Minister for Immigration and Multicultural and Indigenous Affairs v Qaah of 2004

• Jurisdiction: Australia Federal only
• Judge: Gummow ACJ,Callinan,Heydon,Crennan JJ,Kirby J
• Judgment Date: 15 November 2006
• Neutral Citation: 2006-1115 HCA A,[2006] HCA 53
• Date: 15 November 2006
• Court: High Court
• Docket Number: B2/2006

[2006] HCA 53

HIGH COURT OF AUSTRALIA

Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ

B2/2006

Minister for Immigration and Multicultural and Indigenous Affairs

Appellant

and

Qaah of 2004 & Anor

Respondents

Representation

S J Gageler SC and S B Lloyd for the appellant (instructed by Clayton Utz Lawyers)

B W Walker SC with M O Plunkett for the respondent (instructed by Terry Fisher & Co)

Submitting appearance for the second respondent

S P Estcourt QC with J A Gibson appearing on behalf of the United Nations High Commissioner for Refugees as amicus curiae (instructed by Mallesons Stephen Jaques)

Words and phrases — ‘refugee’, ‘protection obligations’, ‘cessation’.

Migration Act 1958 (Cth), ss 5(1), 36.

Convention relating to the Status of Refugees, Art 1A, Art 1C(5).

Protocol relating to the Status of Refugees.

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004

Immigration — Refugees — Application for permanent protection visa — Statute requiring Minister to be satisfied Australia owes protection obligations to the applicant under the Convention — Applicant previously granted temporary protection visa for a specified period — Whether previous grant of temporary protection visa entitles applicant on application for a new visa to a presumption of being owed protection obligations under the Convention — Construction of Migration Act 1958 (Cth), s 36 — Construction of the Convention.

ORDER

1. Appeal allowed.

2. Set aside Orders 1 and 2 (except par 3 of Order 2), of the orders made by the Full Court of the Federal Court of Australia on 27 July 2005 and in their place order that the appeal to that Court be dismissed.

3. Appellant to pay the costs of the first respondent of the application for special leave to appeal and the appeal.

1 Gummow ACJ, Callinan, Heydon and Crennan JJ. The principal question in this appeal is whether an entrant to Australia, who has been granted a temporary protection visa, is, on its expiry, and notwithstanding benign changes in the conditions of the country from which he fled, entitled under Australian law to assert that he continues to be a person to whom Australia owes protection obligations. Other questions, as to the proper construction of the Convention relating to the Status of Refugees 1, taken with the Protocol relating to the Status of Refugees 2 (together, ‘the Convention’), as they have been received into Australian law in the Migration Act 1958 (Cth) (‘the Act’), and the nature and onus of proof in proceedings concerning refugees, arise for consideration. An application for special leave to appeal in NBGM v Minister for Immigration and Multicultural Affairs3, which raised similar questions, was argued at the same time as this one.

2 The Act is to be read against the consistent refusal of nation states to accept, apart from any limitations imposed by treaties to which they are parties, any abridgment of their authority to determine for themselves whether or not a right of entry and of permanent settlement should be afforded to any individual or group of individuals. Statements in this Court to that effect have been adopted by the House of Lords in R (European Roma Rights) v Prague Immigration Officer4 and Januzi v Secretary of State for the Home Department5.

Facts and proceedings

3 The first respondent is a citizen of Afghanistan. He is of Hazara ethnicity, and is a Shi'a Muslim. He arrived in Australia on 27 September 1999. On 28 March 2000 he was granted, by a delegate of the appellant, a temporary protection visa to expire after three years. He applied on 17 April 2000 for a

permanent protection visa. On 27 March 2003, another temporary protection visa was issued to him pending a decision upon his entitlement to a permanent visa. That decision was given some months later and was adverse to the first respondent.

4 Under s 36(2)(a) of the Act, a criterion for the issue of a protection visa is that the applicant is a non-citizen, present in Australia, and a person to whom, the Minister is satisfied, Australia owes protection obligations under the Convention 6.

5 Following the decision of the appellant's delegate, denying the first respondent a permanent protection visa, the first respondent applied to the Refugee Review Tribunal (‘the Tribunal’) for review.

