NBGM v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCAFC 60

FEDERAL COURT OF AUSTRALIA

NBGM v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCAFC 60

CORRIGENDUM

NBGM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR
NSD 1643 OF 2004

BLACK CJ, MARSHALL, MANSFIELD, STONE AND ALLSOP JJ
12 MAY 2006  (CORRIGENDUM 19 MAY 2006)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1643 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBGM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

COURT:	BLACK CJ, MARSHALL, MANSFIELD, STONE AND ALLSOP JJ
DATE:	12 MAY 2006   (CORRIGENDUM 19 MAY 2006)
PLACE:	SYDNEY

CORRIGENDUM

1.On page 12, of the reasons for judgment of the Honourable Justice Allsop, in paragraph 176 on the fourth line, a full stop be inserted after the word “convention” and a capital “I” replace the lower case “i” in the word “in”.

2.On page 12, of the reasons for judgment of the Honourable Justice Allsop, in paragraph 176 on the last line the paragraph number “[9]” be replaced with the paragraph number “[158]”.

3.On page 30, of the reasons for judgment of the Honourable Justice Allsop, in paragraph 233 on the last line the paragraph numbers “[7] to [14]” be replaced with the paragraph numbers “[161] to [163]”.

I certify that the preceding three (3) numbered paragraphs is a true copy of the Corrigendum to the reasons for judgment of the Honourable Justice Allsop.

Associate:

Dated:            19 May 2006

FEDERAL COURT OF AUSTRALIA

NBGM v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCAFC 60

IMMIGRATION – Refugees – Application for a permanent protection visa – Appellant recognised as a refugee – Temporary protection visa granted – Permanent protection visa refused – Judicial review – Appeal – Proper approach to determine whether Australia has protection obligations to appellant – Whether Australia taken not to have protection obligations unless decision-maker satisfied that appellant has current well-founded fear of persecution pursuant to sub-ss 36(3) and (4) of Migration Act – Whether circumstances in connection with which appellant was recognised as a refugee had ceased to exist pursuant to art 1C(5) of Refugees Convention – Whether appellant continued to have well-founded fear of persecution pursuant to art 1A(2) of Refugees Convention

Migration Act 1958 (Cth), s 36

Migration Regulations 1994 (Cth)

Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951, arts 1A(2), 1C(5)

Adan v Secretary of State for the Home Department [1999] 1 AC 293, considered

NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 213 ALR 668; (2005) 79 ALJR 609, considered

NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373, approved

QAAH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363, considered

R (Hoxha) v Special Adjudicator; R (B) v Immigration Appeal Tribunal [2005] 1 WLR 1063, considered

UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status

UNHCR, Guidelines on International Protection: Cessation of Refugee Status under Article 1C(5) and 1C(6) of the 1951 Convention relating to the Status of Refugees, 10 February 2003 (HCR/GIP/03/03)

UNHCR, “The International Protection of Refugees: Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees” (2001) 20 Refugee Survey Quarterly 77

NBGM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR
NSD 1643 OF 2004

BLACK CJ, MARSHALL, MANSFIELD, STONE AND ALLSOP JJ
12 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1643 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBGM APPELLANT
AND	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
COURT:	BLACK CJ, MARSHALL, MANSFIELD, STONE AND ALLSOP JJ
DATE OF ORDER:	12 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The costs of the appeal be reserved.

3.Any application for costs to be made on notice within seven days of the date of these orders.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1643 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBGM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

COURT:	BLACK CJ, MARSHALL, MANSFIELD, STONE AND ALLSOP JJ
DATE:	12 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BLACK CJ:

1. This appeal raises two important issues about protection visas.  They arise in the context of an application for a protection visa by a person whom Australia has, by granting a temporary protection visa, acknowledged as a refugee within the meaning of art 1 of the Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951 (the Convention).

2. The first issue, viewed chronologically, concerns the relationship between art 1A(2) of the Convention and art 1C(5).  Put shortly, the issue is whether art 1C(5) operates independently of art 1A(2) so that an applicant for a protection visa who has already been acknowledged as a refugee by Australia is to be treated as someone to whom obligations continue to be owed unless and until it is determined that those obligations have come to an end by the application of art 1C(5) to the circumstances of the applicant’s case.

3. The second issue is whether s 36 of the Migration Act1958 (Cth) (the Act) requires a decision-maker to consider an application for a permanent protection visa solely within the framework established by that section. In the view I take of the second issue, its resolution is necessarily decisive of this appeal.

4. The facts, and the circumstances under which this appeal comes before the Court, are set out in detail in the reasons for judgment of Allsop J which I have had the advantage of reading.  It is sufficient therefore to note that the appellant is the holder of a temporary protection visa granted to him in March 2000, the Minister’s delegate having been satisfied that he was a person to whom Australia had protection obligations.  The delegate was satisfied that the appellant, a national of Afghanistan, feared persecution on the Convention grounds of his ethnicity and his religion.

5. Soon after the grant of the temporary protection visa, the appellant applied for a permanent protection visa. His application was rejected by the Minister’s delegate and by the Refugee Review Tribunal (the Tribunal). The Tribunal, affirming the decision not to grant the visa, concluded (relevantly to the first issue on this appeal) that the circumstances in connection with which he had been recognised as a refugee had ceased to exist consequent upon the Taliban being removed from power in Afghanistan. It also concluded (relevantly to the second issue) that the appellant did not then have a well-founded fear of persecution in his country of nationality with the consequence that s 36(3) of the Act applied and Australia was, in the language of the provision, “taken not to have protection obligations” to him.

6. The appellant then sought judicial review of the Tribunal’s decision: NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373. On the first issue, the learned primary judge saw “some symmetry in [the] effect” of arts 1A(2) and 1C(5) of the Convention (at [37]), such that the object of the inquiry in relation to art 1C(5) was whether the applicant for a visa “can still claim to have a well-founded fear of being persecuted, for a Convention Reason” (at [40]) and concluded that “it was open to the Tribunal, on the material before it, to conclude … that the applicant did not … have a well-founded fear of being persecuted” (at [54]). On the second issue the primary judge said that he found it difficult to see what relevance s 36(3) had since, in his Honour’s view, if the applicant did not have a well-founded fear of persecution then Australia did not have protection obligations to him in the first place and, on this view, there was no work for s 36(3) to do (at [59]).

7. The appellant then appealed to this Court.  The appeal was heard by a bench of three judges but before judgment was delivered one of the judges, Hill J, died and it was necessary to reconstitute the bench.

8. In the view I take of the appeal, it is desirable to consider the second issue at the outset. Section 36 has been amended on several occasions, notably in 1999 when sub-sections (3) to (7) were added. The primary provisions of s 36 are the first two sub-sections, which provide:

   (1)      There is a class of visas to be known as protection visas.

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

9. In the present case, the Minister was obliged to grant the appellant’s application for a permanent protection visa if he was satisfied that the relevant criteria for the visa had been made out: see s 65 of the Act. The relevant criterion was that stated in s 36(2), set out above. That sub-section did not, however, stand alone. Following the 1999 amendments, the section continued:

   Protection obligations

   (3)Australia 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 and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4)However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

   (5)Also, if the non-citizen has a well-founded fear that:

   (a)a country will return the non-citizen to another country; and

   (b)the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

   subsection (3) does not apply in relation to the first-mentioned country.

   Determining nationality

   (6)For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

   (7)Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

10. Section 36(3), to adopt the words of Hill J in V872/00A v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 57 at [21]-[22], provides

    an automatic disqualification for persons falling [within its terms] from obtaining a protection visa.  I use the phrase “automatic disqualification” because that is the consequence of s 36(3).  There is no question of discretion; no room for differences of opinion.  A legally enforceable right to enter and reside in a safe third country automatically disqualifies a person from being granted a protection visa in Australia.

    That case concerned nationals of Iraq and findings by the Tribunal that each appellant could return to a third country – Syria – a country in which each had previously lived and which each would be able to enter and continue to reside in. There is nothing to suggest that the condition stated by Hill J in the final sentence – “a legally enforceable right to enter and reside in a safe third country” – is exhaustive of the circumstances in which s 36(3) may operate and the correctness of that condition is not directly at issue in this appeal. Subject to the operation of ss 36(4)-(5), I agree with Hill J’s conclusions about the consequences that flow from s 36(3) being satisfied.

11. In cases where a Convention obligation might otherwise exist, the operation of s 36(3) is such that Australia is, in effect, deemed not to have protection obligations.  This was the view expressed by Emmett J, dissenting, in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 46 at [43]. (The construction of s 36(3) was not directly relevant on the appeal to the High Court, which was allowed: NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 609). I would emphasise that 36(3) does not provide that “Australia does not have protection obligations” in the circumstances outlined, but that Australia “is taken not to have protection obligations”.

12. The circumstances in which s 36(3) operates, and particularly the phrase “any country apart from Australia, including countries of which the non-citizen is a national”, next needs to be considered.  With Mansfield J, I agree that this phrase should be construed according to its ordinary meaning and cannot be confined to situations in which an applicant for a visa could utilise a right to enter and reside in a “third country”.

13. Two arguments were advanced against this conclusion.  First, it was said that s 36(3) is only directed to the situation of applicants for “temporary protection visas” and that it has nothing to say in relation to subsequent visa applications.  Second, it was contended that the context in which s 36(3) was enacted, and its relationship with s 36(2), demonstrates that it only applies to persons who could have entered and resided in a “third country”.

14. In my view both of these arguments are answered by the express words of the statute, in whose face they must fall. I do not accept that, either individually or collectively, any or all of s 91M of the Act (which was enacted at the same time as ss 36(3)-(7)), or the heading “Amendments to prevent forum shopping” in the amending act, or the Supplementary Explanatory Memorandum may properly be used to narrow, and thereby substantially alter, the plain meaning of the subsection. Sections 36(3)-(7) take their place in a section directed to protection visas generally; these provisions cannot be confined in their operation to only one class of visa. Further, where Parliament intended to refer to “third countries” it has done so expressly, as in s 91M, or by reference to non-citizens who are nationals of two or more countries, as in s 91N(1); the absence of any such reference in s 36(3) stands in contrast to these specific references elsewhere.

