Was the Tribunal required to consider cessation provisions in Art 1C of the Refugees Convention and therefore engage with the issue of non-refoulement obligations as required by clauses 14 and 14.1 of Direction 79 (construed with s 5 of the Migration Act)?
56 Article 1C of the Refugees Convention provides:
This Convention shall cease to apply to any person falling under the terms of section A if:
…
(5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;
57 The High Court has repeatedly stated that Australian Courts should endeavour to adopt a construction of the Migration Act (if that construction is available) which conforms to the Convention: see for example QAAH at 15 [34] and Minister for Immigration and Border Protection v WZAPN [2015] HCA 22 at [53]. However it is well settled that it is the domestic law of Australia which prevails in any conflict between it and the Refugees Convention: QAAH at [33], Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [36]-[37], [45].
58 In this case the applicant was not a refugee at the time of the Tribunal's decision. Article 1C of the Refugees Convention plainly relates to persons who are refugees - it was not relevant in the applicant's case, notwithstanding his earlier temporary protection visa. To that extent, the Tribunal was not required to engage with the cessation provisions in Art 1C of the Refugees Convention, as if the applicant had been a refugee.
59 I note however that extensive submissions have been made by the applicant relating to the Tribunal's consideration of whether international non-refoulement obligations were owed to him. Notwithstanding that I am satisfied that the applicant was not a refugee and that it was unnecessary for the Tribunal to engage with Art 1C of the Refugees Convention, in the event that I am wrong in that view I make the following observations in respect of the Tribunal's consideration of non-refoulement obligations.
60 Even in circumstances where a person has been granted a protection visa, such a visa can be cancelled (see, for example, Minister for Immigration and Border Protection v EFX17 [2021] HCA 9).
61 However, a non-citizen whose visa is cancelled may be a person in respect of whom Australia owes international non-refoulement obligations. The existence of international non-refoulement obligations may be "another reason" to revoke a cancellation decision pursuant to s 501CA (4)(b)(ii) of the Migration Act. A recent case in point was the decision of the High Court in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17, where the visa cancelled was not a protection visa but rather a Refugee and Humanitarian (Class XB) Subclass 202 (Global Special Humanitarian) visa. Equally, the absence of international non-refoulement obligations owed to the non-citizen may mean that there is no "other reason" to revoke the cancellation of his or her visa. As the High Court observed in QAAH:
43. Both the opening words of Art 1C(5), "He can no longer" (emphasis added), and the subsequent words, "the circumstances ... have ceased to exist" (emphasis added), make it clear that the circumstances from time to time and not merely as a matter of history are the relevant circumstances, that is, that the "status", as the Convention has it, of a person permitted to reside in an asylum country may change as circumstances in the country which he has left change.
62 The applicant in the present case raised with the Tribunal the issue of international non-refoulement obligations being owed to him by Australia, as being "another reason" for the Tribunal to revoke the visa cancellation decision. In such circumstances the Tribunal was required to identify and evaluate the applicant's claims referable to the prospect of such obligations being owed: Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [36].
63 I have already noted that, at the time of the Tribunal decision, Direction 79 given by the Minister under s 499 of the Migration Act required consideration be given to international non-refoulement obligations in determining whether the mandatory cancellation of a visa should be revoked. Importantly, cl 14.1 of Direction 79 specifically recognised Australia's international obligations under the Refugees Convention, the CAT, and the ICCPR. Further, cl 14.1 (6) provided for assessments to be conducted in order to ascertain non-refoulement obligations - I understand that the ITOA conducted in 2016 in the present case was precisely the type of assessment contemplated by cl 14.1 (6).
64 An ITOA has been described as an administrative process, being a response of the Department, conducted in accordance with standardised procedures set out in publicly available material published by the Department (see for example Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 at [9], WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [52]), AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105 at [11]).
65 Plainly the Tribunal had regard both to Direction 79, and the ITOA conducted 17 August 2016 in respect of the applicant. Under the heading "Other consideration - international non-refoulement obligations" the Tribunal observed as follows:
79. Paragraph 14.1 of the Direction provides a list of factors to be considered in determining international non-refoulement obligations.
