QAAH v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 136

FEDERAL COURT OF AUSTRALIA

QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136

CORRIGENDUM

QAAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

QUD 242 OF 2004

WILCOX, MADGWICK & LANDER JJ
27 JULY 2005 (CORRIGENDUM 16 SEPTEMBER 2005)
SYDNEY (HEAD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 242 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	QAAH OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX, MADGWICK & LANDER JJ
DATE:	27 JULY 2005
PLACE:	SYDNEY (HEARD IN BRISBANE)

CORRIGENDUM

1. In the reasons for judgment of Madgwick J handed down on 27 July 2005, the words in quotes ‘preferred concern’ in the second sentence of [106] should read ‘profound concern’.

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

Associate:

Date:               16 September 2005

FEDERAL COURT OF AUSTRALIA

QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136

IMMIGRATION – Refugees – Application for permanent protection visa – Appellant recognised as a refugee and granted a temporary protection visa in March 2000 – Fresh temporary protection visa granted in March 2003 – Application for permanent protection visa rejected in December 2003 – Rejection affirmed by Refugee Review Tribunal – Appeal from decision of a single judge dismissing an application to review Tribunal’s decision – Effect on permanent visa decision of the March 2003 decision to grant a second temporary visa – Proper approach to a case of possible cessation of refugee status – Adequacy of Tribunal’s consideration of the issue of cessation.

Migration Act 1958 (Cth) s 36

Convention Relating to the Status of Refugees Article 1A(2) and Article 1C(5)

QAAH OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

QUD 242 of 2004

WILCOX, MADGWICK and LANDER JJ
27 JULY 2005
SYDNEY (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 242 of 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	QAAH OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	WILCOX, MADGWICK and LANDER JJ
DATE OF ORDER:	27 JULY 2005
WHERE MADE:	SYDNEY (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1.        The appeal be allowed.

2.The orders made by Dowsett J on 11 November 2004 be set aside and, in lieu thereof, it be ordered that:

(a)the decision of the Refugee Review Tribunal made on 3 May 2004 be quashed;

(b)the applicant’s application for a permanent protection visa be remitted to the said Tribunal for further hearing and determination according to law; and

(c)the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, pay the costs of the applicant.

3.        The said respondent pay the appellant’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 242 of 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	QAAH OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WILCOX, MADGWICK and LANDER JJ
DATE:	27 JULY 2005
PLACE:	SYDNEY (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against orders of a judge of the Court dismissing an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’) in respect of the appellant’s application for a permanent protection visa.  The respondent to the appeal is the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’).

   The March 2000 decision

2. The appellant is a citizen of Afghanistan.  He is of the Hazara ethnic group and a Shi'a Muslim.  He arrived in Australia without an entry permit on 27 September 1999.  He was detained as an unlawful non-citizen.  In late November 1999, the appellant applied for a protection visa.  On 28 March 2000, a delegate of the then Minister determined that the appellant is ‘a person to whom Australia has protection obligations under the Refugees Convention’.  The delegate’s reference to ‘the Refugees Convention’ was a reference to the Convention Relating to the Status of Refugees adopted at Geneva on 28 July 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Convention’).

3. In her record of decision, the delegate noted the appellant’s claim ‘that if he returns to Afghanistan he fears that the Taliban will kill him because he is of Hazara ethnicity’.

4. In setting out her reasons for decision, the delegate noted country information referring to persecution of Shi’a Hazaras by the Taliban.  She commented: ‘Due to the current situation in Afghanistan, there is no effective government to protect the applicant’.  After elaborating that statement, she concluded:

   ‘I accept that the applicant is a 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 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.’

5. The relevance of the delegate’s determination that the appellant was a person to whom Australia has protection obligations under the Convention is that this enabled the grant to him of a protection visa: see s 36(2) of the Migration Act 1958 (Cth) (‘the Act’). The delegate went on to grant the appellant a Protection (Class XA) temporary visa. Under the Migration Regulations 1994 (Cth), at that time, such a visa continued until the end of 36 months from the grant of the visa or earlier determination of the holder’s application for a permanent visa. In other words, as the primary judge said, ‘the maximum life of the visa was 36 months’.

   The March 2003 decision

6. Apparently, the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) experienced delays in processing applications for permanent protection visas.  Accordingly, in 2001, the relevant regulation was amended to provide, in effect, that, if the holder of a temporary (Class XA) visa applied for a permanent protection visa within the 36 month period, the temporary protection visa would continue in force until that application was finally determined.

7. The drafter of the amendment apparently thought the new rule, as framed, would not apply to persons who, at the date of the amendment, had already applied for a permanent visa.  For reasons that are not apparent to me, rather than take the seemingly simple course of adding the necessary few words to the amending regulation concerning temporary (Class XA) visas, the drafter created a new species of visa: a Protection (Class XC) visa. 

8. A Protection (Class XC) visa is also a temporary visa.  It applies only to persons to whom a temporary visa had been granted before 19 September 2001, which had not been cancelled, and who made, or had already made, an application for a permanent protection visa that had not been finally determined.

9. The effect of the decision to create a new type of visa, rather than to extend the operation of the temporary Class XA visa already held by the appellant, was that it was necessary to grant him a fresh visa, if he was to remain lawfully in Australia after 28 March 2003 (the third anniversary of the grant of the temporary Class XA visa).

10. Accordingly, on 27 March 2003, another delegate of the Minister made a further decision in relation to the appellant.  The decision was explained in a letter of that date sent to the appellant by an officer of the Department:

    ‘I am writing to advise you that you have been granted a Protection (Class XC) visa (subclass 785 (Temporary Protection) visa).

    This Temporary Protection visa is a temporary visa that allows you to remain in, but not re-enter Australia until your application for a Protection (Class XA) visa is finally determined.

    Under amendments to the Migration Regulations 1994 which commenced on 1 November 2002, you were deemed to have made an application for this (Protection) (Class XC) visa because you were the holder of a subclass 785 (Temporary Protection) visa granted before 19 September 2001 and you had made an application for a Protection (Class XA) visa.

    The Temporary Protection visa allows you to work without restrictions in Australia.  You also remain eligible to receive Special Benefits Payment.

    …

    You cannot apply for any other substantive visa, apart from another protection visa.  You are not able to sponsor family members to Australia while the holder of a subclass 785 visa.’

11. The delegate signed a Decision Record in relation to his decision to grant the temporary Class XC visa.  In that document, he said:

    ‘I am satisfied that the applicant is a person to whom Australia has protection obligations.’

    The delegate said the evidence used by him in making his decision ‘is found in the following document’.  He identified a departmental record that lists each ‘recordable event’ pertaining to the appellant.  It is common ground that this list includes the material relevant to the March 2000 decision, but does not include any subsequent information that would have allowed a judgment to be made concerning the appellant’s vulnerability to persecution as at March 2003, if he returned to Afghanistan.

    The Tribunal’s decision

12. On 21 November 2003, another delegate of the Minister refused the appellant’s application for a permanent protection visa.  The appellant sought review of that decision by the Tribunal.  On 3 May 2004, the Tribunal made a decision affirming the delegate’s decision.

13. In its reasons for decision, the Tribunal noted the terms of Article 1A(2) of the Convention.  That clause includes in the definition of ‘refugee’, for the purposes of the Convention, any person who:

    ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’

14. The Tribunal also noted Article 1C(5) of the Convention.  That clause states the Convention ‘shall cease to apply to any person falling under the terms of section A’ if:

    ‘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.’

15. The Tribunal commented:

    ‘The central issue presented by Article 1C(5) is whether an individual can no longer refuse to avail him or herself of the protection of his or her country because the circumstances in connection with which he or she was recognised as a refugee have ceased to exist.  Commentators have expressed the view that for the purposes of the cessation clauses, changes in the refugee’s country must be substantial, effective and durable, or profound and durable: see, for example, UNHCR, Guidelines on International Protection:  Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased Circumstances” Clauses), 10 February 2003, JC Hathaway, The Law of Refugee Status, Butterworths, Canada, 1991 at 200-203, G Goodwin-Gill, The Refugee in International Law, 2^nd edition, Clarendon Press, Oxford 1996, at 84.  However, these expressions do not constitute legal tests.  As the High Court has cautioned, it is important to return to the language of the Convention.’

16. The Tribunal added:

    ‘Where an applicant makes claims to be a refugee for reasons unrelated to the circumstances in connection with which he or she was recognised as a refugee, those claims will fall to be assessed under Article 1A(2) of the Convention.’

17. In its statement of findings and reasons, the Tribunal discussed the circumstances under which the appellant was first recognised as a refugee, in March 2000.  The Tribunal referred to the claims made by the appellant prior to that decision.  He had claimed to live in a ‘completely Hazara village’ that was under the control of the Wahdat party, which the appellant claimed to have supported, although unwillingly, by giving firewood and helping as a mechanic.  The appellant claimed his father had been a truck driver and was killed when the Taliban bombed the truck from helicopters.  Later, the appellant said, the Taliban entered his village and fighting ensued.  The appellant escaped to Kabul.  He lived there, with his sister and her husband, for eight months before leaving Afghanistan.  He did not return from Kabul to his village because his mother told him the ‘Taliban were very brutal and had different sorts of tortures for the young Hazara men’.

18. The Tribunal noted submissions put to it by a migration agent/solicitor acting on behalf of the appellant.  The Tribunal then set out its conclusions regarding the possible application of Article 1C(5) of the Convention:

    ‘It was claimed Afghanistan is still unstable, the interim government is unable to protect the applicant.  That the applicant therefore has a “well founded fear for reason of being a Hazara and practising Shi’a and being perceived to be opposed to the Taliban or those aligned with, or previously aligned with, the Taliban and factions of the current Interim Authority and various warlords and governors in positions of power in Afghanistan simply because of ethnicity and religion … and for reasons of his membership of a particular social group.”

    That said, the applicant was recognised by Australia as a refugee in March 2000 on the basis of circumstances then prevailing in Afghanistan.  Therefore, for the purposes of the Refugees Convention, he remains a refugee in relation to those circumstances unless one of the cessation clauses in Article 1C applies.  The provision that is relevant to the facts of this case is Article 1C(5).  The Tribunal has therefore considered whether, in accordance with Article 1C(5) of the Convention, the applicant can no longer continue to refuse to avail himself of the protection of his country of nationality because the circumstances in connection with which he was recognised as a refugee have ceased to exist.

    The circumstances in connection with which the applicant was originally recognised as a refugee in 2000 was that he would be persecuted in Afghanistan by the Taliban authorities because he is a Hazara and a Shi’a Muslim [the Taliban had issued a warrant for his arrest and his property had been confiscated].

