MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR RESPONDENTS
NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54 15 November 2006 S145/2006
ORDER
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.
On appeal from the Federal Court of Australia
Representation
G C Lindsay SC with L J Karp for the applicant (instructed by Legal Aid Commission of New South Wales)
S J Gageler SC with S B Lloyd for the first respondent (instructed by Sparke Helmore)
Submitting appearance for the second respondent.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
NBGM v Minister for Immigration and Multicultural Affairs
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. I agree generally with the reasons for judgment of Callinan, Heydon and Crennan JJ and in particular with the conclusion that the reasoning in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004[1] produces the result that this appeal must fail.
This conclusion is reached independently of any view of the construction of sub‑ss (3), (4) and (5) of s 36 of the Migration Act 1958 (Cth) ("the Act"). The sufficiently decisive consideration is found in the use of the present tense in s 36(2) and the supporting considerations discussed in QAAH.
Sub‑sections (3), (4) and (5) were added by the Border Protection Legislation Amendment Act 1999 (Cth)[2]. It would be a curious result if the outcome in the present case was owed only to such recent amendments and would have differed before the making of those amendments.
[2]Sched 1, Pt 6, Item 65.
Further, there are various issues of construction of sub‑ss (3), (4) and (5) of s 36. Some of these I referred to in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji[3]. Others divided the Full Court in the present case. These matters do not require determination for an outcome in the present appeal which favours its dismissal.
[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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Details
AGLC
NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54
Case
[2006] HCA 54
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Full Court of the Federal Court of Australia concerning an application for a permanent protection visa. The applicant, NBGM, had previously been granted a temporary protection visa, leading to a conclusion that Australia owed him protection obligations under the Convention relating to the Status of Refugees. However, a delegate of the Minister subsequently refused to grant a permanent protection visa, finding that NBGM was not owed such obligations. This decision was affirmed by the Migration Review Tribunal, and NBGM sought judicial review.
The central legal issue before the High Court was whether the previous grant of a temporary protection visa entitled NBGM to a presumption that Australia owed him protection obligations under the Convention. This involved the construction of relevant provisions of the *Migration Act 1958* (Cth), particularly section 36, and the interpretation of Article 1A (definition of "refugee") and Article 1C(5) (cessation of refugee status) of the Convention. The court was required to determine the correct legal approach to assessing protection obligations when a cessation event under the Convention was in question.
The High Court, by majority, dismissed the appeal. The reasoning emphasised that the correct starting point for legal analysis was to understand and apply the accurate meaning of the Convention provisions defining "refugee" and the circumstances under which that status may cease. The court found that the Tribunal, in NBGM's case, correctly identified the primary question as relating to the cessation provisions under Article 1C(5) of the Convention, rather than a repeated application of the definition of a refugee under Article 1A(2). This approach was supported by UNHCR materials, scholarly opinion, and international judicial authority. The majority concluded that the Tribunal had correctly identified the ambit of its jurisdiction and proceeded to exercise it, meaning any subsequent error was made within jurisdiction and did not constitute jurisdictional error.
The High Court granted special leave to appeal but dismissed the appeal, ordering that NBGM pay the costs.
