refugees, or mere refugees.

Now, it may be in this case that the five‑year limit which is imposed by the regulations – I am sorry, your Honours, it is clause 864.511 which permits a permanent visa holder to travel to and enter Australia for a period of five years from the date of grant but, as my friend puts it, so long as you stay at home it continues to be permanent.  That is I suppose in a piquant way a facilitation of assimilation and naturalisation of refugees.

CALLINAN J:   You get that notion of temporal limitation in section 77 and section 82(7) as well.  There is great emphasis in the Act upon periodicity of ‑ ‑ ‑

MR WALKER:   Yes, well, perhaps I would not put it as periodicity, but there is great emphasis in the Act on limited periods, effluxion of time, expiry of rights or liberties.  There is no question about that and of course we are all familiar with the limited visas which are provided for people who come here as tourists or students or the like.  It is in fact the mundane or ordinary nature of time limits for many kinds of visas which, in our submission, makes it highly unlikely that that ordinary way of administering permissions is one which has, as it were, in this case, overturned the content of the international obligations that we have assumed in relation to refugees, the Act’s provisions of course by no means being limited to the application to refugees.

CALLINAN J:   Is there anything in the second reading speech that throws any light on the purpose of 36(2)?

MR WALKER:   No, for present purposes.  For present purposes, the question is whether it is back to taws, whether it is a de novo demonstration by the applicant for a visa that they should be recognised as a refugee, and I deliberately choose that last phrase, hoping to be able to make it good very soon.  That is not to be found addressed in any of the Australian travaux.  However ‑ ‑ ‑

KIRBY J:   That is because of their history.  It began as permanent visas.  The Act was enacted on that basis against that background of the regulations at that time and then subsequently the regulations were changed to provide for temporary visas.

MR WALKER:   Your Honours, it might be convenient at this point to go to a matter that is dealt with both at first instance and in the Full Court, but if I may for convenience go to the Full Court, appeal book page 241, and the passage in question is all of paragraphs 6 to 11 from which we derive the following.  The history is introduced as being a delay in processing applications for permanent protection visas.

KIRBY J:   Which page is it again?

MR WALKER:   It is 241.  They are the numbers which are circled on the bottom of the page, may it please your Honours.  It is paragraph 6 of Justice Wilcox’s reasons.  There were these delays in processing applications for permanent protection visas and your Honours will recall, as my friend put it yesterday, that in cases such as the present there was a waiting period, that is, there would not be determination of your application for a permanent protection visa until 30 months of your temporary protection visa had passed.

We interpolate at that point, as a requirement in the scheme, that is on all fours with what we are putting about the real duration, the indefinite continuing of the state of affairs, that is the relationship created by recognition as a refugee and the operation of Australia’s municipal legislation, in particular, section 65, requiring the issue of the visa because the criterion in 36(2) had been achieved.  The achievement of that criterion by reference to the membership of a class of person to whom obligations of a kind which of their nature bespeak duration, in them having effect, that is, in them being available, being availed of by the refugee, the recognised refugee.

Well, they could not do everyone between 30 months and 36 months.  That is what paragraph 6 in effect amounts to.  What to do?  What they did was devise a new class of visa called a Protection (Class XC) visa.  It is also temporary and it applies to a historical class of persons:  see paragraph 8.  But as your Honours see from the sequence in paragraphs 10 and 11 on page 242 and 243, particularly at the top of 243, the last three lines of that paragraph, one sees that although there is in form a delegate making a decision about meeting the criterion in 36(2), one sees, and not surprisingly, that it is done by referring to the same material which had produced the decision that the criterion had earlier been met for the issue of the first visa and there had been “not include[d] any subsequent information”, et cetera.

Now, that is an extraordinary administrative position to follow, one which would seem to flout section 65 if the Commonwealth’s present tense argument were to be taken to the logical extent that it seeks to take it.  Under section 65, bearing in mind the reference to criterion, and 36(2) being where the criterion is found, if the present tense argument is truly informative of the Commonwealth’s understanding of the position, how could those decisions have been correct? 