6 The Tribunal affirmed the decision of the appellant's delegate. In doing so, the Tribunal posed for itself two questions, to the first of which, as will appear, there was a dispute whether an answer was required in the circumstances. It was whether the cessation provision (Art 1C(5)) of the Convention applied. The second question was said to be whether there was new evidence, to suggest that the first respondent was currently a ‘refugee’ for the purposes of the Act.

7 The Tribunal answered the first question by holding that the cessation provision did apply: the first respondent could no longer continue to refuse to avail himself of the protection of Afghanistan. The Tribunal accepted that the extremist group, the Taliban, if it were still in power, would have persecuted the first respondent because of his Hazara ethnicity, and because he is a Shi'a Muslim. But, the Tribunal observed, the Taliban had been effectively dislodged from power by late 2001: even though remnants of the Taliban remained active in some parts of the country, it had ceased to be a coherent political movement. Further, the Tribunal did not accept that there was a real chance of the re-emergence of the Taliban as an effective authority in the reasonably foreseeable future: there was no satisfactory evidence to support the first respondent's assertion that in a neighbouring province the Taliban maintained a real power base. The first respondent had also claimed to fear harm from a number of other sources, all because of his ethnicity and religion. As to this claim, the Tribunal found that he did not have a real chance of being persecuted by any of the people or groups whom he identified. The Tribunal accordingly concluded that the first respondent did not have any well-founded fear of persecution.

8 The first respondent unsuccessfully applied to the Federal Court of Australia (Dowsett J) for judicial review of the Tribunal's decision 7.

9 Dowsett J was of the opinion that the Tribunal did not need to consider both of the questions. He said 8:

‘In my view, it follows that the question for the Tribunal in the present case was whether or not, at the time of the decision, the [first respondent] had a well-founded fear of persecution for a Convention reason. It was not strictly relevant that he had previously applied for and received temporary … visas. In other words it was not necessary to decide whether or not the cessation clause had been engaged as a result of changed circumstances in Afghanistan. The [first respondent's] argument to the contrary is that identified by Dawson J in Chan at 398 [9], which argument was, in my view, rejected by the High Court.’

His Honour went on to say 10:

‘In my view, the [first respondent's] entitlement to a permanent visa depended upon the circumstances as they were at the time of the Tribunal's decision, meaning that it was necessary that he then hold a well-founded fear of persecution for a Convention reason. His argument to the contrary is without merit. If I am wrong in my understanding of the decision in Chan, nonetheless, the [first respondent's] argument would still fail. The cessation clause will be engaged if “the circumstances in connexion with which [the first respondent] has been recognized as a refugee have ceased to exist”. It cannot be sensibly argued that Australia has ever recognized the applicant as a refugee other than in conne[x]ion with circumstances as they existed in March 2000. As I understand it, the applicant accepts that those circumstances have ceased to exist. No recognizable legal basis has been advanced on behalf of the applicant to support the assertion that the grant of the temporary (XC) visa in 2003 raises a conclusive presumption that he was entitled to a visa on the basis

of circumstances which then existed. Those circumstances were never identified or relied upon by the applicant and never considered by the Minister. The [first respondent's] argument is without merit.’

10 The first respondent appealed to the Full Court of the Federal Court, which, by majority, allowed the appeal (Wilcox and Madgwick JJ, Lander J dissenting) 11.

11 Wilcox J (with whom Madgwick J agreed) took the view that the appellant bore an onus of proving that the first respondent was no longer a ‘refugee’ for the purposes of the Act 12. Wilcox J said that there was a real and significant difference between an obligation that might be imposed upon a refugee to prove that he remained a refugee, and an obligation upon the Executive to establish the contrary under the cessation provision 13. The majority held that in order to attract the operation of the cessation provision, the appellant had to advance positive evidence that there had occurred in Afghanistan changes in circumstances which were substantial, effective and durable, or profound and durable, and incompatible with a real chance of future Taliban persecution of the first respondent 14.

12 The majority of the Full Court concluded that the Tribunal had made jurisdictional errors, first, in failing to investigate, and make findings about the extent of Taliban activity in Afghanistan, in particular in the area of the first respondent's home, as well as any likely increases in that activity 15; secondly, in failing to consider the stability of the Afghan government 16; thirdly, in failing to express its findings in the context of the applicability or otherwise of the cessation clause 17; and, fourthly, in determining the first respondent's claims in

the absence of information...