15. It follows that I am unable to agree with the construction adopted by Moore J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1554 at [39] where his Honour said of s 36(3) that it “does not raise for consideration whether the applicant could have entered and resided in the country of nationality or habitual residence, being the country the applicant has fled and about which the well-founded fear of persecution was said to exist”.

16. Where the country to which s 36(3) applies is the country in relation to which a visa applicant makes his or her claims of persecution, ss 36(4)-(5) provide the mechanism by which Australia’s international obligations under the Refugees Convention are to be met. In NBLC v Minister for Immigration and Multicultural and Indigenous Affairs; NBLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 272 at [2], Wilcox J drew attention to the use of the words “however” and “also” at the commencement of each sub-section. This statutory language affirms the relationship between the sub-sections, which was described by Bennett J in the same case: “s 36(3) is a qualification of s 36(2) and s 36(4) is a qualification to that qualification” (at [17], see also Graham J at [47] describing the criterion in s 36(2) as “significantly qualified” by s 36(3) and at [71]-[72]).

17. Once it is accepted that the entirety of s 36, necessarily of course including ss 36(3)-(5), is applicable to all applications for protection visas (whether “temporary” or “permanent”) it becomes apparent that the section does effect a change to the manner in which applications for protection visas would otherwise be assessed solely by reference to s 36(2).  Mansfield J has pointed to the fact that whilst ss 36(2) and (3) refer to “protection obligations” – which, as the High Court made plain in NAGV directs attention to the whole of art 1 of the Refugees Convention – s 36(4) only refers to the concept (stated in art 1A(2)) of a well-founded fear of being persecuted for a Convention reason. As a matter of practice, it may well be that, when a decision-maker is assessing an application for a temporary protection visa, s 36(3) adds little to the terms of s 36(2) of the Act where the issue involves the return of the applicant to his country of nationality (see SWNB v Minister for Immigration and Multicultural Affairs [2004] FCA 1606 at [12], referring to NBGM v Minister for Immigration and Multicultural Affairs [2004] FCA 1373. See also NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1554 at [33]). Whether the claims of an applicant for a temporary protection visa are assessed pursuant to s 36(2)(a) (where the reference to “protection obligations” would require the decision-maker to consider art 1A(2) of the Convention) or pursuant to the statutory enactment of the words of art 1A(2) in s 36(4), the result will likely be the same. That proposition does not, however, hold true in relation to a subsequent application for a permanent protection visa and, as I have sought to emphasise, the section is plainly intended to cover both classes of visa.

18. An applicant for a permanent protection visa is still applying for a visa and must still satisfy the criteria for that visa. The criterion of Australia having “protection obligations” to the applicant, which is established by s 36(2), is statutorily negated in the circumstances in which s 36(3) applies. When that statutory negation takes effect, it is only undone by the operation of either s 36(4) or s 36(5). That is, the applicant will only be able to make good the criterion in s 36(2) by making out the exception in s 36(4) or (5). And, as I have noted, the statutory language used in s 36(4) is narrower than the concept of “protection obligations”, which directs attention to art 1 of the Convention. Section 36(4) does not merely direct attention to art 1A(2); the legislature has laid down the test, as a matter of domestic law, that must be satisfied for the qualification to the qualification of s 36(2) to be made good. The circumstances to be established are presently existing circumstances, as to which the past may well illuminate the present; but the question remains in the present.

19. Whilst s 36(4) requires the presence, as a matter of fact, of a well-founded fear of persecution, it does not follow that the prior recognition of such a fear establishes its presence at a later point of inquiry. Section 36(4) requires a decision-maker to consider whether an applicant for a visa “has a well-founded fear” – noting the use of the present tense.  A current assessment is required for the purposes of this provision.  To my mind, the statutory language does not support the conclusion that the required current assessment is to be made by considering whether a previously established well-founded fear has been brought to an end by changed circumstances.

1. As a final matter of construction, I see no requirement for a decision-maker to be satisfied as to whether or not Australia has “protection obligations” pursuant to s 36(2) before considering the qualification in s 36(3).  In an appropriate case, it may indeed be proper for a decision-maker to consider first whether or not Australia is taken not to have protection obligations to the applicant by reason of the operation of s 36(3) (see NBLC and NBLB at [48] (Graham J)).  Such an approach finds a parallel in the permissible approach to art 1 of the Convention: NAGV and NAGW of 2002 (2005) 79 ALJR 609 at [47] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ).

2. Once the central role of ss 36(3) and (4) is appreciated, it is apparent that the appellant could only succeed in his application for a permanent protection visa if the decision-maker could be satisfied that he then had a well-founded fear of being persecuted in Afghanistan for a Convention reason.

3. Like Mansfield J, I consider that the Tribunal’s reasons disclose that it properly addressed its task under s 36(4) of the Act and that it neither misunderstood nor misapplied the law in fulfilling that task. If it be accepted, in conformity with the reasons of Allsop J, that there was jurisdictional error in the Tribunal’s failure to make findings sufficient to enliven art 1C(5) of the Convention, the application of s 36 provides an independent foundation for the rejection of the appellant’s application for a permanent protection visa.

4. I should briefly state my views as to the first issue in this appeal (which was left to one side at [7] above). Like Mansfield J, I agree with the analysis of the Convention obligations undertaken by Allsop J and with his conclusions about the operation and effect of art 1A(2) and art 1C(5). To my mind, the decisive factor in that finely balanced issue is what I see as important differences in expression, concept and purpose between these two provisions.

5. For the reasons I have given, however, the appeal should be dismissed.  Should a costs order be sought, an application should be made on notice within seven days.

6. The members of the Full Court have reached differing conclusions both as to the outcome of the appeal and as to the reasons for the outcome. As a majority would dismiss the appeal, that will be the order of the Court. Given the practical importance of the case, I think it appropriate to observe that whilst there are two lines of reasoning leading to the majority conclusion that the appeal should be dismissed, there is a common conclusion about the task to be performed by the decision-maker on an application for a permanent protection visa where the relevant circumstances are said to have changed since the appellant was granted a temporary protection visa. The majority would agree that s 36 mandates that the decision-maker must be satisfied that, at the time the decision is made, the applicant for a permanent protection visa then has a well-founded fear of persecution for a Convention reason. The circumstance that a previous decision-maker was satisfied that the applicant had such a fear when a temporary protection visa was granted is not sufficient to establish what s 36 requires.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.

Associate:

Dated:             12 May 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1643 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBGM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

COURT:	BLACK CJ, MARSHALL, MANSFIELD, STONE AND ALLSOP JJ
DATE:	12 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MARSHALL J:

1. I have had the benefit of reading, in draft form, the judgment of Allsop J and respectfully agree that his proposed orders are appropriate for the reasons given by his Honour.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             12 May 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1643 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBGM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

COURT:	BLACK CJ, MARSHALL, MANSFIELD, STONE AND ALLSOP JJ
DATE:	12 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MANSFIELD J:

1. I have had the benefit of reading the reasons for judgment of Stone J and of Allsop J.  I am therefore relieved of the need to set out in detail the appellant’s personal circumstances, the context in which the present appeal comes to be heard, or the reasons for decision of the Refugee Review Tribunal (the Tribunal) or of the learned judge at first instance.  Nor do I need to set out in detail all the relevant provisions of the Migration Act 1958 (Cth) (the Act), or of the Migration Regulations 1994 (Cth) (the Regulations), or of the Refugees Convention as amended by the Refugees Protocol (using the terms as defined in the Act). I am grateful to adopt their Honours’ references to that material. I can therefore briefly state the reasons for my conclusion.

2. At the time applicable to the decision of the High Court in NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 213 ALR 668; [2005] HCA 6 (NAGV), s 36 of the Act provided:

   ‘(1)      There is a class of visas to be known as protection visas.

   (2)A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under [the Convention].

   See NAGV at 670-671, [10] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ.  It had been in essence in that form since the Migration Reform Act 1992 (Cth). Its legislative history is exposed in the joint judgment of their Honours in NAGV at 676-677, [37]-[41].

3. Also at the time applicable to that decision, the Regulations prescribed only one class of protection visa. That was the Protection (Class AZ) Subclass 866 Protection visa: see the reg 2.01 and 2.02, Sch 1 Pt 1 item 1126 and Sch 2 item 866 of the Regulations as in force up to 20 October 1999. That class of protection visa was introduced by the Migration Regulations (Cth) made on 21 July 1994. 

4. Curiously, at all times up to 20 October 1999, the Protection (Class AZ) visa was included in Sch 1 Pt 1 of the Regulations prescribing ‘permanent’ visas, although cl 866.511 of Sch 2 to the Regulations said the visa permitted the holder to travel and enter Australia for a limited period: four years from the date of the grant of the visa; subsequently changed to five years by cl 141 of the Migration Regulations (Amendment) (Cth) (Statutory Rules 1996 No 211), effective from 1 November 1996. The terminology used is inconsistent with s 30(1) of the Act which says a visa permitting the holder to remain indefinitely in Australia is to be known as a permanent visa, and s 30(2) which says that a visa permitting the holder to remain in Australia during a specified period is to be known as a temporary visa.

5. Both s 36 of the Act and the relevant provisions of the Regulations changed before the application for a protection visa by the appellant which is the subject of this appeal.