Now, that does not drive an outcome to a legal argument.  Maybe the administration was wrong, but, in our submission, it was not, and it was in accordance with what I have already put in answer to Justice Crennan, namely, where there is a person of whom it is true to say the Minister is satisfied you meet the criterion, that you are in that class, then that is true at the re‑application.

CALLINAN J:   Mr Walker, sections 91R and 91S also use the present tense.  They are the sections that really further define, or refine perhaps, the meaning of persecution for Australia.

MR WALKER:   Yes.  In our submission, the present tense is not going to determine the outcome in this case unless one went to this moment by moment question of what the Convention calls whether a person is in fact a refugee.

GUMMOW ACJ:   But does not 116(1)(a) do that?  May it not be the outcome of accepting your argument that the moment after grant of a permanent visa there can be a cancellation?

MR WALKER:   That would come on either view of the case, your Honour.

GUMMOW ACJ:   Yes.

MR WALKER:   And I do not contend against that.  The point about 116 is that it is available, and literally speaking, a moment after.  We do not test either the political sense or the legal meaning of provisions by extreme or fantastic possibilities, but it is not all that fantastic or extreme for one to have a body of persons about whom certain information has been accepted and then a devastatingly contradictory piece of information becomes available which very soon after requires reconsideration.  Section 116 is there for that.

GUMMOW ACJ:   But what is the relation then with section 117(2)?

MR WALKER:   Well, as my friend put yesterday, that is a limitation upon 116 power.  It is not one that applies in our case at all.  We never had a permanent visa.  So for persons in our position who ‑ ‑ ‑

GUMMOW ACJ:   Assume you have got it.

MR WALKER:   Assume we have got a protection visa?

GUMMOW ACJ:   Yes.  Could 116(1)(a) then apply at all in the light of 117(2)?

MR WALKER:   No.  By that point the Parliament has obviously decided that it is powers, for example, that one finds referred to in section 118 to which one will be confined.  An obvious one is section 109.  That is a very limited class compared to what section 116 would have permitted.  So my answer to your Honour is that it is 116, 117 and 118 that work together and, yes, there is a changing, in some cases a contracting, class of possibilities to cancel or remove the rights under a visa after you have reached a certain stage and, according to 117(2), a permanent visa stage.

GUMMOW ACJ:   Does that not then support in the end Mr Gageler’s argument that it is a big transition from temporary to permanent and when it says “A criterion . . . is” that ‑ ‑ ‑

MR WALKER:   Your Honour, we would not be here if we did not accept that it is that.  I do not want to be heard against the proposition, which of course we accept, that it is a big thing my client was asking for, it is a big thing for him ‑ ‑ ‑

GUMMOW ACJ:   But in terms of the way the Act operates.

MR WALKER:   Yes, it is a bit thing for him to get and the corollary is of course it is a very big thing for him to be denied by error of law.  That does not mean, however, that one construes 36(2) differently when the word “satisfied” is in question, comparing ‑ ‑ ‑

GUMMOW ACJ:   No, it is the words “A criterion . . . is”.

MR WALKER:   I accept what your Honour says, but “satisfied” cannot be left out of the mix.

GUMMOW ACJ:   No.

MR WALKER:   The word “satisfied” will mean the same at both stages.  The question is whether the instalment approach that Australia has adopted to the according of protection to recognised refugees, refugees who have been recognised as such, the question is whether that has, as I say, required the refugee to go back to the beginning as if it had not occurred and start all over again.  That, in our submission, for reasons I will come to almost immediately and I hope will not take too long, would be in breach of, that is would be inconsistent with, the relation between 1A(2) and 1C(5) of the Convention.  The words do not require it, though obviously for my friend’s argument it can be put that they may permit it, but because they do not require it by reason of the familiar approach this Court would not so construe it, and that really is the whole of our point.

