MZWLH v Minister for Immigration
[2005] FMCA 1200
•19 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWLH v MINISTER FOR IMMIGRATION | [2005] FMCA 1200 |
| MIGRATION – Refugee Review Tribunal – protection visa – applicant recognised as a refugee and granted protection visa – further application refused – approach to a case of possible cessation of refugee status – application of s.36(3) of Migration Act 1958. |
| Migration Act 1958, s.36(3), 36(4) |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373 |
| Applicant: | MZWLH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 717 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 28 January 2005 |
| Date of Last Submissions: | 8 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 19 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gibson |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Mr S Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Decision of the Refugee Review Tribunal dated 16 April 2004 be set aside.
The matter be remitted to a differently constituted Tribunal to be considered according to law.
The First Respondent shall pay the Applicant’s costs.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 717 of 2004
| MZWLH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
By an Amended Application filed 29 November 2004 the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the RRT) made on 16 April 2004 and handed down on 13 May 2004. The RRT had affirmed a decision of the delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant claims to be a citizen of Afghanistan who arrived in Australia on 3 September 1999. On 23 October 1999 he lodged an application for a protection visa. He was granted a temporary protection visa valid for three years on 27 January 2000. On
2 February 2000 the Applicant made a further application for a protection visa and claimed that he would face persecution at the hands of the Taliban if he were returned to Afghanistan because of his ethnicity (Tajek Suni) and his support for the former communist regime including his association with a friend of political leaders who were fighting against the Taliban. It is noted the Applicant claimed he had made negative comments about Pakistan and those comments may have been reported to the Taliban and that because he lived overseas he may have been seen as “anti Muslim”.
In support of his application for a further protection visa on 2 February 2000 the Applicant relied upon a statutory declaration dated 21 July 2002. It is noted that the further application for a protection visa appears to be a copy of the original application. The statutory declaration however sets out further detail in relation to the Applicant and his family. The Applicant was interviewed by the primary decision maker in relation to the further protection visa application on 24 June 2003. The delegate’s decision dated 5 September 2003 refusing to grant the further protection visa was subject to an application on
14 October 2003 to the RRT for review of that decision. On
6 February 2004 the RRT invited the Applicant to attend a hearing. On 17 March 2004 he lodged written submissions in support of his claim with the RRT. The Applicant attended a hearing on 19 March 2004 and the Applicant’s advisor submitted letters on 7 April and 14 April 2004 in support of the Application.
The Amended Application provides the following particulars whereby it is claimed the RRT decision was affected by jurisdictional error in that:-
i)Misunderstood and/or misinterpreted the Article 1C Convention test and/or
ii)Applied the wrong test as to what will establish a change of circumstances such that the Applicant can no longer refuse to avail himself of the protection of Afghanistan and/or
iii)Failed to examine the extent of structural change in the country of origin which needs to be established if the Article 1C test is to be correctly applied and/or
iv)Wrongly applied s.36(3) of the Act in order to assess whether the Applicant satisfied Article 1A(2) of the Convention test and/or wrongly considered that s.36(3) of the Act required and/or enabled the Tribunal to assess whether the Applicant had a well-founded fear of persecution for reasons in connection with which he was originally recognised as a refugee.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
The Tribunal decision
The Tribunal found that the circumstances in Afghanistan had changed and that the Applicant could no longer continue to refuse to avail himself of the protection of his country of nationality. It is appropriate to set out the relevant extracts from the RRT decision which appear under the heading “Findings and Reasons for Decision”:-
“In the present case there is no issue concerning the Applicant’s nationality. I accept that he is a citizen of Afghanistan. As
I indicated to the Applicant in the course of the hearing before me, because he was found by a delegate of the Minister to be a person to whom Australia owed protection obligations under the Refugees Convention (that is, to be a refugee as defined in Article 1A(2) of the Convention) at the time when the decision was made to grant him a Subclass 785 (Temporary Protection) visa, the first question I need to address is whether, in accordance with Article 1C(5) of the Convention, he can no longer continue to refuse to avail himself of the protection of his country of nationality because the circumstances in connection with which he was recognised as a refugee have ceased to exist.