6. Section 36 was added to by Pt 6 of Sch 1 to the Border Protection Legislation Amendment Act 1999 (Cth) (the 1999 Amendment). That Part is headed ‘Amendments to prevent forum shopping’. It came into force on 16 December 1999: s 3 and s 2(6) of the 1999 Amendment. Clause 65 of Pt 6 of Sch 1 to the 1999 Amendment added subs (3)-(7) to s 36 of the Act. Those subsections have not since been amended. Both s 36(1) and s 36(2) have since been amended by the Migration Legislation Amendment Act (No 6) 2001 Cth) and by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (the 2001 Amendments). The amendments to s 36(1) and s 36(2) are not of significance to the present appeal.

7. Section 36 now provides, and provided at times relevant to the appeal:

   ‘(1)     There is a class of visas to be known as protection visas.

   (2)      A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (b)a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

   (i)is mentioned in paragraph (a) and

   (ii)holds a protection visa.

   Protection obligations

   (3)Australia 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 and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4)However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

   (5)      Also, if the non-citizen has a well-founded fear that:

   (a)      a country will return the non-citizen to another country; and

   (b)the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

   subsection (3) does not apply in relation to the first-mentioned country.

   Determining nationality

   (6)For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

   (7)Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.’

8. Generally, where a person comes to Australia from a country where that person has a well-founded fear of persecution for a Convention reason, subject to the exclusions in the Convention, that person will be a refugee as defined in Art 1A(2) of the Convention.  Australia in those circumstances has protection obligations to that person under the Convention.

9. As I have noted, for the purposes of this appeal, s 36(2)(a) of the Act has been in essence in the same form since the Migration Reform Act 1992 (Cth). The 2001 Amendments did not relevantly alter its content. However, for reasons which appear below, I regard subs 36(3)-(5) as of considerable significance to the outcome of this appeal. Clause 70 of Pt 6 of Sch 1 to the 1999 Amendment provides that they apply to visa applications made after the commencement of that Act, namely (as proclaimed) to visa applications made after 16 December 1999. They were, therefore, in force when the appellant applied for a Subclass 866 (Protection) visa on 3 April 2000.

10. The relevant Regulations were also substantially changed in the period before the appellant’s relevant application for a protection visa.

11. The Migration Amendment Regulations 1999(No 12) (Statutory Rules 1999 No 243) significantly amended the regime concerning protection visas. They came into force on 20 October 1999 and thus applied to the appellant, as he first applied for a protection visa on 18 November 1999. They established the Protection (Class XA) visa by inserting item 1401 of Sch 1 to the Regulations. Two subclasses of a Protection (Class XA) visa were created: Subclass 785 (Temporary Protection) and Subclass 866 (Protection) visas. At the same time the former Protection (Class AZ) visa was removed from the regulatory scheme.

12. Under the Regulations as so amended, an applicant for a protection visa must first apply for a Subclass 785 (Temporary Protection) visa. Clause 785.211 of Sch 2 of the Regulations requires an applicant for a Subclass 78S (Temporary Protection) visa, at the time of the application, to claim to be a person to whom Australia has protection obligations under the Convention. Clause 785.221 requires that the Minister, at the time of decision, be satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. The applicant has to be in Australia at the time of the grant: cl 785.41. The visa takes effect in the following terms (cl 785.511):

    ‘Temporary visa permitting the holder to remain in, but not re-enter, Australia until:

    (a)for the holder of a Subclass 785 (Temporary Protection) (Class XA) visa:

    (ii)if the holder applies for a Protection (Class XA) visa after the temporary visa is granted and within 36 months after the grant – the day when the application is finally determined or withdrawn; and

    (iii)in any other case – the end of the 36 months; or

    (b)for the holder of a Subclass 785 (Temporary Protection) (Class XC) visa – the day when the application mentioned in paragraph 2.08F(1)(d) is finally determined or withdrawn.’

    The reference to par 2.08F of the Regulations refers to certain holders of Subclass 785 (Temporary Protection) visas who are taken to have applied for Protection (Class XC) visas if they have, within 36 months after the grant of the temporary protection visa, made an application for a Protection (Class XA) visa which has not been finally determined, or (if in fact no such application has been made) are taken to have made that application on 1 November 2002. It applies only to those persons who hold a Subclass 785 (Temporary Protection) visa that was granted before 19 September 2001.

13. The appellant was granted a Protection (Class XA) Subclass 785 (Temporary Protection) visa (a temporary protection visa) under the Act on 24 March 2000. Thereafter, he applied for a Protection (Class XA) Subclass 866 (Protection) visa (a permanent protection visa) under the Act. His application was refused by a delegate of the first respondent on 16 September 2003. The decision was affirmed by the Tribunal on 5 April 2004. The appellant then applied for orders to quash that decision on the ground of jurisdictional error on the part of the Tribunal. That application was refused by a judge of this Court on 25 October 2004. This is an appeal from that decision.

14. The issue on the appeal is the manner in which, for the purpose of considering the appellant’s application for a permanent protection visa, the relevant decision-maker had to be satisfied that the criterion for the grant of the visa specified in s 36 of the Act had been met. There were no other prescribed criteria apparently in issue. If the decision-maker was satisfied that the criterion specified in s 36 was satisfied, s 65(1) of the Act directed the decision-maker to grant the visa.

15. As both Stone J and Allsop J have pointed out, s 36(2)(a) directs attention to the whole of the Convention. That was decided in NAGV. If s 36(2)(a) stood alone (as it did prior to the 1999 Amendment), in the particular circumstances of this matter I would agree with the views of Allsop J as to the way in which the Tribunal should have considered whether the appellant is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Convention. That is, I would agree with the views of Allsop J, for the reasons his Honour has given, that it was necessary for the Tribunal to have particular regard to Art 1A(2) and 1C(5) of the Convention in the way his Honour has indicated. I would also agree that, for the reasons his Honour has given, the Tribunal erred in its consideration of the application of the Convention.

16. However, in my judgment, s 36 of the Act as in force as a consequence of and since the 1999 Amendments leads to a different conclusion.

17. Section 36(2) specifies a criterion for a protection visa, whether a temporary protection visa or a permanent protection visa.  The decision-maker must be satisfied that the visa applicant is a person to whom Australia has protection obligations under the Convention.  That criterion generally enlivens consideration of the content and operation of Art 1A(2).  In the case of an application for a permanent protection visa where the foundation for the claimed well-founded fear of being persecuted for a Convention reason is the same as that upon which the preceding temporary protection visa was granted, it may be seen to enliven consideration of the content and operation of Art 1A(2) and Art 1C(5) of the Convention.  However, s 36(3) then prescribes circumstances in which Australia is taken not to have protection obligations to a particular protection visa applicant.  That is, if s 36(3) applies in the circumstances, the criterion for a protection visa specified in s 36(2) will not be satisfied notwithstanding that Art 1A(2) and Art 1C(5) of the Convention might otherwise point to the existence of those obligations and so to the satisfaction of that criterion.  The use of the expression ‘protection obligations’ in both s 36(2) and in s 36(3) is not coincidental; the subsections relate to the same topic and are intended to inter-relate.  Section 36(3) would make no sense except by its reference to s 36(2).

18. Section 36(3) applies to the appellant if he or she has a right to enter and reside in another country apart from Australia, and if he or she has not taken all possible steps to avail himself or herself of that right.  Section 36(3) expressly encompasses the country of nationality as among those in respect of which it can apply.  Hence, the country apart from Australia to which it refers may include Afghanistan, the country of which the appellant is a national. 

19. The Tribunal found that the appellant is entitled to enter and reside in Afghanistan.  It also found that he has not taken all possible steps to avail himself of that right.  Those findings are not said, on behalf of the appellant, to involve jurisdictional error on its part.

20. Consequently, subject to consideration of s 36(4) and s 36(5), the application of s 36(3) and the findings of the Tribunal in relation to them would lead to the conclusion that Australia is taken not to have protection obligations to the appellant under the Convention. The criterion for the grant of a permanent protection visa in s 36(2) of the Act would not be satisfied.

21. Section 36(4) and s 36(5) specify circumstances in which s 36(3) of the Act will not apply in relation to a particular country. It is, in the circumstances of this matter, to s 36(4) to which the Tribunal was required to give attention. It was not suggested that s 36(5) was of relevance to the determination of this appeal.

22. Section 36(4) is expressed in terms which largely mirror Art 1A(2) of the Convention. That is by way of contrast to s 36(2), which as both Stone J and Allsop J have pointed out, invites or directs attention to ‘protection obligations’ under the Convention so that in circumstances such as the present and if s 36(2) stood alone, consideration must be given to the operation of both Art 1A(2) and Art 1C(5) of the Convention.

23. The appellant’s contention is nevertheless that s 36(3) and s 36(4) did not fall for consideration in respect of his application for a permanent protection visa.

24. As was the case prior to the 1999 Amendment, a permanent protection visa permits its holder to enter and remain in Australia for a specified term of five years: cl 866.5 of the Regulations. The entitlement is indeterminate in time, but is not permanent. It may cease upon a change of circumstances, as contemplated by Art 1C(5) of the Convention. That is, the Convention itself contemplates that the obligations of a contracting nation under the Convention may cease at a time when the circumstances giving rise to the refugee status have ceased. The process by which a protection visa in such circumstances comes to an end is provided for in the Act and in the Regulations. It is indeterminate in time under the Act because at all times a protection visa has been vulnerable to cancellation by the Minister under s 116(1)(a) of the Act, namely if the Minister is satisfied that any circumstances which permitted the grant of the visa no longer exist. That expression reflects Art 1C(5) of the Convention. It is not necessary on this appeal to explore the extent to which the jurisprudence concerning Art 1C(5) applies to the cancellation of a protection visa under s 116(1)(a). It is significant, however, that the legislature in s 116(1)(a) has adopted a test for cancellation of a visa (including a protection visa) which reflects Art 1C(5) of the Convention, and that in s 36(4) it has by way of contrast adopted a qualifier which reflects Art 1A(2) of the Convention. In my view, the construction of s 36 should have regard to the use by the legislature in different provisions of the Act those expressions which appear to reflect different articles of the Convention, and the use by the legislature of the more general expression ‘protection obligations’ in s 36(2) and s 36(3) of the Act.