Your Honours, a couple of those verbal indicators that I had been emphasising as I went through the Protocol and the Convention call for a few brief further comments.  Your Honour Justice Gummow yesterday raised a question about the use of the word “status” and drew to attention the alternative approach, which is to characterise a person.  I have of course used another word, not accidentally, namely, to recognise.  Clearly the word “status”, if I could put it this way, has the status of tradition.  It is used.  It is used not only in the Convention; it is used in scholarly writings about it; it is in the title and it is in this Court’s jurisprudence. 

It is unlikely, in our submission, that anything at stake in this case or, indeed, in an understanding of the statutory scheme under which my client is before this Court, that anything will turn upon the use of that word “status” for this reason.  Whatever one calls it, the substance of the protection which is intended to be afforded by reason of these obligations that according to Parliament Australia has to refugees are of great importance.  So that such jurisprudential bias as may have been called up by the word “status” as being something which would not be, as it were, lightly altered is not, in our submission, something that turns only on that word.  The actual substance of the protection afforded would be enough for that.

Second, for the reasons put by Justice Allsop in his paragraph 173, to which I need not take you now, there is not any substantive difference between the characterising or characterisation and status approaches.  His Honour makes it clear that he had thought about possible problems or penumbra effects from using the word “status” and clearly from his paragraph 173 he fell into no such error.

What matters is, as has been pointed out and seems to have been accepted on all hands, what this Court described as the way in which section 36(2) gives effect to the general expression of the precept to which the Convention gives effect, to adapt and quote from paragraph 32 of NAGV.  The precept to which the Convention gives effect is ultimately and always, that is, not deep down, not only deep down, but permeated throughout is humanitarian, and it has to do with, obviously, what I will call the species of the relief of suffering.

Your Honours, may I then come to what are called in the Protocol the definition section, namely, Article 1.

GUMMOW ACJ:   Looking at Mayer 157 CLR 290 at 299 in the joint judgment for a minute.

MR WALKER:   Yes, your Honour.

GUMMOW ACJ:   About ten lines from the bottom:

the “status” of a particular person under the Convention and Protocol is a temporal one depending upon whether or not the person comes within the definition of “refugee” at the relevant time and upon his or her particular past or present circumstances.

MR WALKER:   Yes.  May I make it crystal clear we do not have any qualification to utter upon that.  For reasons to which I am about to come, that is not only clear from the statute, from the provisions I have gone to, the provisions to which Justice Callinan has drawn attention, from written argument on both sides, it is also manifest in the terms of the Convention, particularly the definition provisions to which I am about to come.  This is the definition section in Chapter I of what is called, after all, the Convention Relating to the Status of Refugees.  It says:

the term “refugee” shall apply to any person who –

this is in section A - fits one of two possibilities.  We do not have to worry about the first possibility although it has to be said that it is written in the most overtly temporal terms one could imagine, and not only temporal in relation to when decisions have to be made, obviously, but temporal in relation to that because it is referring to a previous state - one “has been considered a refugee”.  That is important because of the way in which C, the cessation of application, is expressed.  That applies to all of section A. 

In Article 1, A(1), the historically closed class, you have people who, in relation to their status, belong to the group to whom the term “refugee” applies because they have been considered a refugee, past consideration.  A(2) is the one at the heart of this argument.  One sees where what, in our submission, the obvious but non-decisive use of the present tense in that, for example, third line of the print.  One of the critical aspects of fitting within 1A(2) is that, in the present tense, the person:

is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself-

These are clearly continuing states of affairs measured by some duration indeed.  We can see that that is temporal at least in the sense that it refers there to a historically closed class in the Convention form.  We know that has been removed by the Protocol.  We are talking about people who from time to time fall within that description - you are outside your country, you are unable or unwilling.  We know, however, that that has to do with something which has happened in the past, another temporal element.  The well-founded fear has to do with history, experience and, no doubt, has to do with prospect as well but prospect, obviously, is based upon history and experience.

