FEDERAL COURT OF AUSTRALIA

NBGM v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1373

MIGRATION – application for permanent protection visa at expiration of temporary protection visa – whether Article 1C(5) of the Refugees Convention applies – whether Refugee Review Tribunal’s (‘RRT’) finding of removal of Taliban from power in Afghanistan is circumstance sufficient to attract the operation of Article 1C(5) of the Refugees Convention – whether ss 36(3),(4)&(5) of the Migration Act 1958 (Cth) apply - Role of RRT to assess significance attached to evidentiary material even in circumstances where evidentiary material before the RRT is capable of supporting contrary evidentiary conclusions.

Boarder Protection Legislation Amendment Act 1999 (Cth)

Migration Act 1958(Cth), ss 30, 31(2), 36, 36(1), 36(2), 36(3), 36(4), & 36(5), 65(1), 474(1), 474(2)

Refugees Convention 1951, Articles 1A(2), 1C(5), 1C(6), 32, 33 & 34

Refugees Protocol

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 approved

NBGM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

N816 OF 2004

EMMETT J

25 OCTOBER 2004

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

PROCEDURAL HISTORY

1                     The applicant is a male citizen of Afghanistan, born in 1979.  He is a Shi’ite (‘Shia’) Muslim of Hazara ethnicity.  He was born in the Jaghori district of Ghazni province in Afghanistan and he lived there until he left Afghanistan to come to Australia in August 1999.  The applicant arrived in Australia on 7 October 1999 without passport or visa.  On 7 December 1999 he applied for a protection visa under the Migration Act 1958 (Cth) (‘the Act’) Act and on 24 March 2000 he was granted a temporary protection visa.  On 3 April 2000, he lodged a further application for a permanent protection visa.  Because he was not eligible for the grant of a permanent protection visa at that stage, a decision on the second application was deferred. 

2                     On 16 September 2003, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a permanent protection visa.  The applicant therefore applied, on 2 October 2003, to the second respondent, the Refugee Review Tribunal (‘the Tribunal’), for review of the decision of the delegate.  On 5 April 2004, the Tribunal affirmed the delegate’s decision not to grant a further protection visa.  The applicant has now commenced this proceeding in the Court claiming Constitutional writ relief in respect of the Tribunal’s decision of 5 April 2004.

3                     The applicant asserts that, in reaching its decision, the Tribunal committed jurisdictional errors such that its decision was not a decision made under the Act and is therefore not a privative clause decision within the meaning of s 474(2) of the Act.  Accordingly, he says, the prohibition in s 474(1) on challenging the decision by legal proceeding has no operation.

GRANT OF PROTECTION VISAS

4                     Section 29(1) of the Act relevantly provides that the Minister may grant permission to a non-citizen to remain in Australia; such permission is to be known as a visa.  Under s 30, a visa may be permanent visa or a temporary visa.  Section 45 of the Act provides that a non-citizen who wants a visa must apply for a visa of a particular class.  Section 31(2) provides that, as well as prescribed classes of visas and classes of visas provided in other sections of the Act, there is to be a class of visas as provided by s 36.  Section 36(1) provides that there is a class of visas to be known as protection visas. 

5                     Section 65(1) provides that, after considering a valid application for a visa, the Minister must, if satisfied that relevant criteria have been satisfied, grant the visa.  If not so satisfied, the Minister must refuse to grant the visa.  Section 36(2) relevantly provides that a criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, as those terms are defined in s 5 of the Act (‘the Refugees Convention’). 

6                     The Refugees Convention imposes various protection obligations on Contracting States, of which Australia is one.  For example, Article 32 relevantly provides that the Contracting States must not expel a refugee lawfully in their territory, save on grounds of national security or public order.  Under Article 33, a Contracting State must not expel or return a refugee to the frontiers of territories where his/her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.  Article 34 requires Contracting States, as far as possible, to facilitate the assimilation and naturalisation of refugees.  Thus, protection obligations are owed to ‘refugees’. 

7                     Article 1 of the Refugees Convention defines the term ‘refugee’.  Under Article 1A(2), the term ‘refugee’ is to apply, relevantly, to any 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 (‘Convention Reasons’), is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling, to avail himself or herself of the protection of that country.  However, that definition is qualified by succeeding sections of Article 1.

8                     Thus, sections D, E and F of Article 1 provide that there are some persons to whom the Refugees Convention, or its provisions, are not to apply at all.  Those persons are as follows:

• Persons who are at present receiving protection or assistance from organs or agencies of the United Nations, other than the United Nations High Commission for Refugees.  (Section 1D)
• A person who is recognised by the competent authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.  (Section 1E)

·        Any person with respect to whom there are serious reasons for considering that he or she has committed certain crimes.  (Section 1F)

9                     On the other hand, sections C(5) and (6) of Article 1 relevantly provide that the Convention ‘shall cease to apply’ to certain persons.  Under Article 1C(5), the Convention is to cease to apply to a person who falls within Article 1A(2) if that person can no longer continue to refuse to avail himself or herself of the protection of the country of his or her nationality, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist.  Article 1C(6) contains a similar provision, in relation to a person who has no nationality, concerning the former habitual residence of such a person.  Both pars (5) and (6) are qualified in relation to a person who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of country of nationality or habitual residence as the case may be.