80. As mentioned, the Applicant initially travelled to Australia on a false Spanish passport. An International Treaties Obligations Assessment ("ITOA") dated 17 August 2016 records that he applied for a Class XA Subclass 866 Protection Visa on 11 March 2004 which was refused by the Department later that month. The decision was affirmed by the Refugee Review Tribunal ("RRT") on 7 June 2005. Following a judicial appeal, the second RRT remitted the case and the Applicant was granted a Class XA Subclass 785 (Temporary Protection) Visa on 28 August 2006, due to his arrival in Australia on a false passport. He was granted a Class CD Subclass 851 Resolution of Status Visa on 29 November 2009.
81. In a letter requesting the revocation of the cancellation decision, the Applicant submitted that he will 'face persecution in Russia should he return there in the same or higher degree as he was persecuted before he left Russia'.
82. In an undated statement submitted as part of his 2004 application for protection, the Applicant detailed the abuse and bullying he received whilst at school in Russia due to his Jewish background. He writes that during a physical education lesson a fellow student pushed him off a ladder calling him a 'dirty Jew' and that he broke his hand and was taken to hospital. Local Cossacks, he writes, were the main threat to the Krasnodar Jews, and they told his parents and he that they would not tolerate Jews on 'the Russian Land'. He recounts being beaten by skinheads and forced to dig a grave after he moved to the city of Riazan (Ryazan). In 2003 he and his sister were taken to the outskirts of the city by 'young Cossacks where she was raped and I was beaten'. Following this incident his parents decided to sell their possessions and help the Applicant leave Russia.
83. The Respondent contends that the basis for which the Applicant applied for a protection visa in Australia, his Jewish heritage, was found by the ITOA in 2016 to no longer invoke international non-refoulement obligations due to the change in circumstances in Russia since the Applicant's departure from Russia. The Tribunal also has before it a United States Department of State Country Report on Human Rights Practices for 2019 for Russia which confirms that antisemitism is not currently widespread.
84. During the hearing, the Applicant's representative acknowledged that the danger posed by antisemitism in Russia had ameliorated in recent years but submitted that it remained a threat and the Applicant may face persecution if returned. In addressing the issue of non-refoulement, the Applicant also raised the issue of obtaining an internal identification document known as "propiska", which he contends would not be available to him. The Tribunal notes that this issue was considered in the 2016 ITOA report, which is before the Tribunal, and in that report it was found that Australia does not have a non-refoulement obligation to the Applicant.
85. The specifics of the Applicant's experiences in Russia have changed over time. Notably a report was compiled by forensic psychologist Dr Adam Martin in which Dr Martin indicated that the Applicant moved to Australia following a tragic event in which his parents and sister were killed in a car bomb and their deaths led him to start drinking and to suffer PTSD. The report was before the courts when he was sentenced in August 2019 and June 2018.
86. At the hearing the Applicant confirmed that when he left Russia both his parents were in fact still alive. He said that his father told him of his mother's passing and that he never received confirmation that his father had died. He concluded that his father had passed when he stopped returning his calls and messages and his phone was disconnected. A pre-sentence report dated 27 June 2018 prepared by Corrective Services NSW reports that the Applicant arrived six months after the death of his parents and sister in a fatal car accident and concludes that 'the tragic nature, the suddenness of their death and being left without any family still impacts on [the Applicant]'.
87. At the hearing the Applicant explained the discrepancy was the result of his use of a poor analogy and the absence of an interpreter during his session with Dr Martin. It was previously submitted on his behalf that any discrepancies in his recollection of events could be attributed to his excessive use of alcohol, PTSD and major depressive disorder. I note that Dr Martin's report was referenced by two sentencing judges and the inaccuracies were not acknowledged by the Applicant until after they were identified by the delegate in the letter refusing to revoke the mandatory cancellation of his visa.
88. In light of the discrepancies in the Applicant's evidence and the absence of any new evidence before the Tribunal relating to non-refoulement obligations, the Tribunal accepts the findings of the ITOA which determined that there are no non-refoulement obligations owing to the Applicant. Consequently, this factor is afforded neutral weight.
66 In relation to whether cessation provisions in Art 1C possibly applied to the circumstances of the applicant, and the Tribunal's consideration of such, I find as follows.