When one then comes to C, which we accept applies, that is, needs to be taken into account when understanding the Protocol obligation which is that which is referred in 36(2), it says it:

shall cease to apply to any person falling under the terms of section A -

For protocol purposes, A(1), I stress, is not to the point, but for understanding how C(5), which is expressed to operate indifferently between A(1) and A(2), should be worked it is of significance to appreciate the nature of the group or class referred to in A(1) and the way in which C(5) would operate.  Clearly enough in the case of A(1), C(5) can operate only because circumstances have ceased to exist.

The same, we say, is clearly true from A(2).  There is no linguistic or functional reason to suppose anything different follows and but for the provision of protection by instalments in Australia, the question would surely never arise.  There could be no bona fide argument that under A(2) you are accorded what C(5) calls recognition, you have been recognised – have been recognised, a past, discrete act, no doubt assignable to a particular date - and that the Convention ceases to apply to you, you being a person falling under the terms of section A, to use the opening the words of C, only relevantly if the circumstances have ceased to exist. 

Now, words of duration, that is, expelling this moment to moment idea of fitting A(2) are as express as one could possibly find in the third and fourth words of C(5) – “He can no longer”.  They are words that say a period, a duration is on foot but no longer – this far and no longer.  What, of course, those words refer to is no longer being able to continue to refuse to avail himself of the protection of the country of his nationality because the circumstances have ceased to exist. 

That is why all the scholarly and, no doubt some of it - much of it extraneous but also judicial exposition of C(5) in terms that are sometimes framed infelicitously as onus, but on any view which have to do with the right question – that is why they refer to the need to have something which is durable, et cetera, et cetera.  It is all relative because the inquiry in C(5) is not simply about whether circumstances have ceased to exist.  That is the pointy end of it.  The inquiry is whether a person can no longer continue to refuse to avail himself of protection of that country because the circumstances have ceased to exist.

So that it is a cessation of existence, of change in circumstance of such a quality as to enable one to say, one would say with humanity and decency, that you can longer refuse to avail yourself of that protection.  That is why transitory false dawns, for example, in the violent or political nature of the country from which refuge has been sought will usually not suffice. 

Now, C(5) of course fits into a scheme of C which is about when the Convention ceases to apply and clearly enough it fits into a scheme where the refugee is unwilling to lose the protection of the Convention, the language of no longer being able to continue to refuse, can no longer continue to refuse.  If one goes to C(1), (2), (3) and (4) and one sees that the Convention also ceases to apply when, as it were, actions speak louder than words, each of (1), (2), (3), and (4) making it clear that either you can go back or have gone back or are willing to go back or you have found somewhere else.  The same is true with adaptations in (6), that is, it has an obvious parallel with (5) and, in our submission, it supports the way in which we read C in terms of the proper question.  One sees that this is about protection; the word “protection” is used as has already been observed not only in the preamble but one sees it in D as well. 

Your Honours, it is by that reading of the Convention that one sees that the question that 36(2) requires to be answered is a question about the position or relation of Australia and the non-citizen.  Under 36(2) the criterion is not whether a person is there and then, and this is at the reapplication stage, a person who has a well-founded fear though in some cases it will come down to that quite precisely.  The question covers more than just initial applications; it covers applications, as in this case, for a permanent visa.

Indeed, as we saw from the XC episode, where there was too much of a queue, 36(2) also covers the position where there is, as it were, a unilateral extension by grant of a new visa, of not only an initial application that 36(2) is addressing which is why one cannot automatically go to the provisions of A(2) which happen to be relied upon by an individual.  The criterion, rather, in 36(2)(a) is that Australia has, and I am going to use the present tense now, “protection obligations” and the Minister is satisfied of that.  Once a refugee has been recognised, to use the language of 1C(5), could it be said in any forum, national or international, that Australia does not have protection obligations, making due allowance for the infelicity of our language which may only bespeak national generosity or liberality. 