1. Consequently, in my view, the wording of s 36(2) s 36(3) required the Tribunal, on the basis of its findings mentioned above, to address s 36(4) because the facts upon which s 36(3) would direct that Australia be taken not to have protection obligations to the appellant were found to exist. Because s 36(4) is in terms which reflect Art 1A(2) of the Convention, rather than a more generic reference to it such as by use of the words ‘protection obligations’, s 36(4) then invoked considerations consistent with those applicable to Art 1A(2) and as explained by the High Court in Chan v Minister for Immigration and ethnic Affairs (1989) 169 CLR 379; Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1; Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.

2. It is necessary, however, to address the contention of the appellant that s 36(3) and s 36(4) by reason of their context and text did not require their consideration.

3. Part 6 of the 1999 Amendment included the heading ‘Amendments to prevent forum shopping’. Section 13 of the Acts Interpretation Act 1901 (Cth) provides that the heading forms part of the amending Act. The Supplementary Explanatory Memorandum to the Border Protection Legislation Amendment Bill 1999 (Cth) also makes it clear that the purpose of the amendment was to prevent ‘forum shopping’ by those entering Australia without a visa and who claimed to be refugees. It is quoted at length by the learned judge at first instance in his reasons at [57].

4. I do not think that material leads to a different conclusion. In my view, there is no ambiguity in the words of s 36(3), (4) and (5). The legislature has expressly included in s 36(3) reference to countries of which the visa applicant is a national. It cannot be confined to ‘third countries’, i.e. countries other than those of which the applicant is a national. The heading in the Pt 6 of the 1999 Amendment is not inconsistent with the legislative intention to ensure that only those persons who qualify as refugees under the Convention and who need Australia’s protection because they cannot safely go to another country, or return to their country of nationality, should be recognised as persons to whom Australia has protection obligations. And, lest there be some scope for uncertainty by the first of those steps (namely that the person must be a refugee as defined under the Convention), s 36(4) directs explicitly in terms which reflect Art 1A(2) of the Convention how that status is to be determined. There is no basis for reading s 36(3) as qualified by s 36(4) so that it does not apply to persons who hold a temporary protection visa, or to persons who by the interaction of Art 1A(2) and Art 1C(5) of the Convention– if s 36(3) did not exist – might otherwise be found to enjoy the continuing status of refugee as defined generally in Art 1 of the Convention. The 1999 Amendment imposed the additional steps upon the determination of whether Australia owes protection obligations to an applicant for a protection visa. That outcome thus has regard to the means by which the legislature sought to implement its objectives: Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at 578-579.

5. That view of the operation of s 36(3) and its qualifiers was also adopted by the Full Court of this Court in NBLC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 272, (Wilcox, Bennett and Graham JJ). The relevant focus in that matter was upon the expression ‘all possible steps’ in s 36(3), in circumstances where the visa applicant was a North Korean national said to have a right of entry to South Korea so the present issue did not directly fall for consideration. However, Bennett J at [17] said:

   ‘It can be seen that the subject of [section 36] is the person, the applicant.  It is not the case that the applicant simply needs to establish a well-founded fear in his or her country of nationality.  The “gateway”, to adopt the language of Wilcox J, is a composite test that precedes the application of s 36(2).  As the primary judge put it at [38], s 36(3) is a qualification of s 36(2) and s 36(4) is a qualification to that qualification.’

   Her Honour’s views are consistent with those of the other members of that Full Court.  See in particular the observations of Graham J at [47]-[48].

6. The appellant points out that the reference to ‘a country’ and to ‘that country’ in s 36(4) must refer back to the expression ‘any country apart from Australia, including countries of which the non-citizen is a national’ in s 36(3). So much is clear. The next step in the appellant’s argument is that it would be absurd if s 36(3) were to apply to a country in respect of which an applicant for a protection visa has a well-founded fear of persecution, as that then would require the visa applicant to have taken all possible steps to have availed himself or herself of a right to enter and reside in the country in which ‘he or she fears persecution’. The contention, in my view is circular. It does not recognise that s 36 must be read and applied in its full terms. Section 36(2) specifies a criterion for the grant of a protection visa and s 36(3) and its qualifiers then prescribe as a matter of domestic law certain circumstances in which that criterion will not be satisfied. There is no reason, from the words of s 36 or its context, to exclude s 36(3) from consideration or operation in respect of a permanent protection visa application. Section 36(4) by adopting words based upon Art 1A(2) of the Convention indicates when s 36(3) will not be taken to apply. Kirby J in NAGV at [88] noted that those subsections ‘do demonstrate that legislative techniques are available which might [be] used by the Parliament to limit the scope of the “protection obligations” owed by Australia’.

7. To reach that conclusion would not result in a person being refouled in breach of Art 33(1) of the Convention. Section 36(4) as a qualifier upon the application of s 36(3) operates so that Australia will not by its domestic legislation act in breach of Art 33(1). Section 36(5) will also operate in that way in circumstances where it applies. Nor do I regard my conclusion as departing from the reasoning of the majority of the Full Court in QAAH v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 145 FCR 363 [2005] FCAFC 136 (QAAH) because that decision was not based upon consideration of the provisions of s 36(3) to s 36(5) as well as upon s 36(2).

8. The Tribunal, in its alternative reasoning for its conclusion, addressed the requirements of s 36(4) and Art 1A(2) of the Convention in appropriate terms. In terms of s 36(4), it found that the appellant did not at the time of the Tribunal’s determination have a well-founded fear of being persecuted in Afghanistan for a Convention reason. It correctly addressed the circumstances at the time of its decision. The assessment of satisfaction about the criteria for the grant of a protection visa is made on the basis of circumstances existing at the time of the making of the decision on the visa application: Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553, and see Sch 2 cl 866.221 and cl 785.221 of the Regulations. The Tribunal did not misunderstand or misapply the law in the course of doing so. The appellant’s contention does not contend that it did.

9. For those reasons, I would dismiss the appeal.  In the circumstances I agree with the observations of the Chief Justice at [25] of his reasons for judgment.  I also agree that the parties should be given an opportunity to make such submissions as to the costs of the appeal as they may be advised.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             12 May 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1643 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBGM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

COURT:	BLACK CJ, MARSHALL, MANSFIELD, STONE AND ALLSOP JJ
DATE:	12 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

STONE J:

INTRODUCTION

1. This is an appeal from the decision of a Judge of this Court dismissing an application by the appellant for review of a decision of the Refugee Review Tribunal (‘Tribunal’) handed down on 29 April 2004.  The Tribunal affirmed a decision of a delegate of the first respondent made on 16 September 2003 not to grant the appellant a Protection (Class XA) visa.  

2. At the heart of this appeal is the interpretation of certain provisions of the Migration Act 1958 (Cth) (the ‘Migration Act’) and of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together ‘the Convention’). For this reason it is convenient to set out the relevant provisions of the Convention and the Migration Act at the outset. All references to statutory provisions in these reasons are to the Migration Act unless otherwise indicated.

   RELEVANT PROVISIONS OF THE CONVENTION AND THE MIGRATION ACT

   The Convention

3. The Convention imposes protection obligations on the Contracting States in respect of refugees; the details are set out in Articles 3-36 and were summarised in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 (‘Khawar’) per McHugh and Gummow JJ at [42]-[43]. Article 1 of the Convention defines the ambit of those obligations by describing the persons to whom the term ‘refugee’ shall apply and the circumstances in which the Convention ceases to apply or does not apply. The circumstances where the Convention does not apply (Articles 1D, 1E and 1F) are not in issue in this appeal. Relevantly, however, Article 1A(2) and Article 1C(5) provide:

   ‘Article 1. Definition of the term "refugee"

   A.For the purposes of the present Convention, the term "refugee, shall apply to any person who:

   …

   (2)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, 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.

   …

   C.This Convention shall cease to apply to any person falling under the terms of section A if:

   …

   (5)He can no longer, because the circumstances in connexion with which he has been recognized 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;

4. Two significant obligations accepted by Contracting States to the Convention are found in Articles 32 and 33:

   ‘Article 32. Expulsion

   1.The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

   2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.

   3.The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

   Article 33. Prohibition of expulsion or return ("refoulement")

   1.No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

   2.The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.’

   The Migration Act

5. Section 29 gives the Minister the power to grant a non-citizen permission, known as a visa, to travel to and enter Australia and/or remain in Australia. Section 30 provides that visas may be permanent or temporary; see also reg 2.01 of the Regulations. The exercise of the Minister’s power to grant a visa is governed, inter alia, by ss 47 and 65 which together provide that the Minister may only consider valid visa applications and that where the Minister is satisfied that the criteria for the grant of the visa have been satisfied he or she (or the Minister’s delegate) must grant the visa and must refuse it if not so satisfied; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 617.

6. A non-citizen who wants a visa must apply for a visa of a particular class; s 45(1).  Protection visas form one such class and are governed, inter alia, by s 36 which, as it applied to the appellant’s second visa application, provides:

   ‘36  Protection visas

   (1)There is a class of visas to be known as protection visas.

   Note:      See also Subdivision AL.

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (b)a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

   (i)        is mentioned in paragraph (a); and

   (ii)holds a protection visa.

   Protection obligations

   (3)Australia 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 and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4)However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

   (5)      Also, if the non-citizen has a well-founded fear that:

   (a)a country will return the non-citizen to another country; and

   (b)the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

   subsection (3) does not apply in relation to the first-mentioned country.

   Determining nationality

   (6)For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

   (7)Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.’