67 First, in respect of the existence or otherwise of international non-refoulement obligations owed by Australia to the applicant, it is plain that the Tribunal placed considerable weight on the findings of the ITOA. In summary I note:
The ITOA conducted in respect of the applicant resulted in a lengthy and detailed document. The assessor noted that the applicant was granted a Resolution of Status Visa on account of having held a Subclass 785 (Temporary Protection) Visa and for having made a Protection Visa. The assessor identified Australia's non-refoulement obligations by reference to the Refugee Convention, the CAT and the ICCPR, and stated that the material before it was:
• Departmental files;
• Australian case law as footnoted throughout the assessment record;
• Country information as footnoted throughout the assessment record;
• Procedures Advice Manual 3: Refugee Law Guidelines;
• Procedures Advice Manual 3: Complementary Protection Guidelines;
• Any relevant country information assessment prepared by the Department of Foreign Affairs and Trade specifically for the purpose of assessing protection obligations;
• All information provided by or on behalf of the claimant.
The assessor summarised in detail the applicant's written claims, and the response of the applicant's representative, including claims of anti-Semitism. The assessor accepted that the applicant had converted to Christianity, and that while residing in particular areas he had been targeted on account of his Jewish ethnicity. In summary, the assessor then found:
• The Refugees Convention ground of race was the essential and significant reason for the harm feared by the applicant pursuant to paras 5J (1)(a) and 5J (4)(a) of the Migration Act;
• The harm the applicant feared was serious harm and involved systematic and discriminatory conduct, such as to amount to persecution;
• In relation to whether the applicant faced a real chance of being persecuted in Russia in the reasonably foreseeable future for Refugees Convention reasons, it was appropriate to take into consideration the applicant's claims and available country information;
• The assessor took into account country information, including The United States Department of State 2014 International Religious Freedom Report on Russia and The United States Department of State Country Reports on Human Rights Practices for 2015 on Russia.
• The assessor referred in detail to targeting/mistreatment of ethnic Jews in Russia, specifically the region where the applicant was from.
• The assessor made detailed reference to Jewish presence in the region of Russia where the applicant was from, as well as Cossacks in that region and adverse treatment of ethnic Jews by Cossacks in that region.
The ITOA concluded:
Assessment:
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonable foreseeable future.
I have considered [the applicant's] claims regarding his mistreatment as an ethnic
Jew, at the hands of the Cossacks in [redacted], in light of the above country information. Considering the period of time that has lapsed since [the applicant's] claims of mistreatment and the significant changes in the region, in conjunction with the Russian President's attempts to prevent anti-Semitism in Russia, I find there is no real chance that [the applicant] will suffer any mistreatment, should he return to the [redacted] region in Russia.
I have considered the articles submitted by [the applicant] and I note that the reports are on the general situation in the Russia, particularly in regards to anti-Semitism in media and vandalism attacks on Jewish synagogues, the most recent referenced attack being in 2013. There was no evidence to suggest that ethnic Jews are being targeted individually or that [the applicant] would be targeted. I have considered in particular the reporting on the migration of Russian Jews to New York from the Mosaic Magazine. However there is no evidence to suggest that they migrated on account of being targeted because of their Jewish ethnicity.
I find there is no evidence to suggest that in the present day there are Cossacks in [redacted] that adversely treat ethnic Jews. Country information indicates that in recent years the Jewish community has shown signs of rejuvenation. A synagogue was rededicated (after a seven-year reconstruction) ...
Despite finding that there is no real chance [the applicant] will suffer any mistreatment, should he return to the [redacted] region in Russia, I now turn my mind to whether he will be afforded state protection and whether he will be able to reasonably relocate on account of the claims submitted.
State Protection
More generally, sources indicate that the [redacted] government has pursued anti-migrant' (which includes, in local rhetoric, ethnic minorities) policies and rhetoric.