Now, that is true when after the initial application where the Minister was satisfied, I stress was satisfied, it is true that Australia has protection obligations thereafter because 1C(5) is relevantly the only way in which the Convention ceases to apply to the person which is the language of definition used in the so-called definition provision called up by the Protocol.  So one has a relatively simple question, we hope, very heavily loaded in our favour.  Does 36(2) really contemplate that the Minister, by reason of that innocent present tense “is” in “is satisfied” ‑ ‑ ‑

GUMMOW ACJ:   Why is it innocent, Mr Walker?

MR WALKER:   By reason of that little word, could it really be said that it is contemplated that of people who have been recognised and no 1C(5) has been done, or it has not been done properly as in this case, can it be truly an open interpretation that the Minister can say “Forget what has happened, forget how you are in this country, forget the status you have been accorded, forget what you have actually had at law, municipally, start all over again.  Take your dictation test again.”

KIRBY J:   Well, in your case in QAAH, according to paragraph 11 of Justice Wilcox’s reasons, the delegate signed a decision record in relation to the decision to grant the temporary visa saying “I am satisfied the applicant is a person to whom Australia has protection obligations”.

MR WALKER:   Your Honour, that it is what I drew to attention earlier, but it is what continues in that paragraph at the top of the next page that is the critical matter.  Yes, in form, the delegate set about being satisfied, but how did he do that?  By looking at exactly the same material which it had satisfied three years earlier.  That was the point I was making earlier by taking your Honour to that paragraph.

GUMMOW ACJ:   It is put against you that the Convention is self‑executed in the relevant sense.

MR WALKER:   This automatic or self-executing idea is one which is clearly one ‑ ‑ ‑

GUMMOW ACJ:   And that that is not without some merit because there are only so many refugees that certain States will accept.  If they are refugees upon whom 1C has operated, why should they get the spot where there are others with a greater claim and more current claim?

MR WALKER:   I think our answer to all of that is yes, but, first of all, it is absolutely clear that the Convention ought to be understood as fully appreciative of what I will call the scarcity of resources, if I can put it that way.  I drew attention already in the preamble to the Convention ‑ ‑ ‑

GUMMOW ACJ:   Yes, that is right.

MR WALKER:    ‑ ‑ ‑ to the fourth clause, “the grant of asylum may place unduly heavy burdens”.

GUMMOW ACJ:   The boat may be full.

MR WALKER:   Yes.  So there is no doubt ‑ ‑ ‑

GUMMOW ACJ:   As the Swiss said during World War 2.

MR WALKER:   Yes, I suppose it depends upon how many people you want crowded to the gunwales, your Honour.

GUMMOW ACJ:   Yes.

CALLINAN J:   Mr Walker, is it not true that Schedule 2 of the regulations prescribes in respect of every class of visa that the criteria must be satisfied at the time of the application?

MR WALKER:   Unquestionably.

CALLINAN J:   There is no exception to that.

MR WALKER:   Your Honour, I am not seeking to qualify that at all but I have obviously not made myself sufficiently clear as to ‑ ‑ ‑

CALLINAN J:   Well, not to me because how do you get around that?

MR WALKER:   I will try to do that in just one moment, your Honour. 

CALLINAN J:   But that is right as a statement, is it not, in every instance?

MR WALKER:   Yes, no doubt about that.

CALLINAN J:   It is specifically stated in every instance in general terms.

MR WALKER:   Yes, there is no doubt about that whatever, none at all, your Honour.  Indeed, 36(2) in terms does that.  We would accept that 36(2) does that as well.  Can I just conclude my answer to Justice Gummow’s point.  So the Convention is to be read against the background of appreciating ‑ ‑ ‑

GUMMOW ACJ:   I mean the Swiss example was in point because it was known to people in 1951.

MR WALKER:   Was live.

GUMMOW ACJ:   Yes.

