VWOS v Minister for Immigration - [2005] FMCA 1389

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VWOS v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1389

MIGRATION – Protection visa – Refugee Review Tribunal – Temporary protection visa granted – whether principles referred to in QAAHof 2004 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 136 apply to consideration of permanent visa application – jurisdictional error – s.36(3) Migration Act.

Migration Act 1958 (Cth), ss.36(2), 36(3), 172

SAAP v Minister for Immigration and Multicultural Affairs (2005) HCA 24
NBGM v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 1373
QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 136
MZWLH v Minister for Immigration [2005] FMCA 1200

Applicant:

VWOS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1345 of 2004

Judgment of:

McInnis FM

Hearing date:

9 August 2005

Delivered at:

Melbourne

Delivered on:

23 September 2005

REPRESENTATION

Counsel for the Applicant:

Mr P. Condliffe

Solicitors for the Applicant:

Ryan Carlisle Thomas

Counsel for the Respondents:

Dr S. Donaghue

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

There be an order in the nature of certiorari to quash the decision of the RRT made on 24 May 2004.
There be an order in the nature of mandamus requiring the RRT to review according to law the decision made by the delegate of the Minister on 27 September 2003 not to grant a further protection visa.
The First Respondent shall pay the Applicant’s costs fixed in the sum of $7,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1345 of 2004

VWOS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this application the applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 24 May 2004. The Tribunal decision affirmed a decision of the delegate not to grant to the applicant a protection visa.
It should be noted that following the decision of the High Court in SAAP v Minister for Immigration and Multicultural Affairs (2005) HCA 24 the Tribunal was joined as a Second Respondent nunc pro tunc. The Second Respondent was otherwise granted leave to file a Notice of Appearance.

Background

The applicant is a citizen of Afghanistan of Hazara ethnicity and is of Shi'a Muslim faith. He came from a village in a district in Parwan province. The applicant arrived in Australia on 5 January 2000. On 28 April 2000 he applied for a protection visa. He had originally claimed to fear persecution in Afghanistan by the Taliban on the grounds of his Hazara ethnicity and Shi'a Muslim.
The protection visa has two sub-categories. The first subclass 785 is a temporary protection visa (TPV). It lasts for three years or if the applicant applies for a permanent visa within that period until that application is finally determined (see Migration Regulations (the Regulations) Item 785.511 of Schedule 2). The second sub-category of the protection visa is a permanent protection visa which confers the right to remain in Australia indefinitely (see the Regulations Item 866.511 of Schedule 2).
On 9 August 2000 the applicant was granted a subclass 785 visa, that is, a temporary visa, on the basis that he had not been immigration cleared (see s.172 Migration Act 1958 (Cth) (the Act)). In granting that visa a delegate of the first respondent found that the applicant was a person who fell within Article 1A of the Convention relating to the status of refugees 1951 (the Refugees Convention). The delegate made that finding because he accepted that the applicant had a well-founded fear of the Taliban. Indeed, as stated by the Tribunal, the delegate in granting the TPV on 9 August 2000 accepted that at that time the applicant would face a more than remote chance of harm from the Taliban in Afghanistan.
It is clear from the material before the court that the grant of a TPV was not in any way connected to any other claim the applicant made that he would be persecuted as a supporter of the Wahdat party.
On 18 August 2000 the applicant applied to the first respondent for a permanent protection visa. In support of that application documents were provided by the applicant including a statement in the form of a statutory declaration made on 15 May 2003. It is noted that the application for a permanent protection visa was made just nine days after the grant of the TPV. It is further noted that the holder of a TPV cannot be granted a permanent protection visa unless he has held a TPV for a period of at least 30 months (see the Regulations Schedule 2 Item 866.228). Hence, as a consequence of that requirement, nothing could be done to process the applicant's claim for a permanent visa until the time period of 30 months had elapsed.
It is common ground that between the date of the granting of the TPV and the expiration of the 30-month period coalition military forces entered Afghanistan and removed the Taliban from power.
The material referred to earlier provided by the applicant by way of a statutory declaration made 15 May 2003 was forwarded to the Department in response to an invitation to the applicant to provide information in support of his claim for a permanent protection visa. That statement which appears in the Court Book (pp. 44-46) includes a claim by the applicant that he was a well-known financial supporter of the Wahdat and that he would be persecuted for this reason by supporters of the (Sunni) Hisbe Islami Party, which the applicant claimed controlled his local area.
In his statutory declaration the applicant states the following:
“5.Before leaving Afghanistan I used to help Wahdat and was well known for doing this. Before the Taliban came I had a shop in the village and was able to help them with money and supplies.
6.Apart from personally providing financial help to Wahdat

I also used to co-ordinate financial support from others. The money I personally gave them was quite large because

I owned a lot of land in the area and also had a shop.