The Applicant was granted refugee status on the basis of his fear of the Taliban and, as I put to the Applicant, the Taliban were removed from power in Afghanistan by mid-November 2001 (US State Department, Country Reports on Human Rights Practices for 2002 in relation to Afghanistan, Introduction). I accept that the remnants of the Taliban are still present in Afghanistan but, as I put to the Applicant, the information available to me indicates that the Taliban no longer exists as a political movement (Danish Immigration Service, ‘The Political Security and Human Rights Situation in Afghanistan’, Copenhagen, March 2003, pages 14, 23, 25). The Applicant said that when he had been granted refugee status he had mentioned to ‘Ashrar’ as well as the Taliban. I noted that he had said that he had been living and working in Kabul up until the Taliban had come, after which he had had to go into hiding. The Applicant said that even prior to that he had feared the ‘Ashrar’ but he had not had the opportunity to talk about this at the time of his original application. The Applicant said that it was true that the Taliban still remained but his main enemy was the ‘Ashrar’, the so-called Mujahideen, because the PDPA had fought with them previously.
I find on the basis of the evidence referred to above that the Taliban have been removed from power in Afghanistan (US State Department, Country Reports on Human Rights Practices for 2002 in relation to Afghanistan, Introduction). I do not accept on the evidence before me that there is a real chance of the Taliban re-emerging as a viable political movement in Afghanistan in the reasonably foreseeable future (Danish Immigration Service, ‘The Political, Security and Human Rights Situation in Afghanistan’, Copenhagen, March 2003, page 14). I consider that they are no longer in a position to pose a threat to the Applicant in the manner referred to by the delegate of the Minister in the decision granting the Applicant a Subclass 785 (Temporary Protection) visa if the Applicant returns home in Kabul now or in the reasonably foreseeable future. I find that, because the circumstances in connection with which the Applicant was recognised as a refugee have ceased to exist, he can no longer continue to avail himself of the protection of his country of nationality for those reasons. Therefore, Article 1C(5) of the Convention applies to the Applicant.
Furthermore, even if I were wrong in my conclusion about the application of Article 1C(5) in the circumstances of the present case, I would still need to consider whether, as at the date of this decision, the Applicant has a well-founded fear of being persecuted on the basis of the circumstances in connection with which he was originally recognised as a refugee if he returns to Afghanistan now or in the reasonably foreseeable future. The need to consider this question arises from the operation of subsections 36(3) and (4) of the Migration Act, set out above. Those subsections provide that Australian is taken 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 or reside in any country apart from Australia, including countries of which the non-citizen is a national – in the present case, Afghanistan – unless the non-citizen has a well-founded fear of being persecuted in the relevant country for one of the five Convention reasons. Therefore, if a person who has previously been recognised as a refugee no longer has a well-founded fear of being persecuted for one of the five Convention reasons in his or her country of nationality, and has not taken all possible steps to avail himself or herself of a right to enter and reside in that country, subsection 36(3) will apply, irrespective of the operation of the cessation clauses.”
The Applicant has submitted that this Court should not rely upon those authorities of the Federal Court Justices.
Whether the Tribunal misinterpreted the Article 1C Convention Test
Article 1 of the Refugees Convention relating to the status of refugees provides:-
‘Definition of the term refugee
A. For the purposes of the present Convention, the term "refugee" shall apply to any person who:
(1) Has been considered a refugee unde the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1993 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;
Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;
(2) [As a result of events occurring before 1 January 1951 and] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence [as a result of such events], is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.[The emphasised words were deleted by the Protocol of 1967.]
...C. This Convention shall cease to apply to any person falling under the terms of Section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily reacquired it; or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;
(6) Being a person who has no nationality he is, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, able to return to the country of his former habitual residence;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.
D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.
E. This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.’ (Footnotes omitted.)”
Both parties made submissions at the hearing of this application in relation to the issue of whether the RRT had misundestood or misinterpreted Article 1C Convention Test. For present purposes in considering the issue of the Article 1C Convention Test it is appropriate to further consider Grounds (ii) and (iii) set out earlier in paragraph 4 of this judgment. I shall deal with the issue of s.36(3) of the Act separately.
At the time of the hearing the Respondent relied upon a decision of Emmett J in NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373 (the Emmett decision). The Emmett decision at that time was followed by Selway J in SWNB v Minister for Immigration & Multicultural & Indgenous Affairs [2004] FCA 1605 and by Finn J in SVWY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 15. Finn J also followed the Emmett decision in Minister for Immigration & Multicultural & Indigenous Affairs v SWZB [2005] FCA 53. Other Federal Court Justices since the hearing date also followed the Emmett decision and in particular it is noted that Jacobsen J in NBEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 161, Branson in NBEI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 171 and Keifel J in QAAT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 968 also followed the Emmett decision.
