SZFBS v Minister for Immigration - [2006] FMCA 93

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFBS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 93

MIGRATION – Review of decision by Refugee Review Tribunal – applicant granted temporary protection visa in 2000 – change of circumstances in connection with which the temporary protection visa was granted – Article 1C(5) of Refugees Convention as amended by the Refugees Protocol.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; 483

QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136
R (Hoxha) v Special Adjudicator [2005] 1 WLR 1063
NBGM v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 84 ALD 40
QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1448
SWNB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1606
NBEN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 161
QAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 968
NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1554

Applicant:

SZFBS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3406 of 2004

Judgment of:

Emmett FM

Hearing date:

13 December 2005

Date of Last Submission:

13 December 2005

Delivered at:

Sydney

Delivered on:

30 January 2006

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp

Solicitors for the Applicant:

Ms E. Biok, Legal Aid Commission

Counsel for the Respondent:

Ms T. Wong

Solicitors for the Respondent:

Mr K. Sinnadurai, Clayton Utz

ORDERS

That the Applicant’s applications before this Court are dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3406 of 2004

SZFBS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.
The Applicant is a 28 year old man who claims to be a citizen of Afghanistan and of Hazara ethnicity and Muslim Shia religion.
The Applicant arrived in Australia on 16 December 1999 having departed Afghanistan illegally in October 1999 travelling with people smugglers.
The Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs and was granted a protection visa on 13 July 2000, providing the Applicant with 3 years temporary residence in Australia.
On 30 October 2000, the Applicant applied for a further protection visa. On 27 May 2004, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is no longer a person to whom Australia owes protection obligations under the Refugee Convention.
On 10 June 2004, the Applicant filed an application for review before the Tribunal. On 30 September 2004, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 22 November 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” (“the Convention”) as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
Where an applicant is recognised as a refugee by Australia under Article 1A(2) of the Convention, Article 1C of the Convention sets out the circumstances in which the Convention ceases to apply in respect of that applicant. Relevantly, Article 1C(5) of the Convention provides that the Convention shall cease to apply to an applicant 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.”

The proceeding in this Court

The Applicant was represented by Counsel at the hearing.
By consent, the Applicant filed in Court an amended application upon which he relied. That application is in the following terms:
“1. 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.
Particulars
(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.”

Ground 1(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.

I understood it to be common ground between the parties that the Tribunal, in the case before this Court, did not proceed by applying the well founded fear of persecution test first, as identified in Article 1A(2). Counsel for the Applicant conceded that the Tribunal had identified the correct test as that required under Article 1C(5), but had misapplied that test by construing its task too narrowly.
In case I have misunderstood the Applicant’s concession, I have dealt with the ground below.
It is common ground, and I accept, that the principles identified by the Full Court of the Federal Court in the judgments of Wilcox and Madgwick JJ in QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 (“QAAH”) are binding upon this Court.
The principle is encapsulated in the judgment of Wilcox J. His Honour in QAAH adopted the reasoning of the House of Lords in R (Hoxha) v Special Adjudicator [2005] 1 WLR 1063 (“Hoxha”). In Hoxha, their Lordships drew a distinction between;
a)the granting of refugee status under Article 1A(2) of the Convention as amended by the Refugees Protocol (“Article 1A(2)”), which requires the decision maker to be satisfied that an applicant has a well founded fear of persecution for a Convention reason before he can be granted refugee status; and
b)the prospective subsequent withdrawal of refugee status under Article 1C(5) of the Convention as amended by the Refugees protocol (“Article 1C(5)”), which provide for the cessation of refugee status only upon the decision maker being satisfied that the circumstances in connection with which an applicant has been recognised as a refugee has ceased to exist.
It was only in respect of the Applicant’s new claims that the Tribunal considered whether the Applicant had a well founded fear of persecution in Afghanistan for any Convention reason.
Wilcox J observed at [58] of QAAH that, where a person has already been recognised as a refugee, then the enquiry that should take place is an enquiry under Article 1C(5) rather than Article 1A(2). Wilcox J also noted 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.
Until QAAH, the authorities had proceeded on the basis that it was appropriate, in considering a fresh application for protection, irrespective of whether the applicant had been granted temporary refugee status in the past, to consider whether such an applicant was a refugee in accordance with Article 1A(2) (Emmett J in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 84 ALD 40; Dowsett J in QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1448; Selway J in SWNB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1606; Jacobson J in NBEN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 161 and Kiefel J in QAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 968).
Wilcox J in QAAH drew a distinction between the recognition of a person as a refugee within the meaning of the Convention and the grant to that person of protection. He stated at [83]:
“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.”
At the outset of the Findings and Reasons section of its decision, the Tribunal:
a)Noted that the Applicant was recognised as a refugee in July 2000 on the basis of circumstances then prevailing in Pakistan;
b)Noted that for the purposes of the Convention, the Applicant remains a refugee unless one of the cessation clauses in Article 1C applies;
c)Noted that the relevant article is Article 1C(5);
d)Considered whether, in accordance with Article 1C(5) , the Applicant can no longer refuse to avail himself of the protection of Afghanistan, being his country of nationality, because the circumstances in connection with which he was recognised as a refugee have ceased to exist
It is plain that the Tribunal considered the correct test, as identified by the majority in QAAH and which is presently binding on this Court.
Accordingly, Ground 1(a) is not made out.

