Interpretation of Article 1 of the Convention
124 The interpretation of Article 1 of the Convention, including the interaction between Articles 1A(2) and 1C(5), has been considered in a number of cases. In Adan the issue beforethe House of Lords was whether Article 1A(2) of the Convention required that a person demonstrate a current well-founded fear of persecution for a Convention reason, or whether a 'historic' fear of such persecution was sufficient. Their Lordships held that it is not sufficient for a person to have a well-founded fear of persecution for a Convention reason when leaving the country of his or her nationality; rather it is necessary to have such a fear at the time the refugee claim is determined.
125 Lord Slynn of Hadley distinguished between Articles 1A(2) and 1C(5) stating, at 302:
'Reference has been made in argument to article 1C(5) of the Convention. That paragraph of the article is, however, dealing only with the situation where a person has qualified as a refugee but (a) the circumstances have changed so that he has no longer a well-founded fear of persecution for a Convention reason, and (b) the protection of the country of his nationality is available. If (a) is satisfied then he cannot say that he is unwilling because of the previous fear to accept the protection of his country of nationality.'
126 Lord Lloyd of Berwick, with whom Lord Goff of Chieveley, Lord Nolan and Lord Hope of Craighead agreed, observed at 304 that Article 1A(2) covers four categories of refugee:
'(1) nationals who are outside their country owing to a well-founded fear of persecution for a Convention reason, and are unable to avail themselves of the protection of their country; (2) nationals who are outside their country owing to a well-founded fear of persecution for a Convention reason, and, owing to such fear, are unwilling to avail themselves of the protection of their country; (3) non-nationals who are outside the country of their former habitual residence owing to a well-founded fear of persecution for a Convention reason and are unable to return to their country, and (4) non-nationals who are outside the country of their former habitual residence owing to a well-founded fear of persecution for a Convention reason, and, owing to such fear, are unwilling to return to their country.
It will be noticed that in each of categories (1) and (2) the asylum-seeker must satisfy two separate tests; what may, for short, be called "the fear test" and "the protection test." In categories (3) and (4) the protection test, for obvious reasons, is couched in different language.'
127 Counsel for the appellant in Adan, Mr Blake, submitted that the appellant fell within the first of the four categories identified above. In addressing this submission his Lordship said at 306:
'I had at first thought that article 1C(5) provided a complete answer to Mr. Blake's argument. If a present fear of persecution is an essential condition of remaining a refugee, it must also be an essential condition for becoming a refugee. But it was pointed out in the course of argument that article 1C(5) only applies to refugees in category (2). It does not help directly as to refugees in category (1). This is true. But the proviso does shed at least some light on the intended contrast between article 1A(1) and 1A(2). Article 1A(1) is concerned with historic persecutions. It covers those who qualified as refugees under previous Conventions. They are not affected by article 1C(5) if they can show compelling reasons arising out of previous persecution for refusing to avail themselves of the protection of their country. It would point the contrast with article 1A(1), and make good sense, to hold that article 1A(2) is concerned, not with previous persecution at all, but with current persecution, in which case article 1C(5) would take effect naturally when, owing to a change of circumstance, the refugee ceases to have a fear of current persecution.'
128 Article 1C(5) was also considered by the House of Lords in R (Hoxha) v Special Adjudicator; Regina (B) v Immigration Appeal Tribunal [2005] 1 WLR 1063 ('Hoxha'). In Hoxha, the appellants were ethnic Albanians from Kosovo who had suffered gross ill-treatment at the hands of Serbian authorities prior to the Serbian army being removed from Kosovo and replaced by international peace-keeping forces. The appellants entered the United Kingdom and claimed asylum on arrival. Their claims were refused and subsequent appeals were unsuccessful. Before the House of Lords, the appellants argued that (a) they had been 'recognised' as refugees within the meaning of Article 1C(5) simply by virtue of having at some time in the past fulfilled the criteria in Article 1A(2) and (b) that the proviso in Article 1C(5) applied to refugees recognised under Article 1A(2) in addition to Article 1A(1) refugees. The House of Lords held that the appellants had not been recognised as refugees as they claimed and secondly that the proviso in Article 1C(5) only applied to Article 1A(1) refugees.
