FEDERAL COURT OF AUSTRALIA

SZFBS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1296

Migration Act 1958 (Cth), s 36

Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951, Arts 1A(2), 1C(5)

NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60, considered

QAAH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363, considered

SZFBS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 275 OF 2006

TAMBERLIN J

SYDNEY

29 SEPTEMBER 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Emmett FM delivered on 30 January 2006 dismissing an application for review of a decision of the Refugee Review Tribunal (“RRT”) handed down on 27 October 2004. The RRT decision affirmed a decision of the Minister’s delegate refusing to grant the appellant a protection visa.

2                     The appellant is a 28 year old male who is a citizen of Afghanistan and of Hazara ethnicity and Muslim Shia religion. He arrived in Australia on 16 December 1999 having departed Afghanistan illegally in October 1999 travelling with people smugglers. The appellant was granted a protection visa on 13 July 2000, providing him with three years temporary residence in Australia.

3                     In January 2001, the appellant applied for a further protection visa. On 27 May 2004, the Department notified the appellant that it had refused his application for a protection visa on the basis that the appellant was no longer a person to whom Australia owes protection obligations under the Refugee Convention.

4                     On 23 June 2004, the RRT received an application for review of the decision of the Minister’s delegate and the appellant attended a hearing before the RRT on 1 September 2004. On 30 September 2004, the RRT affirmed the decision of the delegate not to grant the appellant a protection visa.

5                     On 22 November 2004, the appellant filed an application in the Federal Magistrates Court seeking judicial review of the decision of the RRT. After a careful review of the decision and reasons of the RRT, Emmett FM found that there was no jurisdictional error because the circumstances in connection with which the appellant was recognised as a refugee had ceased to exist. Her Honour found that the findings of the RRT were reasoned and open to the RRT on the material and evidence before it.

6                     In the Notice of Appeal filed on 17 February 2006, the ground raised is that the Court erred in finding that the RRT had correctly interpreted and applied Article 1C(5) of the Refugees Convention.

7                     Shortly before the matter came on for a hearing before me, the respondent filed a Notice of Contention on 23 May 2006 which contended that the decision of Emmett FM should be affirmed on grounds other than those relied upon by her Honour, namely, that the RRT was required to consider whether the appellant had a well-founded fear of persecution for a Convention reason. It was submitted that this was significant because the RRT found that, as at the date of its decision, the appellant did not have a well-founded fear of persecution in Afghanistan for any Convention reason, and that this has the consequence that the appeal must be dismissed.

8                     Counsel for the appellant opposed the hearing of the Notice of Contention on the basis that it had been filed at the last moment, and that he was not in a position to address it at that point in time. I accommodated this concern by allowing the Notice of Contention to be filed, but reserving the rights of the appellant to address by way of written submissions the arguments put forward by Counsel for the Minister on this question. Counsel for the appellant filed those submissions in relation to the Notice of Contention on 31 May 2006, and a reply was filed on behalf of the Minister on 6 June 2006.

the decision of the federal magistrate

9                     In the reasons given by Emmett FM in relation to Article 1C(5), her Honour considered submissions on behalf of the appellant to the effect that the RRT had misapplied the test under Article 1C(5) by construing its task too narrowly. Her Honour rejected the submissions, concluding that the Tribunal had considered the correct test and paid due regard to the relevant material in concluding that there had been a fundamental change in the circumstances in connection with which the appellant was recognised as a refugee. Her Honour also found that in making its findings in relation to the reasonably foreseeable future, the RRT had properly considered the durability of those changes. The Federal Magistrate found that the RRT had given wide import to the words “circumstances in connexion with” and made findings accordingly. In relation to the findings concerning new claims put forward by the appellant before the RRT, her Honour found that these findings were open to the RRT on the material and the evidence. These findings were not challenged by the appellant before the Federal Magistrate.

article 1C(5)

10                  I now turn to the first question which concerns the application of Article 1C(5) of the Refugees Convention. Section 5(1) of the Migration Act 1958 (Cth) (“the Act’) defines “Refugees Convention” and “Refugees Protocol” (“the Convention”) as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees. Article 1C(5) of the Convention provides that the Convention shall cease to apply to an appellant if:

“He can no longer, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.”

11                  In the Amended Notice of Appeal, the appellant made several submissions in relation to this question. The appellant claims that the learned Federal Magistrate:

(a)    erred in failing to recognise that the RRT, rather than applying Article 1C(5) to the circumstances of the appellant, had simply applied Article 1A(2);

(b)   erred in finding that the RRT had engaged in the enquiry demanded by Article 1C(5) rather than confining its consideration to changes in the political and military balance of power in Afghanistan;

(c)    erred in effectively equating “…the circumstances in connexion with which [a person] was recognised as a refugee” in terms of Article 1C(5) with a test of the reasons for recognition as a refugee;

(d)   erred in failing to appreciate that the term, “ceased to exist” in Article 1C(5) requires a fundamental change in the whole of the circumstances that surrounded the appellant’s flight from Afghanistan and his recognition as a refugee in the first place; and

(e)    erred in failing to assess the clarity of the reality and durability of the change in relevant circumstances in Afghanistan.