10                  Section 36(2) of the Act is qualified by s 36(3), which provides 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 certain other countries, apart from Australia.  Section 36(3) is itself qualified by ss 36(4) and (5).  The effect of ss 36(3), (4) and (5) is that Australia is to be taken not to have protection obligations, for the purposes of s 36(2), 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 other than:

• Australia,
• a country in which the non-citizen has a well-founded fear of being persecuted for Convention Reasons, or
• a country that the non-citizen has a well-founded fear would return the non-citizen to another country where the non-citizen would be persecuted for Convention Reasons.

AUSTRALIA’S recognition of the applicant as a refugee

11                  Because he did not have a passport when he arrived in Australia, the applicant was interviewed shortly after his arrival.  He said in that interview that he had left Afghanistan because the Taliban had begun conscripting young people to fight.  He said that the Taliban had conscripted one of his cousins and that the whereabouts of that cousin and the applicant’s brother were unknown.  He said that he feared that he would be conscripted if he returned to Afghanistan and that the Taliban did not like Shia Muslims. 

12                  In a statement dated 18 November 1999, which accompanied his original application for a protection visa, the applicant said that the Taliban had taken control of the Jaghori district a year previously and that ten months previously they had come to his village, which was a Hazara village, and had raided houses in search of weapons and young Hazara men.  He said that one of his cousins had been a member of the Hezb-e-Wahdat Party (‘the Wahdat’), a Hazara militia, and had been taken by the Taliban on the day they had entered the village.  He said that he does not know what happened to his cousin.  He said that when the Taliban had come he had fled into the mountains and that, subsequently, his father had been arrested by the Taliban.

13                 When interviewed by the Minister’s delegate on 1 December 1999, in connection with his original application, the applicant said that he did not have a specific job in Afghanistan.  He said that sometimes he helped his elder brother in his shop in the bazaar in Angori, where he sold corn, flour, tea and sugar and bought and sold motor cycles.  He said he worked in the shop 2 or 3 days a week.  The applicant said that he was not a member of the Wahdat but that his cousins were.  He said that his family sometimes supported the Wahdat.  He said that he believed that if he returned to Afghanistan the Taliban would kill him because they caught and killed any Hazara adult males.

14                  On 13 December 1999, a delegate of the Minister accepted that the applicant was a young male from the Hazara ethnic group in Afghanistan and that, if he returned to Afghanistan, he had a real chance of being captured by the Taliban and being forced to fight or be killed by them.  In the decision record, the delegate referred to information about the massacre of Hazaras by the Taliban following their capture of Mazar-I-Sharif in August 1998 and to the Taliban’s persecution of the Hazara minority.  The delegate accepted that the applicant had not been active in the Wahdat and had not fought or killed any other person.  The delegate also accepted that the Taliban controlled large areas in Afghanistan and that there were no areas where the applicant could be safe in Afghanistan, because he was readily identifiable as an ethnic Hazara by reason of his physical appearance and his language.  The delegate found, therefore, that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. 

15                  Accordingly, on 24 March 2000, the delegate decided, having been satisfied as to other relevant criteria, to grant the applicant a temporary protection visa.  The delegate concluded that the applicant did not satisfy the criteria for the grant of a permanent protection visa, because he was not immigration cleared, (as defined in s 172(1)), when he lodged his visa application. 

THE TRIBUNAL’S REASONS

16                  In its reasons for its decision of 5 April 2004, the Tribunal accepted that the applicant is a citizen of Afghanistan and referred to the delegate’s finding of 13 December 1999 that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention.  The Tribunal then said that the first question that arose was whether, in accordance with Article 1C(5) of the Refugees Convention, the applicant could no longer continue to refuse to avail himself of the protection of Afghanistan because the circumstances in connection with which he was recognised by Australia as a refugee had ceased to exist.

17                  The Tribunal said that, at a hearing to give the applicant the opportunity to explain his claims, it was put to the applicant that the Taliban had been removed from power in Afghanistan by mid-November 2001 and that the Taliban no longer existed as a political movement.  It was also put to the applicant that the Taliban did not pose a direct threat to the civilian population and that the targets of the Taliban were currently Coalition and Government security forces and international aid workers.  It was also put to the applicant that strengthening of the Taliban remnants in some parts of Afghanistan did not reach the Hazara areas of Jaghori district and was unlikely to do so without open conflict with the Wahdat. 