    However, independent evidence indicates that the Taliban were removed from power in Afghanistan by late 2001.  …

    The Tribunal accepts that remnants of the Taliban remain active in Afghanistan, particularly in the South and Southeast of the country [US Department of State, Country Reports on Human Rights Practices, Afghanistan, 2003], but the independent information considered in preparing for the hearing in this matter indicated the Taliban no longer existed as a coherent political movement [see US Department of State, Country Reports on Human Rights Practices, Afghanistan, 2003; Human Rights Watch, World Report 2003, Afghanistan; UK Home Office, Afghanistan Country Report, October 2003].  While these armed remnants may cause security problems for the Government and for US troops engaged in combating them, it is now more than two years since the Taliban was removed and the Tribunal does not accept there is any real chance of the Taliban re-emerging as a governing authority in Afghanistan in the reasonably foreseeable future, or otherwise be in a position to exercise control in the manner it did at the time the applicant left Afghanistan.

    On the basis of all the material before it concerning the circumstances in connection with which the applicant was recognised as a refugee, the Tribunal finds that he can no longer continue to refuse to avail himself of the protection of Afghanistan because those circumstances have ceased to exist.  Therefore, Article 1C((5) of the Convention applies to the Applicant.’

19. The Tribunal realised its finding about Article 1C(5) did not necessarily mean the appellant was ‘no longer a refugee under the Convention, because he may still be a refugee for other reasons’.  The Tribunal member said the appellant’s subsequent claims raised further issues that ‘I am satisfied are sufficiently unrelated to the circumstances in connection with which protection obligations were initially determined, and as such they are to be assessed under Article 1A(2) of the Convention’.

20. The Tribunal then discussed claims made by the appellant relating to possible persecution of him, as a Shi’a Hazara, by Pashtuns, Tajiks and Sunni Hazaras.  These claims were advanced on the assumption that the appellant would have no option but to return to his village.  The Tribunal recorded that the appellant said his ‘family no longer has property in Kabul’.

21. In a statutory declaration submitted to the Tribunal, the appellant stated his village was about 4½ hours from Kabul by car.  It was necessary to use a donkey to reach the highway from the village.

22. After a lengthy discussion about the matter, the Tribunal said it was not satisfied that the appellant ‘would have a prospective real chance [should he return] of being persecuted for a Convention reason by any of the above-named groups, nor anyone else, merely for reasons of being Hazara and Shi’a in his home district’.  The Tribunal revealed that a major factor in its readiness to reach that conclusion was the absence of country information indicating the existence of a security problem in that district.  The Tribunal member thought it significant that the relevant province had been proposed for entry of a Provincial Reconstruction Team sponsored by a foreign government.  Some non-government organisations had been active in the appellant’s home district.

23. After dealing with claims that the appellant would be persecuted because of his perceived inclusion in any one of several particular social groups, the Tribunal concluded this section of its reasons by saying:

    ‘Accordingly, I am satisfied the applicant would not have a well founded fear of persecution for any Convention reason should he return to Afghanistan.’

    The decision of the primary judge

24. At [15] – [20] of his reasons for judgment, the primary judge identified the issues argued before him:

    ‘In the Tribunal and before me, the matter has proceeded upon the basis that the Tribunal had to determine whether or not, in the present case, the cessation clause had been engaged so as to terminate Australia’s protection obligations to the applicant.  This problem arises in the following way.  The applicant’s protection (XA) visa was granted in 2000 upon the basis that he had a well-founded fear of persecution for a Convention reason in Afghanistan at the hands of Taliban, which organization was then in de facto control of much of the country.  However, by the time at which he was granted the temporary (XC) visa, (27 March 2003), the American-led invasion had removed Taliban from that position.  Nonetheless it remained active in some areas.  This appears to be the factual basis upon which the Tribunal and the parties have proceeded to date.

    The applicant did not actually apply for a temporary (XC) visa; he was deemed to have done so.  He therefore did not put any information before the Minister to demonstrate any relevant well-founded fear as at March 2003.  Nevertheless, he was granted a temporary (XC) visa, apparently without any actual consideration of the changes in Afghanistan since 2000 or whether the current circumstances justified a different, well-founded fear, sufficient to entitle him to a protection visa.  The applicant submits that, as s 36 and the regulations prescribing the criteria for a temporary (XC) visa require that Australia owe him protection obligations as a condition precedent to the grant of such a visa, it must be conclusively assumed that the Minister was satisfied as to the existence of such status at the time of granting the temporary (XC) visa.  He alternatively submits that the Minister may not now deny that such obligations existed at that time.  The applicant submits that in either case, it must also be accepted that the circumstances as at March 2003 were sufficient to justify the grant of a protection visa and that he continues to be a person to whom Australia owes protection obligations until those circumstances change in the way contemplated by the cessation clause.  It is said that s 36 recognizes that protection obligations continue until the cessation clause is engaged.  Thus a protection visa may, and should, be granted upon the basis of a prior determination that the applicant was a refugee and without further enquiry, provided that there has been no change of circumstances sufficient to engage the cessation clause.  The effect of the submission must be either that a temporary (XC) visa continues until the cessation clause is engaged, despite the statutory limit on its life, or that there is some obligation to grant a new visa without reference to current circumstances.

    The applicant then submits that the Tribunal found that circumstances had changed since the grant of the temporary (XA) visa in 2000 but did not consider whether the circumstances which existed in March 2003 (when the temporary (XC) visa was granted), had changed.  This is said to involve an error of law going to jurisdiction and is the first ground of review.

    The second ground is that the Tribunal failed to consider whether the applicant presently holds a well-founded fear of persecution for a Convention reason from Taliban or any other group, against which the government of Afghanistan could not, or would not defend him.

    Thirdly, it is submitted that the Tribunal failed to consider the consequences for the applicant, were he to return to an area of Afghanistan other than Parwan province from which he came.

    Fourthly, it is submitted that the Tribunal’s decision was based on no evidence and/or was “Wednesbury unreasonable”.’

1. At [21] to [25], his Honour discussed Article 1C(5) of the Convention, in the context of Australia’s protection obligations and the Australian system of protection visas. He referred to decisions of the High Court which establish that, for the purposes of the Act, refugee status is to be determined having regard to the position at the date at which the determination is made: Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (‘Chan’) and Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 (‘Thiyagarajah’).  His Honour commented:

   ‘This suggests that notwithstanding the determination in March 2000 that the applicant was a person to whom Australia owed protection obligations, the Minister was obliged to re-address that question before granting the temporary (XC) visa and in considering the application for a permanent visa.  Obviously, that inference is inconsistent with the applicant’s argument.’

2. It is not easy, with respect, to understand his Honour’s reference to inconsistency.  The proposition expressed in the first sentence of this passage was advanced on behalf of the appellant himself, in support of his submission concerning the significance of the March 2003 decision.

3. At [22] his Honour said:

   ‘It is arguable that the requirement that Australia owe protection obligations to an applicant as mandated by s 36 may be satisfied by a prior determination to that effect in the course of considering an earlier application for a protection visa, including a temporary protection visa. There are passages in  Chan which suggest that refugee status, once established, continues until the cessation clause is engaged. If so then the s 36 test will be satisfied where there is such a prior determination, and the cessation clause has not been engaged. However other passages in Chan suggest that the question for determination is always whether the applicant satisfies the definition of “refugee”.  In my view, those latter passages reflect the true intention of the majority in that case.’

4. His Honour thought the majority in Thiyagarajah accepted that propositions expressed in Chan continue to represent the correct approach, notwithstanding the post-Chan insertion of a new s 36 into the Act. Also, he thought that, although Chan was concerned with the meaning of the Convention rather than the Act, it was not surprising that the same approach should prevail ‘given that the existence of protection obligations continues to be determined by reference to the Convention’.

5. At [23] to [25] his Honour said:

   ‘In my view, it follows that the question for the Tribunal in the present case was whether or not, at the time of the decision, the applicant had a well-founded fear of persecution for a Convention reason.  It was not strictly relevant that he had previously applied for and received temporary (XA) and temporary (XC) visas.  In other words it was not necessary to decide whether or not the cessation clause had been engaged as a result of changed circumstances in Afghanistan.  The applicant’s argument to the contrary is that identified by Dawson J in Chan at 398, which argument was, in my view, rejected by the High Court.

   It is clear that the Minister, in granting the temporary (XC) visa, did not consider the then current circumstances. If, in failing so to do, the Minister failed to act in accordance with the relevant legislative provisions and regulations, it may be that the grant of that visa was legally defective. Even so, that would offer no justification for the grant of a further visa contrary to the relevant legislative provisions and regulations. I do not wish to be taken as asserting that such grant was in breach of the Migration Act or the Migration Regulations. Clearly, the temporary (XC) visa was intended to be a solution to a temporary and specific problem. It was not intended to be, and could not become, a permanent visa. The decision to grant the temporary (XC) visa was consistent with that intention.

   In my view, the applicant’s entitlement to a permanent visa depended upon the circumstances as they were at the time of the Tribunal’s decision, meaning that it was necessary that he then hold a well-founded fear of persecution for a Convention reason.  His argument to the contrary is without merit.  If I am wrong in my understanding of the decision in Chan, nonetheless, the applicant’s argument would still fail.  The cessation clause will be engaged if ‘the circumstances in connexion with which [the applicant] has been recognized as a refugee have ceased to exist’.  It cannot be sensibly argued that Australia has ever recognized the applicant as a refugee other than in connection with circumstances as they existed in March 2000.  As I understand it, the applicant accepts that those circumstances have ceased to exist.  No recognizable legal basis has been advanced on behalf of the applicant to support the assertion that the grant of the temporary (XC) visa in 2003 raises a conclusive presumption that he was entitled to a visa on the basis of circumstances which then existed.  Those circumstances were never identified or relied upon by the applicant and never considered by the Minister.  The applicant’s argument is without merit.

6. The primary judge then considered the Tribunal’s approach to the appellant’s claim under Article 1A(2) of the Convention.  His Honour rejected all the appellant’s criticisms of that approach.  He concluded the Tribunal’s reasons disclose no jurisdictional error and dismissed the appellant’s application.

   The issues on appeal

7. The appellant’s original Notice of Appeal raised a number of grounds of appeal.  However, an amended Notice of Appeal, filed in court at the hearing, confined the scope of the appeal to two issues: the effect of the March 2003 decision and the approach which the Tribunal ought to have adopted in relation to Article 1C(5) of the Convention.