7. Section 46 requires that a valid visa application must comply with the criteria and requirements prescribed in respect of the relevant class of visa. Although it is common to refer to temporary and permanent protection visas, in fact the regulations do not refer to ‘permanent’ protection visas; they only distinguish between protection visas and temporary protection visas. It is potentially misleading to describe protection visas as ‘permanent’ as the regulations provide that such a visa has effect only for a period of five years from the date of grant; clause 866.511 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). Section 30 distinguishes between ‘permanent’ visas (those that permit the holder to remain in Australia indefinitely) and ‘temporary’ visas that permit the holder to remain during a specified period; or until a specified event happens; or while the holder has a specified status; see also s 82 which stipulates when visas cease to have effect. Despite its limited duration, for convenience I have continued to refer to the Subclass 866 (Protection) visa for which the appellant applied as a ‘Permanent Protection Visa’ because of the widespread use of this term including in the reasons of the Tribunal and the primary Judge. I will refer to the Subclass 785 (Temporary Protection) visa as a ‘Temporary Protection Visa’.

8. Regulation 785.511 of Schedule 2 provides that Temporary Protection Visas permit the holder to remain in, but not re-enter, Australia until:

   ‘(a)for the holder of a Subclass 785 (Temporary Protection) (Class XA) visa:

   (i) if the holder applies for a Protection (Class XA) visa after the temporary visa is granted and within 36 months after the grant – the day when the application is finally determined or withdrawn; and

   (ii)in any other case – the end of 36 months; or

   (b)for the holder of a Subclass 785 (Temporary Protection) (Class XC) visa – the day when the application mentioned in paragraph 2.08F(1)(d) is finally determined or withdrawn.’

   The holder of a Temporary Protection Visa cannot apply for a substantive visa other than a protection visa. 

9. Clause 866.21 of Schedule 2 of the Regulations details the criteria to be satisfied at the time of application for a Permanent Protection Visa. In addition to making specific claims under the Convention (clause 866.211(a)) and being immigration cleared (clause 866.212(1)(a)), at the time of the application an applicant must, inter alia:

   (a)have been granted a Temporary Protection Visa, which has not been cancelled, and the applicant must have remained in Australia since the granting of that visa (clause 866.212(2)); or

   (b)at the time of their last entry to Australia:

   (i)have held a visa that was in effect, not altered or counterfeit and not obtained using a fraudulent document; and

   (ii)if the applicant held a valid passport, the passport was issued in the applicant’s name (clause 866.212(3)); or

   (c)have been granted a Temporary Safe Haven (Class UJ) visa (whether or not the applicant still holds that visa) and the applicant must have remained in Australia since the grant of that visa (clause 866.212(4)).

10. When a decision in relation to an application for a Permanent Protection Visa is made, an applicant who has held a Temporary Protection Visa, (as was the case with the present appellant), must have held that visa, or that visa and another Temporary Protection Visa, for the lesser of a continuous period of 30 months; and any shorter period specified in writing by the Minister in relation to the applicant; clause 866.228.

11. In summary, the legislature has not only made the granting of a Temporary Protection Visa a precondition for the lodging of a valid application for a Permanent Protection Visa, it has further prescribed that a decision on such an application be deferred until the applicant has held a Temporary Protection Visa, or more than one such visa, for a continuous period of 30 months, or less if the Minister so determines. 

1. The Migration Act also provides for the cancellation of visas for a variety of reasons; see s 118. The general power to cancel visas set out in s 116 and the qualifications in s 117 are relevant here:

   ‘116  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; or

   (b)    its holder has not complied with a condition of the visa; or

   (c)    another person required to comply with a condition of the visa has not complied with that condition; or

   (d)   if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

   (e)    the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or

   (f)     the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

   …

   (g)   a prescribed ground for cancelling a visa applies to the holder.

   (1A)The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.

   (2)The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.’

   ‘117  When visa may be cancelled

   (1)Subject to subsection (2), a visa held by a non-citizen may be cancelled under section 116:

   (a)before the non-citizen enters Australia; or

   (b)when the non-citizen is in immigration clearance (see section 172); or

   (c)when the non-citizen leaves Australia; or

   (d)while the non-citizen is in the migration zone.

   (2) A permanent visa cannot be cancelled under section 116 if the holder of the visa:

   (a)is in the migration zone; and

   (b)was immigration cleared on last entering Australia.’

   THE APPELLANT’S BACKGROUND

2. The appellant is a citizen of Afghanistan of Hazara ethnicity and is a Shi’ite (Shia) Muslim.  He was born in a village called Tabquz (also translated as Tapqus) in the Jaghori district of Ghazni province where he lived until he left Afghanistan to come to Australia in August 1999.  The appellant arrived in Australia on 7 October 1999 without a passport or visa. 

   Grant of a Temporary Protection Visa

3. Shortly after his arrival in Australia the appellant applied for a Subclass 866 (Protection) visa (‘Permanent Protection Visa’).  He claimed to fear persecution in Afghanistan from the Taliban on account of his ethnicity and religion.  In a statement dated 18 November 1999, accompanying this application, the appellant claimed:

   (b)the Taliban had captured Jaghori ‘one year ago’; that is, in late 1998;

   (c)the Taliban had come to Tabquz and raided houses in search of weapons and young Hazara men;

   (d)one of his cousins, a member of the Wahdat Party, was taken by the Taliban and the appellant did not know what had happened to him;

   (e)another cousin was also taken by the Taliban, although on a different occasion, as they suspected him of having weapons;

   (f)he was forced to flee to the mountains during daylight hours;

   (g)his neighbour was also taken by the Taliban and was shot and killed attempting to escape;

   (h)the Taliban came to his house when he was not there and his father, being unable to give them money, was taken away; and

   (i)his father was only released after his family paid money to the Taliban.

4. The appellant claimed that as a result of these circumstances his father told him to flee Afghanistan.  The appellant therefore arranged to be taken to Pakistan and, eventually, Australia.

5. A delegate of the respondent found that the appellant had a real chance of persecution and that his fear was well-founded.  In her Visa Record Decision, the delegate stated:

   ‘I accept that the applicant is a young male from the Hazara ethnic group in Afghanistan, I also accept that if he returns to Afghanistan he has a real chance of being captured by the Taliban and forced to fight or be killed by them.  I accept that the applicant has not been active in the Wahdat party and has fought or killed any other person.  I accept that the Taliban control large areas in Afghanistan, and there are no areas that the applicant could be safe in Afghanistan, as he is readily identifiable as an ethnic Hazara from his physical appearance and his language.’

6. On this basis the delegate concluded that the appellant was a person to whom Australia had protection obligations under the Convention.  On 24 March 2000, the appellant was granted a Temporary Protection Visa. 

   Application for a Permanent Protection Visa

7. On 3 April 2000, the appellant applied for a Permanent Protection Visa. Because of the operation of clause 866.228 of Schedule 2 of the Regulations the appellant was not, at that time, eligible for the grant of a Permanent Protection Visa and therefore a decision on this second application was deferred until 2003.

8. On 16 September 2003, a delegate of the first respondent refused to grant the appellant a Permanent Protection Visa.  The delegate found that the appellant was not a person to whom Australia had protection obligations.  On 2 October 2003 the appellant applied to the Tribunal for review of the delegate’s decision and on 5 April 2004, the Tribunal affirmed the delegate’s decision and refused to grant the appellant a Permanent Protection Visa. 

9. On 19 May 2004 the appellant commenced proceedings in this Court under s 39B of the Judiciary Act 1903 (Cth) seeking Constitutional writ relief in respect of the Tribunal’s decision.

   THE DECISIONS OF THE TRIBUNAL AND THE PRIMARY JUDGE

10. Ultimately the Tribunal concluded that the appellant did not have a well founded fear of persecution for a Convention reason. There were two aspects to this decision: first the Tribunal decided that the circumstances in connection with which he was recognised as a refugee when he was granted the temporary protection visa had ceased to exist; and secondly there was no other basis on which he could be held to have a well founded fear of persecution for a Convention reason. In relation to the first aspect of the decision the Tribunal relied on Article 1C(5) of the Convention and s 36(3) of the Migration Act. In relation to the second aspect of the decision the Tribunal relied on Article 1A(2) of the Convention and s 36(2) of the Migration Act.

11. The primary Judge held that the appellant had not demonstrated any jurisdictional error on the part of the Tribunal that would render its decision ‘something other than a decision under the Act’. His Honour therefore dismissed the application.

    Article 1C(5) of the Convention

12. In considering the political situation in Afghanistan, the Tribunal accepted that the Taliban were removed from power by mid-November 2001 and found that while remnants of it remained, the Taliban no longer existed as a political movement.  Although the appellant acknowledged that the Taliban were no longer in power he argued that they still posed a threat to Hazaras.  He referred to 12 Hazaras having been killed before Christmas (presumably Christmas 2003) and said that three of them were from Jaghori district.  The appellant also said that eight people from the international forces had been killed in the Hazara areas of Ghazni province and that this sort killing was going on every day.

13. The Tribunal did not accept these submissions but relied on independent country information indicating that the Taliban and al Qa’ida did not pose a direct threat to the civilian population, their targets currently being Coalition and Afghani Government security forces and international aid workers.  The Tribunal also noted that the United Nations High Commissioner for Refugees (‘UNHCR’) had advised that the strengthening of the Taliban remnants in Zabul province had not reached the Hazara areas of Jaghori district and they were unlikely to do so without open conflict with the Hezb-e-Wahdat.  The Tribunal did not accept that there was a real chance that the appellant, as a Hazara, would be persecuted by the Taliban if he were to return to his home area in Afghanistan either then or in the ‘reasonably foreseeable future’.  It followed that, in accordance with Article 1C(5) of the Convention, the circumstances in connection with which the appellant had been recognised as a refugee had ceased to exist and therefore, as a national of Afghanistan, he could no longer refuse to avail himself of the protection of that country.  