12                  The appellant contended that the RRT did not formulate the correct test as to what must be shown before Article 1C(5) can apply. It was also submitted that the RRT did not properly apply the correct test and thereby reached the wrong conclusion.

13                  At page 5 of its reasons, the RRT observed that:

“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 … 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 .” (Emphasis added)

14                  The appellant argues that the RRT did not treat the views expressed by commentators as being the test for application of Article 1C(5). In support of this, the appellant refers to the recent decision of the Full Federal Court in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60 at [184] where Allsop J, with whom a majority of other judges agreed, said:

“The approach is not to ask whether a claim of such a well-founded fear has been made out, but to ask whether, in respect of someone who has been recognised as a refugee (that is who has made out that claim), circumstances have so changed as to warrant the conclusion that the well-founded fear which previously existed can no longer be maintained as a basis for refusing to avail himself or herself of the protection of the country of nationality and, so, that the protection of the Convention should cease. A lack of demonstrable clarity in the reality and durability of the change in relevant circumstances will lead to the grounds for cessation not being established.” (Emphasis added)

15                  I accept that for the purpose of the present case the emphasised formulation of the test is appropriate and that this was the test addressed by the RRT.

16                  The appellant submits that the observation by the RRT that the expressions of the commentators (which were to similar effect as the approach later enunciated by Allsop J) do not constitute “legal tests” evidences that the wrong test was applied by the RRT.

17                  I do not accept this submission. The correct test is enunciated by the RRT. The RRT rightly notes that it is important to return the language of the Convention and there is no reason to doubt that the RRT has done this. The use of the expression “legal tests” does not signify that the RRT has adopted a different or inconsistent approach, but rather that it was conscious of the need to apply the language of the Act. On a fair reading of the reasons, I consider that the RRT has sought to apply and has formulated the correct approach to the question, while at the same time bearing in mind the importance of giving primacy to the language of the Convention.

18                  In addition, the appellant submits that in the application of the test to the circumstances of the case, the RRT has not correctly applied the test because it has ignored a number of relevant circumstances.

19                  In order to understand the circumstances in which refugee status was originally conferred in July 2000, it is essential to consider the protection visa decision record in relation to the assessment of the claims. The original application for the first protection visa encompasses two claims. The first is a claim of well-founded fear of persecution for reasons of Hazara ethnicity and the second is a claim of well-founded fear of persecution for reasons of Shia religion.

20                  In relation to the original application, the delegate summarised the relevant findings in this way:

“I am satisfied that the applicant is an ethnic Hazara Shia Muslim from Wahdat Province and that he is a person who would come to the adverse attention of the Taliban. The overwhelming independent country information indicates that the Taliban’s treatment of members of the Hazara ethnic minority and of Shia devotees is persecutory.

I am satisfied that although the applicant was briefly mistreated by the Taliban against the background of available information recounting the suffering of the Hazara people in recent years, this does not diminish the chance that he would face persecution for reasons of race and religion if he were to return to Afghanistan.

I consider that there is a real chance that the Taliban would have an ongoing interest in the applicant and that the applicant does have a well-founded fear of persecution for a Convention reason now and in the reasonably foreseeable future.”

21                  The appellant applied for a second protection visa in January 2001. In May 2004, the delegate of the Minister refused the application for a second visa and summarised the relevant reasons as follows:

“The independent country information indicates that the applicant’s home district Behsood II district of Wardak-Maidan province in the central Afghanistan is controlled by Hizbe-e Wahdat (Khalili) and that the security situation in the province is relatively safe, with district authorities and security apparatus in place and no evidence of recent inter-factional and/or tribal conflicts between Hazaras and other ethnic groups…

I do not consider that the applicant would be at risk of persecution on political grounds or that he would be perceived to be a threat to the power of the commanders and factions in his home district of Behsood II, as he does not have any political profile and/or affiliation. I do not consider that he would face serious harm and systematic and discriminatory conduct for a Convention reason along ethnic, political or religious lines in his home district on return.”

22                  In affirming the decision of the Minister’s delegate to refuse the appellant a second protection visa, the RRT referred to independent evidence and said it was satisfied that the circumstances in Afghanistan had fundamentally changed with the ousting of the Taliban by Coalition forces and establishment of the Transitional Authority in 2001. The RRT was satisfied that this situation would last for the foreseeable future, given the active involvement of the United Nations in the reconstruction of the country and the continued presence of international forces in Afghanistan, which are both referred to in the independent evidence. The RRT noted that the independent evidence did not indicate a withdrawal or a reduction in the international commitment to rebuild Afghanistan.