I would help them a lot and openly encouraged others to provide support. I did talking to people wherever they were. Sometimes this would be at the mosque, sometimes in the place where they were working. I encouraged them to give greater support to Wahdat and to resist the Hisbe Islami Party who were Sunnis.
7.I provided this support over a long period of about 7-8 years. I was one of the main supporters of Wahdat in my area and was very well known.
8.However, most people in our area are supporters of Hisbe Islami led by (X). His group also supports the Taliban and Al Qaida. My family expressed pressure from Hisbe Islami and had to leave our village. Only my 80 year old mother stayed behind.
9.When the Taliban regime collapsed my area fell into the hands of Hisbe Islami. They were and remain opposed to Wahdat. Because I was a prominent supporter of Wahdat the Hisbe Islami came to my house several times looking for me. They threatened my family that if they could not hand me over to them they would harm them. My family had heard that Hisbe Islami had been to other houses and had carried out their threats by beating people severely. They had also heard that one person had been kidnapped by them.”
It was claimed by the applicant that supporters of the Hisbe Islami party had gone to his house several times looking for him, had threatened his family and had indicated they would have no hesitation in killing him. It would appear that none of those claims had previously been made in the application for the TPV despite the fact that the Wahdat would have been relevant to his claim to fear persecution from the Taliban.
As indicated earlier, the applicant's application for a protection visa was refused by a delegate of the first respondent on 22 September 2003. The applicant then applied to the Tribunal on 10 October 2003 seeking review of the delegate's decision.
A submission in support of the applicant's application before the Tribunal was forwarded on 3 March 2004 (Court Book pages 72-85). It is noteworthy that the submissions forwarded for and on behalf of the applicant by his then lawyers are very detailed and provide an analysis of country information and otherwise make specific submissions in relation to the claim of the applicant.
The Tribunal by a letter dated 10 March 2004 advised the applicant that it had information that, subject to any comments to be made by the applicant, would be the reason or part of the reason for deciding that he was not entitled to a protection visa. That information included the record of his initial interview on 15 January 2000, the statement of 28 April 2000 and the statutory declaration dated 15 May 2003. Reference is made to the later claim of the applicant being "a prominent supporter of Wahdat" which had not been raised in the appropriate context earlier which the Tribunal claimed in the correspondence gave “rise to doubts about the accuracy and significance of such claims “.
Reference was made to country information by the Tribunal and specific reports referred to, with the applicant being asked to comment.
In response to the invitation to make a comment the applicant's then migration agent responded with correspondence dated 2 April 2004 (Court Book page 99). It is perhaps significant that in that correspondence the following passage appears:
“6 Summaries about the General Situation etc: The claim that the Taliban no longer exists as a viable force is not supported by the most recent information. There has been continued activity by Taliban groups in border areas and in other places, particularly ….. province. This is shown by the Relief Web maps released in June 2003 and in February 2004 copies of which we attach. These clearly show widespread Taliban activity and that the scope of that activity is growing at an alarming rate. The Danish reports are now out of date and should not, in the applicant's submission, be relied upon by the tribunal. The applicant does not agree with the assessments made by the CCA and ACBAR as to the incidence of persecution being experienced by the Hazara people. This information should now be considered to be out of date and unrepresentative of the actual situation. Recently there have been reports of Hazaras being targeted and killed while travelling from one province to another. In Kabul the also (sic) come under attack at night. Hazaras in many areas are marginalised and cannot move safely from one district to another.”
Further comment was invited by the Tribunal by letter dated 6 April 2004. That letter refers to further information from UNHCR about the situation in a specific region and a copy was enclosed for the information of the applicant with an invitation that he should provide comment to the tribunal not later than 27 April 2004. Further documents were then forwarded by the applicant's agent to the Tribunal by letter dated 10 May 2004. That letter attached a copy of a letter from the applicant's village which refers to the situation in the village as being unsafe.
On 24 May 2004, as indicated earlier, the Tribunal delivered its decision affirming the decision of the delegate not to grant a protection visa. The applicant then applied to the Federal Court of Australia for review of the decision and that application was transferred to the Federal Magistrates Court.