129 Lord Brown of Eaton-under-Heywood, with whom Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead and Baroness Hale of Richmond agreed, described the appellants' position at [56] as follows:
'Their case comes to this. To qualify for refugee status they have to satisfy the requirements of 1A(2). This they seek to do - in the face of Adan's requirement that they demonstrate a current well-founded fear - by resort to a cessation provision, 1C(5). 1C(5), quite apart from appearing to apply not when first an asylum seeker's refugee status is determined but only in connection with its possible later loss, in any event appears not to solve but to compound the appellants' difficulties, expressly postulating as it does that the circumstances earlier giving rise to refugee status "have ceased to exist" i.e. that by now they no longer have a well-founded fear. To escape this further difficulty, however, the appellants seek to invoke the "compelling reasons" proviso notwithstanding its apparent limitation to 1A(1) refugees. Putting it another way, the appellants seek by way of the proviso to disapply a cessation provision which, were it to apply, would itself take effect not to confer on them but rather to deny them refugee protection ("This Convention shall cease to apply"). Quite how the disapplication of a provision itself otherwise disapplying the Convention can assist an asylum-seeker to qualify for Convention protection in the first place is not altogether easy to understand. Plainly, moreover, the argument is irreconcilable with the passage already cited from Lord Lloyd's speech in Adan [1999] 1 AC 293, 306, where he points to the contrast logically and intentionally struck in 1C(5) between on the one hand 1A(1) refugees, who have already been "considered" refugees (and thus recognised as such) and who, although potentially amenable to the loss of that status under 1C(5), will not in fact lose it if they can show "compelling reasons", and on the other hand 1A(2) refugees who must demonstrate a current well-founded fear of persecution not only when first seeking recognition of their status but also thereafter in order not to lose it.'
(emphasis added)
130 Lord Brown continued at [60]-[62]:
'The whole scheme of the Convention points irresistibly towards a two-stage rather than composite approach to 1A(2) and 1C(5). Stage 1, the formal determination of an asylum-seeker's refugee status, dictates whether a 1A(2) applicant …is to be recognised as a refugee. 1C(5), a cessation clause, simply has no application at that stage, indeed no application at any stage unless and until it is invoked by the State against the refugee in order to deprive him of the refugee status previously accorded to him.
…
Many other of the documents and writings put before your Lordships point the same way. And so, of course, does the language of 1C(5) itself. The words "the circumstances in connection with which he has been recognised as a refugee" could hardly be clearer. They expressly postulate that the person concerned "has been recognised as a refugee", not that he became or "was" a refugee.'
131 Lord Hope stated at [13]:
'… As Lord Lloyd of Berwick observed in Adan v Secretary of State for the Home Department [1999] 1 AC 293, 306G, the cessation provision in article 1C(5) takes effect naturally when the refugee ceases to have a current well-founded fear. This is in symmetry with the definition in article 1A(2). The words "no longer", which were taken from the cessation provisions in paragraph 6A of the Statute, support that interpretation. On this approach the appellants are unable to bring themselves within the opening words of article 1C(5).'
(emphasis added)
132 While the comments of Lord Brown and Lord Hope make clear the fundamental difference between the position of the appellants in Hoxha and the present appellant, with respect I agree with their construction of Article 1 of the Convention and, in particular, with Lord Brown's observation that the Convention adopts a two-stage rather than composite approach to 1A(2) and 1C(5). The recognition stage under Article 1A(2) is distinct from the cessation stage under Article 1C(5). Plainly Article 1C(5) is predicated on the previous 'recognition' of the person as a refugee. Relevantly, that recognition is based on the person having a well-founded fear of persecution for a Convention reason thus satisfying the requirements of Article 1A(2).
133 If the circumstances that gave rise to the well-founded fear subsequently cease to exist and the person continues to refuse to avail himself or herself of the protection of the country of nationality then, pursuant to Article 1C(5), the Convention ceases to apply to that person; that is, Australia no longer has protection obligations to that person. That is what Article 1C(5) says and, given the humanitarian and human rights background to the Convention, it follows that the cessation clause, as Lord Brown called it, should only be invoked where the change in circumstances is fundamental and durable. To say this, however, is not to put a gloss on the words of Article 1C(5) but merely to elucidate what is meant by the requirement that for Article 1C(5) to apply, the relevant circumstances must have ceased to exist. It would be difficult to reach that conclusion with confidence if the change in circumstances were merely transitory and could not be described as fundamental and durable. That being said, it may assist to avoid error if one focuses on the actual words used in Article 1C(5) and the change to which they refer. Furthermore, I do not accept that the standard of proof required for the Minister (or her delegate) to be satisfied that the relevant circumstances have ceased to exist is any higher than for any other aspect of the determination that the Minister must make in deciding if Australia is obliged under the Convention to protect the applicant. There is nothing in Article 1 or in the statutory scheme to support this submission.
134 Under Australian law the mechanism by which a person in the position of the appellant is recognised as a refugee is, at least initially, the grant of a Temporary Protection Visa. The appellant submits that once there has been that recognition the finding that the person is a refugee is not to be revisited at the stage of application for a Permanent Protection Visa. Rather, he submits, the Minister must proceed inexorably to Article 1C(5) and ignore any factual change that is not the subject of the question arising under that Article. I have difficulty, however, in reconciling this approach with the words of the Migration Act and the Regulations.