The hearing the Emmett decision is subject to an appeal and at the time of delivery of this judgment remains the subject of an appeal though it is understood by the Court that that appeal may well now be dealt with by a resonstituted Court. It is not necessary for this Court to speculate on what may happen in relation to any further appeals though it is noted there is a Full Court reserved decision which it is understood has to consider two of the decisions where the Emmett decision was followed. The Court was minded to await the outcome of the appeal from the Emmett decision though in the meantime a Full Court of the Federal Court delivered in a decision in QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136 (the QAAH decision). Both parties were invited to provide written submissions arising out of the QAAH decision. The Applicant provided Suppelementary Contentions of Fact and Law filed on 8 August 2005. It is understood that the Minister is now seeking to appeal the decision of the Full Court of the Federal Court in QAAH to the High Court of Australia. Nevertheless it is not appropriate in my view for this Court to await the outcome of any special leave application or indeed to await the outcome of further decisions of a Full Court of the Federal Court in relation to other decisions of Justices of the Federal Court.
In the light of the QAAH decision it is not necessary for this Court to reconcile differences which may have been expressed amongst Federal Court Justices or to now follow the individual decisions of the Justices who followed the Emmett decision referred to earlier in this judgment. This Court is now bound by the Full Court decision of the Federal Court in QAAH and in my view it is appropriate for the Court to apply the decision of Wilcox J with whom Madgwick J agreed. In his judgment Wilcox J states the following:
“68 The decision of Emmett J in NBGM predated the House of Lords’ decision in Hoxha. His Honour did not have Lord Brown’s analysis of the relationship between Article 1A(2) and Article 1C(5). Neither did the primary judge, in deciding the case now before us. I am not sure to what extent either judge had the benefit of considering the UNHCR material to which we were referred. Certainly neither judge dealt with it.
69 With the advantage of considering all that material, I have reached the respectful conclusion that the primary judge was wrong in saying that ‘it was not strictly relevant that he had previously applied for and received temporary (XA) and temporary (XC) visas’. On the contrary, that fact was of critical importance. The circumstance that the appellant had previously been recognised as a refugee was the starting point for consideration of his permanent visa application. The circumstance had considerable practical importance; it affected what might loosely be called the burden of proof. I accept that, in a technical sense, no burden of proof rests on any party in relation to review of an administrative decision: see McDonald v Director-General of Social Security (1984) 1 FCR 354; see also Mary Crock Immigration and Refugee Law in Australia, The Federation Press, Sydney, 1998 at 138 and 262 and the authorities there cited. However, it matters to the parties which one of them fails if the evidence is inconclusive, as may well happen when (as here) the critical question concerns conditions in a remote part of a foreign country. In an original application for refugee status, relying on Article 1A(2), the Minister (or her delegate or the Tribunal) must be satisfied of facts that support the inference that the applicant has a well-founded fear (including that there is a real chance) of persecution for a Convention reason if returned to his or her country of nationality. If the facts do not go so far, the claim for a protection visa will fail. The situation is different in relation to an inquiry under Article 1C(5) as to possible cessation of refugee status. If the facts are insufficiently elucidated for a confident finding to be made, the claim of cessation will fail and the person will remain recognised as a refugee.
70 The primary judge referred to Chan, in rejecting the appellant’s argument that it had been necessary for the Tribunal to consider the application to him of Article 1C(5): see para 29 above. However, Chan furnishes no support for his Honour’s position. Chan arose under Article 1A(2) of the Convention, not Article 1C(5). Mr Chan had not previously been recognised as a refugee. At the point of Dawson J’s judgment identified by the primary judge, his Honour was dealing with the question whether Article 1A(2) requires refugee status to be determined ‘as at the time when the test laid down by the Convention is first satisfied so that it ceases only in accordance with [Article 1C(5)], or whether refugee status is to be determined at the time when it arises for determination’. In common with the remainder of the Court, Dawson J held the latter situation was correct. His Honour was saying nothing about the operation of Article 1C(5) in circumstances where, not only was the test satisfied, but recognition had been granted.
…
74It is true that the March 2000 delegate referred to the fact that ‘the Taliban control large areas in Afghanistan’. Perhaps that is no longer so, a circumstance that raises the possibility of a cessation case under Article 1C(5) being made out. However, for that to happen, the Tribunal would need to be satisfied of much more than the fact that there is no real chance of the Taliban re-emerging as a governing authority or exercising the same type of control as it did in 1999. The Tribunal would need to investigate, and make findings about, the extent of Taliban activity in the Afghan countryside, especially in the appellant’s home district. The Tribunal would also have to consider the durability of the present situation.
