NBGM v Minister for Immigration and Multicultural Affairs

NBGM v Minister for Immigration and Multicultural Affairs - [2006] HCA 54 - HCA 2006 case summary — Zoe

[11]

GUMMOW ACJ. I agree generally with the reasons for judgment of Callinan, Heydon and Crennan JJ and in particular with the conclusion that the reasoning in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004[1] produces the result that this appeal must fail.
This conclusion is reached independently of any view of the construction of sub‑ss (3), (4) and (5) of s 36 of the Migration Act 1958 (Cth) ("the Act"). The sufficiently decisive consideration is found in the use of the present tense in s 36(2) and the supporting considerations discussed in QAAH.
Sub‑sections (3), (4) and (5) were added by the Border Protection Legislation Amendment Act 1999 (Cth)[2]. It would be a curious result if the outcome in the present case was owed only to such recent amendments and would have differed before the making of those amendments.
Further, there are various issues of construction of sub‑ss (3), (4) and (5) of s 36. Some of these I referred to in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji[3]. Others divided the Full Court in the present case. These matters do not require determination for an outcome in the present appeal which favours its dismissal.
Special leave to appeal should be granted. The appeal should be taken as instituted and heard instanter and dismissed with costs. However, that would leave to the Full Court the question of costs as reserved by order 3 of its orders made on 12 May 2006.
KIRBY J. This is an appeal from orders of the Full Court of the Federal Court of Australia, exceptionally constituted by five judges[4]. The Full Court had been so constituted because of doubts that had arisen in respect of the divided decision of an earlier Full Court in QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs[5]. By inference, it was hoped that a Full Court of larger numbers would settle clearly the point upon which the Full Court in QAAH had divided.
In the result, however, the Full Court in the present matter was also divided[6]. The same issues that had led to the divisions in QAAH re-emerged and, indeed, were sharpened. Accordingly, when this Court granted special leave to the Minister to appeal in QAAH, an order was made returning an application for special leave to appeal on the part of the putative refugee in the present matter, NBGM ("the applicant")[7] to be heard at the time as the appeal in QAAH.
Argument in the appeal in QAAH, and in the application in NBGM, was accordingly heard together. Substantially, the issues are common. The outcome in QAAH controls the outcome in NBGM's application. In my opinion, that application should succeed. Special leave should be granted. NBGM's appeal should be allowed and a new hearing, before the Refugee Review Tribunal ("the Tribunal"), should be ordered.

[16]

In a footnote to these observations[18], Gummow J made reference to the fact that "[t]hese rules of interpretation are applicable both under customary international law and as it is now stated in the Vienna Convention on the Law of Treaties[[19]]: see Thiel v Federal Commissioner of Taxation[20]". His Honour's reference, in the cited passage, to the reasons of McHugh J, imports a lengthy and oft-cited passage in Applicant A[21] containing "interpretative principles" for the ascertainment of the meaning of the term "refugee", as that word is used in the Act. The Act incorporates the concept of "refugee", as defined in the Convention and Protocol (together "the Convention"), both of which Australia has signed and ratified.
Practice of this and other courts: Countless cases in this Court have proceeded in the foregoing manner. They have addressed immediately the meaning of the composite notion of "refugee" as provided in the Convention. In doing so, they have not bypassed Australian municipal law. That law has uncontested primacy in Australian courts[22]. No one doubts that. But by proceeding directly to the Convention definition, those courts have not questioned that primacy. On the contrary, they have done what Australian law itself requires in defining the persons relevantly entitled (and not entitled) to protection as "refugees" under Australian law.
This approach is by no means confined to Australian courts. A similar approach has been taken in the United Kingdom and elsewhere[23]. Indeed, until now, the approach to be taken in cases such as the present has been clear. It has obliged the decision-maker to address immediately the Convention definition of "refugee" and, therefore, to consider the understanding of that expression as it appears in the Convention[24].
In the joint reasons in this Court of Callinan, Heydon and Crennan JJ ("the joint reasons"), Allsop J in the Full Court of the Federal Court is taken to task for proceeding to decide this case by reference to the interpretation of the Convention[25]. His Honour is criticised for stating that the Convention provides the framework within which the Act in this respect is to be understood[26]. The joint reasons state that the "Convention does not provide any of the framework for the operation of the Act. The contrary is the case"[27].
Facilitation of international law: I cannot agree with these criticisms. They fly in the face of long established general principles for the construction of municipal legislation referring to treaty provisions which have been ratified by the nation concerned. They are contrary to the long-standing authority of this Court and of other courts of high authority throughout the common law world. They are inimical to the effective participation of this country in the growing body of international, regional and bilateral treaties which substantially depend, in Australia, on municipal law to bring them into local effect. The new approach is harmful to the consistent development of international law. And that law is of critical importance for the protection of the peace, security, human rights and economic progress of all humanity.
We in this Court, at this time, should not be hostile to the provisions of international law. After all, the treaty expressing the applicable obligations of international law has been ratified by this country in accordance with its Constitution and the requisite legal procedures and practices. Moreover, the Australian Parliament has incorporated the relevant definition of "refugee" by reference in a municipal enactment, and the validity of that enactment has not been challenged in these proceedings. Hostility is entirely out of place. Facilitation and implementation constitute the correct legal approach.