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
We in this Court, at this time, should not be hostile to the provisions of international law. After all, the treaty expressing the applicable obligations of international law has been ratified by this country in accordance with its Constitution and the requisite legal procedures and practices. Moreover, the Australian Parliament has incorporated the relevant definition of "refugee" by reference in a municipal enactment, and the validity of that enactment has not been challenged in these proceedings. Hostility is entirely out of place. Facilitation and implementation constitute the correct legal approach. The facts, legislation and issues The facts and legislation: The facts of NBGM's case are similar to those in QAAH. They are substantially set out in the joint reasons[28]. The important fact is that NBGM was granted a temporary protection visa pursuant to the Act on 24 March 2000 by a delegate of the Minister. Accordingly, as at that date, a conclusion had been arrived at, in accordance with Australia's own legal procedures, that Australia owed the applicant protection obligations under the Convention as a "refugee" (as defined in art 1A(2) of the Convention). In light of the evidence as to his experiences before leaving Afghanistan, as appearing in the record, the acceptance of the applicant's refugee status was scarcely surprising. [28]Joint reasons at [38]. In accordance with the Convention, and therefore in accordance with the Act, that status could only thereafter be lost (in a case such as the present) by the operation of the cessation provision appearing in art 1C(5) of the Convention. The joint reasons explain that on 16 September 2003, a delegate of the Minister purportedly refused to grant the applicant a permanent protection visa. The delegate refused that visa, finding that NBGM was not a person to whom Australia had protection obligations[29]. NBGM promptly applied to the Tribunal for review of the delegate's decision. On 5 April 2004, the Tribunal affirmed that decision. It refused to grant NBGM a permanent protection visa[30]. [29]NBGM (2006) 150 FCR 522 at 543 [78].[30]NBGM (2006) 150 FCR 522 at 543 [78]. Pursuant to the Judiciary Act 1903 (Cth), NBGM then applied to the Federal Court seeking relief in the nature of a constitutional writ, on the ground of error by the Tribunal in its understanding of its jurisdiction[31]. The primary judge of the Federal Court (Emmett J[32]) refused the relief claimed. On appeal, as has been stated, the Full Court by majority upheld those orders[33].[31]NBGM (2006) 150 FCR 522 at 543 [79].[32]NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373. In the Full Court, Allsop J noted that the primary judge did not have access to this Court's decision in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 or the decision of the House of Lords in Hoxha [2005] 1 WLR 106; [2005] 4 All ER 580.[33](2006) 150 FCR 522.
Identical issues were argued in QAAH, by reference to the facts in that appeal. There is no need for me, in these reasons, to elaborate the statement of the issues; or to repeat the arguments of the parties or the considerations of authority, legal principle and policy relevant to their disposition in this application.Conclusion: jurisdictional error is established Identical resolution of issues: I would resolve all of the foregoing issues in these proceedings in the same way as I have resolved them in QAAH. In my opinion, the majority in the Full Court in QAAH[37] approached the issues for decision in the correct way. Most especially, they recognised (as the dissenting judges in the Full Court in NBGM also did[38]), that the correct starting point for legal analysis was, in accordance with the Act itself, to understand and apply the accurate meaning of the Convention provisions by which the status of "refugee" is defined for international, as well as municipal law, and hence the circumstances in which that status, having been recognised, may cease, by international and municipal law, to apply to the person concerned.[37]Wilcox and Madgwick JJ. See QAAH (2005) 145 FCR 363 at 386 [88].[38]NBGM (2006) 150 FCR 522 at 562 [156] per Allsop J, 530 [26] per Marshall J agreeing. For the reasons I gave in QAAH, the minority judges in this matter asked the correct questions and came to the correct conclusion in finding jurisdictional error. The majority judges (and the primary judge) by approaching the matter in an incorrect way, and asking incorrect questions, unsurprisingly arrived at erroneous conclusions. The Tribunal decision issue: Only one issue has caused me to pause in reaching this conclusion. In accordance with the approach that I upheld in QAAH, the Tribunal, in NBGM, correctly identified the first question that it had to answer as being posed not (as the Minister would assert) as a repeated application of art 1A(2) but the application of art 1C(5) dealing with cessation of refugee status[39]. The Minister now contests that this is the correct approach where questions of cessation arise. However, it is my opinion, for the reasons stated in QAAH[40], that the Tribunal was correct in primarily adopting this approach. As I demonstrated in QAAH, this opinion is strongly supported by available materials produced by the office of UNHCR, by expert and scholarly opinion and by judicial authority in other countries[41].[39]NBGM (2006) 150 FCR 522 at 526 [2].[40]Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 at [65]-[72].[41]Such as Hoxha [2005] 1 WLR 1063. Can it therefore be said that the Tribunal, to this extent, accurately identified the ambit of its jurisdiction; proceeded to exercise that jurisdiction; and that any error which followed was one made within jurisdiction and not one that took it outside its jurisdiction, thus requiring judicial intervention for jurisdictional error? In my opinion, this issue presents the only arguable ground in NBGM's application for refusing special leave or for dismissing an appeal.