…
77 If, as claimed, Afghanistan is still unstable and the interim government would be unable to protect the appellant from the Taliban and Taliban sympathisers, it is impossible sensibly to say there has been a cessation of the circumstances in connection with which the applicant was recognised as a refugee. The details of the picture may have changed since 2000, but the threat would still exist. In my opinion, it was necessary for the Tribunal to address the appellant’s claims of instability and lack of protection before it could reach a conclusion that Article 1C(5) applied to this case. If the Tribunal found that these claims were unjustified, under present conditions, the Tribunal would have needed to consider the durability of those conditions. It did not do so.”
It should be noted that in QAAH Lander J dissented and in dealing with the reasons for dissent Wilcox J under the heading “Post Script” relevantly states the following:-
“83 It is important to distinguish between recognition of a person as a ‘refugee’, within the meaning of the Convention, and the grant to that person of protection. Recognition is a function of the Convention; protection is a function of the Act. Recognition is necessarily of indefinite duration; protection may be for a limited period, or until the happening of a particular event. A person may continue to have refugee status (because the person has successfully invoked Article 1A(2) and Article 1C(5) has not yet operated against him or her) notwithstanding the expiration of a temporary protection visa.
84 It seems to me, with great respect, that Lander J, and those who have shared his view, have overlooked the significance of the distinction just made. They interpret the requirement of s 36(2)(a) of the Act (and reg 866.221), that the Minister be ‘satisfied Australia has protection obligations’ under the Convention, as necessarily requiring the Minister (or her delegate or the Tribunal) to make a de novo decision that the particular applicant for a permanent visa then satisfies Article 1A(2) of the Convention; even though that applicant might have obtained such a decision at an earlier point of time, and thus achieved the status of being a ‘refugee’ within the meaning of the Convention, and that status has not ceased pursuant to Article 1C(5) of the Convention.
85 Although this might have led to failure by Australia to give full effect to its Convention obligations, it would have been constitutionally possible for the Parliament to have enacted such a requirement. However, it chose not to do this. Parliament chose, in s 36(2)(a) of the Act (and reg 866.221), to tie the selected criterion directly to Australia’s protection obligations to the person.
86 As a matter of logic, it seems to me, the Minister (or her delegate or the Tribunal) might become satisfied that Australia has protection obligations to a person in either of two ways:
(i) because the decision-maker is satisfied, as a result of a de novo inquiry, that the applicant is a person who falls, at that time, within Article 1A(2) of the Convention; or
(ii) because the decision-maker is satisfied that the person has already been recognised as a refugee under Article 1A(2) of the Convention and is not satisfied that this status has ceased under Article 1C(5).
87 The approach adopted by Lander J (and the other judges to whom he refers) effectively eliminates the second alternative. It recasts the scheme of s.36(2)(a) (and reg 866.221) to make the requirement for grant of a protection visa, not the selected question whether Australia has protection obligations to the person but the narrower question whether the person can bring himself or herself within Article 1A(2) at that time. Despite my great respect for all those who have adopted that approach, it seems to me plainly to be wrong.”
In my view applying the decision of the majority in QAAH it is necessary and relevant for the RRT to have regard to the fact that the Applicant applied for and received a temporary visa. Accepting what the majority in QAAH states that fact was of “critical importance”. Hence the circumstances where the Applicant had previously been recognised as a refugee was the starting point for the consideration of the permanent visa application in the present case.
It is significant to note that Wilcox J in QAAH sets out in some detail United Nations High Commissioner for Refugees (UNHCR) material and in particular the “Guidelines on International Protection: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention Relating to the Status of Refugees” adopted by the UNHCR on 10 February 2003 (the 2003 Guidelines). Wilcox J then considers the use to be made of the 2003 Guidelines and states the following:-
“46 I agree with the Tribunal that statements made in the 2003 Guidelines (and the 2001 note) should not be regarded as rules of law. To the extent they may be inconsistent with anything said in either the Act or the Convention, they must be put aside. However, subject to that qualification, these statements should be taken into account by anybody who is required to determine whether a particular person should be recognized as a refugee, for the first time, or whether a previously recognized person has ceased to be a refugee. Like the UNHCR Handbook mentioned in Chan, these are documents prepared by experts published to assist States (including Australia) to carry out their obligations under the Convention.”