23                  The RRT referred to the independent evidence concerning recent Taliban activity and interpreted it as indicating that remnants of the Taliban exist and are still active. It observed that several reports stated that the Wardak province is a Taliban stronghold, but also noted that this information was unclear because the reports did not indicate any Taliban activity in that province. The RRT considered that in any event, the evidence under the heading “Recent Taliban Activity” indicated that since the Taliban were ousted from power their targets had not been Hazaras or Shias but international forces, aid workers, the Afghan Government and Afghan police and security personnel. In light of these considerations, the RRT found that the circumstances in connection with which the appellant was recognised as a refugee ceased to exist and that consequently he ceased to be a refugee in accordance with Article 1C(5) of the Convention.

24                  The appellant contends that there was an error in these findings in relation to country conditions which is sufficient to invalidate the RRT decision. It is submitted by the appellant that it was not reasonably open to the RRT to reach its conclusion. The appellant argues that the RRT focused only on the change in political power and change in the balance of military power in Afghanistan, and that the inquiry by the RRT into the relevant circumstances was too narrowly confined.

25                  In addition, it is submitted that the RRT did not consider the reality and durability of the appellant’s safety. The appellant argues that the reference by the RRT to the “foreseeable future” discloses an error because by restricting the evaluation of the “fundamental change in circumstances” to such a limited time frame, the RRT provided insufficient analysis to demonstrate that the circumstances are so changed that the case is brought within the ambit of Article 1C(5).

26                  The appellant also contends that the antagonism of the Taliban towards the Hazaras and Shias was not properly evaluated. It is submitted that an inquiry into the “reasonably foreseeable future” provides a more appropriate approach in the analysis of whether a person has a well-founded fear of persecution, as opposed to assessing whether a previously existing situation has ceased to exist. It is argued that this results in a more positive and different finding in relation to the reasonableness of the basis for a fear of persecution.

27                  In addition, the appellant points to country information referred to by the RRT which demonstrates that the Taliban remains a well-organised and active group, and that its resurgences have contributed significantly to an extreme lack of security in Afghanistan. This statement appears in a report by Amnesty International of January 2004, published some nine months before the RRT decision. The appellant also argues that there exists strong evidence of the historical hatred between the Sunni Pusthuns, a group which includes members of the Taliban, and the Shia Hazaras. The Amnesty International report also refers to factional in-fighting that been exacerbated by a general lack of security and the internal displacement of persons during the conflict.

28                  Furthermore, the appellant points to the qualified nature of several statements in relation to the security situation in Afghanistan as described in the country information. In particular, reference is made to the use of the word “relatively” in the statements of the RRT regarding the stability of the Behsood district within Wardak, an area where the appellant was located. There are references to the district of the appellant in Behsood being relatively safe but also to the Wardak Province being a stronghold for the Taliban.

29                  In addition, the Australian Department of Foreign Affairs and Trade advised in November 2003 that the Taliban operators did not pose a direct threat to the civilian population as their targets were predominantly Coalition and government security forces and international aid workers. It is submitted this statement leaves open the possibility of the existence of an “indirect threat”. This material predates the later material from Amnesty International dated January 2004 which refers to the persons targeted by the Taliban as including Coalition and government security forces as well as staff from international organizations and humanitarian assistance groups.

30                  In considering the evidence before it, the RRT is not bound to accept any of the above information. The determination of the question of whether the conditions in Afghanistan had changed is one of fact within the jurisdiction of the RRT. The fact that the RRT considers that the substantial change in conditions, which it found to exist, will last into the foreseeable future cannot be described as an error of law on the basis that it was not reasonably open to the RRT on the material before it or embodied an incorrect approach. The reasons make it clear that there was a finding of fact that the conditions which previously prevailed had ceased to exist with a sufficient degree of durability and reliability to comply with Article 1C(5) of the Convention.

31                  In my view, from the available material, I do not think that the RRT erred in forming the view that it had been demonstrated with clarity that there was a reliable and durable change in Afghanistan in relation to the circumstances of the appellant.

32                  I accept the submissions of the respondent in respect of the application of Article 1C(5). This conclusion, however, does not however finally resolve the matter. There is an outstanding question as to the application of s 36(3), (4) and (5), to which I now turn.

section 36(3)-(5)

33                  Subsection 36(2) of the Act provides that a criterion for 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. However, this subsection is qualified by 36(3) – (5) as outlined below.

Section 36

…Protection obligations

(3)  Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.

(4)  However, if the non‑citizen has a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

(5)  Also, if the non‑citizen has a well‑founded fear that:

(a)  a country will return the non‑citizen to another country; and

(b)  the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

subsection (3) does not apply in relation to the first‑mentioned country.