The Tribunal hearing

Apart from the material provided by the applicant to which reference has been made, it is noted that further details were provided at the hearing which occurred in March 2004. It is perhaps relevant to note from the Tribunal's reasons the following extract which appears at Court Book page 120:
“The Applicant stated that the first issue is that in his area, the Hisbe Islami are joining the Taliban which is still there. His life is in danger because he is a Hazara and is a Shia, it is not a new thing. His real fear is from the Hisbe Islami and the Taliban in particular, they are still there and have the domination. It was because he is a Hazara and Shia, and also because at the time he was a member of the Hezbe Wahdat. He was not involved with Wahdat's military operations but had preached in their support. This was about 6 or 7 years ago, up to the death of Wahdat leader Mazari. After that, conflict raged in the area and the Taliban came and the people fled from the area. Asked if there was anything else related to his problem which he had not mentioned so far at the hearing, the Applicant repeated that he feels that his life is in danger in the … area.”
The applicant otherwise confirmed his original claim and other matters that had been provided in the written material on his behalf.
It is further relevant to note that in its decision the Tribunal states under the heading ‘Claims and Evidence’ the following at Court Book page 121:
“The Tribunal put to the Applicant that the Taliban has been removed from power in Afghanistan and that although Taliban remnants operate, including in some parts of his province, the information before the Tribunal did not indicate that the Taliban remains in control of Afghanistan or of his province (or district).”
For present purposes it is not necessary to otherwise recite the detail provided by the applicant both in written submissions and before the Tribunal.

Tribunal's Reasons for Decision

In affirming the delegate's decision the Tribunal found that Article 1C(5) of the Refugees Convention applied to the applicant as the circumstances in which he had been recognised as a refugee had ceased to exist with the defeat of the Taliban. For reasons which will become apparent, it is appropriate to set out the tribunal's reasons as they appear under the heading "Findings and Reasons" as follows:
“Circumstances in connection with which the Applicant was recognised as a refugee
The Applicant was recognised by Australia as a refugee in August 2000 on the basis of circumstances then prevailing in Afghanistan. Therefore, for the purposes of the 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 were essentially that the Applicant would be persecuted in Afghanistan by the Taliban for reasons of race and religion, as an Hazara and a Shia Muslim.
However, independent evidence cited above, which the Tribunal accepts, indicates that the Taliban were removed from power in Afghanistan by mid-November 2001. The Tribunal accepts that remnants of the Taliban remain active in particular areas of Afghanistan but the independent information cited above indicates the Taliban no longer exists as a coherent political movement controlling or governing significant areas. While these armed remnants may cause security problems for the Afghan authorities and US troops engaged in combating them, it is two and a half years since the Taliban was removed and the Tribunal does not accept that there is any real chance of the Taliban re‑emerging as a governing authority in Afghanistan in the reasonably foreseeable future or otherwise being in a position to exercise control in the manner it did at the time the Applicant left Afghanistan, for example by forcibly conscripting young Hazaras.
In particular, there was no independent evidence before the Tribunal that the Taliban exercise any significant degree of control in the Applicant's own district or are targeting Hazaras (or Shias) there.
Continuing terrorist acts against foreign aid workers, government officials and government and international forces by Taliban remnants - and consequently military operations against Taliban elements - does not of itself give rise to a real chance of persecution of the Applicant for a Convention reason.
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 this Applicant.”
The Tribunal then proceeds to consider "other circumstances", and in particular refers to the risk now raised by the applicant in relation to his membership or support of Wahdat. Further, reference is made to the claim that as an Hazara and a Shi'a the applicant is at risk from the Taliban and from the Hisbe Islami and from Pushtans supporting Taliban and Hisbe Islami and a claim that because of risk due to continuing instability and lawlessness in Afghanistan. The Tribunal asserts that:
“To the extent that these claims differ from the particular circumstances in connection with which the Applicant was recognised as a refugee, they are to be assessed under Article 1A(2) of the Convention.”
In considering the evidence of the financial support by the applicant of Wahdat the Tribunal was not satisfied that the applicant's role or involvement at that time or prior to the Taliban was such that "he would now be targeted or pursued for that reason in his home district or elsewhere".
Reference was then made to country information including a report from UNHCR and relying upon that information referred to as recent information the Tribunal did not accept the specific claim that Hisbe Islami controls or has any significant presence in the applicant's district. It further did not accept a specific claim that Hisbe Islami had been specifically seeking to locate and target and on return would harm the applicant in that area. It found that the area was controlled by Wahdat, the applicant's own Hazara party. It further rejected a claim that the district is controlled by Pashtuns and otherwise confirmed its assessment of the situation regarding the Taliban. Ultimately it concluded that it was not satisfied the applicant faced a real chance of persecution "from the Taliban or others".
In dealing with the issue of the unstable and lawless situation in Afghanistan the Tribunal states the following:
“Finally, the Applicant has stated that he fears to return because of an unstable and lawless situation in Afghanistan. The Tribunal accepts that Afghanistan is not a peaceable secular democracy in which personal security can reasonably be taken for granted. However, that does not of itself make an individual a refugee. Feared harm for this reason is not of itself persecution, and in any event a Convention reason or reasons must constitute at least the essential and significant motivation for the persecution feared. A generalised fear in relation to conditions in the country, considered separately from the Convention-related claims which the Tribunal has separately addressed, does not in this case amount to a well-founded fear of persecution for a Convention reason.”

