SZDOL v Minister for Immigration - [2005] FMCA 1404

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDOL v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1404

MIGRATION – Review of decision of Refugee Review Tribunal – permanent protection visa application – Afghanistan – Shiite Muslim – Hazara – Ghazni – Article 1C(5) of the Refugees Convention – cessation – well–founded fear of persecution – changed circumstances – right to enter and reside in country of nationality – decision set aside.

Migration Act 1958 (Cth), s.36

Minister for Immigration & Multicultural & Indigenous Affairs v Thiyagarajah (1997) 80 FCR 543
NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373
QAAH of 2004 vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1448
QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136
SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Applicant:

SZDOL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1442 of 2004

Judgment of:

Mowbray FM

Hearing date:

30 November 2004 in Sydney

Date of Last Submission:

30 November 2004

Delivered at:

Canberra

Delivered on:

27 September 2005

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Legal Aid Commission of NSW

Counsel for the Respondent:

Mr GT Johnson

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Refugee Review Tribunal be joined as second respondent.
The decision of the second respondent of 29 March 2004 and handed down on 22 April 2004 be set aside.
The application for a permanent protection visa be remitted to the second respondent for determination according to law.
The first respondent pay the applicant’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1442 of 2004

SZDOL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 17 May 2004 the applicant applied under s.39B of the Judiciary Act 1903 for review of a decision of the Refugee Review Tribunal made on 29 March 2004 and handed down on 22 April 2004.
Consistent with the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24,

I join the Tribunal as a party to these proceedings. Any reference to the respondent in these reasons is to the Minister, the first respondent.

Background

The applicant arrived in Australia by boat on 28 November 1999 and applied for a protection visa on 20 January 2000. As he was not immigration cleared he was granted a temporary protection visa on

18 July 2000. On 4 August 2000 the applicant applied for a protection visa (permanent) but could not have this processed for another

30 months, that is until three years on his temporary visa had expired.
On 21 March 2003 the applicant sent an updating statement to the Minister’s Department for it to consider his permanent visa application. This application was refused on 3 October 2003 by a delegate of the Minister.
On 24 October 2003 the applicant applied to the Tribunal for review of the decision of the delegate. The Tribunal affirmed the delegate’s decision on 29 March 2004 after a hearing held on 3 February 2004 which the applicant attended. The decision was handed down on

22 April 2004.

Claims to the Department and Tribunal

The applicant is from Afghanistan born in Ghazni and of Hazara ethnicity. He speaks Farsi and Dari and is a Shiite Muslim. He left Afghanistan in September 1999.
In his original application for a temporary protection visa which was granted, the applicant claimed that he worked in his father’s shoe shop in Ghazni until he came to Australia. The family used to make donations to the political party, Wahdat in money and clothes. They had rifles in their house which was forbidden, but they tried to keep the authorities from knowing about them.
When the Taliban came to power, they would search Hazara houses for weapons. The Taliban would take shoes from the applicant’s father’s shop and not pay for them. They took away the applicant’s brother six months before the applicant made his first application in Australia. The applicant’s family still now does not know the whereabouts of the applicant’s brother.
The applicant’s father helped the applicant to escape from Afghanistan by paying two smugglers from the proceeds from the family business because they were afraid that the applicant would also be taken away.
The applicant made further claims before the delegate for his permanent protection visa application. He stated that even with the defeat of the Taliban in 2002, he is afraid that they have not been suppressed and might rise to power again. In any case, he claims that as a Hazara he is a minority and there are few in the new Afghani government who would protect Hazara interests.
He is a Shiite and others in Afghanistan are Sunni. This is also a cause for discrimination in Afghanistan. Outside of Kabul tribal groups are still fighting and new forms of the Taliban appear to be emerging and singling out the Hazara as scapegoats for the defeat of the Taliban. In addition, Pashtuns who are the majority continue to discriminate against Hazaras. The applicant claims he still has a well-founded fear of persecution were he to return to Afghanistan.

