MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND
QAAH OF 2004 & ANOR RESPONDENTS
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 15 November 2006 B2/2006
ORDER
1.Appeal allowed.
2.Set aside Orders 1 and 2 (except par 3 of Order 2), of the orders made by the Full Court of the Federal Court of Australia on 27 July 2005 and in their place order that the appeal to that Court be dismissed.
3.Appellant to pay the costs of the first respondent of the application for special leave to appeal and the appeal.
On appeal from the Federal Court of Australia
Representation
S J Gageler SC and S B Lloyd for the appellant (instructed by Clayton Utz Lawyers)
B W Walker SC with M O Plunkett for the respondent (instructed by Terry Fisher & Co)
Submitting appearance for the second respondent
S P Estcourt QC with J A Gibson appearing on behalf of the United Nations High Commissioner for Refugees as amicus curiae (instructed by Mallesons Stephen Jaques)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004
Immigration – Refugees – Application for permanent protection visa – Statute requiring Minister to be satisfied Australia owes protection obligations to the applicant under the Convention – Applicant previously granted temporary protection visa for a specified period – Whether previous grant of temporary protection visa entitles applicant on application for a new visa to a presumption of being owed protection obligations under the Convention – Construction of Migration Act1958 (Cth), s 36 – Construction of the Convention.
Words and phrases – "refugee", "protection obligations", "cessation".
Convention relating to the Status of Refugees, Art 1A, Art 1C(5). Protocol relating to the Status of Refugees.
GUMMOW ACJ, CALLINAN, HEYDON AND CRENNAN JJ. The principal question in this appeal is whether an entrant to Australia, who has been granted a temporary protection visa, is, on its expiry, and notwithstanding benign changes in the conditions of the country from which he fled, entitled under Australian law to assert that he continues to be a person to whom Australia owes protection obligations. Other questions, as to the proper construction of the Convention relating to the Status of Refugees[1], taken with the Protocol relating to the Status of Refugees[2] (together, "the Convention"), as they have been received into Australian law in the Migration Act 1958 (Cth) ("the Act"), and the nature and onus of proof in proceedings concerning refugees, arise for consideration. An application for special leave to appeal in NBGM v Minister for Immigration and Multicultural Affairs[3], which raised similar questions, was argued at the same time as this one.
[1]Done at Geneva on 28 July 1951.
[2]Done at New York on 31…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Case
[2006] HCA 53
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Minister for Immigration and Multicultural and Indigenous Affairs concerning an Afghan citizen's application for a permanent protection visa. The applicant had previously been granted temporary protection visas. The central dispute revolved around whether the Minister was satisfied that Australia owed protection obligations to the applicant under the Convention, a prerequisite for granting a protection visa.
The primary legal issue before the Court was whether the previous grant of a temporary protection visa to the applicant created a presumption that Australia owed him protection obligations under the Convention for the purposes of his application for a permanent protection visa. The Court was also required to consider the construction of relevant provisions of the *Migration Act 1958* (Cth), particularly section 36, and the application of the Convention, including its cessation provisions.
The Court reasoned that the *Migration Act* and the Convention require the Minister to be satisfied that protection obligations are owed at the time of the application for a permanent protection visa. The Court found that the previous grant of a temporary protection visa did not create an irrebuttable presumption or a presumption that shifted the onus of proof regarding the existence of current protection obligations. The Court noted that visas can have temporal limitations and that the Minister has the power to cancel a visa if circumstances permitting its grant no longer exist. The Tribunal had found that the cessation provisions of the Convention applied, as the applicant could no longer refuse to avail himself of the protection of Afghanistan due to the dislodging of the Taliban from power.
The High Court granted special leave to appeal, but ultimately dismissed the appeal with costs, upholding the judgment of the Full Court of the Federal Court of Australia.
Orders
Orders of the court
1. Special leave to appeal from the whole of the judgment and orders of the Full Court of the Federal Court of Australia given on 12 May 2006 be granted. 2. The appeal be treated as having been instituted and heard instanter and be dismissed with costs.