18                  The applicant told the Tribunal that all the world knew that the Taliban was no longer in power.  Nevertheless, he asserted that twelve Hazaras had been killed before Christmas, three of them from Jaghori.  He asserted that eight people from the international forces had been killed in the Hazara area of Ghazni province and that that sort of killing was going on every day. 

19                  The Tribunal made a finding that the Taliban had been removed from power in Afghanistan and that they are no longer in a position to massacre Hazaras or Shia Muslims in the manner referred to by the delegate in the original decision record of 13 December 1999.  The Tribunal did not accept that there was a real chance of the Taliban re-emerging as a viable political movement in Afghanistan in the reasonably foreseeable future.  Notwithstanding isolated incidents, such as the killing of twelve Hazaras, the Tribunal did not accept that the Taliban remnants remaining in Afghanistan were targeting civilians.  The Tribunal found that the targets of the Taliban were members of the Coalition and Government security forces and international aid workers.

20                  The Tribunal found that strengthening of Taliban remnants in some parts did not reach the Hazara areas of Jaghori district and that it was unlikely to do so without open conflict with the Wahdat.  The Tribunal did not accept that there was a real chance that the applicant would be persecuted by the remnants of the Taliban because he is a Hazara.  The Tribunal then made an express finding that, because the circumstances in connection with which the applicant was recognised as a refugee had ceased to exist, he can no longer continue to refuse to avail himself of the protection of Afghanistan for those reasons.  The Tribunal concluded, therefore, that Article 1C(5) of the Refugees Convention applied to the applicant. 

21                  However, against the possibility that it was wrong about the application of Article 1C(5), the Tribunal also went on to consider whether, as at the date of its decision, the applicant had a well-founded fear of being persecuted on the basis of the circumstances in connection with which he was originally recognised as a refugee.  It did so in order to determine whether s 36(3) of the Act applied to the applicant.  The Tribunal found that, as a national of Afghanistan, the applicant is able to avail himself of a right to enter and reside in Afghanistan.  The Tribunal found that, having regard to the changed circumstances in Afghanistan since the applicant was originally recognised as a refugee, the applicant no longer has a well-founded fear of being persecuted on the basis of the circumstances in connection with which he was originally recognised as a refugee.  The Tribunal concluded, therefore, that, quite apart from Article 1C(5), s 36(3) applies such that Australia does not have protection obligations to the applicant under the Refugees Convention in relation to the circumstances in connection with which he was originally recognised as a refugee. 

22                  The Tribunal then applied afresh to the applicant the test for refugee status.  The Tribunal considered whether, having regard to the situation in Afghanistan at the time of its decision, the applicant had a well-founded fear, if he returned to Afghanistan then or in the reasonably foreseeable future, of being persecuted for one of the Convention Reasons, by reason of the additional matters that were raised by the applicant for the first time at the hearing before the Tribunal.  At that hearing, the applicant claimed for the first time that an uncle was a member of the Sepah faction of the Wahdat and that he believed that another of his uncles had been involved in the Sepah faction as well.  The applicant claimed that, because his uncle was a member of the Sepah faction, he would be regarded as a member too.  He also outlined to the Tribunal a claimed fear of the Nasr faction of the Wahdat because of an association with the opposing Sepah faction. 

23                  The Tribunal referred to concerns expressed by the applicant in a further statement dated 3 October 2002, which was lodged in support of his application to the Tribunal for review.  The applicant said that, although he had been told that the Taliban was no longer in control of his home area, he believed that his village was now being fought over by various groups of the Wahdat.  He said that, before the Taliban had come to control the area, there had been two different Wahdat groups that had fought for control.  The applicant said that neither he nor his father nor any of his brothers had ever been involved with either of those groups.  He said, however, that he feared that, if he returned, he would be forced to join one of the Wahdat groups and would have to fight and kill for them.  He said that he feared that, if he refused to fight for a group, he would be accused of supporting one of the other groups and they would kill him.  He said that he also feared that the Taliban would return to his area in the future.

24                  The applicant claimed, in addition, that the Afghan government did not support or assist the Hazara people and that the government was controlled by Pashtun and Tajik people.  He said that the government had no control over his home area and it would not be able to protect him in his village.  He said that he also feared being persecuted because he was a Shia Muslim and the Pashtuns are all Sunni Muslims.  He said that the Pashtuns wanted the Shia religion out of Afghanistan.

25                  The Tribunal did not accept that members of the applicant’s extended family are members of the Sepah faction.  Nor did it accept that the applicant or other members of his immediate family are regarded as members of that faction as a consequence.  The Tribunal therefore concluded that there was not a real chance that the applicant would be persecuted by the opposing Nasr faction because of any real or perceived association with the Sepah faction. 

26                  The Tribunal also concluded that any discrimination against Hazaras in Afghanistan falls short of what is required to constitute persecution for the purposes of the Refugees Convention.  The Tribunal did not accept that there was a real chance that the applicant would be persecuted for reasons of his race, as a Hazara, if he returns to Afghanistan now or in the reasonably foreseeable future. 