Tribunal decision

The Tribunal’s main concern was with whether the situation had changed in Afghanistan such that the applicant no longer had a well-founded fear of persecution.
Its findings are summarised in the respondent’s Outline of Submissions:
3.   The Tribunal first turned its mind (at CB164-165) to Article 1C(5) of the Convention and found (for the reasons it there gave) that the circumstances in connection with which the applicant was recognised as a refugee have ceased to exist and that the applicant could not therefore continue to refuse to avail himself of the protection of his country of nationality for those reasons. Thus, the Tribunal concluded at CB165.5, Article 1C(5) of the Convention applies to the applicant.
4.   Then the Tribunal found at CB165.4-165.7 that the applicant is able to avail himself of a right to re-enter and reside in Afghanistan and that, having regard to changed circumstances since he was previously accepted as a refugee, the applicant no longer has a well-founded fear of persecution in Afghanistan because of the circumstances in connection with which he was so recognised. Thus, the Tribunal concluded, at CB165.6, section.36(3) of the Act applies in relation to those circumstances.
5.   After that, from CB165.7, the Tribunal proceeded to a further stage of its decision and considered whether there were any other reasons why the applicant fears persecution to enable him to now fall within Article 1A(2) of the Convention. It proceeded (for the reasons set out at CB165.8 – 168.1) to reach the conclusion that it was not satisfied that the applicant had any well-founded fear of persecution in Afghanistan now or in the foreseeable future for a Convention reason.
6.   It was upon those bases that the Tribunal ultimately concluded that it was not satisfied that the applicant is a refugee and that the applicant is not entitled to a further protection visa.
For the purposes of the current application to this Court the Tribunal ultimately found:
I do not accept on the evidence before me that Taliban remnants remaining in Afghanistan are targeting Hazaras, Shia Muslims or supporters of the Hezb-e-Wahdat in the applicant’s area in and around Ghazni city. I find that because the circumstances in connection with which the application was recognised as a refugee, his fear of the Taliban, have ceased to exist he can no longer continue to refuse to avail himself of the protection of his country of nationality for those reasons. Therefore, Article 1C(5) of the Convention applies to the applicant.
If I am wrong about Article 1C(5), I nevertheless find that the applicant is not a person to whom Australia has protection obligations in relation to the circumstances in connection with which he was recognised as a refugee because of the operation of s.36(3) of the Act. I find that as a national of Afghanistan the applicant is able to avail himself of a right to enter and reside in that country.
The Tribunal also looked at whether the applicant had a well-founded fear of persecution for a Convention reason, but finally found:
there is nothing in the material before me or in the information provided by the applicant that would enable me to find that he faces a real chance of persecution now or in the foreseeable future for Convention purposes.

Consideration

The applicant filed an amended application on 27 September 2004. This sets out two grounds for review. I shall consider these in turn.

Article 1C(5)