   The effect of the March 2003 decision

8. Counsel for the appellant, Mr G Hiley QC and Mr M Plunkett, argued the Tribunal failed to take into account the effect of the March 2003 delegate’s decision to grant the appellant a temporary Class XC visa.  They said this failure constituted a jurisdictional error that vitiated the Tribunal’s decision.  They took the Court through the statutory and regulatory provisions that together mean it is a condition precedent to the grant of a protection visa (even a temporary protection visa) that the Minister (or her delegate) be satisfied that the relevant person is a ‘refugee’ within the meaning of the Convention.  Counsel for the respondent Minister (Mr S Gageler QC and Mr P Bickford) did not dispute counsel’s proposition.  The issue between the parties is what flows from it.  It will be recalled that the primary judge remarked in effect that, if the proposition is correct, ‘it may be that the grant of the [temporary (XC) visa] was legally defective’ but this would have no bearing on the delegate’s (and Tribunal’s) decision in respect of the permanent visa application.

9. In answer to a question from the Bench, counsel for the appellant made clear that they did not argue the March 2003 decision operated as some form of estoppel.  Any such argument would have encountered several difficulties.  Counsel’s argument was that, if the Tribunal had considered the fact that the Minister was satisfied in March 2003 that the appellant was a ‘refugee’, it would have realised that the issue for its consideration was whether there had been any change in relevant circumstances between March 2003 and the date of its own decision; it would not have made a comparison between the circumstances of March 2000 and those at the date of its decision.  Counsel asserted there was no evidence supporting the primary judge’s conclusions that, in March 2003, the Minister ‘did not consider the then current circumstances’ and, consequently, that the March 2003 visa was issued without consideration of changes in Afghanistan between March 2000 and March 2003.  Counsel said the then Minister (or his delegate) was bound to consider the position as at March 2003; in the absence of evidence to the contrary, it must be assumed this was done.

10. Counsel for the respondent submitted the evidence shows the circumstances considered in March 2003 were the same as those underlying the March 2000 decision.  This is demonstrated by the March 2003 delegate’s reference in his Decision Record to the evidence he had considered in making his decision. 

11. The respondent’s submission on this issue must be accepted.  Whether or not the March 2003 decision was legally valid, it clearly was not based upon an assessment of the circumstances existing in Afghanistan in March 2003.  Accordingly, it is not possible to regard those circumstances as the ‘circumstances in connexion with which he has been recognized as a refugee’, within the meaning of Article 1C(5) of the Convention.  In the absence of some form of estoppel, it is difficult to see that the March 2003 decision had any bearing on the proper permanent visa decision.

    Article 1C(5) of the Convention

    (i)        The UNHCR material

12. Counsel for the appellant drew attention to some guidelines adopted by the United Nations High Commissioner for Refugees (‘UNHCR’) on 10 February 2003 and entitled:

    ‘GUIDELINES ON INTERNATIONAL PROTECTION:
    Cessation of Refugee Status under Article 1C(5) and (6) of the
    1951 Convention relating to the Status of Refugees’

13. At para 6, under the heading ‘General Considerations’, the document stated these principles:

    ‘When interpreting the cessation clauses, it is important to bear in mind the broad durable solutions context of refugee protection informing the object and purpose of these clauses.  Numerous Executive Committee Conclusions affirm that the 1951 Convention and principles of refugee protection look to durable solutions for refugees.  Accordingly, cessation practices should be developed in a manner consistent with the goal of durable solutions.  Cessation should therefore not result in persons residing in a host State with an uncertain status.  It should not result either in persons being compelled to return to a volatile situation, as this would undermine the likelihood of a durable solution and could also cause additional or renewed instability in an otherwise improving situation, thus risking future refugee flows.  Acknowledging these considerations ensures refugees do not face involuntary return to situations that might again produce flight and a need for refugee status.  It supports the principle that conditions within the country of origin must have changed in a profound and enduring manner before cessation can be applied.’

14. Under the heading ‘Assessment of Change of Circumstances in the Country of Origin’ the document said:

    ‘For cessation to apply, the changes need to be of a fundamental nature, such that the refugee “can no longer … continue to refuse to avail himself of the protection of the country of his nationality” (Article 1C(5)) or, if he has no nationality, is “able to return to the country of his former habitual residence” (Article 1C(6)). Cessation based on “ceased circumstances” therefore only comes into play when changes have taken place which address the causes of displacement which led to the recognition of refugee status.

    Where indeed a “particular cause of fear of persecution” has been identified, the elimination of that cause carries more weight than a change in other factors. Often, however, circumstances in a country are inter-linked, be these armed conflict, serious violations of human rights, severe discrimination against minorities, or the absence of good governance, with the result that resolution of the one will tend to lead to an improvement in others. All relevant factors must therefore be taken into consideration. An end to hostilities, a complete political change and return to a situation of peace and stability remain the most typical situation in which Article 1C(5) or (6) applies.

    Large-scale spontaneous repatriation of refugees may be an indicator of changes that are occurring or have occurred in the country of origin. Where the return of former refugees would be likely to generate fresh tension in the country of origin, however, this itself could signal an absence of effective, fundamental change. Similarly, where the particular circumstances leading to flight or to non-return have changed, only to be replaced by different circumstances which may also give rise to refugee status, Article 1C(5) or (6) cannot be invoked.

    Developments which would appear to evidence significant and profound changes should be given time to consolidate before any decision on cessation is made. Occasionally, an evaluation as to whether fundamental changes have taken place on a durable basis can be made after a relatively short time has elapsed. This is so in situations where, for example, the changes are peaceful and take place under a constitutional process, where there are free and fair elections with a real change of government committed to respecting fundamental human rights, and where there is relative political and economic stability in the country.

    A longer period of time will need to have elapsed before the durability of change can be tested where the changes have taken place violently, for instance, through the overthrow of a regime. Under the latter circumstances, the human rights situation needs to be especially carefully assessed. The process of national reconstruction must be given sufficient time to take hold and any peace arrangements with opposing militant groups must be carefully monitored.  This is particularly relevant after conflicts involving different ethnic groups, since progress towards genuine reconciliation has often proven difficult in such cases. Unless national reconciliation clearly starts to take root and real peace is restored, political changes which have occurred may not be firmly established.

    In determining whether circumstances have changed so as to justify cessation under Article 1C(5) or (6), another crucial question is whether the refugee can effectively re-avail him- or herself of the protection of his or her own country.  Such protection must therefore be effective and available. It requires more than mere physical security or safety. It needs to include the existence of a functioning government and basic administrative structures, as evidenced for instance through a functioning system of law and justice, as well as the existence of adequate infrastructure to enable residents to exercise their rights, including their right to a basic livelihood.

    An important indicator in this respect is the general human rights situation in the country.  Factors which have special weight for its assessment are the level of democratic development in the country, including the holding of free and fair elections, adherence to international human rights instruments, and access for independent national or international organisations freely to verify respect for human rights. There is no requirement that the standards of human rights achieved must be exemplary. What matters is that significant improvements have been made, as illustrated at least by respect for the right to life and liberty and the prohibition of torture; marked progress in establishing an independent judiciary, fair trials and access to courts: as well as protection amongst others of the fundamental rights to freedom of expression, association and religion. Important, more specific indicators include declarations of amnesties, the repeal of oppressive laws, and the dismantling of former security services.’ (subheadings and footnotes omitted)

15. Counsel for the respondent referred to another UNHCR publication, published slightly earlier, in April 2001: a ‘note’ entitled The International Protection of Refugees: Interpreting Article 1 of the [Convention]’.  The purpose of the note was said to be ‘to elucidate contemporary issues in the interpretation of the terms of Article 1’ of the Convention.  Paragraph 7 made a point emphasised by counsel for the respondent:

    ‘The Article 1 definition can, and for purposes of analysis should, be broken down into its constituent elements. Nevertheless, it comprises only one holistic test. This has been recognised and reflected in various formulations of the “test” for refugee status.  The key to the characterisation of a person as a refugee is risk of persecution for a Convention reason.’ (Footnotes omitted, original emphasis)

16. In para 10, dealing with the burden and standard of proof, the following passage appears:

    ‘in accordance with general principles of the law of evidence, the burden of proof lies on the person who makes the assertion – in the case of refugee claims, on the asylum-seeker. This burden is discharged by providing a truthful account of relevant facts so that, based on the facts, a proper decision may be reached. The asylum-seeker must also be provided an adequate opportunity to present evidence to support his or her claim. However, because of the particularly vulnerable situation of asylum-seekers and refugees, the responsibility to ascertain and evaluate the evidence is shared also by the decision-maker. In the context of exclusion and cessation, it is the authorities who assert the applicability of these clauses, therefore the onus is on them to establish the reasons justifying exclusion or cessation.’  (Footnotes omitted)

17. Counsel referred us to a section of the note devoted to cessation of status.  This section includes the following material:

    ‘… refugee status, which affords its beneficiaries international protection in the absence of national protection, is foreseen to last only as long as that surrogate protection is needed. Article 1C of the Convention sets out in some detail the circumstances under which refugee status ceases. As with all provisions which take away rights or status, the cessation clauses must be carefully applied, after a thorough assessment, to ensure that in fact refugee protection is no longer necessary.

    …

    With respect to the grounds which arise as a result of actions by the refugee him or herself, these actions must be truly voluntary on the part of the refugee, and must result in him or her in fact being able to benefit from effective and durable national protection. Unless this is so, refugee status does not cease.

    Relatively more difficult interpretation issues arise, however, with respect to the cessation ground which relates to changes in circumstances in the country of origin such that the reasons for which refugee protection was required no longer exist.  In interpreting this clause there has been some question about the nature and degree of change necessary. UNHCR’s Executive Committee has stated that the changes must be fundamental, stable, durable and relevant to the refugees’ fear of persecution.  Cessation of refugee status may be understood as, essentially, the mirror of the reasons for granting such status found in the inclusion elements of Article 1A(2). When those reasons disappear, in most cases so too will the need for international protection. Recognising this link, and exploiting it to understand whether the changes in circumstance are relevant and fundamental to the causes of flight, will serve to elucidate circumstances which should lead to cessation of status. This is particularly important with respect to individual cessation.’ (Footnotes omitted, original emphasis)

18. A question arises as to the use of this type of material.  Counsel for the appellant argued that the Tribunal was bound to have regard to UNHCR publications in determining whether Article 1C(5) of the Convention applied to the appellant.  They pointed out that, in Chan, some members of the High Court relied, inter alia, on a UNHCR Handbook for guidance as to the date at which refugee status is to be determined: see Dawson J at 397, Toohey J at 405 and Gaudron J at 414.

1. The other two members of the Chan High Court do not appear to have used the Handbook for this purpose, but both accepted that this would be a permissible course of action.  At 392, Mason CJ said:

   ‘Without wishing to deny the usefulness or the admissibility of extrinsic materials of this kind in deciding questions as to the content of concepts of customary international law and as to the meaning of provisions of treaties …  I regard the Handbook more as a practical guide for the use of those who are required to determine whether or not a person is a refugee than as a document purporting to interpret the meaning of the relevant parts of the Convention.’

2. McHugh J described the Handbook, at 424, as a work published ‘to assist member States to carry out their obligations under the Protocol’.  He referred to it at some length.