135 The appellant's submission overlooks the statutory context of the recognition process set up under the Migration Act and the Regulations. That recognition process has two phases - first a Temporary Protection Visa of limited duration and then a Permanent Protection Visa which continues for five years. The appellant does not dispute that a decision that the applicant is a refugee within the meaning of Article 1A(2) is required for the grant of a temporary visa; for reasons identified by Lord Brown (see [130] above) Article 1C(5) can have no relevance at that stage.
136 As previously mentioned (see [119] above) the Convention does not specify the procedure by which recognition as a refugee should be determined. It is for the Contracting States to devise their own process. There is nothing in the Convention that precludes a Contracting State from reviewing that determination from time to time. In fact the terms of Article 1C(5) assume the propriety of such a course. There is also nothing in the Convention that determines the process by which the protection obligations that it imposes should be discharged. In particular, it does not preclude the question whether a person is a refugee from being asked at both the temporary and the permanent visa stage. There is no question here of cancelling a visa or stripping the appellant of a status that he has previously achieved.
137 The High Court has said that s 36(2) incorporates the whole of Article 1; see [108] above. The thrust of Article 1 of the Convention read as a whole is that, with limited exceptions not relevant here, a person who is a refugee should be protected. The Convention was not designed to protect a person who does not have a well-founded fear of persecution, for a Convention reason, in the country, or countries, in respect of which he or she has a right or ability to access. Correspondingly, the thrust of the statutory provisions governing the issue of protection visas (temporary and permanent) is that, in accordance with Australia's international obligations, a person who is a refugee should be protected and should be given a visa. Under a normal reading of the relevant statutory provisions the question whether Australia has protection obligations to a person applying for a Permanent Protection Visa would require, to the extent that it is applicable, consideration of the whole of Article 1; specifically, Articles 1A(2) and 1C(5). In that way the decision of the High Court in NAGV and NAGW of 2002 is given effect. If Article 1A(2) does not apply or if Article 1C(5) does apply then Australia is not obliged by the Convention to protect that person and that person would not qualify for a Permanent Protection Visa. There is a clear connection between Articles 1A(2) and 1C(5). A person who is unable or unwilling to take advantage of the protection of the country of his or her nationality may be recognised as a refugee under Article 1A(2) only if he or she has a well-founded fear of persecution for a Convention reason. Without that well-founded fear, mere unwillingness, or inability, to take advantage of the protection of one's country of nationality is insufficient.
138 Against that background, when Article 1C(5) provides that the protection obligations under the Convention cease to apply when the 'circumstances in connexion with which he has been recognised as a refugee cease to exist', it is referring, in the case of a person recognised as a refugee under Article 1A(2), to the circumstances which led to the conclusion that the person had a well-founded fear of persecution for a Convention reason. If Article 1C(5) only referred back to Article 1A(2) one might expect its expression to be more specific. Article 1C(5), however, refers not just to persons recognised as refugees under 1A(2) but 'to any person falling under the terms of section A'. This includes, as senior counsel for the first respondent, Mr Williams SC, submitted, persons recognised under Article 1A(1) (concerning historic persecutions in respect of which the proviso to Article 1C(5) applies) and Article 1A(2) (with which we are presently concerned).
139 For this reason, the application of Article 1C(5) to persons who have been recognised under Article 1A(2), necessarily involves determining whether the person continues to have a well-founded fear of persecution on the basis he or she was recognised as a refugee previously. The 'circumstances' referred to in Article 1C(5) are those that led to the requirements of Article 1A(2) being satisfied.
140 If the appellant's submissions were correct then, if the circumstances in the relevant country had not changed, even if, for some reason or other, the person ceased to have a subjective fear of persecution they would still be a person to whom Australia has protection obligations under the Convention. This is not consonant with the purpose and meaning of the Convention or of the statutory scheme set up under the Migration Act and Regulations. Theoretically both articles must be considered although the circumstances of an individual case may be such that it is evident from the outset that one or other can be given cursory attention. For this reason there is no necessary order in which the decision-maker must consider these articles.
141 The appellant contends that Article 1C(5) is otiose on the construction given by the primary Judge. I do not accept this submission. Although not precisely a mirror image, Article 1C(5) rounds out the concept of the Contracting States' protection obligations arising under Article 1A(2). The UNHCR had expressed its view in (2001) 20 Refugee Survey Quarterly 77 at 93, as follows:
'Cessation of refugee status may be understood as, essentially, the mirror of the reasons for granting such status found in the inclusion elements of Article 1A(2). When those reasons disappear, in most cases so too will the need for international protection.'