14. The primary Judge considered that Articles 33(1), 1A(2) and 1C(5) of the Convention are all based on the same notion; that is, protection is afforded to those persons in relevant need who do not have access to protection apart from the Convention.  The Convention was not designed to provide protection to people who do not have a well-founded fear of persecution, for a Convention reason, in the country, or countries, in respect of which that person has right or ability to access.  His Honour noted the practical consideration that the places for, and resources available to, refugees are limited.

15. The primary Judge held that as Article 1C(5) refers to the circumstances in connection with which a person has been recognised as a refugee, it necessarily refers back to the requirement that the person has a well-founded fear of persecution for a Convention reason and is therefore unable, or owing to such fear, unwilling, to avail himself of the protection of his own country.  His Honour expressed the view that Articles 1A(2) and 1C(5) should be construed as having some symmetry in their effect, commenting at [38]:

    ‘Thus, the circumstances in connection with which a person who is outside the country of his or her nationality will be recognised as a refugee by a Contracting State are that, owing to well-founded fear of being persecuted for Conventions Reasons, the person is unable or, owing to such fear, is unwilling, to avail himself of the protection of that country.  When Article 1C(5) speaks of a person no longer being able to continue to refuse to avail himself of the protection of the country of his nationality, it refers back to the prerequisite of Article 1A(2) that the person be unable or unwilling to avail himself of the protection of that country because of a well-founded fear of persecution for a Convention Reason.  There is no reason for construing Article 1C(5) as contemplating anything more or less than the negativing of the circumstances that led to the conclusion that a person was a refugee within the meaning of Article 1A(2).’

16. The primary Judge held that despite a certain lack of symmetry in the actual language of Articles 1A(2), 1C(5) and 33(1), there is a rationale underlying the basic object and scheme of the Convention.  His Honour described this rationale as:

    ‘…so long as the relevant well-founded fear exists, such that a person is unable or unwilling to avail himself or herself of the protection of the country of his or her nationality, he or she will be permitted to remain in the Contracting State.  However, if circumstances change, such that it can no longer be said that the person is unable to avail himself or herself of the protection of his or her country of nationality owing to well-founded fear of persecution for Convention Reasons, the Contracting State’s obligation of protection comes to an end.  That is to say, the obligations to a person that arise under, inter alia, Articles 32.1 and 33.1 continue only for so long as the person is a refugee within the meaning of Article 1A(2).’

    ‘Substantial, effective and durable’

17. The primary Judge accepted that it may be appropriate, in considering the application of Article 1C(5), to assess whether any change in circumstances can be characterised as:

    -substantial, in the sense that the power structure under which persecution was deemed a real possibility no longer exists;

    -effective, in the sense that they exist in fact, rather than simply promise, and reflect a genuine ability and willingness on the part of the home country’s authorities to protect the refugee; and

    -durable, rather than transitory shifts which last only a few weeks or months.

18. However, as noted above, his Honour considered that the object of the enquiry under Article 1C(5) is to determine whether there has been a change such that a person no longer has a well-founded fear of being persecuted, for a Convention reason, in their country of nationality such that they are unable or unwilling to avail themselves of the protection of that country.  The primary Judge also noted that Article 1C(5) does not actually refer to the characteristics of ‘substantial, effective and durable’, simply to particular circumstances ceasing to exist.

19. In respect of the Tribunal’s decision before him, the primary Judge held that while there was material before the Tribunal that may have given rise to a conclusion contrary to that reached by the Tribunal in relation to the change in circumstances in Afghanistan, there was other material within the same reports relied on by the appellant to support the Tribunal’s findings.  His Honour commented at [54]:

    ‘It is not for the Court to second guess the significance attached by the Tribunal to the evidentiary material before it.  That, in essence, is what the applicant has asked the Court to do.  It was open to the Tribunal, on the material before it, to conclude, as it did, that the applicant did not, as April 2004, have a well-found[ed] fear of being persecuted for one of the Convention Reasons if he returns to Afghanistan now or in the reasonably foreseeable future.’

    (emphasis in original)

    Section 36(3) of the Migration Act

20. Against the possibility that it was wrong to apply Article 1C(5) to the present case, the Tribunal also considered whether ss 36(3) and (4) applied to the appellant; that is, at the date of its decision, did the appellant have a well-founded fear of persecution on the basis of the circumstances that had led to him being recognised as a refugee.  In view of the Tribunal’s findings set out above, it is not surprising that the Tribunal concluded that the appellant no longer had a well-founded fear of persecution in Afghanistan and had not taken all possible steps to avail himself of a right to enter and reside in Afghanistan.  It followed therefore that s 36(3) would apply independently of the operation of Article 1C(5) and Australia was not taken to have protection obligations to the appellant in relation to the circumstances in connection with which he was originally recognised as a refugee.

21. Before the primary Judge the appellant contended that the Tribunal erred in applying ss 36(3) and submitted that s 36(3) does not operate at all in relation to a person who has already obtained a protection visa.  The appellant argued that s 36(3) only applies to persons who come to Australia seeking protection, in circumstances where there are other countries where those persons could have sought protection.  The basis for the appellant’s argument was described by his Honour at [56]:

    ‘The applicant says that, while the Taliban have ceased to be in power, there has not been a change sufficient to satisfy Article 1C(5).  If Article 1C(5) does not apply, then, according to Article 1A(2), the applicant is a person to whom Australia owes protection obligations and, because he is already in Australia and has been recognised as a refugee, the provisions of Section 36(3) have no operation because no question of ‘forum shopping’ arises. The reference to ‘forum shopping’ arises from the explanatory memorandum published in explanatory memorandum published in connection with the Bill for the amendments that were made to the Act to insert ss 36(3), (4) and (5).’

22. Sections 36(3), (4) and (5) were inserted by the Border Protection Legislation Amendment Act 1999 (Cth) (‘the Amendment Act’). The Supplementary Explanatory Memorandum in respect of the Bill for the Amendment Act made reference to the problem of ‘forum shopping’ and stated that the purpose of the new provisions was ‘to prevent the misuse of Australia’s asylum processes by “forum shoppers”’.

23. The primary Judge held that the Supplementary Explanatory Memorandum only had relevance to the construction of ss 36(3), (4) and (5) in the event of ambiguity.  His Honour commented that it is difficult to see any ambiguity and noted that the provisions make no reference to forum shopping.  In any event, his Honour held that in the appellant’s circumstances, it was difficult to see the relevance of s 36(3) where the appellant was found not to have a well-founded fear of persecution for a Convention reason and the criterion in s 36(2) would not be satisfied.  As such, there would be no need to consider if the appellant had taken all steps required by s 36(3).

    Article 1A(2) of the Convention – additional matters raised by the appellant

24. Despite its conclusions as to the operation of Article 1C(5) and s 36(3), the Tribunal held that it was necessary to consider whether the appellant met the definition of ‘refugee’ in Article 1A(2) of the Convention.  This required it to determine whether the appellant had a well-founded fear of being persecuted for a Convention reason, having regard to the situation in Afghanistan at the time of its decision, but unrelated to the circumstances in connection with which he was originally recognised as a refugee.  This necessarily entailed consideration of the additional issues that the appellant raised before the Tribunal.

25. At the hearing before the Tribunal, the appellant claimed for the first time that his uncle, a religious leader, was a member of the Sepah faction of the Hezb-e-Wahdat and he believed that another of his uncles had also been involved with the same faction.  The appellant also claimed that people thought his father was a part of the Sepah faction because of his father’s brothers’ involvement.  The appellant stated that because his uncle was a member of the Sepah faction people would regard him as being also a member of the Sepah faction. 

26. In a statement received by the Department on 8 October 2002 in support of his application for a Permanent Protection Visa, the appellant claimed that before the Taliban had taken control of his village, there were two different Wahdat groups that opposed each other and often fought for control over various things.  He stated:

    ‘Neither my father or myself or any of my brothers was ever involved with either Wahdat. …

    I am told that the Taleban [sic] is no longer in control of the area my village is in.  I believe that my village and surrounding areas is now being fought over by various Wahdat groups.  I fear that it is not safe in my village.  I fear that if I return I will be forced to join one of the Wahdat groups and will have to fight and kill for them.  I do not want to fight.  I can not kill another person.  I do not want to join any of those groups.  I do not believe in what they are fighting for, which is control of all of the surrounding areas.  I disagree with the way they fight each other, by using torture, by killing and hurting people.  If I refuse to fight for a group I fear that they will accuse me of supporting one of the other groups and will kill me.’

27. The Tribunal did not accept that members of the appellant’s family were in the Sepah faction, or that the appellant or other members of his immediate family were regarded as members of that faction.  The Tribunal considered that the appellant had ample opportunity to make this claim when interviewed by the delegate in relation to his second visa application and if there were any truth in the claim the appellant would have made it then.  The Tribunal went on to state:

    ‘The Applicant referred at that interview [before the delegate in respect of his second application] to fighting between the Nasr and Sepah factions but he did not claim that members of his family were associated with the Sepah faction and that he feared that he would be targeted by the dominant Nasr faction as a result.  The applicant said that he had contacted his father after the interview with the primary decision-maker and it had only been then that his father had told him why it would not be safe for him to return to Afghanistan.  However, as I put to the Applicant, he had mentioned at the interview that he had contacted his father before the interview.  Since I do not accept that the Applicant or members of his family are associated with, or perceived as being associated with, the Sepah faction of the Hezb-e-Wahdat, I do not accept that there is a real chance that the Applicant will be persecuted by the opposing Nasr faction because of his real or perceived association with the Sepah faction.’

1. The reasons of the Tribunal do not disclose a direction to itself as to the clarity with which it must be satisfied of the change of circumstances.  The reasons give no cause to think that the Tribunal’s decision would have been the same had it correctly directed itself.  Further, they exhibit an approach whereby it was for the applicant to show that there was a real chance of persecution, rather than it being necessary for the Tribunal to be satisfied that durable change in the relevant circumstances had been revealed with the necessary clarity.