[17]

The facts and legislation: The facts of NBGM's case are similar to those in QAAH. They are substantially set out in the joint reasons[28]. The important fact is that NBGM was granted a temporary protection visa pursuant to the Act on 24 March 2000 by a delegate of the Minister. Accordingly, as at that date, a conclusion had been arrived at, in accordance with Australia's own legal procedures, that Australia owed the applicant protection obligations under the Convention as a "refugee" (as defined in art 1A(2) of the Convention). In light of the evidence as to his experiences before leaving Afghanistan, as appearing in the record, the acceptance of the applicant's refugee status was scarcely surprising.
In accordance with the Convention, and therefore in accordance with the Act, that status could only thereafter be lost (in a case such as the present) by the operation of the cessation provision appearing in art 1C(5) of the Convention.
The joint reasons explain that on 16 September 2003, a delegate of the Minister purportedly refused to grant the applicant a permanent protection visa. The delegate refused that visa, finding that NBGM was not a person to whom Australia had protection obligations[29]. NBGM promptly applied to the Tribunal for review of the delegate's decision. On 5 April 2004, the Tribunal affirmed that decision. It refused to grant NBGM a permanent protection visa[30].
Pursuant to the Judiciary Act 1903 (Cth), NBGM then applied to the Federal Court seeking relief in the nature of a constitutional writ, on the ground of error by the Tribunal in its understanding of its jurisdiction[31]. The primary judge of the Federal Court (Emmett J[32]) refused the relief claimed. On appeal, as has been stated, the Full Court by majority upheld those orders[33].
The applicable issues: The decisional history of the proceedings in the Federal Court is described in the joint reasons[34]. The same issues emerge in the divided opinions of the judges in NBGM as have been identified in QAAH[35]. They include:

[24]

Identical resolution of issues: I would resolve all of the foregoing issues in these proceedings in the same way as I have resolved them in QAAH. In my opinion, the majority in the Full Court in QAAH[37] approached the issues for decision in the correct way. Most especially, they recognised (as the dissenting judges in the Full Court in NBGM also did[38]), that the correct starting point for legal analysis was, in accordance with the Act itself, to understand and apply the accurate meaning of the Convention provisions by which the status of "refugee" is defined for international, as well as municipal law, and hence the circumstances in which that status, having been recognised, may cease, by international and municipal law, to apply to the person concerned.
For the reasons I gave in QAAH, the minority judges in this matter asked the correct questions and came to the correct conclusion in finding jurisdictional error. The majority judges (and the primary judge) by approaching the matter in an incorrect way, and asking incorrect questions, unsurprisingly arrived at erroneous conclusions.
The Tribunal decision issue: Only one issue has caused me to pause in reaching this conclusion.
In accordance with the approach that I upheld in QAAH, the Tribunal, in NBGM, correctly identified the first question that it had to answer as being posed not (as the Minister would assert) as a repeated application of art 1A(2) but the application of art 1C(5) dealing with cessation of refugee status[39]. The Minister now contests that this is the correct approach where questions of cessation arise. However, it is my opinion, for the reasons stated in QAAH[40], that the Tribunal was correct in primarily adopting this approach. As I demonstrated in QAAH, this opinion is strongly supported by available materials produced by the office of UNHCR, by expert and scholarly opinion and by judicial authority in other countries[41].
Can it therefore be said that the Tribunal, to this extent, accurately identified the ambit of its jurisdiction; proceeded to exercise that jurisdiction; and that any error which followed was one made within jurisdiction and not one that took it outside its jurisdiction, thus requiring judicial intervention for jurisdictional error? In my opinion, this issue presents the only arguable ground in NBGM's application for refusing special leave or for dismissing an appeal.
In the end, however, I am convinced on this issue (as on the others) by what Allsop J wrote in his dissent in the Full Court. Relevantly, his Honour said[42]:

[26]

Allsop J then quoted, at some length, from the Tribunal's reasons for decision in this case[43]. In those reasons, the Tribunal described the killing and beheading of 12 Hazaras as "isolated examples". As Allsop J remarked, the reasons given by the Tribunal in this respect "exhibit an approach whereby it was for [NBGM] to show that there was a real chance of persecution, rather than it being necessary for the Tribunal to be satisfied that durable change in the relevant circumstances had been revealed with the necessary clarity"[44].
From the text and structure of the Convention[45], Allsop J concluded that a clear demonstration of durable change was required to warrant the serious (second) step envisaged by Art 1C(5) of the Convention, permitting a conclusion to be reached that the "refugee" status (that had been acknowledged by the initial grant of protection) was now to be treated as having ceased.
In effect, Allsop J's approach to the content of art 1C(5) of the Convention is identical to that accepted by the majority judges in the Full Court in QAAH[46]. For the reasons I gave in QAAH[47], this approach was correct. It was not inconsistent with the text of the Convention, incorporated in this respect by the provisions of s 36(2) of the Act. On the contrary, the opposite conclusion, now favoured by a majority of this Court, is inconsistent with the language, history and purpose of the Convention. The majority conclusion is also difficult to reconcile with the policy of the Convention that persons accorded refugee status will not be plunged into constant and repeated uncertainty by the grant and later withdrawal of recognition as "refugees", with consequent removal to the country of nationality in potential breach of the basic principle of non‑refoulement.
To an Australian decision-maker, in the safety of this country, the established fact that 12 persons of the applicant's particular minority racial and religious identity were killed and beheaded in a district of Afghanistan neighbouring his own might seem an unimportant, "isolated incident". But to a person whose experience had already invoked a "well-founded fear" of persecution, occasioning flight to Australia to seek refuge and official acceptance and recognition of refugee status, such an instance might be indicative of more widespread, systematic violent activity apt to occasion a well-founded fear of continuing persecution. It demonstrates, as Marshall and Allsop JJ concluded in the Full Court, why the Tribunal needs to be very sure before deciding that a "change of circumstances" has been established, warranting withdrawal of refugee status and the return of NBGM to his country of nationality.
Conclusion: jurisdictional error shown: Although, therefore, there are arguments for and against the submission that the Tribunal mistook its jurisdiction, I am ultimately persuaded that it did. NBGM's application for judicial review of the Tribunal's decision should therefore be upheld. His claim should be returned to the Tribunal so that it might, unequivocally, apply the correct standard for cessation of refugee status in accordance with art 1C(5) of the Convention[48]. That standard obliges a clear conviction on the part of the Tribunal that a suggested change of circumstances has occurred that is "substantial, effective and durable"[49].

[29]

The Tribunal's reasoning

The Tribunal accepted that at the time when the applicant first applied for a visa he was a person to whom Australia owed obligations of protection under the Convention relating to the Status of Refugees[51], taken with the Protocol relating to the Status of Refugees[52] (together, "the Convention"). The question, the Tribunal said, however, was whether the applicant was, in accordance with Art 1C(5) of the Convention, a person who could continue to refuse to avail himself of the protection of Afghanistan because the circumstances in connexion with which he was recognized by Australia as a refugee had ceased to exist.
At the hearing conducted by the Tribunal it was suggested to the applicant that the Taliban, the oppressive extremist movement in Afghanistan, had been removed from power by mid-November 2001, and was no longer a political or other force. It was further suggested that such of the Taliban as were active did not pose a direct threat to the civilian population and that its targets were members of the government, its security forces and international aid workers. The Tribunal put these matters to the applicant in terms, as well as the suggestion that the Taliban was not in any event active in the applicant's region. The applicant sought to reject this last suggestion, referring to some deaths that had occurred in his region not long before.
The Tribunal made findings generally in accord with the suggestions that it had made to the applicant, that the Taliban was no longer in a position to massacre people in the manner referred to in the decision of the delegate of 16 September 2003, and that the Taliban was unlikely to re-emerge as a viable political movement in Afghanistan in the reasonably foreseeable future. On the basis of those circumstances, the Tribunal concluded that Art 1C(5) of the Convention applied to the applicant. It also gave consideration to the question whether, assuming that Art 1C(5) of the Convention was not applicable, s 36(3) of the Migration Act 1958 (Cth) ("the Act") applied to the applicant. The answer to that question, the Tribunal decided, was the same as the answer to the question that it had first posed, that Australia had ceased to owe obligations of protection to the applicant because of the changed circumstances in Afghanistan.
There was apparently a further hearing undertaken by the Tribunal to consider other claims made by the applicant, in substance that because his uncles had been active in a Sepah faction of the Wahdat he would be at risk of the opposing Nasr faction of the Wahdat. The applicant elaborated upon that claim by saying that before the Taliban had taken control of his region the two factions had fought over it. He alleged that unless he were prepared to join one of the factions he would be accused by the other of being against it. It was part of his claim that the government was not in control of the region, that the Pashtun and Tajik people were, and that they would be likely to persecute him because he was a Shi'a Muslim.
The Tribunal did not accept any of these claims. It decided that there was not a real chance of persecution of the applicant by any of the people whom he had identified: if there were any discrimination against Hazara people, it fell short of persecution under the Convention. It was the Tribunal's opinion that on the basis of the information available to it the situation of Shi'a Muslims in Afghanistan was generally good. It is for these reasons that the Tribunal affirmed the decision of the delegate.