142 Although both Temporary and Permanent Protection Visas are for prescribed durations, should the circumstances predicated in Article 1C(5) occur, the cancellation provisions of the Migration Act allow for their cancellation within those periods; the provisions are set out at [71] above. Subject to s 117, s 116(1)(a) provides the Minister with a power to cancel a visa where any circumstances which permitted the grant of the visa no longer exist. In the context of a protection visa this could involve consideration of Article 1C of the Convention; see, for instance, Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 in relation to Articles 1C(1) and 1C(4); see also Zhang Jia Qing v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 519 at 528 per Burchett J and, on appeal, Minister for Immigration and Multicultural Affairs v Zhang Jia Qing (1999) 53 ALD 261 at [63] per Merkel J and at [54] per French and North JJ.
143 In my view, the Tribunal's reasons concerning the application of Article 1C(5) to the appellant's case do not reveal jurisdictional error. There was, as the primary Judge noted, material capable of giving rise to a contrary conclusion to that reached by the Tribunal. However, there was other material to support its findings on the application of Article 1C(5). The Tribunal rejected the former and accepted the latter. Thus, it found that the circumstances in connection with the appellant's original recognition had ceased to exist and Article 1C(5) applied. While the Tribunal's reasons in this context are not expressed in terms of satisfaction as to the application of Article 1C(5), in my view it is tolerably clear that the Tribunal was satisfied that the appellant no longer had a well-founded fear of persecution on the basis upon which he was originally granted a Temporary Protection Visa.
144 It follows from the views I have expressed as to the correct interpretation of the Convention and the statutory scheme for its implementation in the Migration Act and the Regulations that I agree with the judgment of the primary Judge. The appellant points however to the recently published judgment in QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 145 FCR 363('QAAH') as a reason for upholding the appeal irrespective of these views.
145 The appeal in QAAH concerned facts not relevantly different from those in this appeal and raised the same issues concerning the interpretation of the Convention and the Migration Act and Regulations. The Full Court, (Wilcox and Madgwick JJ, Lander J dissenting) allowed the appeal from Dowsett J who had expressed similar views to those of the primary Judge in these proceedings, Emmett J. In QAAH, Lander J also accepted the views of Emmett J and referred to a number of first instance decisions in this Court which have taken the same approach; SWNB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1606; SVYB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 15; Minister for Immigration & Multicultural & Indigenous Affairs v SWZB [2005] FCA 53, NBEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 161, QAAT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 968.
146 The appellant submits nevertheless that the reasoning of the majority in QAAH is correct and therefore this Full Court should follow QAAH. It is further submitted that even if this is not so, the reasoning could not be regarded as clearly wrong and therefore the earlier Full Court decision should be followed, leaving the High Court to resolve the issue. As it happens, the High Court granted special leave to appeal in QAAH on 16 December 2005.
147 In separate judgments in QAAH, Wilcox J and Madgwick J expressed similar views. It is not necessary for me to canvass those views in any detail. While I do not believe that the decision in QAAH can be said to be clearly wrong, in my view it does not sufficiently take into account the effect of the legislative scheme found in the Migration Act and the Regulations. On balance I think, with respect, it is wrong. In my view the statutory provisions mandate that the requirements of Article 1A(2) be taken into account in determining an application for a Permanent Protection Visa. As I have explained above, this interpretation is entirely consistent with the incorporation of the whole of Article 1 into s 36(2) and, to the extent it is applicable, the whole of the article must be taken into account in determining the question of protection obligations.
148 In the normal course of events a Full Court of this Court would follow the decision of an earlier Full Court unless the earlier decision is held to be clearly wrong. The need for certainty and security in the law is a powerful reason for a later Full Court following the decision of an earlier. In Minister for Immigration & Multicultural & Indigenous Affairs v Hicks (2004) 138 FCR 475 at [33]-[35] Carr J pointed out that where both appeals have been heard at about the same time and the question of which decision is to be followed depends which Full Court publishes its judgment first, is quite different from the normal case where considerable time separates the two Full Court decisions and the earlier decision is regarded as having settled the law. In this case the fact that the High Court has given leave to appeal in QAAH is another argument against the law being seen as settled. I do not think the same reticence to express a different view need apply in this case. I would therefore dismiss the appeal in this case.
149 Since writing the above I have had the opportunity to read, in draft, the reasons of the Chief Justice and I specifically note my agreement with his Honour's comments in paragraph 25 concerning the task to be performed by the decision-maker in relation to an application for a permanent protection visa in the circumstances indicated. I also agree with his Honour's order as to costs.