Background
Background to the litigation
The Act is to be read against the consistent refusal of nation states to accept, apart from any limitations imposed by treaties to which they are parties, any abridgment of their authority to determine for themselves whether or not a right of entry and of permanent settlement should be afforded to any individual or group of individuals. Statements in this Court to that effect have been adopted by the House of Lords in R (European Roma Rights) v Prague Immigration Officer[4] and Januzi v Secretary of State for the Home Department[5].[4][2005] 2 AC 1 at 27-28 [14]-[15], 31-32 [19] per Lord Bingham of Cornhill with whom Lord Hope of Craighead (at 47 [48]), Baroness Hale of Richmond (at 55 [72]) and Lord Carswell (at 66 [108]) agreed.[5][2006] 2 WLR 397 at 402 [4] per Lord Bingham of Cornhill with whom Lord Nicholls of Birkenhead (at 413 [23]), Lord Carswell (at 424 [61]) and Lord Mance (at 427 [70]) agreed; [2006] 3 All ER 305 at 311, 322, 332, 335.Facts and proceedings The first respondent is a citizen of Afghanistan. He is of Hazara ethnicity, and is a Shi'a Muslim. He arrived in Australia on 27 September 1999. On 28 March 2000 he was granted, by a delegate of the appellant, a temporary protection visa to expire after three years. He applied on 17 April 2000 for a permanent protection visa. On 27 March 2003, another temporary protection visa was issued to him pending a decision upon his entitlement to a permanent visa. That decision was given some months later and was adverse to the first respondent. Under s 36(2)(a) of the Act, a criterion for the issue of a protection visa is that the applicant is a non-citizen, present in Australia, and a person to whom, the Minister is satisfied, Australia owes protection obligations under the Convention[6].[6]As per s 5(1) of the Act. Following the decision of the appellant's delegate, denying the first respondent a permanent protection visa, the first respondent applied to the Refugee Review Tribunal ("the Tribunal") for review. The Tribunal affirmed the decision of the appellant's delegate. In doing so, the Tribunal posed for itself two questions, to the first of which, as will appear, there was a dispute whether an answer was required in the circumstances. It was whether the cessation provision (Art 1C(5)) of the Convention applied. The second question was said to be whether there was new evidence, to suggest that the first respondent was currently a "refugee" for the purposes of the Act. The Tribunal answered the first question by holding that the cessation provision did apply: the first respondent could no longer continue to refuse to avail himself of the protection of Afghanistan. The Tribunal accepted that the extremist group, the Taliban, if it were still in power, would have persecuted the first respondent because of his Hazara ethnicity, and because he is a Shi'a Muslim. But, the Tribunal observed, the Taliban had been effectively dislodged from power by late 2001: even though remnants of the Taliban remained active in some parts of the country, it had ceased to be a coherent political movement. Further, the Tribunal did not accept that there was a real chance of the re-emergence of the Taliban as an effective authority in the reasonably foreseeable future: there was no satisfactory evidence to support the first respondent's assertion that in a neighbouring province the Taliban maintained a real power base. The first respondent had also claimed to fear harm from a number of other sources, all because of his ethnicity and religion. As to this claim, the Tribunal found that he did not have a real chance of being persecuted by any of the people or groups whom he identified. The Tribunal accordingly concluded that the first respondent did not have any well-founded fear of persecution.
Section 65 is as follows:"Decision to grant or refuse to grant visa(1)After considering a valid application for a visa, the Minister:(a)if satisfied that:(i)the health criteria for it (if any) have been satisfied; and(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and(iv)any amount of visa application charge payable in relation to the application has been paid;is to grant the visa; or(b)if not so satisfied, is to refuse to grant the visa.Note:See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section.(2)To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3)." The Act, by s 68(3), further makes it clear that visas can have temporal limitations: "A visa can only be in effect during the visa period for the visa." Section 77 is to a similar effect, as is s 82(7). Section 77 provides:"Visas held during visa periodTo avoid doubt, for the purposes of this Act, a non-citizen holds a visa at all times during the visa period for the visa."And s 82(7) is as follows:"A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date." It is unnecessary to set them out, but we would also draw attention to ss 91R, 91S, 91T, 91U and 91V, which effectively define "persecution" for the purpose of the Act and, it follows, the application of the Convention in Australia. These sections, it may be noted, speak of persecution in the present tense. Visas are subject to cancellation under, among other sections, s 116(1)(a), which looks to the contemporaneity of the threat or otherwise:"Power to cancel(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:(a)any circumstances which permitted the grant of the visa no longer exist ... ." Section 129 requires the Minister to give notice of cancellation of a visa inviting its holder to show reason why the cancellation should not have occurred and seeking its revocation. There are other sections which make provision for the cancellation of various classes of visa but they need no further reference here. Regulation 2.01 of the Migration Regulations (Cth) ("the Regulations") describes classes of visas in terms of their duration:"Classes of visas (Act, s 31)For the purposes of section 31 of the Act, the prescribed classes of visas are:(a)such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and(b)the following classes:(i)transitional (permanent); and(ii)transitional (temporary).NoteFor the classes created by the Act, see ss 32 to 38."