The Amended Application

The amended application essentially raises three grounds where it is claimed that the decision of the Tribunal was attended by jurisdictional error. Those grounds are set out in summary form in the Applicant's contentions of fact and law as follows:
“(a) Interpretation of "circumstances" in Article 1C(5) of the Refugees Convention - not limited to Taliban but includes general attitude of government from time to time
(b) Interpretation of "circumstances" in Article 1C(5) of the Refugees Convention - not limited to Taliban but includes Applicant’s support for Wahdat party
(c) Infer that Tribunal applying the incorrect test for well-founded fear - higher than "real chance" of persecution”

A further ground was relied upon, namely the following:
“Failure to take account of relevant material or considerations”
It was argued in support of that ground that the Tribunal failed to have regard to the situation of the applicant for the reasonably foreseeable future when the Tribunal accepted reports referring to instability and peril in Afghanistan. It is obligatory, according to the submissions by the applicant, on the tribunal to consider the risk of persecution for the reasonable foreseeable future and failure to do so is a failure to have regard to a consideration made relevant by the test incorporated in s.36(2) of the Act and that this is a jurisdictional error.

Article 1C

Article 1C(5) of the Refugee Convention is referred by the Tribunal accurately in the following terms:
“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. Paragraphs (5) and (6) of Article 1C provide for cessation of refugee status due to changed circumstances in the refugee's country. Relevantly for the present matter, Article 1C(5) provides that the Convention shall cease to apply to any person falling under the terms of Article 1A 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.”
After reciting Article 1C it is relevant to note that the Tribunal further states the following:
“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, 1991 at 200-203, G Goodwin-Gill, The Refugee in International Law, 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: see eg Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 572-3, Haji Ibrahim per Gleeson CJ at [5] Gummow J (with whom Gleeson CJ and Hayne J agreed) at [147] and Hayne J at [204] - [207].”
It is important in considering this issue to also note that the Tribunal in its reasons made reference to s.36(3) of the Act and did so in the following manner:
“Subsection 36(3) of the Act
As noted above, subsection 36(2) of the Act is qualified by subsections (3)-(5). 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).
Subsections 36(3) and (4) of the Act provide that 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 any country apart from Australia, including countries of which the non-citizen is a national, unless the non‑citizen has a well-founded fear of being persecuted in the relevant country for one or more of the five Convention reasons.
Thus, for example, if a previously recognised refugee no longer has a well-founded fear of being persecuted in his or her country of nationality for one or more of the Convention reasons, and has not taken all possible steps to avail himself or herself of a right to enter and reside in that country, s.36(3) will apply, irrespective of the operation of the cessation clauses.”
Arising from the passages referred to above it should be noted that two conclusions may be reached. The first is that the suggestion that the Tribunal should take into account for the purpose of the cessation clauses the concept that changes in the refugee's country must be "substantial, effective and durable or profound and durable" has not been accepted by the Tribunal as providing what might be described as legal tests. To that extent, I interpret the Tribunal's reference to that concept as being a rejection of the concept in terms of it constituting a legal test.
The second conclusion that I reach is that whilst the Tribunal has referred to s.36(3) of the Act, it has not then proceeded to apply that subsection in this instance. Those conclusions are relevant in the light of submissions ultimately made and authorities referred to by the parties in this application.