In my view one of the more significant passages from the 2003 Guidelines set out in the judgment of Wilcox J is paragraph 6 which provides as follows:-
“37 At para 6, under the heading ‘General Considerations’, the document stated these principles:
‘When interpreting the cessation clauses, it is important to bear in mind the broad durable solutions context of refugee protection informing the object and purpose of these clauses. Numerous Executive Committee Conclusions affirm that the 1951 Convention and principles of refugee protection look to durable solutions for refugees. Accordingly, cessation practices should be developed in a manner consistent with the goal of durable solutions. Cessation should therefore not result in persons residing in a host State with an uncertain status. It should not result either in persons being compelled to return to a volatile situation, as this would undermine the likelihood of a durable solution and could also cause additional or renewed instability in an otherwise improving situation, thus risking future refugee flows. Acknowledging these considerations ensures refugees do not face involuntary return to situations that might again produce flight and a need for refugee status. It supports the principle that conditions within the country of origin must have changed in a profound and enduring manner before cessation can be applied.’”
In the present case the Tribunal does not appear to have made any reference to the 2003 Guidelines which following the decision of Wilcox J in QAAH I accept may be used in the manner he described.
Another UNHCR publication was referred to in the judgment of Wilcox J in QAAH namely a ‘note’ entitled ‘The International Protection of Refugees interpreting Article 1 of the [Convention]’. Again, in part of that document quoted by Wilcox J includes a section devoted to cessation of status where the following appears:-
‘... refugee status, which affords its beneficiaries international protection in the absence of national protection, is foreseen to last only as long as that surrogate protection is needed. Article 1C of the Convention sets out in some detail the circumstances under which refugee status ceases. As with all provisions which take away rights or status, the cessation clauses must be carefully applied, after a thorough assessment, to ensure that in fact refugee protection is no longer necessary.
I accept that those documents should be taken into account by the Tribunal when considering in this case whether a previously recognised person has ceased to be a refugee. It is clear in the present case that the material has not been taken into account.
It is perhaps useful to set out the following passages which appear in the judgment of Wilcox J where His Honour examines in some detail the decision of the House of Lords in Regina (Hoxha) v Special Adjudicator (2005) UKLR 19; (2005) 1 WLR 1063 (“Hoxha”) which had been relied upon as supporting the reasoning in the Emmett decision by the Respondent’s Counsel in QAAH. After referring to the Hoxha decision in some detail Wilcox J states the following:-
“59 I make one other observation about Hoxha. All three members of the House who wrote substantial judgments (Lord Hope, Baroness Hale of Richmond and Lord Brown) made extensive use of UNHCR material in guiding their interpretation of the Convention. Their action endorses the approach advocated at para 46 above.
60 Lord Brown’s comment, in Hoxha at [65], about a recognised refugee not being stripped of that status ‘save for demonstrably good and sufficient reason’ echoes the insistence of the UNHCR publications upon the need for the State arguing cessation to establish fundamental and durable changes in the refugee’s country of nationality. That insistence is consistent with comments in accepted textbooks on refugee law, including Hathaway and Goodwin-Hill, noted by the Tribunal in this case: see para 15 above. For example, Hathaway, at 200-203, identified three requirements that should exist ‘before the consideration of cessation is warranted’:
(i) ‘the change must be of substantial political significance, in the sense that the power structure under which persecution was deemed a real possibility no longer exists’;
(ii) ‘there must be reason to believe that the substantial political change is truly effective’; it cannot be said ‘there has truly been a fundamental change of circumstances when the police or military establishments have yet fully to comply with the dictates of democracy and respect for human rights’; mere progress towards respect is not enough; and
(iii) ‘the change of circumstances must be shown to be durable’”.
In the present case it is clear that the Tribunal in its reasons which obviously predate the delivery of the Full Court decision in QAAH has in fact sought to examine both the basis upon which the Applicant ought to be granted refugee status and has at least endeavoured to consider what might happen in the future. In particular I note that in dealing with the background the RRT does refer to the history of events including the overthrow of the Taliban and states that by “mid November 2001 the Taliban had been removed from power” (CB p.17). In referring to various country reports including a report from the Danish Immigration Service it is clear that information was at least available to the RRT concerning what might happen to former communists. By way of example the folowing extract was cited by the RRT (CB p.194):-
“UNHCR the Deputy Chief of Mission in Kabul stressed that UNHCR knows of only a few former communists who have returned to Afghanistan and he continued that as long as such strong polarisation exists between the different groupings in Adghanistan former members of PDPA might also experience problems. It was also the opinion of the UNHCR that the picture is blurred – it can be quite difficult to distinguish between private acts of revenge and the acts of revenge which are related to activities which the person concerned carried out for the communist government … the situation will depend on the extent to which the person in question was representing the communist party – acting on behalf of the party – in a particular area …. The source also mentioned that the situation in general is very unstable and rarely static which in his opinion means that it is not possible to forsee what the situation will be in say 5 years. Old conflicts might reignite and considering the current lack of legal security, there is no guarantee of security for any body. Each issue must be determined on the basis of a concrete assessment”.