Ground 1(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.

The Applicant’s contention centres on his complaint that the Tribunal erred in confining its consideration of whether or not circumstances have “ceased to exist” to the political and military changes only. The Applicant contends that QAAH imposes an obligation to consider more broadly those circumstances in connexion with which the Applicant had been recognised as a refugee. The Applicant contends that, applying that principle, the Tribunal was bound to consider whether the Taliban had changed their ideology and beliefs to the extent that Hazaras are no longer considered to be heretics and whether the Taliban are still militarily capable of attacking Hazaras.
The words in Article 1C(5) whether circumstances have “ceased to exist” imply that safety from serious harm needs to have been re-established (QAAH, Madgwick J at [110]).
Wilcox J concluded that, in an enquiry under Article 1C(5) as to possible cessation of refugee status, unless a confident finding could be made of cessation of refugee status, then the claim of cessation will fail and the person will remain recognised as a refugee (QAAH at [69]).
Both parties accept that circumstances will have ceased to exist if a change has occurred that is so material that circumstances have ceased to exist and such change is substantial, effective and durable.
The guidelines adopted by the United Nations High Commissioner for Refugees (UNHCR) on 10 February 2003 note that for cessation to apply the changes need to be of a fundamental nature. However, the guidelines are no more than that and should not be regarded as rules of law (QAAH at [46]). Nevertheless, they should be taken into account by a body in the position of the Tribunal that is required to determine whether the Applicant should be recognised as a refugee for the first time or whether a previously recognised person has ceased to be a refugee (QAAH at [46]). As Madgwick J stated in QAAH, at [110], the language of the Convention itself mandates such conclusions.
Madgwick J, with whom Wilcox J agreed, stated, at [109], that one should not confine the expression in Article 1C(5) of the words “circumstances in connexion with which he had been recognised as a refugee”. His Honour stated that those words, “in connexion with” are generally a phrase of wide import. His Honour noted that any tendency by the Taliban, in that case, in respect of their extremely “intolerant and inflexible view of Sunni Islam” and their “readiness to resort to violence”, if it carried a real risk of persecution, might reasonably be thought to be included in the circumstances “in connexion with” which the applicant was recognised as a refugee. His Honour, at [109] noted that:
“The question would then logically arise: if it is true that the Taliban genie has been largely put back in its bottle, will no other similarly violent, racist and/or religiously bigoted manifestation soon enough succeed it?”
The Tribunal noted that the Applicant was granted a protection visa on the basis that the Delegate was satisfied that the Applicant would be persecuted by the Taliban because he was a Hazara and Shia. At the time of the granting of the visa the Taliban controlled most of Afghanistan and was targeting Hazaras.
At the time of the Tribunal’s decision, it was satisfied that circumstances in Afghanistan, which had led to the Taliban control of most of Afghanistan and its targeting of Hazaras, had fundamentally changed with the ousting of the Taliban by coalition forces and the establishment of the Transitional Authority in 2002. The Tribunal found that the situation would last for the “foreseeable future given the establishment of the Transitional government, the active involvement of the UN in the reconstruction of the country, and continued presence of international forces in Afghanistan as referred to in that independent evidence.” The Tribunal noted that the independent country information did not indicate that a withdrawal or reduction in the international commitment to rebuild Afghanistan in the reasonably foreseeable future.