Authorities relating to Article 1C

Both parties provided written submissions where reference was made to a decision of Emmett J in NBGM v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 1373 (NBGM). There is no dispute that NBGM has been followed and applied by other Federal Court justices on a number of occasions. It is noted, however, that the decision of Emmett J in NBGM is the subject of an appeal heard in May 2005 by a Full Court of the Federal Court of Australia and judgment has been reserved. The court was advised that as at the date of the hearing the decision of the Full Court has not been delivered.
After the parties filed submissions in this application a Full Court of the Federal Court of Australia delivered a decision in the matter of QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 136 (QAAH). Since reserving its decision the Court has become aware that QAAH is now subject to an application for special leave to the High Court of Australia. However, I do not regard that as a reason to delay delivery of this judgment.
The Respondent's counsel submitted that the Full Court decision of the Federal Court in QAAH was incorrect, though understandably was prepared to concede as submitted by the Applicant that this Court is bound by that decision.
Recently this Court delivered a decision whereby it applied the majority decision from QAAH. It is relevant to adopt and apply in this matter the conclusions previously reached by the Court in MZWLH v Minister for Immigration [2005] FMCA 1200 where I stated the following:-
“13.In the light of the QAAH decision it is not necessary for this Court to reconcile differences which may have been expressed amongst Federal Court Justices or to now follow the individual decisions of the Justices who followed the Emmett decision referred to earlier in this judgment. This Court is now bound by the Full Court decision of the Federal Court in QAAH and in my view it is appropriate for the Court to apply the decision of Wilcox J with whom Madgwick J agreed. In his judgment Wilcox J states the following:
“68 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.
69 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.
70 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.
…
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.
…
77 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.”
14.It should be noted that in QAAH Lander J dissented and in dealing with the reasons for dissent Wilcox J under the heading “Post Script” relevantly states the following:-
“83 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.
84 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.
85 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.
86 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).
87 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.”
15.In my view applying the decision of the majority in QAAH it is necessary and relevant for the RRT to have regard to the fact that the Applicant applied for and received a temporary visa. Accepting what the majority in QAAH states that fact was of “critical importance”. Hence the circumstances where the Applicant had previously been recognised as a refugee was the starting point for the consideration of the permanent visa application in the present case.
16.It is significant to note that Wilcox J in QAAH sets out in some detail United Nations High Commissioner for Refugees (UNHCR) material and in particular the “Guidelines on International Protection: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention Relating to the Status of Refugees” adopted by the UNHCR on 10 February 2003 (the 2003 Guidelines). Wilcox J then considers the use to be made of the 2003 Guidelines and states the following:-
“46 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.”
17.In my view one of the more significant passages from the 2003 Guidelines set out in the judgment of Wilcox J is paragraph 6 which provides as follows:-
“37 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.’”
In the present case the grounds relied upon by the Applicant in relation to Article 1C are correct applying the Full Court decision in QAAH. It is clear that the Tribunal when referring to the views expressed by commentators that for the purpose of cessation clauses, changes in the refugees country must be substantial, effective and durable or profound and durable that it has rejected those views when it states, “These expressions do not constitute legal tests”.
In its ‘Findings and Reasons’ it is clear that the Tribunal restricts itself to an assessment of the Taliban as a political movement or governing significant areas. In particular it is noted that it does not accept “that there any real chance of the Taliban re-emerging as a governing authority in Afghanistan in the reasonably forseeable future or otherwise being in a position to exercise control in the manner it did at the time the Applicant left Afghanistan, for example by forcibly conscripting young Hazaras”.
Whilst the Tribunal purports to refer to the Applicant’s own district, it does so in the context of its general assessment of the Taliban and does not in my view deal with the durability of the situation, either in Afghanistan or in the district of the Applicant and to that extent has fallen into error having regard to the decision of the Full Court in QAAH.
I am otherwise satisfied that further jurisdictional error in this case has occurred by the Tribunal restricting itself to consideration of the Taliban and should have included the Applicant’s support of the Wadhap party which had been referred to by the Applicant at the interview stage with the Respondent’s delegate in or about May 2000. This was clearly part of the circumstances in connection with which he was recognised as a refugee. It is submitted and I accept that that support had not changed and that the Tribunal had erred in interpreting the applicable law, that is Article 1C(5) of the Convention in a way which may have affected the decision and accordingly there has been a further jurisdictional error.