The Tribunal referred to that type of material in its decision and quoted extensively. The Tribunal itself after considering country ifnromation and referring to the removal from power of the Taliban accepted that “remnants of the Taliban are still present in Afghanistan” but then goes on to state, “As I put to the Applicant, the information available to me indicates that the Taliban no longer exists as a political movement”.
In my view whilst the Tribunal in the more detailed extract of its reaoning set out earlier in this judgment (see paragraph 7) clearly refers to the prospects of the Taliban “re-emerging as a viable political movement in Afghanistan in the reasonably foreseeable future”, it does not properly address amongst other issues the durability question and nor does it move beyond what might be described as a narrow political assessment of the role of the Taliban as a political movement or in other ways described as being in “power”. Whilst holding poltiical power or continuing to exist as a formal “movement” are clearly relevant that analysis of itself does not necessarily address the wider issues identified as being appropriate in the consderation of an application of this type as set out in the reasoning of Wilcox J in QAAH.
It follows for those reasons that in my view applying the authority of QAAH to the present application the RRT in this instance has made an error which could properly be regarded as a jurisdicitonal error and that on this ground alone the decision should be set aside and the matter remitted.
Section 36(3)
It is noted that in the RRT decision and in particular the passage referred to earlier in this judgment (see paragraph 7) that the Tribunal further states that even if it were wrong in its conclusion about the application of Article 1C(5) that s.36(3) applied “irrespective of the operation of the cessation clauses”.
It is noted that this section did not appear to be agitated or considered in any detail by the majority in QAAH. It was submitted by the Respondent that the RRT correctly applied s.36(3) of the Act to the Applicant’s case and reliance was placed upon the reasons outlined in the Emmett decision.
Counsel for the Applicant submits and I accept that s.36(3) of the Act does not operate at all in relation to a person who has already obtained a protection visa. It is argued that that section is directed to persons who have come to Australia to seek protection in circumstances where there are other countries where they could have sought protection whether those countries were visited on the way to Australia or were counties where the person had a right to enter and reside either temporarily or permanently. It was noted that the provisions, that is sub-s.36(3)-(5) were introduced by the “Border Protection Legislation Amendment Act 1999 which received royal assent on 8 December 1999. The purpose of the amending sub-sections it was submitted was to cover situations where by no offending the principle of non-refoulement it could be said the person “would not be owed protection obligations where he had no availed himself of a right to return to a safe third country where he or she would not be persecuted or returned from there to a country where he would be persecuted”.
Counsel noted that the amending legislation followed decisions of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 and Tharmalingam v MIMIA (1999) FCA 1180. Reference was made in the alternative to s.36(3) not appearing to have any relevance in any event in the present case if a fresh assessment was required on the Applicant’s refugee status. Ultimately it was submitted that s.36(3) and (4) are not provisions have general application beyond the clear legislative purpose for which they were enacted.
It is noteworthy that the Full Court in QAAH was no doubt aware of s.36(3) and consistent with the reasons advanced by Counsel for the Applicant in the present case did not regard that section as being applicable to that case. If it was not applicable in QAAH then I find it difficult to conclude that it would apply in the present application. In my view the submissions made for and on behalf of the Applicant in relation to the operation of s.36(3) are correct. I do not regard that sub-section as operating in a manner which would detract from the task to be undertaken by the Tribunal in considering this application dealing as it does with the issue of the cessation of refugee status. To that extent I am satisfied that the RRT in this instance has made a further error of law and jurisdictional error when it made the finding set out earlier in this judgment that s.36(3) would apply in respect of the operation of the cessation clauses.
Conclusion
For the reasons given it follows that subject to submissions in relation to the precise form of orders the Court should set aside the RRT decision and remit the matter to be considered according to law and that the Respondent should pay the Applicant’s costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 15 September 2005
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