3. The Tribunal referred to the 2003 Guidelines (see para 15 above) but stated the opinions expressed in them ‘do not constitute legal tests … it is important to return to the language of the Convention’.

4. I agree with the Tribunal that statements made in the 2003 Guidelines (and the 2001 note) should not be regarded as rules of law. To the extent they may be inconsistent with anything said in either the Act or the Convention, they must be put aside. However, subject to that qualification, these statements should be taken into account by anybody who is required to determine whether a particular person should be recognized as a refugee, for the first time, or whether a previously recognized person has ceased to be a refugee. Like the UNHCR Handbook mentioned in Chan, these are documents prepared by experts published to assist States (including Australia) to carry out their obligations under the Convention.

   (ii)       Identification of the circumstances underlying the appellant’s recognition as a refugee

5. At para [25] of his reasons, quoted at para 29 above, the primary judge stated that the appellant accepted that the March 2000 circumstances ‘have ceased to exist’.  With respect, that was too broad a statement.  The appellant certainly accepted, both before the Tribunal and before his Honour, that the Taliban no longer formed the central government of Afghanistan.  That was an important change of circumstance.  However, the claim made by the appellant, at the time of his original application, did not depend upon the fact that the Taliban was in government in late 1999; if that is, in fact, an accurate way of describing the then situation.  As noted at para 3 above, the appellant had expressed a fear ‘that the Taliban will kill him because he is of Hazara ethnicity’.  At the Tribunal hearing, he continued to express that fear, although he accepted that the Taliban were in a less powerful position than in late 1999 or early 2000.

6. As recounted at para 4 above, the delegate who made the March 2000 decision accepted that, if the appellant returned to Afghanistan, ‘he has a real chance of being captured by the Taliban and forced to fight or be killed by them’.  That was the critical circumstance causing the appellant to be recognised as a refugee.  It is against that background that the parties’ arguments on this ground of appeal must be evaluated.

   (iii)      The proper approach to Article 1C(5)

7. Counsel for the appellant argued that the primary judge erred in holding that ‘it was not necessary to decide whether or not the cessation clause had been engaged as a result of changed circumstances in Afghanistan’: see para 29 above.  Counsel for the respondent defended this statement.  They contended that the issue before the Tribunal was exactly the same as if the appellant was making his first application for recognition as a refugee.  In the course of his oral submissions, Mr Gageler said:

   ‘Article 1C(5), on its proper construction, poses the same question in substance as Article 1A(2).  That is, although it uses slightly different words it comes at the same substantive issue simply from a different time perspective and whether one asks the big question through Article 1A(2) or Article 1C(5) the question is always the same and the question is, does this person now have a well-founded fear of persecution for a Convention reason should he or she return to the country of nationality?  If yes, the person is now a refugee whether or not previously recognised as a refugee.  If no, the person is not now a refugee whether or not previously recognised as a refugee.’

8. Mr Gageler referred to a decision of Emmett J: NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373. That case also concerned a Shi’a Hazara of Afghan nationality who was granted a temporary protection visa in March 2000 but was denied a permanent protection visa, first by a delegate of the Minister (September 2003) and then by the Tribunal (October 2003). The applicant’s case before the Tribunal was that, although the Taliban had been removed from power, Taliban remnants were still active and had recently killed 12 Hazaras, some from his home district.

9. In his reasons for judgment, Emmett J noted that the applicant before him had contended the Tribunal committed jurisdictional error, inter alia, in the following respects:

   ‘The Tribunal erred in purporting to apply Art 1C(5) in circumstances where it failed:

   (a)to identify the circumstances that gave rise to the applicant’s well-founded fear of persecution, being fear arising from the beliefs and attitudes of the Taliban;

   (b)to consider whether there had been such a material change in the beliefs and attitudes of the Taliban and the risk posed by the Taliban that those circumstances had relevantly “ceased to exist”;

   (c)to assess whether the change that had occurred constituted a substantial, effective and durable change.’

   …

   ‘The Tribunal failed to consider whether the government of Afghanistan was both willing and able to provide the necessary level of protection to the applicant against threats of persecution by non-State agents, including the Taliban.’

10. In discussing the relationship between Article 1A(2) and Article 1C(5) of the Convention, Emmett J also mentioned Article 33.1 of the Convention, which prohibits a Contracting State from expelling or returning a refugee to a territory where his or her life or freedom would be threatened for a Convention reason.  Emmett J said at [34] to [40]:

    ‘Articles 33.1, 1A(2) and 1C(5) of the Refugees Convention turn upon the same basic notion; protection is afforded to persons in relevant need, who do not have access to protection, apart from the Refugees Convention.  A person is relevantly in need of protection if that person has a well-founded fear of being persecuted, for Convention Reasons, in the country, or countries, in respect of which the person has a right or ability to access.  On the other hand, the Refugees Convention is not designed to provide protection to those with no such need.  In practical terms, the limited places for, and resources available to, refugees are to be given to those in need and not to those who either can access protection elsewhere or are no longer in need of international protection. 

    A critical object of the Refugees Convention is that Contracting States will not expel or return a person to a country if that person has a well-founded fear of persecution for Convention Reasons.  The relationship between Arts 1A(2) and 33.1 is to be understood in that context, having regard to the adoption of similar language in both provisions …

    When Article 33.1 speaks in terms of a territory where the life or freedom of a person would be threatened on account of Convention Reasons, while the language is not identical, the concept is intended to correspond with the concept that underlies Art 1A(2).  That is to say, where a person, owing to well founded fear of being persecuted for Convention Reasons is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, a Contracting State must not expel or return that person to another territory where he or she would have a well founded fear of being persecuted for Convention Reasons namely, his or her life or freedom would be threatened on account of any Convention Reasons. 
    There is a similar relationship between Arts 1A(2) and 1C(5).  Thus, the latter refers to the circumstances in connection with which a person has been recognised as a refugee.  That refers back to the concept that the person has a well founded fear of being persecuted for Convention Reasons and is therefore unable, or owing to such fear, unwilling, to avail himself of the protection of his own country.  The two provisions should be construed as having some symmetry in their effect. 

    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 Art 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 Art 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 Art 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 Art 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 … 

    It may be appropriate, when considering the possible application of Art 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.’  (Original emphasis)

11. Counsel for the respondent submitted that Emmett J’s approach was supported by a recent decision of the House of Lords, Regina (Hoxha) v Special Adjudicator [2005] UKLR 19; [2005] 1 WLR 1063 (‘Hoxha’).

12. Hoxha concerned the operation of Article 1C(5) of the Convention in relation to people who had not been recognised as refugees in the United Kingdom.  The prosecutors had failed to make out a case of a well-founded fear of future persecution if they returned to their homes in Kosovo, in the Federal Republic of Serbia.  They each established reluctance to return to Kosovo which was thought to be justified by the continuing physical and psychological effects of persecution there suffered by them and family members.  However, continuing effect of past persecution is insufficient to satisfy Article 1A(2) of the Convention.

13. Although the relationship between Article 1A(2) and Article 1C(5) of the Convention was not an issue in the appeal, two members of the House referred to it.  At [13] Lord Hope of Craigend referred to a passage in the speech of Lord Lloyd of Berwick, in Adan v Secretary of State for the Home Department [1999] 1 AC 293 at 306, concerning the relationship between Article 1A(1), Article 1A(2) and Article 1C(5). Lord Lloyd said:

    ‘Article 1A(1) is concerned with historic persecutions.  It covers those who qualified as refugees under previous Conventions.  They are not affected by article 1C(5) if they can show compelling reasons arising out of previous persecution for refusing to avail themselves of the protection of their country.  It would point the contrast with article 1A(1), and make good sense, to hold that article 1A(2) is concerned, not with previous persecution at all, but with current persecution, in which case article 1C(5) would take effect naturally when, owing to a change of circumstance, the refugee ceases to have a fear of current persecution.’

14. Lord Brown of Eaton-under-Heywood also noted Lord Lloyd’s statement which, he said at [56]:

    ‘points to the contrast logically and intentionally struck in 1C (5) between on the one hand 1A (1) refugees, who have already been “considered” refugees (and thus recognised as such) and who, although potentially amenable to the loss of that status under 1C (5), will not in fact lose it if they can show “compelling reasons”, and on the other hand 1A (2) refugees who must demonstrate a current well-founded fear of persecution not only when first seeking recognition of their status but also thereafter in order not to lose it.’

15. Lord Brown said:

    ‘60.  True it is that 1C (5), no less than 1A (2), appears in the Convention under the heading “Definition of the Term ‘Refugee’”.  True it is, too, as para 28 of the [UNHCR] Handbook neatly points out, that someone recognised to be a refugee must by definition have been one before his refugee status has been determined.  But it by no means follows that, because someone has been a refugee before his status comes to be determined, any change in circumstances in his home country falls to be considered under 1C (5) rather than under 1A (2).  Quite the contrary.  As has been seen, the Handbook is replete with references to the “determination” of a person’s refugee status and his “recognition” as such.  Article 9 of the Convention itself, indeed, allows certain provisional measures to be taken “pending a determination by the Contracting State that that person is in fact a refugee”.  The whole scheme of the Convention points irresistibly towards a two-stage rather than composite approach to 1A (2) and 1C (5).  Stage 1, the formal determination of an asylum-seeker’s refugee status, dictates whether a 1A (2) applicant …is to be recognised as a refugee.  1C (5), a cessation clause, simply has no application at that stage, indeed no application at any stage unless and until it is invoked by the State against the refugee in order to deprive him of the refugee status previously accorded to him.

    61.  Para 112 of the Handbook makes all this perfectly plain.  So too, more recently, did the UNHCR Lisbon Roundtable Meeting of Experts held in May 2001 in their Summary Conclusions:

    “26.  In principle, refugee status determination and cessation procedures should be seen as separate and distinct processes, and which should not be confused.”

    62.  Many other of the documents and writings put before your Lordships point the same way.  And so, of course, does the language of 1C (5) itself.  The words “the circumstances in connection with which he has been recognised as a refugee” could hardly be clearer.  They expressly postulate that the person concerned “has been recognised as a refugee”, not that he “became” or “was” a refugee.

    63.  This provision, it shall be borne in mind, is one calculated, if invoked, to redound to the refugee’s disadvantage, not his benefit.  Small wonder, therefore, that all the emphasis in paras 112 and 135 of the Handbook is upon the importance of ensuring that his recognised refugee status will not be taken from him save upon a fundamental change of circumstances in his home country.  As the Lisbon Conference put it in para 27 of their conclusions: “… the asylum authorities should bear the burden of proof that such changes are indeed fundamental and durable”.