It is not necessary for the Court to further consider the other grounds relied upon.

Section 36(3) of the Act

The Respondent sought to rely upon s.36(3) of the Act in response to submissions made by the Applicant. Again, I refer to the decision of this Court in MZWLH where in relation to the application of s.36(3) the Court states the following:-
“26.It is noted that in the RRT decision and in particular the passage referred to earlier in this judgment (see paragraph 7) that the Tribunal further states that even if it were wrong in its conclusion about the application of Article 1C(5) that s.36(3) applied “irrespective of the operation of the cessation clauses”.
27.It is noted that this section did not appear to be agitated or considered in any detail by the majority in QAAH. It was submitted by the Respondent that the RRT correctly applied s.36(3) of the Act to the Applicant’s case and reliance was placed upon the reasons outlined in the Emmett decision.
28.Counsel for the Applicant submits and I accept that s.36(3) of the Act does not operate at all in relation to a person who has already obtained a protection visa. It is argued that that section 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 whether those countries were visited on the way to Australia or were counties where the person had a right to enter and reside either temporarily or permanently. It was noted that the provisions, that is sub-s.36(3)-(5) were introduced by the “Border Protection Legislation Amendment Act 1999 which received royal assent on 8 December 1999. The purpose of the amending sub-sections it was submitted was to cover situations where by no offending the principle of non-refoulement it could be said the person “would not be owed protection obligations where he had no availed himself of a right to return to a safe third country where he or she would not be persecuted or returned from there to a country where he would be persecuted”.
29.Counsel noted that the amending legislation followed decisions of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 and Tharmalingam v MIMIA (1999) FCA 1180. Reference was made in the alternative to s.36(3) not appearing to have any relevance in any event in the present case if a fresh assessment was required on the Applicant’s refugee status. Ultimately it was submitted that s.36(3) and (4) are not provisions have general application beyond the clear legislative purpose for which they were enacted.
30.It is noteworthy that the Full Court in QAAH was no doubt aware of s.36(3) and consistent with the reasons advanced by Counsel for the Applicant in the present case did not regard that section as being applicable to that case. If it was not applicable in QAAH then I find it difficult to conclude that it would apply in the present application. In my view the submissions made for and on behalf of the Applicant in relation to the operation of s.36(3) are correct. I do not regard that sub-section as operating in a manner which would detract from the task to be undertaken by the Tribunal in considering this application dealing as it does with the issue of the cessation of refugee status. To that extent I am satisfied that the RRT in this instance has made a further error of law and jurisdictional error when it made the finding set out earlier in this judgment that s.36(3) would apply in respect of the operation of the cessation clauses.’
It follows for the reasons stated in that earlier decision of this Court that I am satisfied that s.36(3) does not apply to the present application.

Conclusion

For the reasons stated in my view the Tribunal has erred and the decision of the Tribunal dated 24 May 2004 should be set aside and the matter remitted to a differently constituted Tribunal to be considered according to law.
The orders I propose making are as follows:-
There be an order in the nature of certiorari to quash the decision of the RRT made on 24 May 2004.
There be an order in the nature of mandamus requiring the RRT to review according to law the decision made by the delegate of the Minister on 27 September 2003 not to grant a further protection visa.
The First Respondent shall pay the Applicant’s costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 23 September 2005