27                  The Tribunal referred to the applicant’s claim that, outside Kabul, it was very hard for Hazara people to live and that, even in Kabul, Hazaras have problems.  The applicant claimed that, if he went back to Jaghori now, there would be no land and no work.  However, the Tribunal referred to the applicant’s evidence that, before the Taliban came to power, his family were doing very well in Jaghori.  The Tribunal did not accept that the applicant would not be able to run a shop, given that he assisted his brother in running his shop before the Taliban came.

28                  The Tribunal considered that the information available to it suggested that the situation of Shia Muslims in Afghanistan is generally good.  The Tribunal did not accept that there was a real chance that the applicant would be persecuted for reasons of his religion, as a Shia Muslim, if he returns to Afghanistan now or in the reasonably foreseeable future.  The Tribunal also found that hundreds and thousands of refugees have returned to Afghanistan from Iran and Pakistan and that the United Nations High Commissioner for Refugees is monitoring the return of those people to places like the applicant’s home area of Jaghori. 

29                  Having considered the totality of the applicant’s circumstances as a Hazara, a Shia Muslim and someone who will be returning to Afghanistan from a western country, the Tribunal was not satisfied, even taking into account the cumulative effect of all those circumstances, that the applicant has a well-founded fear of being persecuted for one of the Convention Reasons if he returns to Afghanistan now or in the reasonably foreseeable future. 

THE APPLICANT’S COMPLAINTS

30                  In his application to the Court, the applicant formulated, in the following way, the grounds upon which he contended that the Tribunal committed jurisdictional error:

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

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

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

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

2.         The Tribunal erred in purporting to determine the eligibility of the applicant by reference to s 36(3) of the Act.

3.         The Tribunal erred in purporting to assess the circumstances of the applicant against Article 1A(2), after holding that s 36(3) precluded the grant of a further protection visa.

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

5.         The Tribunal erred in ignoring evidence, which it accepted, that, as a Hazara, the applicant could have a well-founded fear of persecution in Afghanistan.

31                  However, the applicant also relied on written submissions, which do not coincide entirely with those grounds.  In his written submissions, the applicant said that the following legal questions are raised:

1.         In what circumstances does Article 1C(5) apply?

2.         In particular, must changes in the country of nationality be ‘substantial, effective and durable’ before they should be taken into account for the purposes of Article 1C(5)?

3.         Does s 36(3) provide a different constraint on recognition of protection obligations, additional to the operation of Article 1C(5)?

4.         Should an application be assessed against Article 1A(2) where the reasons for which refugee status is now claimed are unrelated to the circumstances in connection with which a person was originally recognised as a refugee?

The submissions asserted that the Tribunal committed jurisdictional error in addressing those questions and that, accordingly, its decision was invalid.

32                  It is convenient to deal separately with each of those four questions.

CONSTRUCTION OF ARTICLE 1C(5)

33                  The applicant contends for a construction of the Refugees Convention that involves an element of disconformity between Articles 1A(2) and 1C(5).  He contends that there may be cases where a person, if already recognised by a Contracting State, should be treated as not having lost that status or as not having that status until a reasonable period has elapsed, even if the person was not properly recognised as a refugee in the first place.  I do not accept that contention.

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

35                  A critical object of the Refugees Convention is that Contracting States will not expel or return a person to a country if that person has a well-founded fear of persecution for Convention Reasons.  The relationship between Articles 1A(2) and 33.1 is to be understood in that context, having regard to the adoption of similar language in both provisions.  Thus, in Article 1A(2) ‘refugee’ is defined in terms of a person who has a well-founded fear of being persecuted for Convention Reasons.  Article 33.1 prohibits a Contracting State from expelling or returning a refugee to the frontiers of territories where the life or freedom of the person would be threatened on account of Convention Reasons. 

36                  When Article 33.1 speaks in terms of a territory where the life or freedom of a person would be threatened on account of Convention Reasons, while the language is not identical, the concept is intended to correspond with the concept that underlies Article 1A(2).  That is to say, where a person, owing to well founded fear of being persecuted for Convention Reasons is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, a Contracting State must not expel or return that person to another territory where he or she would have a well founded fear of being persecuted for Convention Reasons namely, his or her life or freedom would be threatened on account of any Convention Reasons. 

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). 

40                  It may be appropriate, when considering the possible application of Article 1C(5), to assess whether a change in circumstances in the country of nationality is such as can properly be characterised as ‘substantial, effective and durable’.  However, the object of the enquiry is to determine whether the person who has been recognised as a refugee can still claim to have a well-founded fear of being persecuted, for a Convention Reason, in his or her country of nationality such that there is justification for his or her being unable or unwilling to avail himself or herself of the protection of that country. 