MR WALKER:   Also, of course, was the notorious fact that by dint of the limits on how far people can walk, certain countries obviously did have a heavier burden than others.  My next point is this, that against that background it turns to the advantage of our argument to note the relation between 1A(2) and 1C(5) to which I have drawn attention.

The notion of being recognised as a refugee by reason of drawing on your history and the history that affects you and having, in the present tense, a well‑founded fear of a prospect, that being a discrete administration recognition, as the Convention calls it, that protection obligations descend at that point, they happen at that point, the determination to which I made reference earlier, and Australia then having, in a present, continuing tense, protection obligations, all of that is then true and says the Convention, “Cognisant of the heavy burdens that this may place on some countries we give you a means of lifting those obligations and the means we give you is 1C”, 1C(5), in particular, relating to what might be regarded as an otherwise intractable problem, the unwilling returner - 1C(1), (2), (3), (4) as it were allowing events to supersede a state of affairs whereby a person might end up having favourable status in more than one country without being a national of both. 

So that, in our submission, it is the Convention itself recognising the background to which Justice Gummow has drawn attention which has set out in 1C, for this case, the unwilling returner - 1C(5) - the state of affairs which was that chosen by the contracting parties after much talk as being a way in which it would cease to apply.  That is as firm an announcement as one could find in the structure and nature of a convention to give protection of a continuing or durable kind and assurance, to use the Protocol’s words, to refugees, that it is not self-executing or automatic in the sense that it can come down to this scenario.

Your Honours, can I come back then first to the homework that your Honours set, and I am not sure I am going to pass that, and then to deal with some of Mr Walker’s submissions.  The first question concerns whether I was correct in stating categorically that every non‑citizen needed a visa to remain in Australia.  That is correct.  There is though, as some of your Honours intimated, a class of visa known as an electronic travel authority which is provided for in the Migration Regulations, Schedule 1, item 1208A, and that is a class of visa that is relatively easy to get for holders of ETA eligible passports.  Most Americans, as I understand to be the position, are holding those compliant passports.

Secondly, your Honours asked as to the domestic legislation that underlay the decision in Hoxha in the United Kingdom.  We also have not been able to track that down.  If we may take that on notice, we will find it and provide your Honours with a note.

CALLINAN J:   It is not referred to in the Court of Appeal decision.  We have looked there.

MR GAGELER:   No, we have gone that far.

CALLINAN J:   Maybe at first instance.  I do not know.

GUMMOW ACJ:   We do have the House of Lords earlier decision in Adan which we have looked at from time to time.

MR GAGELER:   Yes.  We are not sure if that remains the position.  That really leads me to the second bit of homework which again I will have to ask for an extension of time on.  That is your Honour Justice Kirby asked about the foreign State practice as to the grant of temporary and renewable protection permits for refugees.

CALLINAN J:   When you are dealing with that, it is interesting in the Court of Appeal in Hoxha there is a reference to – I think it was a submission by Sir Percy Spender in the 1962 case which talks about subsequent State practice and it is adopted by the Court of Appeal.

GUMMOW ACJ:   And the significance of lack of uniformity in subsequent State practice.

CALLINAN J:   You have to…..You may be able to look at the practice for bilateral treaties but not for ones to which there are many subscribers.

MR GAGELER:   An aspect of Hoxha I did not emphasise, but really a proposition for which the judgment stands is that, at least as at the date of that decision, there was no State practice which could be used as a guide to the interpretation of the Convention definition in Article 1C(5).  Really that was held in those terms by all of the members of the court.  Your Honours, what we have found out about State practice is that, at least since August 2005, the United Kingdom has had a system which appears to be very similar to our own, but we will give your Honours a note.

KIRBY J:   Who does?

MR GAGELER:   The United Kingdom has had a system very similar to our own.  We will give your Honours a note on that.  It appears also ‑ ‑ ‑

GUMMOW ACJ:   Yes, I have a recollection of that.