2. The primary judge discussed the inter-relationship of Article 1A(2) and C(5) at [38]-[40] as follows:

   Thus, the circumstances in connection with which a person who is outside the country of his or her nationality will be recognised as a refugee by a Contracting State are that, owing to well-founded fear of being persecuted for Convention Reasons, the person is unable or, owing to such fear, is unwilling, to avail himself of the protection of that country. When Article 1C(5) speaks of a person no longer being able to continue to refuse to avail himself of the protection of the country of his nationality, it refers back to the prerequisite of Article 1A(2) that the person be unable or unwilling to avail himself of the protection of that country because of a well-founded fear of persecution for a Convention Reason. There is no reason for construing Article 1C(5) as contemplating anything more or less than the negativing of the circumstances that led to the conclusion that a person was a refugee within the meaning of Article 1A(2).

   While there is a certain lack of symmetry in the actual language of the three provisions, there is a rationale underlying the basic object and scheme of the Refugees Convention. That rationale is that, so long as the relevant well-founded fear exists, such that a person is unable or unwilling to avail himself or herself of the protection of the country of his or her nationality, he or she will be permitted to remain in the Contracting State. However, if circumstances change, such that it can no longer be said that the person is unable to avail himself or herself of the protection of his or her country of nationality owing to well-founded fear of persecution for Convention Reasons, the Contracting State´s obligation of protection comes to an end. That is to say, the obligations to a person that arise under, inter alia, Articles 32.1 and 33.1 continue only for so long as the person is a refugee within the meaning of Article 1A(2).

   It may be appropriate, when considering the possible application of Article 1C(5), to assess whether a change in circumstances in the country of nationality is such as can properly be characterised as `substantial, effective and durable´. However, the object of the enquiry is to determine whether the person who has been recognised as a refugee can still claim to have a well-founded fear of being persecuted, for a Convention Reason, in his or her country of nationality such that there is justification for his or her being unable or unwilling to avail himself or herself of the protection of that country.

3. The primary judge recorded the submission of the appellant as to the approach to Section C(5) in [43] of his reasons:

   The applicant contends that, once a person has been recognised by a Contracting State as a refugee within the meaning of Article 1A(2), the person is entitled to continue to be treated by that Contracting State as having that status unless there are changes in the country of nationality that are ` substantial, effective and durable´. He says that such change requires authoritative evidence that the changes are:

   ·substantial, in the sense that the power structure under which persecution was deemed a real possibility no longer exists;

   ·effective, in the sense that they exist in fact, rather than simply promise, and reflect a genuine ability and willingness on the part of the home country´s authorities to protect the refugee; and

   ·durable, rather than transitory shifts which last only a few weeks or months.

4. The primary judge was not assisted by submissions based on the Handbook.  Rather he was referred to an internal document of the Minister.  Nor did the primary judge have the benefit of the speeches of their Lordships in Hoxha. The primary judge said the following at [44]:

   The applicant adopts that language from a paper prepared by the Minister´s Department `Interpreting the Refugees Convention - an Australian Contribution´ , Department of Immigration and Multicultural and Indigenous Affairs, Canberra 2002. However, care must be taken to ensure that the language of the Refugees Convention is applied rather than being replaced by substituted language: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572-573. The Refugees Convention does not actually refer to a change in circumstances that is `substantial, effective and durable´. Rather, it refers simply to particular circumstances ceasing to exist.

5. For the reasons I have given, the correct approach to a decision as to whether Section C(5) leads to the cessation of application of the Convention requires a demonstrable clarity of durable change.  That approach is to be found in the text and structure of the Convention.  With respect, his Honour erred in not so concluding.

6. By reason of his Honour’s view, reflected in [44] of his reasons, he rejected the complaints as to the findings of the Tribunal in respect of Section C(5) as factual debates.  His Honour embarked on this issue at [54] as follows:

   It is not for the Court to second guess the significance attached by the Tribunal to the evidentiary material before it. That, in essence, is what the applicant has asked the Court to do. It was open to the Tribunal, on the material before it, to conclude, as it did, that the applicant did not, at April 2004, have a well-founded fear of being persecuted for one of the Convention Reasons if he returns to Afghanistan now or in the reasonably foreseeable future.

   [emphasis in original]

7. With respect, this paragraph and the approach taken by the primary judge at [37] to [40] overstates the effect of the underlying symmetry of subject matter in Sections A(2) and C(5).  Each deals with the same notions, but the approach to the dealing with these notions is importantly different in the way discussed above.

8. The primary judge then dealt with the operation of sub-ss 36(3) to (5) of the Act, his Honour stated the following at [55] to [59]:

   The applicant also complains about the operation given by the Tribunal to ss 36(3), (4) and (5) of the Act. The applicant submits that s 36(3) does not have any relevant operation in the present case. He contends that s 36(3) does not operate at all in relation to a person who has already obtained a protection visa. Rather, it is submitted that the section is directed to a person who has come to Australia to seek protection, in circumstances where there are other countries where that person could have sought protection, whether those countries were visited on the way to Australia, or were countries where the person had a right to enter and reside, whether temporarily or permanently.

   The applicant says that, while the Taliban have ceased to be in power, there has not been a change sufficient to satisfy Article 1C(5). If Article 1C(5) does not apply, then, according to Article 1A(2), the applicant is a person to whom Australia owes protection obligations and, because he is already in Australia and has been recognised as a refugee, the provisions of Section 36(3) have no operation because no question of `forum shopping´ arises. The reference to `forum shopping´ arises from the explanatory memorandum published in connection with the Bill for the amendments that were made to the Act to insert ss 36(3), (4) and (5).

   Those amendments were made by the Border Protection Legislation Amendment Act 1999 (Cth). In the supplementary explanatory memorandum circulated by the Minister in connection with the Bill for that Act, the following observations appear:

   `Overview

   Australia has comprehensive refugee determination processes in place to fulfil its obligations under the [Refugees Convention]. A significant number of persons seeking asylum in Australia are nationals of more than one country, or have rights of return or entry to another country, where they may reside free from persecution or forced return to the country where they claim they will be persecuted. These persons attempt to use refugee processes as a means of by passing general immigration requirements to obtain residence in Australia. This practice of seeking protection elsewhere, widely referred to as " forum shopping", represents and increasing problem faced by Australia and other countries viewed desirable migration destinations. The government believes that Australia´s obligations do not require these persons to be permitted to reside in Australia when they have protection from persecution in another country.

   The purpose of these amendments  is to prevent the misuse of Australia´s asylum processes by "forum shoppers". These amendments will ensure that persons who are nationals of more than one country, or who have a right to enter and reside in another country where they will be protected, have an obligation to avail themselves of the protection of that other country.´

   Whatever may have been in the contemplation of the author of the explanatory memorandum, it only has relevance to the construction of ss 36(3), (4) and (5) in the event of ambiguity. It is difficult to see any ambiguity. Those provisions do not actually refer to forum shopping.

   In any event, it is difficult to see what relevance s 36(3) has in the present circumstances. If the applicant does not have a well-founded fear of persecution for one of the Convention Reasons, the criterion in s 36(2) would not be satisfied because Australia would not have protection obligations under the Refugees Convention. There would be no need to consider, as the Tribunal did, whether the applicant had taken all possible steps to avail himself of a right to enter and reside in his country of nationality, namely, Afghanistan. Section 36(3) is directed to the same concern that is addressed by Article 1E, although their operation is not co-extensive. Article 1E refers only to a country where a person `has taken residence´. Section 36(3), as qualified by ss 36(4) and 36(5), is not limited to a country in which a person has taken residence. It applies in relation to any country in which the person has a right to enter and reside.

   [emphasis in original]

9. For the reasons that I have identified, sub-ss 36(3) to (5) are not to be taken as altering the approach found in the Convention.

10. Further, the primary judge stated the following at [58]:

    Whatever may have been in the contemplation of the author of the explanatory memorandum, it only has relevance to the construction of ss 36(3), (4) and (5) in the event of ambiguity. It is difficult to see any ambiguity. Those provisions do not actually refer to forum shopping.

11. With respect, that is not the approach as expounded by the High Court in the cases referred to at [10] above. In Network Ten the proper approach was summarised as follows by McHugh ACJ, Gummow J and Hayne J at [11]:

    In Newcastle City v GIO General Ltd, … McHugh J observed:

    [A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context.

    His Honour went on to refer to what had been said in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd. ... There, Brennan CJ, Dawson, Toohey and Gummow JJ said: ...

    It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. ... Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy....Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd,... if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent... .

    [emphasis added]

12. Finally, the primary judge saw the division of visas into temporary and permanent, as exhibiting an intention to renew the requirement to satisfy Article 1A(2).  His Honour said at [60]-[64]:

    There may be many reasons why a Contracting State would invoke Article 1C(5) sparingly. The reasons might include a desire to maintain a degree of stability for refugees. Frequent review of the status of a person who has been recognised as a refugee could be detrimental to a sense of security that the Refugees Convention is designed to provide. The Refugees Convention does not provide any requirement for systematic review of status to determine whether particular circumstances have ceased to exist.

    To that extent, the possibility of temporary protection that would arise by the grant of a temporary protection visa under the Act is not expressly contemplated by the Refugees Convention. The scheme of the Act in requiring a fresh application following the expiration of a temporary protection visa does not necessarily sit comfortably with the framework of the Refugees Convention. Nevertheless, the scheme of the Act is unambiguous in requiring a fresh application for a protection visa on the part of a person who wishes to remain in Australia after the expiration of a temporary protection visa.