The first ground of review is:
The Tribunal committed jurisdictional error by misunderstanding the meaning and effect of Article 1C(5) of the Refugees Convention, asking the wrong questions, failing to ask the right questions and in failing to test the applicant’s claims against the statutory criteria.
Four particulars accompany this ground:
(a) The Tribunal erroneously considered that cessation of refugee status in Article 1C(5) was established when a person who had been recognised as a refugee no longer had a well-founded fear of persecution for the reason for which he has been so recognised.
(b) The Tribunal should have held that the cessation of refugee status in Article 1C(5) was established only when the danger to the applicant, stemming from the reasons for which he or she was recognised as a refugee, and also those circumstances stemming from and surrounding such recognition, had ceased to exist.
(c) The Tribunal erroneously interpreted Article 1C(5) as being satisfied in circumstances where there had simply been,
(a) a change of political power in Afghanistan, and
(b) a change in the balance of military power in Afghanistan.
(d) The Tribunal should have asked itself and considered whether,
(i) The Taliban have changed their ideology and beliefs to the extent that Hazaras are no longer considered to be heretics, and
(ii)The Taliban are still militarily capable to attacking Hazaras, and
(iii)The Taliban have demonstrated a willingness to attack Hazaras as and when the opportunity presented itself.
Article 1C(5) states:
C. This Convention shall cease to apply to any person falling under the terms of section A if:
…
(5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Article 1C(5) is known as a “cessation” clause because it outlines the circumstances when a person ceases to be a refugee and in need of protection from a state other than his or her country of origin or nationality.
Mr Karp for the applicant submitted that the Tribunal had not sought to construe and follow the language of Article 1C(5). If it had done so it would have considered whether the entire circumstances had changed in Afghanistan. These circumstances went further than the mere reasons for recognition as a refugee initially. They included the military, political and social context which caused flight.
Mr Karp essentially contended that it was not a matter of looking at whether the applicant still had a well-founded fear of persecution, but rather whether the surrounding circumstances had changed
… the text does not say that refugee status shall cease if the reasons for recognition of a refugee no longer exist. It says refugee status shall cease if, because of the circumstances in connection with which the applicant has been recognised as a refugee, have ceased to exist. They are different.
Rather Article 1C(5) should be read as removed from the test of a well-founded fear of persecution. The circumstances from which the applicant escaped must have fundamentally altered. The cessation clause in Article 1C(5) does not apply merely if the applicant no longer has a well-founded fear of persecution for the same reasons which led initially to departure from the home country.
Mr Karp said that the Tribunal should have looked at Article 1C(5) in the context of the Convention as a whole, rather than as the “obverse of protection obligations in Article 1A(2)”. It would then have found that Afghanistan was still suffering the “effects of the Taliban’s misrule” so that the circumstances in connection with which the applicant had been recognised as a refugee had not ceased to exist.
The Tribunal had focussed only on the political power of the Taliban – that the Taliban were no longer a political power. But it made no findings that the Taliban had ceased to exist or that it was not militarily active. Mr Karp said that the Tribunal should have attempted to identify the social and military context which the applicant fled, and also whether there were any changes in circumstances so extreme that the previous social and military order could be said to no longer exist. He said the issue was also not simply limited to the Taliban. The Tribunal should have concerned itself with the lawlessness, insecurity and general lack of civilian protection. This information was before the Tribunal.
The respondent on the other hand argued that Article 1C(5) applied in the context of Article 1A(2). Therefore if the circumstances in which the applicant left have changed so that an applicant no longer has a well-founded fear of persecution then the applicant is no longer a refugee and Australia does not owe protection obligations.
The respondent said that the applicant’s case was clearly inconsistent with the decision of Emmett J in NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373. NBGM dealt with a very similar case to this one. It related to a Hazara from Ghazni who had been granted a temporary protection visa. Justice Emmett had to explore the relationship between Articles 1A(2) and 1C(5). He found:
37. There is a similar relationship between Articles 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.
38. Thus, the circumstances in connection with which a person who is outside the country of his or her nationality will be recognised as a refugee by a Contracting State are that, owing to well-founded fear of being persecuted for Conventions Reasons, the person is unable or, owing to such fear, is unwilling, to avail himself of the protection of that country. When Article 1C(5) speaks of a person no longer being able to continue to refuse to avail himself of the protection of the country of his nationality, it refers back to the prerequisite of Article 1A(2) that the person be unable or unwilling to avail himself of the protection of that country because of a well-founded fear of persecution for a Convention Reason. There is no reason for construing Article 1C(5) as contemplating anything more or less than the negativing of the circumstances that led to the conclusion that a person was a refugee within the meaning of Article 1A(2).
39. While there is a certain lack of symmetry in the actual language of the three provisions, there is a rationale underlying the basic object and scheme of the Refugees Convention. That rationale is that, so long as the relevant well-founded fear exists, such that a person is unable or unwilling to avail himself or herself of the protection of the country of his or her nationality, he or she will be permitted to remain in the Contracting State. However, if circumstances change, such that it can no longer be said that the person is unable to avail himself or herself of the protection of his or her country of nationality owing to well-founded fear of persecution for Convention Reasons, the Contracting State’s obligation of protection comes to an end. That is to say, the obligations to a person that arise under, inter alia, Articles 32.1 and 33.1 continue only for so long as the person is a refugee within the meaning of Article 1A(2).
Another first instance decision, QAAH of 2004 vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1448, dealt with a Tribunal decision concerning a Hazara from Parwan. Justice Dowsett did not engage in a comparison of Articles 1A(2) and 1C(5), but found nevertheless that the Tribunal made factual findings on a lack of a well-founded fear of persecution on the part of the applicant. This meant that the cessation clause applied.
Mr Johnson for the Minister said that in the light of NBGM it is plain that the Tribunal’s overall approach was sound and that there is no jurisdictional error that could have affected its decision.
However since this matter was heard the Full Federal Court has given judgment on appeal in QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136, by majority setting aside the decision of Dowsett J.

In his reasons, Wilcox J with whom Madgwick J agreed:
·rejected the “symmetry” approach of NBGM
·said that if Article 1C(5) has not been applied to a person who had previously been recognised as a refugee, there had not been a cessation of Australia’s protection obligations under the Convention to that person
·stated that “what might loosely be called the burden of proof” effectively reverses in an Article 1C(5) case – “if the facts are insufficiently elucidated … the claim of cessation will fail and the person will remain recognised as a refugee.”
·appeared to accept that “changes in the refugee’s country must be substantial, effective and durable or profound and durable” for Article 1C(5) to apply.
Wilcox J said at [74]
… 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 situation.
And at [78]
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.
The circumstances under which the applicant was recognised as a refugee in 2000 related to Taliban control of Ghazni and the fear the applicant as a Shi’a Muslim and as an Hazara held of being targeted by the Taliban. He also feared due to his family’s donations to the Wahdat Party.
In the decision now under review the Tribunal considered the applicant’s original claims of fear based on his ethnicity, religion and political opinion in light of country information. It noted that the applicant had not provided any country information reports to support his claims. It found that the circumstances underlying the applicant’s fear of the Taliban had ceased to exist:
I find that the Taliban have been removed from power in Afghanistan. I do not accept that there is any chance of the Taliban re-emerging as a viable political movement in Afghanistan in the reasonably foreseeable future. I do not accept on the evidence before me that Taliban remnants remaining in Afghanistan are targeting Hazaras, Shia Muslims or supporters of the Hezb-e-Wahdat in the applicant’s area in and around Ghazni city.