[39]

The Full Court of the Federal Court

The applicant appealed to the Full Court of the Federal Court which was constituted by five judges (Black CJ, Marshall, Mansfield, Stone and Allsop JJ)[62]. The appeal was heard after a differently constituted Full Court (Wilcox, Madgwick and Lander JJ) had decided the appeal in QAAH v Minister for Immigration and Multicultural and Indigenous Affairs[63].
The Full Court in these proceedings was divided in the result, the majority (Black CJ, Mansfield and Stone JJ) disallowing the appeal. The reasoning of the members of the majority differed somewhat.
Both Black CJ and Mansfield J were of the opinion that the words in s 36(3) "any country apart from Australia, including countries of which the non-citizen is a national" should be construed according to its ordinary meaning and could not be confined, as the applicant argued, to situations in which an applicant had a right to enter and reside in a "third country"[64]. Black CJ pointed out, correctly, that by s 36 the legislature has laid down the test, as a matter of domestic law, that must be satisfied under s 36(2) of an applicant's entitlement to a visa: that "[t]he circumstances to be established are presently existing circumstances, as to which the past may well illuminate the present; but the question remains in the present."[65]
It was his Honour's opinion, as it was of Mansfield J, that the reasons of the Tribunal did disclose that it had properly undertaken the task prescribed by s 36 of the Act and that it had neither misunderstood nor misapplied the law: that even if the Tribunal's processes and reasons were insufficient to enliven Art 1C(5) of the Convention, s 36 was an independent foundation for the Tribunal's decision[66]. Black CJ and Mansfield J were satisfied however that if the Convention fell to be applied in an unqualified way the analysis and meaning of it adopted by Allsop J were correct[67].
It is unnecessary to refer any further to the reasons of Mansfield J because they were generally in accord with those of the Chief Justice.
The other member of the majority, Stone J, referred to a number of other provisions of the Act and Regulations, including some of those to which we referred in QAAH and which are concerned with statutory temporal limitations on visas.
Her Honour, correctly, pointed out that the Convention does not apply directly and in an unqualified way in Australia, and that the fundamental question was the proper construction of the Act. She then discussed[68] a number of authorities of this Court[69] in which the construction of international and other instruments had been considered, concluding that it was difficult to discern any material difference between the principles governing the interpretation of international treaties and domestic legislation.
As to the argument advanced by the applicant that Art 1C(5) would be otiose on the construction given to it by the primary judge, her Honour said that on the occurrence of events, that is, relevant changes of circumstances, predicated by it and not inconsistently with it, the cancellation provisions of the Act will apply notwithstanding that an applicant may hold a visa for a period which is still not expired[70]. Her Honour then went on to say that she agreed with the interpretation of the Convention and the statutory scheme prescribed by the Act and Regulations adopted by the primary judge: she was not prepared to, and did not, regard herself as bound, sitting as a member of the Full Court, to apply the reasoning and decision of the majority in QAAH, preferring the reasoning of the primary judge there, Dowsett J, which was in substance the same as that of Emmett J, at first instance in this case.
Allsop J (in dissent) embarked first upon a detailed consideration of the use which might be made of extrinsic materials in aid of the interpretation of the Convention[71]. As to the proper interpretation of the Act and Regulations, he said that in understanding their operation it was "of central importance to appreciate the content and intended operation of the Convention"[72]. His Honour then set himself the task of construing Arts 1A(2) and 1C(5), citing and adopting[73] the approach and words of Lord Brown of Eaton-under-Heywood in R (Hoxha) v Special Adjudicator ("Hoxha")[74]:

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