The Tribunal noted that remnants of the Taliban still exist and are active but relied on independent country information that the Tribunal stated indicated “quite clearly that since the Taliban were ousted from power their targets have not been Hazaras or Shias but international forces, aid workers, the Afghan government and Afghan police and security personnel.”
For those reasons, the Tribunal found the circumstances in connection with which the Applicant was recognised as a refugee have ceased to exist and that consequently, the Applicant ceased to be a refugee in accordance with Article 1C(5) in relation to those circumstances.
Counsel for the Applicant submits that the Tribunal erred in confining its consideration of circumstances that have fundamentally changed to those relating to a change of political power in Afghanistan and a change in the balance of military power in Afghanistan. In relation to that submission the First Respondent submitted that the Tribunal did consider circumstances beyond the change of political and military power and in particular considered the extent of Taliban activity in the Applicant’s district of Beshood and the extent to which the Taliban were targeting Hazaras and Shias throughout Afghanistan.
The First Respondent referred to the Delegate’s reasons for granting a temporary protection visa. The Delegate considered the domination of the Taliban by Pashtuns and observed that in 1998/1999 they had systematically massacred civilians belonging principally to the Shia Hazara minority. The Delegate’s reasons also noted the confirmation by Amnesty International that Afghanistan’s Taliban militia massacred thousands of ethnic Hazara people in 1998 and 1999. The Delegate’s reasons also noted that the Hazaras had been specifically targeted by the Taliban as a Shia minority and noted the Taliban commissioner had set forth 3 edicts; “convert to Suni Islam, go to Shia Iran or die”. The Delegate was satisfied that the Applicant was an ethnic Hazara, that he was a Shia Muslim from Wardak province, that he was a person who would come to the adverse interest of the Taliban and that the overwhelming independent country information indicated that the Taliban’s treatment of members of the Hazara ethnic minority and Shia Muslims is persecutory.
It is apparent from the Tribunal’s recitation, in the Claims and Evidence section of its decision, of the material to which it had regard, that it did not confine its consideration merely to a change of political power in Afghanistan or a change to the balance of military power in Afghanistan.
The First Respondent submits that it is those circumstances, referred to above at paragraph [38] herein, which have fundamentally changed over 2 years ago by the overthrow of the Taliban and the establishment of the Transitional Authority. Those are circumstances that go beyond merely military and political changes.
In considering what the expression “fundamental change” may involve, the Tribunal referred to the UNHCR guidelines in the Claims and Evidence section of its decision. Those guidelines refer to changes of a “fundamental nature” and “effective fundamental change” in respect of the cessation of circumstances.
The First Respondent submits that the Tribunal considered the durability of that fundamental change in finding that the situation referred to will last for the “foreseeable future given the establishment of the Transitional government, the active involvement of the UN in the reconstruction of the country, and continued presence of international forces in Afghanistan as referred to in that independent evidence.”