MR GAGELER:   Denmark, the Netherlands, Norway, Sweden and perhaps the USA are in a fairly similar position, but if we may have some time to be able to verify that and provide your Honours with a note, we will do so.

GUMMOW ACJ:   Would 14 or 21 days – there may be quite a lot of work to be done.

MR GAGELER:   Would your Honour stretch to 28?

GUMMOW ACJ:   Yes.

MR GAGELER:   We will make sure it is done properly.

KIRBY J:   If there are any decisions on the suggested tension between granting a temporary visa which expires on a given date and the scheme of the Convention which is said to be that once you have recognised the person, you have to take it away by 1C(5), if that has been confronted in any other country, that would be helpful to know how they have dealt with it.

MR GAGELER:   We will do our best to cover the field, your Honour.  Your Honour the Acting Chief Justice asked me to consider aspects of the recent Sydney Law Review article.  We have done that.  Can we say a couple of things very briefly about it.  It implicitly appears to us to take a very narrow view of the substantive operation of Article 1C(5) and one which, contrary to our principal submission, does not require a current well‑founded fear to exist, and then it proceeds on that basis.  It does at page 367 correctly, in our submission, point out that it is generally accepted that recognition of refugee status is declaratory only.  We accept that and it is generally accepted.  Where it in part goes wrong, in our submission, is further down the same page, page 367, where it picks up the view of Justice Wilcox that recognition is necessarily of indefinite duration.  That is incorrect because recognition is declaratory as at a point in time.  That is the answer to that.

At page 370, which I think is the beginning of the statement of conclusions that your Honour particularly drew my attention to, the premise is probably wrong because we do not say that Article 1C(5) is not brought into operation at all or has no role to play.  We have accepted that the previous recognition as a refugee in the grant of a temporary protection visa is recognition within the meaning of Article 1C(5).  What we do say is that within Article 1C(5) one does not, as the article appears to suggest us to say, have a de novo consideration of that which was considered before.  That which was considered before was the position as at the date of the previous consideration.  What Article 1C(5) requires is not going back to taws but a consideration of the position as at the date when Article 1C(5) comes to be applied asking:  does this person at this time continue to have a well‑founded fear of persecution which was recognised to exist at an earlier time?  The question is, does it now exist?

GUMMOW ACJ:   You challenge two propositions that seem to appear on page 371.  The first one is that the grant of the temporary protection visa is declaratory of the applicant’s status as a refugee under international law.

MR GAGELER:   We would accept that read in one sense.  Declaratory ‑ ‑ ‑

CRENNAN J:   At the time.

MR GAGELER:   As at the time.

GUMMOW ACJ:   Yes, and the next proposition I was going to mention is there is a presumption at law that the person continues to be a refugee.

MR GAGELER:   We certainly ‑ ‑ ‑

KIRBY J:   The problem with the first proposition you put is that the Convention seems to be positing a recognition and “declaratory as at that time” seems to be challenging the fact that you are either recognised or not.  I am not wanting to reopen it.  I think that the issues are joined on the question, but that is how I read Ms Sullivan’s article.

MR GAGELER:   I think the position is quite clear, your Honour.  Can I move to Mr Walker’s submissions.  I think I can deal with it in five minutes or so.

GUMMOW ACJ:   Do not run over yourself in speed.

MR GAGELER:   We agree with very much of what Mr Walker has to say.  We agree when he turns to section 36(2)(a) of the Act and he starts with the Act and moves to the Convention.  Starting with the Act and starting with section 36(2)(a) and looking at the language, we agree with him that “as amended” means “as applied by”.  We agree with him that the word “to” means “with respect to” and we agree with him that the word “has” means “has”.