APPLICATION OF article 1C(5)

41                  The applicant says that the Tribunal failed to consider how it should properly go about ascertaining the circumstances in connection with which the applicant was recognised as a refugee in Australia and what it means to say that those circumstances have ceased to exist.  The applicant claims that the Tribunal failed to give adequate consideration to the underlying purpose of Article 1C(5).  He contends that, in Article 1C(5), the key concept is an unjustifiable refusal to seek the protection of the country of nationality of the asylum seeker. 

42                  The applicant says that such a concept envisages that protection is available and that the circumstances that gave rise to a well-founded fear of persecution no longer exist.  Thus, a precondition for the application of Article 1C(5) is that the protection of the country of nationality be available to the applicant.  The applicant contends that the Tribunal failed to address the question whether the government of Afghanistan is presently, and would be, in the reasonably foreseeable future, able to provide effective protection to the applicant in the Jaghori district of Afghanistan.  The applicant says that the Tribunal erred in that it did not enquire whether the changes in Afghanistan are ‘substantial, effective and durable’. 

WHETHER ARTICLE 1C(5) CHANGE OF CIRCUMSTANCE MUST BE ‘SUSTAINABLE, EFFECTIVE AND DURABLE

43                  The applicant contends that, once a person has been recognised by a Contracting State as a refugee within the meaning of Article 1A(2), the person is entitled to continue to be treated by that Contracting State as having that status unless there are changes in the country of nationality that are ‘substantial, effective and durable’.  He says that such change requires authoritative evidence that the changes are: 

• substantial, in the sense that the power structure under which persecution was deemed a real possibility no longer exists;
• effective, in the sense that they exist in fact, rather than simply promise, and reflect a genuine ability and willingness on the part of the home country’s authorities to protect the refugee; and
• durable, rather than transitory shifts which last only a few weeks or months.

44                  The applicant adopts that language from a paper prepared by the Minister’s Department ‘Interpreting the Refugees Convention – an Australian Contribution’, Department of Immigration and Multicultural and Indigenous Affairs, Canberra 2002.  However, care must be taken to ensure that the language of the Refugees Convention is applied rather than being replaced by substituted language: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572-573.  The Refugees Convention does not actually refer to a change in circumstances that is ‘substantial, effective and durable’.  Rather, it refers simply to particular circumstances ceasing to exist. 

45                  The applicant refers to material before the Tribunal on the basis of which he contends that it was not open to the Tribunal to conclude that there had been a change in circumstances such that the applicant could no longer continue to refuse to avail himself of the protection of Afghanistan.  He says that the material before the Tribunal belies its conclusion that there was no real chance that the applicant, as a Hazara, would be persecuted by the remnants of the Taliban if he returns to his home area of Jaghori district.  The applicant complains that relevant material before the Tribunal was not assessed by the Tribunal in relation to the question of protection available to the applicant if he were to be returned to that district.  The applicant complains that the fragile and transitional form of government extant in Afghanistan in April 2004 required an assessment by the Tribunal of whether effective protection was available to the applicant in the Jaghori district and that the Tribunal failed to make such an assessment. 

46                  In the course of the hearing in this Court, counsel for the applicant drew attention to independent country information that was before the Tribunal, extracts from which were cited in the Tribunal’s reasons.  The applicant contended, in effect, that the material was incapable of supporting a conclusion that effective protection was available to the applicant in Jaghori district.  It is therefore necessary to say something about the material. 

47                  In the section of the Tribunal’s reasons headed ‘FINDINGS AND REASONS FOR DECISION’, the Tribunal referred specifically to two documents described as follows:

• Afghan Country Information Report, dated 30 September 2003.
• Compilation of COI from Kabul in Response to RO Queries, dated 10 January 2004.

The applicant criticised the reliance placed upon those documents by the Tribunal in making its findings that the Taliban remnants remaining in Afghanistan are not targeting civilians and that the strengthening of the Taliban remnants in Zabul Province does not reach the Hazara areas of Jaghori district.

48                  The document of 30 September 2003 contains a series of questions and answers.  One of the questions and answers was as follows:

‘Q.       In what provinces, if any, would former Taliban and Al Qaeda operatives pose a threat to returnees?

 A.       Taliban and Al Qaeda operatives do not pose a direct threat to the civilian population, as their targets are currently coalition and government security forces and international aid workers.  Taliban and Al Qaeda operatives are active in Zabul, Helmand, Kandahar, Uruzgan and Ghazni provinces.’

That material is capable of supporting the Tribunal’s conclusion in those terms, namely, that the targets of the Taliban remnants are members of the Coalition and Government security forces and international aid workers, and not civilians. 

49                  The document of 10 January 2004 contains the following:

‘Assessment of Compl[i]mentary Protection for Jaghori

A new official District Administrator was appointed end June 2003, by Central and provincial government.  The new head of the district … is a former army officer, and was previously working with a local NGO.  He is an educated man, apparently not connected to any party, especially with any branch of Hezb-e-Wahdat.  He was warmly welcomed by the population who gathered in the district capital and pledged to put an end to the rule of weapons.