This case is in many respects similar to QAAH. On a careful reading of the Tribunal decision and having regard to QAAH, I can not be satisfied that the Tribunal properly understood Article 1C(5). Its consideration was brief and uninformative. It focussed more on the removal of the Taliban from political power with a brief reference to what might happen in Ghazni. It effectively reversed “what might loosely be called the burden of proof”. And it did not examine in any detail whether the changes were substantial, durable and settled.
In my view the Tribunal failed to address the Article 1C(5) issues correctly.

Section 36(3) Migration Act

The second ground for review was that:
The second respondent [the Refugee Review Tribunal] misapplied the law in finding that section 36(3) Migration Act 1958 will apply irrespective of the operation of Article 1C(5) of the Refugees Convention.
The applicant in his outline of submissions said that s.36(3) of the Migration Act 1958 was ambiguous and regard should be had to extrinsic materials when considering its scope:
19.As interpreted by the Tribunal, Article 1C(5) has no independent operation, because no matter what the answer to the issue raised there (and however it is interpreted), the question will always come back to whether the refugee has fulfilled the requirements of s 36(3). That in itself depends on a current well founded fear of persecution.
Section 36 sets out the central criterion for the grant of protection visas:
(2) A criterion for a protection visa is that the applicant for the visa is:
( a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
…
(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
Mr Karp submitted that s.36(3) does not operate in relation to a person who has already obtained a protection visa. He said that it is directed to persons who have come to Australia to seek protection in circumstances where there are other countries where they could have sought protection. He said that no case has applied s.36(3) or the principles developed by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Thiyagarajah (1997) 80 FCR 543 to a person who has been recognised in Australia as a person to whom protection obligations are owed in this country.
He further submitted that if it applied to an applicant who had already been granted protection in Australia, it only did so in relation to third countries. It did not have any operation in relation to countries of nationality from which an applicant had originally fled.
He referred to secondary sources and extrinsic material:
Read in the context of the amendment, and the discussion in the Senate on 25 November 1999 when the amendments were debated, it is apparent that s 36(3) was not intended to have any application in circumstances such as the present, or indeed to have the effect of removing protection.
Mr Karp said that s.36(3) was designed to prevent forum shopping.

It does not permit persons to be sent back to their countries of origin, but they can be sent to third states.
Mr Johnson said that the effect of s.36(3) is that Australia does not owe protection obligations to someone who has not taken all possible steps to avail him or herself of the protection of another country including the one which is his or her country of origin. He said that the Tribunal did not really need to consider s.36(3) because it has already found that the cessation clause applied and therefore the applicant was not owed protection obligations under the Convention.
In my view s.36(3) there is no relevant ambiguity in s.36(3). It does apply irrespective of the operation of Article 1C(5). Emmett J in NBGM rejected the submissions put to me by Mr Karp and this issue was not considered by the Full Court in QAAH. At [59] Emmett J said that s.36(3) “applies in relation to any country in which the person has a right to enter and reside.”
With the system of temporary protection visas, the applicant was essentially applying for a protection visa de novo – a permanent one. Therefore s.36 applied to him. He had to satisfy the requirements of that section before he could be granted a permanent protection visa.

If the Tribunal makes a finding that the situation is such that the applicant can seek protection in his home state, but has failed to do so s.36(3) applies so that Australia does not owe protection obligations.
However, more importantly the Tribunal failed to properly apply s.36(3). An essential element in that subsection is that the applicant “has not taken all possible steps to avail himself … of a right to enter or reside in” the country in question. The Tribunal’s decision at page 165 of the Court Book does not mention this essential element. I am unable to find any reference to it elsewhere in the decision record.
In my view, the Tribunal must address this issue if it seeks as it did to rely on s.36(3). Failure amounts to jurisdictional error.

Conclusions

In summary I conclude:
·the Tribunal misunderstood Article 1C(5) of the Convention
·the Tribunal failed to correctly apply Article 1C(5)
·s.36(3) does apply in circumstances where a person has already obtained a temporary protection visa and now seeks a permanent one
·the Tribunal failed to properly apply s.36(3).
In the circumstances the Tribunal has committed jurisdictional error and its decision must be set aside.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: N Werner

Date: 27 September 2005