    64.  Many other UNHCR publications are to similar effect.  A single further instance will suffice, taken from the April 1999 Guidelines on the application of the cessation clauses:

    “2.  The cessation clauses set out the only situations in which refugee status properly and legitimately granted comes to an end.  This means that once an individual is determined to be a refugee, his/her status is maintained until he/she falls within the terms of one of the cessation clauses.  This strict approach is important since refugees should not be subjected to constant review of their refugee status.  In addition, since the application of the cessation clauses in effect operates as a formal loss of refugee status, a restrictive and well-balanced approach should be adopted in their interpretation.”

    65.  The reason for applying a “strict” and “restrictive” approach to the cessation clauses in general and 1C (5) in particular is surely plain.  Once an asylum application has been formally determined and refugee status officially granted, with all the benefits both under the Convention and under national law which that carried with it, the refugee has the assurance of a secure future in the host country and a legitimate expectation that he will not henceforth be stripped of this save for demonstrably good and sufficient reason.  That assurance and expectation simply does not arise in the earlier period whilst the refugee’s claim for asylum is under consideration and before it is granted.  Logically, therefore, the approach to the grant of refugee status under 1A (2) does not precisely mirror the approach to its prospective subsequent withdrawal under 1C (5).’  (Original emphasis)

16. It will be noted that the person being considered in [60] of this passage is a person who was, in fact, a refugee before his or her status came to be determined, but who has not yet been recognised as a refugee; in other words, a person in the same position as Mr Chan, when his case was before the High Court.  When Lord Brown dealt with the case of a person who had already been recognised as a refugee, at [62] and following, he stated that the inquiry should take place under Article 1C(5), rather than Article 1A(2).  He also recognised and emphasised the heavy burden resting on a State which contends that a person who has been recognised as a refugee has ceased to have that status.  His conclusion was that ‘the approach to the grant of refugee status under 1A(2) does not precisely mirror the approach to its prospective subsequent withdrawal under 1C(5)’.

17. I make one other observation about Hoxha. All three members of the House who wrote substantial judgments (Lord Hope, Baroness Hale of Richmond and Lord Brown) made extensive use of UNHCR material in guiding their interpretation of the Convention. Their action endorses the approach advocated at para 46 above.

18. Lord Brown’s comment, in Hoxha at [65], about a recognised refugee not being stripped of that status ‘save for demonstrably good and sufficient reason’ echoes the insistence of the UNHCR publications upon the need for the State arguing cessation to establish fundamental and durable changes in the refugee’s country of nationality. That insistence is consistent with comments in accepted textbooks on refugee law, including Hathaway and Goodwin-Hill, noted by the Tribunal in this case: see para 15 above.  For example, Hathaway, at 200-203, identified three requirements that should exist ‘before the consideration of cessation is warranted’:

    (i)‘the change must be of substantial political significance, in the sense that the power structure under which persecution was deemed a real possibility no longer exists’;

    (ii)‘there must be reason to believe that the substantial political change is truly effective’; it cannot be said ‘there has truly been a fundamental change of circumstances when the police or military establishments have yet fully to comply with the dictates of democracy and respect for human rights’; mere progress towards respect is not enough; and

    (iii)‘the change of circumstances must be shown to be durable’.

    (iv) the relationship between the Convention and the Act

1. Section 36(1) of the Act says ‘[t]here is a class of visas to be known as protection visas’. Section 36(2)(a) provides one ‘criterion for a protection visa’, namely that the applicant is: ‘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.’

2. Subsection (2) of s 36 is qualified by subs (3), relating to a person who had the opportunity to obtain protection in another country. It is not suggested this qualification is relevant to the present case.

3. The criterion in s 36(2) of the Act directly reflects Australia’s protection obligations under the Convention. The evident intention of Parliament was to facilitate fulfilment of those obligations. A visa of the class under discussion in s 36 (a protection visa) was to be provided, on application, to any non-citizen in Australia to whom Australia had Convention obligations.

4. In NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6, Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ discussed the relationship between s 36(2) of the Act and the Convention. They pointed out, at [27], that s 36(2) is ‘awkwardly drawn’ in that Australia owes obligations under the Convention to the other Contracting States, rather than to individuals. However, after considering the context of s 36(2) and its legislative history, their Honours concluded, at [42], that ‘the adjectival phrase in the subsection “to whom Australia has protection obligations under [the Convention]” describes no more than a person who is a refugee within the meaning of Art 1 of the Convention’.

5. It follows that, although, literally, s 36(2)(a) poses the question to be determined by the Minister (or her delegate) or, on review, the Tribunal as being whether Australia has protection obligations, to the particular applicant, under the Convention, the real question is whether the person falls within the Convention’s definition of ‘refugee’. As Lord Brown explained, if the person has not previously been recognised as a refugee, the inquiry required by the definition will be whether the person satisfies Article 1A(2) of the Convention; only if the person satisfies Article 1A(2) will Australia have any protection obligation to him or her. If the person has previously been recognised as a refugee in Australia, again as explained by Lord Brown, Australia has a protection obligation to that person, by force of the Convention itself, unless and until Article 1C(5) has caused cessation of that obligation.

6. Interpreted in this way, there is a symmetry between Australia’s Convention obligations and the availability of protection visas.  That would not be the case if the present issue was resolved in the manner suggested by counsel for the Minister.  If an already-recognised refugee was in the same position, in relation to a permanent protection visa application, as a person who had not previously been recognised as a refugee, a person might fail to satisfy the decision-maker of facts bringing his or her case within Article 1A(2), and so be denied a permanent protection visa, yet there had been no cessation of Australia’s protection obligations to him or her, Article 1C(5) not having been applied to the case.  Once the temporary protection visa expired, the person would be left without protection despite that person’s continuing status as a refugee.

7. It seems inherently unlikely that Parliament would have intended to leave such a potentially embarrassing lacuna in Australia’s ability to fulfil its international obligations.

   (v)       My conclusion about the approach of the primary judge

8. The decision of Emmett J in NBGM predated the House of Lords’ decision in Hoxha.  His Honour did not have Lord Brown’s analysis of the relationship between Article 1A(2) and Article 1C(5).  Neither did the primary judge, in deciding the case now before us.  I am not sure to what extent either judge had the benefit of considering the UNHCR material to which we were referred.  Certainly neither judge dealt with it. 

9. With the advantage of considering all that material, I have reached the respectful conclusion that the primary judge was wrong in saying that ‘it was not strictly relevant that he had previously applied for and received temporary (XA) and temporary (XC) visas’.  On the contrary, that fact was of critical importance.  The circumstance that the appellant had previously been recognised as a refugee was the starting point for consideration of his permanent visa application.  The circumstance had considerable practical importance; it affected what might loosely be called the burden of proof.  I accept that, in a technical sense, no burden of proof rests on any party in relation to review of an administrative decision: see McDonald v Director-General of Social Security (1984) 1 FCR 354; see also Mary Crock Immigration and Refugee Law in Australia, The Federation Press, Sydney, 1998 at 138 and 262 and the authorities there cited.  However, it matters to the parties which one of them fails if the evidence is inconclusive, as may well happen when (as here) the critical question concerns conditions in a remote part of a foreign country.  In an original application for refugee status, relying on Article 1A(2), the Minister (or her delegate or the Tribunal) must be satisfied of facts that support the inference that the applicant has a well-founded fear (including that there is a real chance) of persecution for a Convention reason if returned to his or her country of nationality.  If the facts do not go so far, the claim for a protection visa will fail.  The situation is different in relation to an inquiry under Article 1C(5) as to possible cessation of refugee status.  If the facts are insufficiently elucidated for a confident finding to be made, the claim of cessation will fail and the person will remain recognised as a refugee.

10. The primary judge referred to Chan, in rejecting the appellant’s argument that it had been necessary for the Tribunal to consider the application to him of Article 1C(5): see para 29 above.  However, Chan furnishes no support for his Honour’s position.  Chan arose under Article 1A(2) of the Convention, not Article 1C(5).  Mr Chan had not previously been recognised as a refugee.  At the point of Dawson J’s judgment identified by the primary judge, his Honour was dealing with the question whether Article 1A(2) requires refugee status to be determined ‘as at the time when the test laid down by the Convention is first satisfied so that it ceases only in accordance with [Article 1C(5)], or whether refugee status is to be determined at the time when it arises for determination’.  In common with the remainder of the Court, Dawson J held the latter situation was correct.  His Honour was saying nothing about the operation of Article 1C(5) in circumstances where, not only was the test satisfied, but recognition had been granted.

    (vi)      The Tribunal’s treatment of the Article 1C(5) issue

11. In the present case, the Tribunal did advert to Article 1C(5).  At para 15 above, I noted the Tribunal’s self-direction of law concerning the application of that clause to the case then under consideration.  The appellant does not complain about the content of that self-direction.  However, his counsel submitted that the Tribunal failed to apply it.  It will be recalled the Tribunal said that ‘changes in the refugee’s country must be substantial, effective and durable or profound and durable’.  That statement is supported by the references cited by the Tribunal and also, now, by Lord Brown’s observations in Hoxha.

12. At para 18 above, I set out the Tribunal’s findings and reasons in relation to cessation.  It will be noted that the Tribunal described the circumstances in which the appellant was originally recognised (in March 2000) as a refugee as being ‘that he would be persecuted in Afghanistan by the Taliban authorities because he is a Hazara and a Shi’a Muslim’.  The Tribunal’s focus was upon the Taliban’s position as the government of Afghanistan, or at least that part of Afghanistan in which the appellant had resided.  This focus is reflected in the critical factual finding of the Tribunal that there was not, in May 2004, ‘any real chance of the Taliban re-emerging as a governing authority in Afghanistan in the reasonably foreseeable future, or otherwise be in a position to exercise control in the manner it did at the time the applicant left Afghanistan’.

13. However, as appears from paras 3-4 above, the circumstances that underlay the March 2000 recognition of the appellant as a refugee were not dependent upon the Taliban’s status as a governing authority in Afghanistan.  The appellant had not based his claim on that status, but merely a fear ‘that the Taliban will kill him because he is of Hazara ethnicity’.  The March 2000 delegate understood that.  She accepted ‘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’.  The issue for the Tribunal, in relation to the cessation clause, was whether the Tribunal could be satisfied there was now no such chance.

14. It is true that the March 2000 delegate referred to the fact that ‘the Taliban control large areas in Afghanistan’.  Perhaps that is no longer so, a circumstance that raises the possibility of a cessation case under Article 1C(5) being made out.  However, for that to happen, the Tribunal would need to be satisfied of much more than the fact that there is no real chance of the Taliban re-emerging as a governing authority or exercising the same type of control as it did in 1999.  The Tribunal would need to investigate, and make findings about, the extent of Taliban activity in the Afghan countryside, especially in the appellant’s home district.  The Tribunal would also have to consider the durability of the present situation.