…

Even though the District Administrator’s personal position is still weak, he has enjoyed a good reputation since he took office and benefits from support from the provincial governor and the people, tired of the rule of armed elements.

FO Ghazni did not collect reports of continued abuses in the locations visited.  However, instances of robberies and land disputes are apparently common in the district.

…

Despite the calmer situation in Jaghori district specifically, when compared to other districts in Ghazni province, we would concur with your position of the need of the IC for complimentary protection, given that the overall situation in the Province of Ghazni is very volatile and rather unstable, coupled with absence of rule of law, increased coalition activities with impact on civilian lives and the inability of UNHCR to monitor returns effectively.

…

I notice that the Taliban appear to be regrouping in northern Zabul province which I understand neighbo[u]rs Jaghori District. 

Could this have a (decisive) impact in this case?

The strengthening of the Taliban in this area does not reach the Hazara areas of Jaghori district, and is unlikely to do so without open conflict with the Wahdat groups. … Although for civilians in Ghazni in general … UNHCR Afghanistan has expressed concern about the general security situation, absence of rule of law etc, in Ghazni for all civilians.  These concerns are noted in previous summaries of the deteriorating security in Ghazni, absence of UN presence, and impossibility of direct monitoring by UNHCR due to the security.

…’

50                  The applicant draws attention to the mention in the document of 10 January 2004 of the ‘absence of UN presence’ and the inability of the UNHCR to monitor returns directly, ‘due to the security’.  The applicant also refers to other material before the Tribunal to support a contrary conclusion about the threat posed by remnants of the Taliban and the inability of any State forces to effectively protect its civilians.  The applicant specifically refers to two other documents that were available to the Tribunal, which were only referred to briefly in the Tribunal’s reasons.  Those documents are:

• Update on Protection Activities – UNHCR field office Ghazni dated 1 October 2003.
• UNHCR Overview of Ghazni’s Security Situation dated 29 December 2003.

51                  The document of 1 October 2003 contains the following:

‘II        Monitoring in areas of return

A.        Priority Areas

‘Beginning of 2003, FO Ghazni has set a number of priority areas to be monitored, namely Moqur, Qarabagh, Nawa, Centre – selected for their high rate of return – as well as Nawur, Jaghori and Malistan districts, where protection problems were identified during 2002 monitoring.  This plan had to be modified to comply with security constraints and with the fact that four out of the six priority areas remained off-limits further to SMT decisions.  The killing of ARCS and DACAAR staff in August and September 2003, were additional indications of a deteriorating security situation.

However, the eleven following districts could be monitored, with the exceptional granting of security clearance to our missions, in Gilan notably, provided security escorts:  Moqur; Qarabagh:  Centre; Gilan: Nawur:  Jaghatu:  Deh Yak; Zana Khan:  Khwaja Omari:  Andar and Jaghori.

To date, a total of 267 HoFs were interviewed formally on RMFs, while addition informal monitoring was conducted in sensitive areas, such as Jaghori, Nawur and parts of Qarabagh districts.

…

C.        Reintegration prospects & economic Survival

However, monitoring revealed that a substantive part of the returnees had not stayed in their areas of return due to lack of job opportunities in their areas or difficulties to sustain their families’ needs with land owned, sometimes affected by drought.

…

E.        Security, rule of law and Constitutional process

…

FO Ghazni has been able in September 2003 to conduct a brief mission to Jaghori where the security situation and status of rule of law had apparently improved.  No abuses were reported and it was repeatedly stated that authorities were no longer asking bribes to deal with people’s complaints.  However, instances of robberies, and crimes, apparently related to personal enmities appear quite frequent.  In fact, it seems that the improvement of the situation is less related to the actual power of the District Administrator, than the close monitoring of the Head of Police, whose name was cited as being behind the past abuses, by the provincial authorities.

In Nawur, similarly, the situation has apparently improved:  a protection mission conducted in 17 villages in September 2003 did not reveal abuses.  Nevertheless, instances of forced contribution requested by armed elements in spring were reported in a village nearby Duabi (centre of the district).  A case of land usurpation was also reported, having occurred during Taliban’s rule.  However, further prolonged monitoring in Jaghori, Malistan and Nawur would be necessary to ascertain extent of the improvement.

…

Conclusion

Since the beginning of the year, FO Ghazni has further strengthened its monitoring activities, closely associating its counterpart of the DoRR.  Monitoring of Newly arrived returnees allowed FO to acquire better understanding of the dynamics behind the returns from Pakistan and Iran, notably on push factors.

Despite security-motivated restrictions, FO has been able to conduct monitoring in 11 of the 18 districts of Ghazni province.  While interviews conducted at ED/C tend to indicate optimism and desire to settle back in areas of return, it appears from monitoring in the field that sustainability of returns seems conditional to the creation of job opportunities in the province and increased access to water resources.