    The Tribunal was not considering the revocation of a protection visa. Nor was the Tribunal considering an application for the extension of a temporary protection visa. The Tribunal was considering a fresh application for the grant of a permanent protection visa. That required, under s 36(2), that the Tribunal, standing in the shoes of the Minister be satisfied, that the applicant is, at the time of the decision, a person to whom Australia has protection obligations under the Refugees Convention.

    On one view, Article 1C(5) had no part to play in that question. The only question was whether, at the time of the Tribunal´s decision, the applicant was a person who, owing to a well-founded fear of being persecuted for Convention Reasons, was unable, or owing to such fear, unwilling to avail himself of the protection of Afghanistan. Even if, as at December 1999 the applicant had been a person to whom the term `refugee´ within the meaning of the Refugee Convention applied, the question before the Tribunal was whether that term applied to the applicant as at April 2004. The Tribunal concluded that the applicant was not, as at that time, a person to whom the term refugee, as defined in the Refugees Convention, applied. There was no error in its reasoning in doing so.

    In reaching its conclusion, it was necessary for the Tribunal to have regard to all of the applicant´s claims, whether they were made in connection with his original application or his subsequent application. The Tribunal did so. It is not the Court´s function to second guess the Tribunal´s conclusion in relation to the assessment of the material before it in that regard.

    [emphasis in original]

13. With respect, I cannot agree.  The protection obligations referred to at [62] of the primary judge’s reasons derive from the whole of Article 1:  NAGV and NAGW of 2002. That includes Sections A(2) and C(5). The structure sits comfortably with the framework of Article 1. At the time of decision as to the temporary visa, the Minister must be satisfied of the application of Article 1A(2) (together with any other relevant aspect, such as Section F). At the time of decision as to the permanent visa, if no other or different questions arise under Section A(2), the Minister must be satisfied of the matters in Section C(5) with the necessary degree of clarity in the durability of change as to warrant the cessation of the Convention. That is another aspect of whether Australia has (or continues to have) “protection obligations” to the person under the Convention. The key to his Honour’s concern as to the disconformity between the Act and the Convention was the implicit equation of protection obligations with the satisfaction of Section A(2). As NAGV and NAGW of 2002 made clear (after the primary judge dealt with the matter) that is too narrow a focus. There is no disconformity between the Convention and the Act.

    The arguments of the parties and the decision in QAAH

14. It is necessary to deal with some of the submissions of the parties not otherwise adequately dealt with above and with the decision of the Full Court in QAAH.

15. The parties each put submissions as to what the relevant “circumstances” were here for the operation of Section C(5).  The appellant submitted that the circumstances were the precise factual matters that had comprised the factual foundations of the appellant’s claim.  The first respondent submitted that the circumstances were merely the claim as to the well-founded fear of persecution.  The latter is perhaps too general a meaning.  The former is perhaps probably too narrow.  The terms of Section C(5) are straightforward and contain a degree of flexibility adaptable to the individual case.  What must cease to exist are “the circumstances in connection with which [the applicant] has been recognised as a refugee”:  that is, where that recognition has arisen because the applicant is a person described in Section A(2), the circumstances in connection with which the applicant has been recognised as having a well-founded fear of persecution for a relevant reason.  The identification of the extent of what has to be assessed as having ceased will depend upon the nature of the claims made, their basis or bases and extent, and all the surrounding circumstances.  If a person’s claims (found previously to be valid) can be seen to be narrowly based on certain facts, it may be enough that those underlying facts no longer exist.  If those facts, however, are only indicative of a more broadly based fear, the circumstances giving rise to that more broadly based fear will need to be examined.  Thus, here, if the well-founded fear was based on feared persecution for relevant reasons by the Taliban, the circumstance that the Taliban had ceased to be the State authority may not lead to the conclusion that the circumstance of possible persecution for relevant reasons by the Taliban (though now as a non-State party or force) had ceased to exist.  Normally, the relevant circumstances will be the general political conditions in the person’s country of origin which have caused him or her to become a refugee:  Grahl-Madsen op cit pp 400-401.  However, the circumstances referred to in Section C(5) include both the objective facts giving rise to the fear held by the applicant and the subjective fear of the applicant himself or herself.

16. Here, the Tribunal did not otherwise address the matter in the correct way and thus it is unnecessary to comment further on its fact finding.

17. The first respondent submitted that the views of the majority in QAAH were wrong, and plainly wrong.   For the above reasons I reject that submission.  It is necessary, however, to make the following comments on QAAH.

1. In QAAH, Wilcox J at [36] to [46] described the use to be made of the Handbook. His Honour’s views, as I read them, accord with my views at [7] to [14] above.

2. It is to be recognised that the fundamental argument addressed in QAAH was the view of the primary judge in that case and maintained by the Minister in argument that it was unnecessary at the point of consideration of the application for a permanent protection visa to deal with Section C(5).  It was a fresh application as if it was the applicant’s first application for recognition as a refugee:  see QAAH at [49]. That submission was essentially maintained on this appeal. It highlights, in my view, the disconformity of the submission with the proper operation of the Convention and therefore with the Act and the Regulations themselves.

3. The discussion by Wilcox J at [61] to [67] of the relationship between the Convention and the Act accords with my view.

4. I agree with the reasons of Wilcox J at [68] to [70] as to the error of the primary judge in that case and the irrelevance of Chan to the relationship between Sections A(2) and C(5) and their respective operations.  No submissions based on Chan were put on this appeal.

5. Some criticism was made in argument before us of [69] of Wilcox J’s reasons. It was submitted that his Honour failed to recognise the relevance and importance of the matters in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, especially at 239 ff. I do not agree. In the last four sentences of [69], his Honour was simply pointing out that despite the similarity of the underlying issue to both Sections A(2) and C(5), that is, the existence or not of a well-founded fear of persecution for a relevant reason, the answer to an enquiry under one could be different from the answer to an enquiry under the other because of the perspective and context in which the different questions are asked and because of the need for clarity and durability in the changed circumstances for an enquiry under Section C(5). The fact that the two questions may not always (though they may often) elicit the same answers highlights the importance of asking the correct question.

6. Wilcox J in [83] of his reasons illuminated the central consideration which I have otherwise attempted to express in my own words.  Central to understanding the operation of Article 1, and in particular Section A(2) and C(5), is the place of recognition of the applicant as a refugee and the loss of that position and the protection accorded through the Convention by the operations of Article 1C, and here Section C(5).

7. Wilcox J at [84] to [86] (if I may say so) lucidly summed up the issue. In my view, the approach preferred by Wilcox J is correct. It is one which is founded on an interpretation of the Convention that accords with the text, structure and purposes of the Convention, with the views of scholars and jurists and with the highly persuasive views of a unanimous House of Lords. Once that foundation of the meaning of the Convention is recognised, where there is any ambiguity in the meaning of relevant domestic legislation, a construction favouring the operation of the Convention properly interpreted should be given, rather than one contrary to its operation: see the cases at [164] above. Here, an interpretation of delegated legislation, that the claimant must reassert his or her claim for recognition as a refugee at the point of application for a permanent protection visa would be contrary to the Convention and its intended operation. Therefore the approach favoured by Wilcox J at [86(ii)] should be preferred. I do not, however, think that there is any ambiguity in the domestic law. Both the Act and Regulations direct one to a question that is to be assessed by the application of the Convention. It is the proper understanding of that instrument which guides and forms the approach to the domestic law both because of the principles of interpretation of domestic law against the background of a treaty and because of the very terms of the Act and Regulations themselves.

8. If it be the case that the revealed intention of the relevant Regulations was that described in [86(i)] of Wilcox J’s reasons an issue may arise (which it is unnecessary to discuss) as to whether such regulations were repugnant to the Act, in particular s 36(2).

9. It is clear, I hope, from what I have already said that I do not see the clarity and durability of change required by Section C(5) to be a question of onus.  It is a question of the Minister, her delegate or the Tribunal as part of the Executive, recognising the nature of the decision-making task.

10. Respectfully, I cannot agree with the views of Lander J in QAAH that Mayer, Chan, NAGV and NAGW of 2002, Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 and Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 require the conclusion that a fresh and second assertion of recognition be undertaken at the stage of the application for a permanent visa. Those cases make clear the importance of the present tense in the expression of the relevant provision concerning the timing of the assessment for the asserted recognition. They say nothing about whether repeated assertions of recognition were intended by these Regulations. It goes without saying that the time by reference to which the question whether Australia has protection obligations is to be assessed is identified by the terms of the relevant Regulation. That does not, however, require a further assessment as to whether the applicant should be recognised as a refugee under Section A(2) at that time. The question under s36(2) and the Regulation is whether Australia has protection obligations under the Convention at that time.  This will be answered by the proper operation of the Convention by assessing whether Section C(5) operates to bring about a cessation of the protection obligations already engaged by the existing recognition that Section A(2) applied to the applicant.

11. Finally, to say that it is a matter for the host State to provide for how protection is to be afforded does not assist in construing and interpreting the means in fact employed by Australia in its domestic law by reference to accepted canons of construction and interpretation of international conventions and domestic legislation in relation thereto.

12. For the above reasons I would make the following orders:

    1.The appeal be allowed.

    2.The orders of the Court made on 25 October 2004 be set aside.

    3.In lieu of the orders made on 25 October 2004 the following orders be made:

    (a)a writ of certiorari be directed to the second respondent quashing the decision of the second respondent made on 5 April 2004 and handed down on 29 April 2004 in matter number N03/47465;

    (b)a writ of mandamus be directed to the second respondent requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 16 September 2003; and

    (c)the first respondent pay the costs of the applicant.

    4.The first respondent pay the appellant’s costs of the appeal.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             12 May 2006

Counsel for the Appellant:	G C Lindsay SC and L J Karp
Solicitor for the Appellant:	Legal Aid Commission of NSW
Counsel for the Respondent:	N Williams SC and S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	3 May 2005 and 1 December 2005 (by the reconstituted bench)
Date of Judgment:	12 May 2006