15. It is not necessary in the present case to consider whether, and if so how, the relocation doctrine might interact with Article 1C(5).  The Tribunal assumed the present appellant would have no option but to return to his home village, if he was removed to Afghanistan.  Issues surrounding possible relocation elsewhere in Afghanistan did not arise.

16. In the passage in its reasons quoted at para 18 above, the Tribunal accepted ‘that remnants of the Taliban remain active in Afghanistan’.  The Tribunal seems also to have accepted the appellant’s claims that ‘Afghanistan is still unstable’ and that ‘the interim government is unable to protect [him]’.  It noted the appellant’s claim of a well-founded fear of persecution, at the hands of the Taliban or factions of the Interim Authority – apparently factions sympathetic to the Taliban - and various warlords and governors.  However, all this was put aside because the Tribunal limited the circumstances underlying the March 2000 recognition to the fact that the Taliban was then in government, or at least ‘a governing authority’.  That limitation was unjustified and it resulted in the Tribunal failing to give proper consideration to the issue it was required to determine.

17. If, as claimed, Afghanistan is still unstable and the interim government would be unable to protect the appellant from the Taliban and Taliban sympathisers, it is impossible sensibly to say there has been a cessation of the circumstances in connection with which the applicant was recognised as a refugee.  The details of the picture may have changed since 2000, but the threat would still exist.  In my opinion, it was necessary for the Tribunal to address the appellant’s claims of instability and lack of protection before it could reach a conclusion that Article 1C(5) applied to this case.  If the Tribunal found that these claims were unjustified, under present conditions, the Tribunal would have needed to consider the durability of those conditions.  It did not do so.

18. At para 23 above, I noted a statement by the Tribunal that ‘the applicant would not have a well-founded fear of persecution for any Convention reason should he return to Afghanistan’.  In oral submissions, Mr Gageler argued this furnished a complete answer to the appellant’s case, even in relation to Article 1C(5).  However, I do not read the statement in that way.  The statement is not framed in terms of cessation of earlier circumstances.  It appears as a conclusion to that part of the Tribunal’s reasons that deals with the appellant’s various Article 1A(2) claims.  I think the statement should be understood as a summary of the Tribunal’s rejection of those claims, not as one referring back to the earlier part of its reasons dealing with cessation.  Of course, as the Tribunal explained, its decision in relation to the Article 1A(2) claims was influenced by an absence of information about ongoing problems in the appellant’s home district.  That may have been a rational approach for the Tribunal to adopt.  However, an acceptable Article 1C(5) decision could not be based on an absence of information about problems; there would have to be positive information demonstrating a settled and durable situation in that district that was incompatible with a real chance of future Taliban persecution of the appellant.

19. In my opinion, the appellant’s second point is made good.  The Tribunal’s failure properly to address the cessation issue constituted a jurisdictional error in relation to which the appellant is entitled to relief.

    Disposition

20. The appeal should be upheld and the orders made by the primary judge set aside.  In lieu thereof, it should be ordered that the decision made by the Tribunal be quashed and the appellant’s application for a permanent protection visa be remitted to the Tribunal for further hearing and determination according to law.  It will be for the Presiding Member of the Tribunal to determine whether a different Tribunal member should undertake the rehearing.

21. The Minister should pay the appellant’s costs of this appeal and the proceeding before the primary judge.

    Postscript

22. Since writing the above, I have seen drafts of the judgments prepared by Madgwick and Lander JJ.  I wish specifically to adopt what Madgwick J says about the principles that govern interpretation of the Convention.  I also agree with a large proportion of what is said by Lander J.  The point of difference between myself and Lander J is really quite narrow.

23. It is important to distinguish between recognition of a person as a ‘refugee’, within the meaning of the Convention, and the grant to that person of protection. Recognition is a function of the Convention; protection is a function of the Act. Recognition is necessarily of indefinite duration; protection may be for a limited period, or until the happening of a particular event. A person may continue to have refugee status (because the person has successfully invoked Article 1A(2) and Article 1C(5) has not yet operated against him or her) notwithstanding the expiration of a temporary protection visa.

24. It seems to me, with great respect, that Lander J, and those who have shared his view, have overlooked the significance of the distinction just made. They interpret the requirement of s 36(2)(a) of the Act (and reg 866.221), that the Minister be ‘satisfied Australia has protection obligations’ under the Convention, as necessarily requiring the Minister (or her delegate or the Tribunal) to make a de novo decision that the particular applicant for a permanent visa then satisfies Article 1A(2) of the Convention; even though that applicant might have obtained such a decision at an earlier point of time, and thus achieved the status of being a ‘refugee’ within the meaning of the Convention, and that status has not ceased pursuant to Article 1C(5) of the Convention.

25. Although this might have led to failure by Australia to give full effect to its Convention obligations, it would have been constitutionally possible for the Parliament to have enacted such a requirement. However, it chose not to do this. Parliament chose, in s 36(2)(a) of the Act (and reg 866.221), to tie the selected criterion directly to Australia’s protection obligations to the person.

26. As a matter of logic, it seems to me, the Minister (or her delegate or the Tribunal) might become satisfied that Australia has protection obligations to a person in either of two ways:

    (i)because the decision-maker is satisfied, as a result of a de novo inquiry, that the applicant is a person who falls, at that time, within Article 1A(2) of the Convention; or

    (ii)because the decision-maker is satisfied that the person has already been recognised as a refugee under Article 1A(2) of the Convention and is not satisfied that this status has ceased under Article 1C(5).

27. The approach adopted by Lander J (and the other judges to whom he refers) effectively eliminates the second alternative. It recasts the scheme of s 36(2)(a) (and reg 866.221) to make the requirement for grant of a protection visa, not the selected question whether Australia has protection obligations to the person but the narrower question whether the person can bring himself or herself within Article 1A(2) at that time. Despite my great respect for all those who have adopted that approach, it seems to me plainly to be wrong.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Wilcox.

Associate:

Dated:             27 July 2005

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 242 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	QAAH OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WILCOX, MADGWICK AND LANDER JJ
DATE:	27 JULY 2005
PLACE:	SYDNEY (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

MADGWICK J:

1. I agree with Wilcox J’s conclusions and with his reasons, and add some further observations.

   Australia’s protection obligation

2. Section 36 and the Regulations establishing protection visa criteria set up, as a criterion for a protection visa, the Minister’s satisfaction that ‘Australia has protection obligations under the Refugees Convention …’.

3. The obligations under the Convention are those contained in the Convention read as a whole:  NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6; 213 ALR 668, at [31] and [84]. Unquestionably, Article 1 – headed ‘Definition of the term “refugee” ’ – must be read as a whole. Article 1C(5) applies when a person ‘has been recognized as a refugee’. It was common ground that the appellant had been so recognized. The Tribunal therefore had to consider and give proper effect to Article 1C(5). That provision plainly implies that, once a person has been recognized as a refugee he or she ‘can … continue to refuse to avail himself of the protection of his country of nationality’ until such time as ‘the circumstances in connection with which he has been recognized as a refugee have ceased to exist.’ That is, the recognized person should be regarded as having a ‘right’ (as explained in NAGV at [27]) to ‘continue to refuse to avail himself of the protection’ of his country of nationality. The effect of the Act and the Convention, therefore, on an application for a ‘permanent’ protection visa, where an applicant has previously been recognized in Australia as a refugee, is to require a decision-maker to consider whether such cessation has occurred.

   Interpretative principle and the Convention

4. The Convention is itself a treaty subject to another international treaty specifically dealing with the interpretation of treaties:  the Vienna Convention on the Law of Treaties, opened for signature 23 April 1969, 1165 UNTS 331 (entry into force 27 January 1980).  It provides:

   ‘Article 31
   General rule of interpretation

   1.A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

   2.The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

   (a)any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

   (b)any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

   3.There shall be taken into account, together with the context:

   (a)any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

   (b)any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

   (c)any relevant rules of international law applicable in the relations between the parties.

   4.A special meaning shall be given to a term if it is established that the parties so intended.

   Article 32
   Supplementary means of interpretation

   Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

   (a)leaves the meaning ambiguous or obscure; or

   (b)leads to a result which is manifestly absurd or unreasonable.’   (Emphasis added.)

1. The conclusion at which I have arrived is not only consistent with the High Court authority to which I have referred, it is also consistent with a number of decisions of this Court.

2. In NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373, the applicant was granted a temporary protection visa. In doing so, the delegate of the Minister found that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. He lodged a further application for a permanent protection visa. A delegate of the Minister refused to grant a permanent protection visa. The applicant applied to the RRT for a review of that decision but the RRT affirmed the delegate’s decision not to grant a further protection visa. In reaching its decision, the RRT said that the first question that arose was whether, in accordance with Article 1C(5) of the Refugees Convention, the applicant could no longer continue to avail himself of the protection of Afghanistan because the circumstances in connection with which he was recognised by Australia as a refugee had ceased to exist.

3. After concluding that Article 1C(5) applied, the RRT turned to consider whether the applicant had a well-founded fear of persecution. It found that the applicant did not have a well-founded fear of persecution on the basis of the circumstances in connection with which he was originally recognised as a refugee. It found s 36(3) applied and that Australia did not have protection obligations in relation to the circumstances in which he was originally recognised as a refugee. Then it considered whether the applicant was a refugee as a result of any other circumstances. It concluded that the applicant did not have a well-founded fear of persecution for any Convention reason. The applicant applied to this Court for a review of that decision.

4. There is no relevant difference between the facts of that case and the facts on this appeal.  Emmett J said at [61]-[64]:

   ‘61 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.

   62       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.

   63       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.

   64       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.’

5. However, his Honour concluded that the RRT had not committed jurisdictional error in the way in which it had approached its task.

6. That decision is under appeal.  However, it has been followed by other judges of this Court.  In SWNB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1606, Selway J said at [10]-[16]:

   ‘10 The applicant says that the Tribunal has misunderstood the interrelationship of cl 1C(5) of the Convention and ss 36(2) and (3) of the Act. The applicant argues that the Tribunal is obliged to find that an applicant for a permanent visa, who has already been determined to be a refugee in relation to a temporary visa, continues to meet the requirements of s 36(2) of the Act, unless article 1C(5) of the Convention applies.

   11       The applicant then argues that the Tribunal misapplied article 1C(5) of the Convention.  The applicant says that that paragraph requires that a change in circumstances be ‘substantial, effective and durable’.  The applicant says that the Tribunal did not apply that test.

   12       These issues were considered by Emmett J in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373. His Honour's analysis seems to me to be plainly right and I adopt and apply it. His Honour reached the following conclusions:

   1.Where the Tribunal is considering the grant of a fresh visa, including a permanent protection visa, the Tribunal is required to determine at the time of its decision whether the applicant is a person to whom Australia has protection obligations under the Refugees Convention.  Article 1C(5) does not necessarily have any role in that decision.  I note that Dowsett J reached a similar conclusion in the case of QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1448.