…

So far, returnees interviewed at ED/C indicate their impression of an improved security situation and similarly, no security related concerns were raised by interviewees in areas of return.  However, one has to bear in mind that the situation might be more precarious precisely in areas such as Nowa, Ab Band, Gilan and FO cannot access and even in districts already monitored in the first half of the year, and where security situation has since then deteriorated.  To date, all missions have anew been frozen for the whole SER.’

52                  The document of 29 December 2003 contains the following:

The Province of Ghazi, like all the provinces in the south-east region, is currently a high-risk area for UN staff due to the presence of Taliban supporters….

Jaghori district neighbours northern Zabul province where there has been significant recent upsurge of Taliban activity….

53                  The applicant says that the Tribunal failed to assess that material in relation to the question of the protection available to the applicant if he were to return to the Jaghori district region of Afganistan.  The material that the applicant refers to may be capable of giving rise to a conclusion that the region is unstable and the applicant is inherently at risk, should he return.  That would be a conclusion contrary to the conclusion reached by the Tribunal.  However, there is other material within the same reports to support the Tribunal’s findings, namely that the Taliban does not pose a direct threat to the civilian population and that, while remnants of the Taliban still existed, they were not active in the Hazara areas of the Jaghori district where the applicant would be returning.

54                  It is not for the Court to second guess the significance attached by the Tribunal to the evidentiary material before it.  That, in essence, is what the applicant has asked the Court to do.  It was open to the Tribunal, on the material before it, to conclude, as it did, that the applicant did not, as April 2004, have a well-found fear of being persecuted for one of the Convention Reasons if he returns to Afghanistan now or in the reasonably foreseeable future. 

APPLICATION OF 36(3) OF THE ACT

55                  The applicant also complains about the operation given by the Tribunal to ss 36(3), (4) and (5) of the Act.  The applicant submits that s 36(3) does not have any relevant operation in the present case.  He contends that s 36(3) does not operate at all in relation to a person who has already obtained a protection visa.  Rather, it is submitted that the section is directed to a person who has come to Australia to seek protection, in circumstances where there are other countries where that person could have sought protection, whether those countries were visited on the way to Australia, or were countries where the person had a right to enter and reside, whether temporarily or permanently. 

56                  The applicant says that, while the Taliban have ceased to be in power, there has not been a change sufficient to satisfy Article 1C(5).  If Article 1C(5) does not apply, then, according to Article 1A(2), the applicant is a person to whom Australia owes protection obligations and, because he is already in Australia and has been recognised as a refugee, the provisions of Section 36(3) have no operation because no question of ‘forum shopping’ arises.  The reference to ‘forum shopping’ arises from the explanatory memorandum published in explanatory memorandum published in connection with the Bill for the amendments that were made to the Act to insert ss 36(3), (4) and (5). 

57                  Those amendments were made by the Boarder Protection Legislation Amendment Act 1999 (Cth).  In the supplementary explanatory memorandum circulated by the Minister in connection with the Bill for that Act, the following observations appear:

‘Overview

Australia has comprehensive refugee determination processes in place to fulfil its obligations under the [Refugees Convention].  A significant number of persons seeking asylum in Australia are nationals of more than one country, or have rights of return or entry to another country, where they may reside free from persecution or forced return to the country where they claim they will be persecuted.  These persons attempt to use refugee processes as a means of by passing general immigration requirements to obtain residence in Australia.  This practice of seeking protection elsewhere, widely referred to as “forum shopping”, represents and increasing problem faced by Australia and other countries viewed desirable migration destinations.  The government believes that Australia’s obligations do not require these persons to be permitted to reside in Australia when they have protection from persecution in another country.

The purpose of these amendments … is to prevent the misuse of Australia’s asylum processes by “forum shoppers”.  These amendments will ensure that persons who are nationals of more than one country, or who have a right to enter and reside in another country where they will be protected, have an obligation to avail themselves of the protection of that other country.’

58                  Whatever may have been in the contemplation of the author of the explanatory memorandum, it only has relevance to the construction of ss 36(3), (4) and (5) in the event of ambiguity.  It is difficult to see any ambiguity.  Those provisions do not actually refer to forum shopping. 

59                  In any event, it is difficult to see what relevance s 36(3) has in the present circumstances.  If the applicant does not have a well-founded fear of persecution for one of the Convention Reasons, the criterion in s 36(2) would not be satisfied because Australia would not have protection obligations under the Refugees Convention.  There would be no need to consider, as the Tribunal did, whether the applicant had taken all possible steps to avail himself of a right to enter and reside in his country of nationality, namely, Afghanistan.  Section 36(3) is directed to the same concern that is addressed by Article 1E, although their operation is not co-extensive.  Article 1E refers only to a country where a person ‘has taken residence’.  Section 36(3), as qualified by ss 36(4) and 36(5), is not limited to a country in which a person has taken residence.  It applies in relation to any country in which the person has a right to enter and reside.