The SOVA Centre has reported a long-term trend that indicates a reduction in anti-Semitism in Russia. Sources indicate that ethnic Jews are willing to investigate and prosecute anti-Semitic crimes. In 2016, the US Department of State report on human rights in Russia stated, without providing specific examples, '[t]he government investigated anti-Semitic crimes. An earlier 2015 report by the US Department of State provided two examples of Russian authorities filing criminal cases against individual users of a Russian social media site that promoted anti-Semitic views. The report also noted that a St. Petersburg councillor and national TV news presenter had publicly made anti-Semitic comments. The same report indicated that the Federation of Jewish Communities stated that there were no official acts of anti-Semitism at the federal level during the year 2014. Accordingly. I find that the Russian authorities are presently more active in pursuing and punishing offenders committing anti-Semitic acts.
Furthermore, l note that [the applicant] has not submitted that there were any further threats made to his family in Russia, prior to their demise... [The applicant] submitted that the last contact he had with his parents was a few months before their passing ... In conjunction with available country information, I find that [the applicant] would not also face any real chance of serious harm on account of his Jewish ethnicity in Russia.
(redactions made, footnotes omitted)
The assessor further found (in summary) that, despite the applicant's claim that he was unable to reside in Moscow, sources indicated there was no discrimination in relation to residency registration in Moscow. Accordingly the applicant could reasonably, in the sense of practicably, relocate to Moscow if required on return to Russia.
The assessor found that the applicant did not have a well-founded fear of being persecuted for a Refugee Convention reason, and that his fear of persecution was not well-founded.
The assessor found:
I am satisfied the cessation clauses in Article 1C of the Refugees Convention do not apply to the claimant.
The assessor further found that the applicant did not come within Art 33 (2) of the Refugees Convention in respect of its express exception to the prohibition of refoulement.
The assessor concluded that the applicant was not a refugee within the meaning of Article 1A and that Australia did not have a non-refoulement obligation to the claimant under the Refugees Convention.
The assessor then turned to whether Australia's non-refoulement obligations to the applicant under the CAT and ICCPR were enlivened, however following detailed discussion the assessor concluded that the applicant was not a person in respect of whom Australia had non-refoulement obligations under the CAT and ICCPR.
The assessor concluded that the applicant was not a refugee within the meaning of Article 1A of the Refugees Convention.
68 Given the detailed findings of the ITOA, made after extensive analysis of evidence and submissions made to the assessor by the applicant, I consider that it was both reasonable and appropriate for the Tribunal to give credence to the ITOA findings in forming its own views concerning whether international non-refoulement obligations were owed by Australia to the applicant.
69 Second, I note the comment in the ITOA (also accepted by the Tribunal) that the cessation clauses in Art 1C of the Refugees Convention did not apply to the applicant. This comment followed a very lengthy assessment by the officer of whether the applicant had a well-founded fear of persecution, and the conclusion of that officer that the applicant did not and therefore was not a "refugee".
70 Third, I do not accept that the Tribunal uncritically accepted the findings of the ITOA in disregard of any further submissions or evidence of the applicant before the Tribunal. Rather, it is also plain that the Tribunal had regard to the case of the applicant as presented to the Tribunal. In particular:
The Tribunal noted the discrepancies in the evidence of the applicant, and clearly considered this relevant to the question of whether the applicant would face persecution in Russia "to the same or higher degree as he was persecuted before he left Russia"; and
As the Tribunal observed at [88], no new evidence was adduced by the Tribunal further to that which was considered in the ITOA.
71 In summary, and consistently with the principles explained by the High Court in QAAH at [43], it is clear that if Australia had ever owed non-refoulement obligations to the applicant, by the time of its decision the Tribunal was satisfied that Australia no longer did so. The Tribunal did not specifically address Art 1C of the Refugees Convention, however the Tribunal had regard to the detailed consideration by the ITOA of Australia's non-refoulement obligations in respect of the applicant, and further concluded on the basis of the material before it that there was no reason why the applicant could refuse to avail himself of the protection of the country of his nationality. If Art 1C of the Refugees Convention was at all relevant in respect of the circumstances of the applicant, the reasons of the Tribunal adequately addressed issues of non-refoulement.
72 In so concluding, I note again the general proposition that the Court should not be astute to discern error in the reasons of an administrative decision-maker: Plaintiff M1-2021 at [38], Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at 185 [25], Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 278, 282.