   2.In making that decision, the tribunal may start with a position that the Refugees Convention applied to the applicant as at the date he was granted a temporary protection visa and then ascertain whether the circumstances in connection with which the applicant had been recognised as a refugee had ceased to exist.

   3.Even if article 1C(5) of the Refugee Convention was applicable, it did not require that there be a ‘sustainable, effective and durable’ change; merely that there had been a change such that the applicant no longer had a well-founded fear of persecution if he was returned to his country of origin.

   4.Section 36(3) of the Act should be interpreted in its usual and ordinary meaning. So interpreted, it adds little to the terms of section 36(2) of the Act where the issue involves the return of the applicant to his country of nationality.’

   13 There are two matters I would wish to add to that analysis. The first is that a person having been previously found to be a refugee would in my view have a legitimate expectation that that status would remain. I say this notwithstanding the fact that status is no longer itself a criterion for eligibility under s 36(2) of the Act. Consequently, the person should be given the opportunity to comment specifically on any issues that may cause the decision‑maker to reach a different conclusion. It should also be specifically addressed by the decision‑maker in his or her reasons. Of course these obligations for a fair hearing may need to be complied with in any event, even apart from whatever extra obligations that might arise from the legitimate expectation based upon a previous finding that the person was a refugee.

   14       In any event, as the applicant accepts, the obligation to afford him a fair hearing was met in this case.

   15 Secondly, in my view the obligation to consider whether Australia has protection obligations at the time of the grant of a permanent visa flows from par 866.22 of Sch 2 of the Migration Regulations. For my part, I would leave open the question whether s 36(2) of the act itself requires a result that every decision in relation to a protection visa must be a decision de novo. It seems to me to be at least arguable that a regulation could be made adopting a criterion by which previous decisions made under s 36(2) can be applied without the Minister needing to be satisfied ab initio.  Indeed, it would seem from the reasons of Emmett J that he accepted that that was a possibility.

   16       In my view, the reasons of Emmett J are a complete answer to the issues raised by the applicant in relation to the interrelationship of the various provisions.  They have the effect that the decision of the Tribunal on any of the three bases adopted by it was sufficient to justify the decision reached.  In particular, those reasons mean that the de novo analysis by the Tribunal of whether Australia had protection obligations to the applicant at the time of its decision was a sufficient basis for its decision.’

7. In SVYB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 15 and in Minister for Immigration & Multicultural & Indigenous Affairs v SWZB [2005] FCA 53, Finn J followed Emmett J’s decision.

8. In NBEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 161, Jacobsen J said at [25]:

   ‘          I note that a number of judges of this court have adopted Emmett J’s interpretation of Article 1C(5) in NBGM, including Dowsett J in QAAH and Selway J in SWNB.  The applicant has failed to convince me that Emmet J, or the other judgments in which NBGM has been followed, are plainly wrong.  In my opinion, his honour’s interpretation is correct, and it accords with the principles of interpretation of the Convention stated in recent years by the High Court.’

9. In NBEI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 171, Branson J said at [9]-[10]:

   ‘9        The Tribunal identified its task on review of the decision of the delegate of the Minister as being to consider whether, in accordance with Article 1C(5) of the Convention, the applicant can no longer continue to refuse to avail himself of the protection of his country of nationality because circumstances in connection with which he was recognised as a refugee have ceased to exist.  I am inclined to doubt that this was the task of the Tribunal in the circumstances.  In NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373 (NBGM v MIMIA) Emmett J observed:

   “… 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.”

   10       The judgment in NBGM v MIMIA is the subject of an appeal to the Full Court.  As I consider that this application can be determined without resolving whether the Tribunal accurately identified its task, no useful purpose would be served by my considering further whether Emmett J accurately identified the task of a decision‑maker when considering an application for a protection visa made by a person who holds a temporary protection visa.  Nor, having regard to the view which I have taken of the Tribunal’s reasons for decision, have I considered it necessary to defer publishing these reasons for judgment to allow the parties to make submissions with respect to the recently published decision of the High Court in NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6.’

10. Since the judgment in this matter was reserved, Kiefel J has delivered reasons for judgment in QAAT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 968 agreeing with Dowsett J’s reasons in this matter and Emmett J’s reasons in NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373. Her Honour said, at [35]:

    ‘          I would respectfully agree with their Honours.  In my view the cessation clause has application to the situation where a person has been granted refugee status but the circumstances in connexion with that recognition have ceased to exist.  Consideration might be given to implementing the cessation clause in relation to a procedure such as revocation.  Where a person applies for a protection visa the question whether they are owed protection obligations is addressed on the determination of each application.’

11. Emmett J’s decision is under appeal.  Nevertheless, five judges of this Court have not found any fault in his Honour’s reasons.  Branson J left the question open.

12. I agree with Emmett J’s reasons. I think, with respect, that his Honour’s decision properly recognises the way in which the Act and Regulations govern applications for permanent protection visas.

    THE APPLICATION OF THE LEGISLATION AND REGULATIONS

13. The inquiry is whether the applicant is entitled to the grant of a Subclass 866 (Permanent Protection) visa (Class XA) and that will be determined by addressing whether the applicant has satisfied the criteria in subclass 866 of Schedule 2 of the Regulations.

14. The Regulations govern the application.  Subclass 866.221 requires the Minister to be satisfied, at the time the Minister makes a decision, that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

15. The inquiry must be as to whether at the time of that decision does the applicant have a well-founded fear of persecution for one of the reasons in Article 1A(2) and is thereby unwilling or unable to return to his or her country of nationality.

16. Section 36(2) and the Regulations require that matter be addressed.

17. In my opinion, the scheme of the Act and Regulations means that each time there is an application for a temporary protection visa (with the exception of a temporary protection visa (Class XC) which is granted by operation of the Regulations) or a permanent protection visa, the applicant must establish afresh that he or she has a well-founded fear of persecution and is thus a person to whom Australia owes protection obligations. Each application is a fresh application. The cessation clause has no operation after the grant of the grant of the Subclass 785 (Temporary Protection) visa (Class XA) and before the determination of the application for the protection visa.

18. The Act and Regulations simply do not contemplate that the Subclass (Temporary Protection) visa (Class XA) will expire because any of the provisions of Section C apply.

19. After the grant of a Subclass (Temporary Protection) visa (Class XC) there is even less reason to think that the cessation clause in the Convention would apply.  The Subclass (Temporary Protection) visa (Class XC) was not granted because Australia owed protection obligations to the applicant at the time of the grant but only because the applicant’s application for a permanent protection visa had not been granted and the Regulations applied.

20. To conclude that because the applicant had been granted a temporary protection visa, of either class, the inquiry to be conducted by the Minister in considering an application for a Subclass 866 (Permanent Protection) visa (Class XA) and in applying the criteria under subclass 866.222 is as to whether the Convention has ceased to apply to that applicant because the circumstances which applied some years ago no longer apply, is to ignore, in my respectful opinion, the words of s 36(2) and the Regulations.

21. Whether the applicant is to be considered to be a person to whom Australia has protection obligations must be determined on the facts and circumstances as they apply at the time of the decision and, in particular, whether those facts and circumstances establish that the applicant has a well-founded fear of persecution for a Convention reason.

22. If the matters in Article 1A(2) can be established at the time the decision is made in relation to the applicant’s application for a permanent protection visa, Article 1C(5) has no part to play because the applicant, by proving a present well-founded fear of persecution for a Convention reason, will, unless the previous circumstances were different, have established that the circumstances giving rise to his previous claims for a well-founded fear of persecution have not ceased to exist.  If they were different, they are no longer relevant in any event.

23. Once a person has established that he or she is entitled to a permanent protection visa that person will have established that he or she has the status of a refugee.  That status will continue until one of the events in Article 1C occur and the Convention ceases to apply to that person.  The circumstances in which the Convention might cease to apply to a person whose status has been recognised at the time of the grant of the permanent protection visa do not need to be explored on this appeal.

    THE RRT’S DECISION

24. It is convenient to address the way in which both the RRT and the primary judge addressed their respective tasks.

25. The RRT said, after referring to Article 1A:

    ‘In the case of a person who has been recognised in Australia as a refugee under Article 1A(2), Article 1C of the Convention sets out the circumstances in which the Convention ceases to apply in respect of that person.’

26. It said:

    ‘The central issue presented by Article 1C(5) is whether an individual can no longer refuse to avail him or herself of the protection of his or her country because the circumstances in connection with which he or she was recognised as a refugee have ceased to exist.’

27. Next, it said:

    ‘Where an applicant makes claims to be a refugee for reasons unrelated to the circumstances in connection with which he or she was recognised as a refugee, those claims would fall to be assessed under Article 1A(2) of the Convention.’

28. It seems to me in the passages to which I have referred that the RRT assumed, with the exception last mentioned, that if a person has previously had his or her status as a refugee recognised then the inquiry before the RRT should proceed by first addressing Article 1C(5) to determine if there is evidence to suggest the circumstances in connection with which the application was recognised as a refugee have ceased to exist.  It is not necessary to address the exception referred to in the last mentioned paragraph.

29. Next, the RRT noticed the qualification of s 36(2) of the Act contained in s 36(3). It said:

    ‘Therefore, even if a non-citizen satisfies Article 1A(2) and does not fall within one of the cessation clauses, he or she will not be a person to whom Australia has protection obligations for the purposes of s. 36(2) of the Act if he or she falls within s. 36(3).’

30. The RRT accepted that the applicant was an Afghani.  It then discussed the circumstances in which the appellant originally sought refugee status.

31. The RRT found:

    ‘That said, the applicant was recognised by Australia as a refugee in March 2000 on the basis of the circumstances then prevailing in Afghanistan.  Therefore, for the purposes of the Refugees Convention, he remains a refugee in relation to those circumstances unless one of the cessation clauses in Article 1C applies.  The provision that is relevant to the facts of this case is Article 1C(5).  The Tribunal has therefore considered whether, in accordance with Article 1C(5) of the Convention, the applicant can no longer continue to refuse to avail himself of the protection of his country of nationality because the circumstances in connection with which he was recognised as a refugee have ceased to exist.’

1. The RRT then discussed the circumstances then prevailing in Afghanistan and concluded:

   ‘On the basis of all the material before it concerning the circumstances in connection with which the applicant was recognised as a refugee, the Tribunal finds that he can no longer refuse to avail himself of the protection of Afghanistan because those circumstances have ceased to exist.  Therefore, Article 1C(5) of the Convention applies to the applicant.’