FRESH ASSESSMENT UNDER ARTICLE 1A(2)

60                  There may be many reasons why a Contracting State would invoke Article 1C(5) sparingly.  The reasons might include a desire to maintain a degree of stability for refugees.  Frequent review of the status of a person who has been recognised as a refugee could be detrimental to a sense of security that the Refugees Convention is designed to provide.  The Refugees Convention does not provide any requirement for systematic review of status to determine whether particular circumstances have ceased to exist. 

61                  To that extent, the possibility of temporary protection that would arise by the grant of a temporary protection visa under the Act is not expressly contemplated by the Refugees Convention.  The scheme of the Act in requiring a fresh application following the expiration of a temporary protection visa does not necessarily sit comfortably with the framework of the Refugees Convention.  Nevertheless, the scheme of the Act is unambiguous in requiring a fresh application for a protection visa on the part of a person who wishes to remain in Australia after the expiration of a temporary protection visa.

62                  The Tribunal was not considering the revocation of a protection visa.  Nor was the Tribunal considering an application for the extension of a temporary protection visa.  The Tribunal was considering a fresh application for the grant of a permanent protection visa.  That required, under s 36(2), that the Tribunal, standing in the shoes of the Minister be satisfied, that the applicant is, at the time of the decision, a person to whom Australia has protection obligations under the Refugees Convention.

63                  On one view, Article 1C(5) had no part to play in that question.  The only question was whether, at the time of the Tribunal’s decision, the applicant was a person who, owing to a well-founded fear of being persecuted for Convention Reasons, was unable, or owing to such fear, unwilling to avail himself of the protection of Afghanistan.  Even if, as at December 1999 the applicant had been a person to whom the term ‘refugee’ within the meaning of the Refugee Convention applied, the question before the Tribunal was whether that term applied to the applicant as at April 2004.  The Tribunal concluded that the applicant was not, as at that time, a person to whom the term refugee, as defined in the Refugees Convention, applied.  There was no error in its reasoning in doing so.

64                  In reaching its conclusion, it was necessary for the Tribunal to have regard to all of the applicant’s claims, whether they were made in connection with his original application or his subsequent application.  The Tribunal did so.  It is not the Court’s function to second guess the Tribunal’s conclusion in relation to the assessment of the material before it in that regard.

65                  The Tribunal properly started with the position that the Refugees Convention applied to the applicant as at December 1999.  That being so, it was appropriate to consider whether the circumstances in connection with which the applicant had so been recognised as a refugee had ceased to exist.  The circumstances in connection with which the applicant had been recognised by the Minister’s delegate in December 1999 as a refugee were, as indicated above, that the applicant was a young male from the Hazara ethnic group in Afghanistan and that, if he returned to Afghanistan, he had a real chance of being captured by the Taliban and being forced to fight or be killed by them.  The delegate accepted in December 1999 that the Taliban controlled large areas in Afghanistan and that because he was readily identifiable as an ethnic Hazara, there were no areas where the applicant could be safe in Afghanistan.  Clearly enough, that was a conclusion that the applicant had a well-founded fear of persecution in Afghanistan by reason of his race; one of the Convention Reasons.  The applicant’s fear was of persecution by the Taliban, who controlled Afghanistan at that time.

66                  There was no jurisdictional error on the part of the Tribunal in adopting the course of considering the material before it to determine whether those circumstances had ceased to exist.  After examining the country information material before it, the Tribunal found that the Taliban had been removed from power in Afghanistan and were no longer in a position to massacre Hazaras or Shia Muslims in the manner found by the delegate in her conclusion of December 1999.  The Tribunal did not accept that there was a real chance of the Taliban re-emerging as a viable political movement in Afghanistan in the reasonably foreseeable future.

67                  While the Tribunal recognised that there were Taliban remnants remaining in Afghanistan, the Tribunal found that the targets of the Taliban remnants were not civilians but members of the Coalition and Government security forces and international aid workers.  The Tribunal found that the strengthening of Taliban remnants in Zabul province did not reach the Hazara areas of Jaghori district of the applicant.  Accordingly, the Tribunal did not accept that there was a real chance that the applicant would be persecuted by the remnants of the Taliban by reason of his being a Hazara.  It is for that reason, that the Tribunal found that the circumstances in connection with which the applicant had been recognised in Australia as a refugee had ceased to exist.  There was no jurisdictional error in the Tribunal’s approach. 

CONCLUSION

68                  The applicant has not demonstrated any jurisdictional error on the part of the Tribunal that would render its decision of 5 April 2004 something other than a decision under the Act.  It follows that, because of s 474(1) of the Act, the applicant is not entitled to any relief in respect of any error, if any, that the Tribunal may have committed.  The application must be dismissed with costs.

Associate:

Dated:              25 October 2004