34                  The appellant submits that once it is established an applicant has attracted the protection obligations under the Convention relating to refugee status, that protection can only cease if Article 1C(5) has been satisfied, and that therefore the RRT erred in this case by having regard to s 36(3)-(5). It is contended by the appellant that s 36(3)-(5) does not operate to require an applicant to demonstrate that he or she had a well-founded fear of persecution as at the date of the RRT determination concerning the application for a permanent protection visa.

35                  The respondent submits that the amendments to s 36 set out in ss (3)-(5) apply to the appellant, and that it is therefore necessary for the RRT to be satisfied on the material in evidence at that point in time that the applicant has a well-founded fear of persecution for a Convention reason. In this case, it is argued that the appellant failed to meet this requirement and that Australia has no present protection obligations to the appellant.

36                  The respondent relies on the recent decision of the Full Federal Court in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60. Black CJ, Mansfield and Stone JJ agreed that s 36(3)-(5) had to be satisfied in respect of an application for a permanent protection visa where the person had been previously accepted as a refugee at an earlier time. Black CJ at [25] referred to the concurrence of Mansfield J at [59] and Stone J at [149] in these terms:

“… whilst there are two lines of reasoning leading to the majority conclusion that the appeal should be dismissed, there is a common conclusion about the task to be performed by the decision-maker on an application for a permanent protection visa where the relevant circumstances are said to have changed since the appellant was granted a temporary protection visa. The majority would agree that s 36 mandates that the decision-maker must be satisfied that, at the time the decision is made, the appellant for a permanent protection visa then has a well-founded fear of persecution for a Convention reason. The circumstance that a previous decision-maker was satisfied that the applicant had such a fear when a temporary protection visa was granted is not sufficient to establish what s 36 requires.” (Emphasis added)

37                  In my view, the above statement of principle by the majority accords with a reasonable interpretation of the language of s 36(3)-(5). In terms, s 36(2) requires that whenever there is an application for a protection visa of any kind, the Minister must be satisfied that Australia has protection obligations to the applicant. Subsections (3), (4) and (5) expressly exclude the operation of such obligations unless the person has a well-founded fear of persecution on Convention grounds. These provisions are in terms calculated to enliven a requirement that there must exist a well-founded fear where a new claim is made for a protection visa. The making of the claim expressly activates the requirement and this is not displaced by generalised overtones which are said to emerge inferentially from the terms of Article 1C(5) when that provision did not contemplate legislative modifications of the type enacted in s 36.

38                  The above statement in NBGM is the most recent Full Court statement on the question as to the interpretation and interaction between s 36 as amended and Article 1C(5), and I am bound by this expression of principle. I note that special leave has been granted by the High Court in relation to that proceeding, and that the High Court has recently heard the appeal and reserved its decision.

39                  In these circumstances, the appellant submits that the reasons of Wilcox and Madgwick JJ in the earlier Full Court case QAAH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363 should be followed and applied. In that case, the majority held that if the decision-maker is satisfied that an applicant has already been recognised as a refugee under Art 1A(2) of the Convention and is not satisfied that this status has ceased under Art 1C(5), then Australia will have protection obligations to the applicant. The appellant says that on a correct reading, NBGM has no ratio-decidendi and therefore no application, or alternatively that it is authority contrary to the position of the respondent. It is argued that on a correct analysis, it can be seen that Stone J arrived at her decision in her separate reasons on a basis inconsistent with reasoning of Black CJ and Mansfield J. The appellant submits that for this reason, and notwithstanding her Honour’s statement at [149] expressing her agreement with the proposition set out therein, the position as articulated in [25] of Black CJ’s reasons should not be followed. Therefore, it is said, the majority decision in QAAH correctly expresses the law and must be applied.

40                  Where recently three members of a five-member Full Court have expressly committed to a specific statement of principle as being applicable to the question before me, I consider that I should follow that statement. In my view, the position as stated by Black CJ in [25] cannot be said to be clearly wrong. The question before me is not to be resolved by arcane dissection and analysis of the chains of reasoning by each of the five different members of the Court of the type which has been adopted in the arguments in relation to the ratio-decidendi of NBGM. The concurrence of the majority judges in the statement as to the interpretation and application of s 36 as amended is conclusive for the determination of the question before me on this issue.

41                  The consequence of this in the present case is that I am not persuaded the RRT has erred in requiring that it must be satisfied that the appellant had a well-founded fear of persecution, or in finding that the appellant did not have a well-founded fear of persecution for a Convention reason. Nor have I been pointed to any error in the reasons of Emmett FM that would warrant the setting aside of this decision. The appeal is therefore dismissed with costs.

Associate:

Dated: 29 September 2006