Moreover, the Tribunal noted that the independent country information did not indicate a withdrawal or reduction in the international community’s involvement in the rebuilding of Afghanistan in the reasonably foreseeable future.
In the circumstances, I consider that the Tribunal had regard to the relevant material in concluding that there had been fundamental change in the circumstances in connexion with which the Applicant was recognised as a refugee, as referred to above, and in finding that those circumstances have ceased to exist because of that fundamental change. I consider that the Tribunal, in making the findings that it made in relation to the reasonably foreseeable future, considered the durability of those changes.
For the reasons referred to above, the Tribunal considered the relevant circumstances in connexion with which the Applicant was recognised as a refugee and found they had ceased to exist. Those findings were open to the Tribunal on the material and evidence before it.
Accordingly, this ground is not made out.

Ground 1(c) That 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.

This ground has been addressed above in consideration of Ground 1(b) and is otherwise dismissed.

Ground 1(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.

The Applicant contends that QAAH imposes an obligation to consider more broadly those circumstances in connexion with which the Applicant had been recognised as a refugee. The Applicant contends that, applying that principle, the Tribunal was bound to consider whether the Taliban had changed their ideology and beliefs to the extent that Hazaras are no longer considered to be heretics and whether the Taliban are still militarily capable of attacking Hazaras.
In relation to the Applicant’s claim that the Tribunal should have considered whether the Taliban changed its ideology and beliefs to the extent that Hazaras were no longer considered to be heretics and whether the Taliban were still militarily capable of attacking Hazaras, the First Respondent submits that the fact that ideological differences exist is irrelevant, provided the Tribunal is satisfied that the circumstances in connexion with which the Applicant was originally recognised as a refugee have ceased to exist.
Wilcox J, in QAAH at [74], said that the Tribunal should have considered:
a)the extent of Taliban activity in the Afghan countryside;
b)the extent of Taliban activity in the appellant’s home district; and
c)the durability of the present situation.
The Tribunal in the case before this Court considered all those matters and made findings referred to above earlier in these reasons.
In relation to the claim that the Tribunal should have considered whether or not the Taliban are still militarily capable of attacking Hazaras, the Respondent submits that the Tribunal was not required to find that any and all possibilities of an attack by the Taliban on Hazaras had disappeared. Rather, it was required to consider whether there had been a fundamental and durable change in the circumstances in connexion with which the Applicant was recognised as a refugee. That proposition is in accord with QAAH and I do not understand the Applicant to cavil with it. The Tribunal was satisfied that there had been fundamental changes of the nature referred to above in these reasons and effectively found they were durable. I have already stated that I consider that the Tribunal undertook that task and made findings open to it on the material and evidence before it.
In the circumstances, the Tribunal did give wide import to the words “circumstances in connexion with” and made findings accordingly.
For the reasons above, this ground is not made out.

New Claims

The Tribunal went on to consider the Applicant’s new claims. The Tribunal concluded that there was not a real chance that the Applicant would be harmed by the Pashtans or other ethnic groups in his region for reason of his race, religion or any other Convention reason.
The Tribunal did not accept that the Applicant would be targeted by the Taliban because of his race, religion or because he would be viewed as a spy for returning from Australia.
The Tribunal found that the Applicant’s district is Hazara dominated and “relatively safe” from Taliban activity. The Tribunal found that the chance of the Taliban, or anyone affiliated with them, being present for any reason is remote. The Tribunal concluded that the Applicant did not have a well founded fear of persecution in Afghanistan for any Convention reason.
These findings were open to the Tribunal on the material and evidence before it and are not challenged by the Applicant.

Conclusion

For those reasons, the Tribunal applied the relevant and correct test in considering whether the Applicant can no longer, continue to refuse to avail himself of the protection of the country of his nationality because the circumstances in connexion with which he was recognised as a refugee have ceased to exist. The findings made by the Tribunal are reasoned and open to it on the material and evidence before it.
The decision of the Tribunal is not affected by jurisdictional error and is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the Applicant’s applications before this Court are dismissed with costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 30 January 2006