SVYB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This matter was heard together with SWLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 14. Save in one minor respect, they raise like issues the principal of which, it is frankly conceded, is inconsistent with a number of first instance decisions of this Court and notably NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373, QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1448 and SWNB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1606. It is accepted that, as a matter of comity, I will follow these decisions unless I am satisfied they are clearly wrong which I am not. 2 That principal issue can be stated shortly. An applicant for a temporary protection visa satisfies the respondent Minister that he or she is a person to whom Australia owes protection obligations under the Refugees Convention 1951: see s 36(2)(a) of the Migration Act 1958 (Cth) ("the Act"). In consequence a temporary protection visa is granted. The applicant then applies for a permanent protection visa on the expiration of the temporary visa. For that visa to be granted, the Minister again must be satisfied that, at the time of this decision: see QAAH, at [21] ff; the applicant is a person to whom Australia owes protection obligations: see Schedule 2, Subclass 866.22 of the Migration Regulations and s 36(2) of the Act. 3 The Refugees Convention ceases to apply to a person owed protection obligations if that person can no longer continue to refuse to avail himself of the protection of the country of his nationality "because the circumstances in connection with which he has been recognised as a refugee [i.e. as being owed protection obligations] have ceased to exist": Article 1C(5) of the Refugees Convention ("the Cessation clause"). 4 In the three cases to which I have referred above, as also in this matter and in SWLB, the interpretation of the Cessation clause and the manner of its interaction with the s 36(2)(a) criterion for a protection visa (i.e. that the applicant is a person "to whom the Minister is satisfied Australia has protection obligations") have been put in controversy in consequence of ameliorating changes in the relevant circumstances of an applicant's country of nationality between the time at which a temporary protection visa was granted and the time of which an application for a permanent protection visa was to be determined. 5 In NBGM,Emmett J dealt with this matter at some length. The principles he stated, which I consider to be clearly correct, were conveniently summarised and adopted by Selway J in SWNB at [12]. I respectfully adopt what his Honour said there: "1. Where the Tribunal is considering the grant of a fresh visa, including a permanent protection visa, the Tribunal is required to determine at the time of its decision whether the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Article 1C(5) does not necessarily have any role in that decision. I note that Dowsett J reached a similar conclusion in the case of QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1448. 2. In making that decision, the tribunal may start with a position that the Refugees Convention applied to the applicant as at the date he was granted a temporary protection visa and then ascertain whether the circumstances in connection with which the applicant had been recognised as a refugee had ceased to exist. 3. Even if article 1C(5) of the Refugee Convention was applicable, it did not require that there be a 'sustainable, effective and durable' change; merely that there had been a change such that the applicant no longer had a well-founded fear of persecution if he was returned to his country of origin. 4. Section 36(3) of the Act should be interpreted in its usual and ordinary meaning. So interpreted, it adds little to the terms of section 36(2) of the Act where the issue involves the return of the applicant to his country of nationality." 6 Save in one immaterial respect to which I will refer below, the Refugee Review Tribunal ("the Tribunal") in the present manner applied the above principles. Given the view I take of those principles I am satisfied, contrary to the applicant's contention, that the Tribunal committed no jurisdictional error in so acting. I accept that, in this at least, the applicant's case has been designed to preserve its position pending a possible future challenge elsewhere to the correctness of NBGM. 7 The Cessation clause issue, if I can so describe it, is not the sole ground advanced in this application. For this reason, it is necessary to refer in a little detail to the factual setting of this matter.