2. Thus it is that the RRT proceeded upon the basis that the appellant was a person whose refugee status had been recognised at the time that he obtained his Subclass 785 (Temporary Protection) visa (Class XA) on 28 March 2000.  It proceeded upon the basis that Australia continued to owe protection obligations to him unless it could be said that Article 1C(5) applied and the Convention had ceased to apply to him.

3. It made a finding on the facts that Article 1C(5) did apply and the appellant was a person to whom the Convention had ceased to apply.

4. In my opinion, for the reasons already given, that approach was wrong.  For the reasons already given, the RRT should have considered afresh, at the time of the hearing before it, whether the appellant was a person to whom the Minister ‘is satisfied Australia has protection obligations’.

5. For the reasons already given, in my opinion, subclass 866 in Schedule 2 of the Regulations requires the Minister to be satisfied of the matters contained in Article 1A(2) at the time that the Minister makes her or his decision.

6. However, it seems to me that the RRT proceeded in the manner in which the majority have suggested was appropriate. It certainly proceeded in a way which, in my opinion, was too favourable to the appellant. It follows therefore that, even if my construction of the Act and Regulations is wrong and the construction favoured by the majority is right, I would still dismiss the appeal.

7. Having found that the appellant was not a person to whom the Convention applies because of the provision of Article 1C(5), the RRT turned to consider whether the appellant was a refugee for other reasons.  In that regard, it addressed Article 1A(2) of the Convention.

8. After discussing the appellant’s claims and considering country information it found that, on the circumstances as they prevailed at the time of the hearing, the appellant did not have a well-founded fear of persecution for a Convention reason.

9. For the reasons I have already given, in my opinion, the RRT should have addressed that issue first.  If it had and because of the conclusion at which it arrived, it would not have needed to consider the question of Article 1C(5) because it would have found that, at the time of the hearing before the RRT (which is the relevant time), the appellant did not have a well-founded fear of persecution.  If the appellant could not bring himself within Article 1A(2) then Article 1C, and in particular Article 1C(5), was irrelevant.

10. In any event, the RRT, in my opinion, addressed the appellant’s application in its most favourable light by first having regard to the application of Article 1C(5) upon the assumption that the appellant had previously been granted refugee status at the time of the grant of the Subclass 785 (Temporary Protection) visa (Class XA).

11. In the end result, whatever construction one puts upon Article 1, whether it be the construction arrived at by the majority or by me, the appeal, in my opinion, has to fail.

12. I should just add one further matter.

13. The RRT also addressed a submission that the appellant had been accorded refugee status at the time of the grant of the Subclass 785 (Temporary Protection) visa (Class XC).  That was rightly rejected in my opinion.  It can also be observed that that is the opinion of the majority.

14. If the decision of the RRT to affirm the decision of the delegate of the Minister was right, and in my opinion the end decision was right, then Dowsett J’s conclusion dismissing the application for review cannot be impugned.  However, for completeness, I should address his Honour’s reasons.

    DOWSETT J’S REASONS

15. Dowsett J, after referring to the Act and the Regulations, identified the four issues which were before him. First, the appellant contended that the issue of the Subclass 785 (Temporary Protection) visa (Class XC) on 27 March 2003 was a recognition that Australia owed him protection obligations at that time. It was contended before Dowsett J that therefore the Tribunal had addressed the wrong point of time in addressing the question as to whether or not the Convention had ceased to apply to the appellant under Article 1C(5). Secondly, the appellant contended that the RRT had failed to consider whether the appellant held a well-founded fear of persecution for a Convention reason from the Taliban or any other group against which the government of Afghanistan could not, or would not, defend him. Thirdly, it was contended that the RRT had failed to consider the consequences for the appellant were he to return to an area of Afghanistan other than the province from which he came. Fourthly, it was submitted that the RRT’s decision was based on no evidence and/or was ‘Wednesbury unreasonable’.

16. Dowsett J rejected all four contentions.  The first contention was the subject of grounds 6(c) and 6(d).  That is the ground which has been rejected by all members of this Court.  The other three matters argued before Dowsett J were not advanced on this appeal.  Viewed in that light, it is difficult to see where his Honour has erred.

17. In any event, his Honour reasoned in this way.  First he said, refugee status is to be determined having regard to the position at the time at which the determination is made.  He relied on the decisions of the High Court in Mayer at 302; Chan at 386 and Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [29].

18. In my opinion, that proposition is right.  The more recent High Court decision in NAGV and NAGW of 2002 also supports that proposition.

19. Next, he said that it was not strictly relevant that the appellant had previously applied for and received a Subclass 785 (Temporary Protection) visa (Class XA) and a Subclass 785 (Temporary Protection) visa (Class XC).  He said it was not necessary to decide whether Article 1C(5) had been engaged as a result of any changed circumstance in Afghanistan.  He distinguished Dawson J’s judgment in Chan at 405-406.

20. For the reasons I have already given, in my opinion, Dowsett J was correct.

21. Next, he reasoned that the grant of the Subclass 785 (Temporary Protection) visa (Class XC) was not relevant because, in granting that visa, the Minister did not have regard to the current circumstances and, in particular, to the appellant’s status as a refugee.

22. He relevantly concluded, at [25]:

    ‘In my view, the applicant’s entitlement to a permanent visa depended upon the circumstances as they were at the time of the Tribunal’s decision, meaning that it was necessary that he then hold a well-founded fear of persecution for a Convention reason.  His argument to the contrary is without merit.  If I am wrong in my understanding of the decision in Chan, nonetheless, the appellant’s argument would still fail.  The cessation clause will be engaged if “the circumstances in connexion with which [the applicant] has been recognised as a refugee have ceased to exist”.  It cannot be sensibly argued that Australia has ever recognised the appellant as a refugee other than in connection with circumstances as they existed in March 2000.  As I understand it, the applicant accepts that those circumstances have ceased to exist.  No recognisable legal basis has been advanced on behalf of the applicant to support the assertion that the grant of the Temporary (XC) visa in 2003 raises a conclusive presumption that he was entitled to a visa on the basis of circumstances which then existed.  Those circumstances were never identified or relied upon by the appellant and never considered by the Minister.  The applicant’s argument is without merit.’

23. A number of matters arise out of that dicta. First, his Honour repeated that the question before the RRT was whether or not the appellant could bring himself within Article 1A(2) at the time of the hearing before the RRT. Secondly, he found that even if he were wrong about that and the RRT needed first to consider Article 1C(5), the appellant’s case had to fail because ‘the applicant accepts that those circumstances have ceased to exist’: at [25]. Thirdly, he again concluded that the contention that the grant of the Subclass 785 (Temporary Protection) visa (Class XC) in 2003 was not relevant to a determination of the appellant’s right to a permanent protection visa at the time of the hearing before the RRT.

24. His Honour then considered the RRT’s finding that the appellant could not bring himself within Article 1A(2) in any event.  He dismissed the appellant’s contention that there was no evidence to support the RRT’s conclusions which were adverse to the appellant.

25. He dismissed the other contentions which are not relevant to this appeal.

26. In my opinion, Dowsett J was correct in concluding that the RRT had to determine for itself, at the time of the hearing before it, whether the appellant was a person to whom Australia owed protection obligations.  The RRT therefore had to determine whether or not the appellant was then a person who had a well-founded fear of persecution for a Convention reason.

27. He was also right to conclude that Article 1C(5) never engaged.

28. In my opinion, for those reasons, the appeal from Dowsett J must be dismissed.

29. However, even if Dowsett J erred and the proper approach was to consider whether there had been a change of circumstances of the kind predicated in Article 1C(5) since the recognition of the appellant’s status as a refugee on 28 March 2000, the application to Dowsett J had to be dismissed.  That follows because that is exactly what the RRT did in considering the application before it.  It proceeded in that very manner and decided that Article 1C(5) did operate and the Convention had ceased to apply to the appellant.  It also found that the appellant did not have a well-founded fear of persecution for a Convention reason at the time it made its decision.

30. It was not for Dowsett J to inquire into the merits of the case.  The merits were for the decision-maker: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 347-348.

31. For those reasons, in my opinion, the application to Dowsett J was bound to fail.

    COSTS

32. Ground 7, of course, is an alternative ground to those contained in paragraph 6.  It only arises if the other grounds are dismissed.

33. As I have previously mentioned, ground 7 was in the following terms:

    ‘7.His Honour Justice Dowsett erred in ordering the appellant to pay the respondent’s costs in that he failed to take into account the fact that the matter involved novel questions of law not previously determined and wrongly assumed that such questions should be raised by way of relator action instead of by the appellant.’

34. It was submitted by the appellant that the matters before Dowsett J in this Court involve novel questions of law which have not previously been determined, including the application of the cessation clause and the relevance and effect of a Subclass 785 (Temporary Protection) visa (Class XC).  It was submitted:

    ‘In such circumstances an unsuccessful applicant should not be ordered to pay costs.  This is particularly so in proceedings which can fairly be described as having the hallmarks of “public interest litigation”.  His Honour rejected the Applicant’s submission that there be no order as to costs apparently for the reason that public interest litigation should be brought by the Attorney-General.  It is submitted that his Honour should not have awarded the applicant to pay costs.’

35. His Honour gave no reasons for ordering the appellant to pay the respondent’s costs of the application before him.  There is nothing unusual about that.  Ordinarily, the unsuccessful party would pay the successful party’s costs.  Whilst, as the majority of the High Court explained in Oshlack v Richmond River Council (1998) 193 CLR 72, there is no rule of law to that effect, the accepted practice in this jurisdiction and other jurisdictions is that costs follow the event: Milne v Attorney-General (Tas) (1956) 95 CLR 460 at 477.

36. There will be circumstances where an unsuccessful party will not have to pay the successful party’s costs.  Indeed, there might be circumstances where a successful party should have to pay the unsuccessful party’s costs.

37. This, however, is not a case where the successful party should be deprived of its costs.

38. The argument in relation to the grant of the Subclass 785 (Temporary Protection) visa (Class XC) was novel but unarguable.  The argument in relation to Article 1C(5) has been considered, as previously noted, by a number of judges of this Court.

39. This was not public interest litigation but litigation brought by the appellant to advance his own interests.  He was undoubtedly entitled to do that.  However, in so doing, if his arguments failed he ran the risk of an order that he pay the respondent’s costs.

40. There was no reason for Dowsett J to exercise his discretion in the manner suggested by the appellant.  Certainly, there is nothing before this Court to indicate that Dowsett J erred in the exercise of his discretion.  I would also reject ground 7.

41. For all those reasons, in my opinion, the appeal should be dismissed and the appellant should pay the costs of the appeal.

I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:             27 July 2005

Counsel for the Appellant:	Mr G Hiley QC and Mr M Plunkett
Solicitor for the Appellant:	Terry Fisher & Co.
Counsel for the Respondent:	Mr S Gageler QC and Mr P Bickford
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 May 2005
Date of Judgment:	27 July 2005