We agree that one goes through the Protocol to the definition of “refugee” in Article 1 of the Convention and does so with the words of temporal limitation expressed at the beginning of Article 1A(2) excised.  All of that, as we understand it, is nothing more than to repeat and to accept what was held in NAGV 213 ALR 668 at paragraphs 42 and 43. That is a statement of conclusion. Where we disagree with him is to the extent that he appears to suggest that section 36(2)(a), because it refers to a person “to whom . . . Australia has protection obligations”, somehow goes further than picking up the definition and imports the bundle or some part of the bundle of obligations referred to in Articles 2 to 34 of the Convention. That may in whole or in some part be referred to as protection obligations and that may in whole or in some part be referred to quite properly as obligations relating to the status of refugees. What it does is simply pick up the definition and no more.

Related to that, we disagree quite fundamentally with a proposition that underlay a significant part of his oral submissions and very much the position taken, as we understand it also, by Mr Lindsay that as a matter of domestic law under the Migration Act a visa is designed to seek to give effect to all of the obligations or a significant part of the obligations that one finds in Articles 2 to 34.  That is, as Mr Walker put it – these are his words – that a visa is more than simply authority to stay.  In our submission, if it is more, it is not by virtue of the Migration Act more than simply authority to stay.  The visa is what section 29 of the Act says it is and it has the effect for which the other provisions of the Act, particularly sections 68 and 86 to which your Honour Justice Callinan referred, say that it has.  One of the effects of a temporary visa is that it will expire and that to continue to stay in Australia a person will need a new visa.

If and when a person who has a temporary protection visa becomes an applicant for a permanent visa, that will be by virtue of a new application under section 45 of the Act, which occurred in the present case, for a particular class of visa, the protection visa, which the Minister is bound to consider that new application under section 47 of the Act and to which the Minister is bound by the terms of section 65 to apply the criterion set out in section 36(2)(a).  The Minister is bound by the terms of section 65 to ask in effect, “Am I satisfied that the Convention definition is satisfied at this time?”  That is as much as one gets out of the Act.

Coming then to the Convention definition, the battle lines have been pretty much ‑ ‑ ‑

CALLINAN J:   Before you leave the Convention definition, is there a regulation which deals with the criteria for a permanent visa?

MR GAGELER:   There are regulations which deal with the criteria for a permanent protection visa.  It is subclass 866, item 866 of Schedule 2 of the Migration Regulations.  It is page 1253 if your Honour is looking at volume 2 of the Migration Regulations.  If your Honour is looking at our material, we provided to the Court extracts of the regulations that are set out in a number of different forms.  Item 866.

To return to a question your Honour asked of my learned friend, Mr Walker, I think, the regulations themselves are really probably saying nothing more than section 36(2)(a) itself says, require as a criterion to be satisfied at the time of decision that:

The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

That is 866.221.

Your Honours, to return to the Convention and I think not to say very much further about it, it is significant, in our submission, and overlooked in our learned friend’s submissions that Article 1C(5) itself speaks as to the present.  That is, it speaks as to a person who “can no longer” and it goes on just as Article 1A(2) speaks to the present by using the present tense “is”.  It is really our submission that they speak to the present in a single voice, perhaps one with an English accent and the other with a French accent, but nevertheless with an English voice.  They speak as to the present facts or circumstances and they say nothing because the Convention as a whole says nothing as to the proof of those facts.  If the Court pleases.

GUMMOW ACJ:   Thank you, Mr Gageler.

MR GAGELER:   I am sorry, your Honours, if it would be of assistance, we have reproduced part of our written submissions in QAAH with the travaux references to our materials.  They are a little hard to find in the footnotes, so may I provide those to the Court.

GUMMOW ACJ:   They can be handed up after we adjourn.  Mr Walker and Mr Lindsay, Mr Gageler is to have 28 days.  Would 14 days after that for any further material you want to put in be appropriate?

MR WALKER:   May it please your Honour.

MR LINDSAY:   Yes, your Honour.

GUMMOW ACJ:   Very well.  Mr Gageler has that leave of 28 days and Mr Walker and Mr Lindsay for 14 days thereafter.  We thank counsel for their assistance in this matter and we will adjourn until 2.15.

AT 12.46 PM THE MATTERS WERE ADJOURNED