Case: NBGM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 60
Outcome: considered
The appellant was represented at the hearing of his appeal by counsel appointed under O 80 of the Federal Court Rules . Judgment on the appeal has been delayed pending the publication of the Full Court judgments in SZEEU v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 2 and NBGM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 60. I now have supplementary written submissions from the parties concerning these judgments. 7 The significance of Art 1C(5) to a determination of entitlement to a protection visa was the subject of consideration by the Full Court in NBGM . 8 For the appellant to be entitled to a protection visa it was necessary for the Tribunal to be satisfied, relevantly, that he is a person in respect of whom Australia has protection obligations under the Convention (s 36(2)(a)). Ordinarily, Australia will have protection obligations in respect of an individual who, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Art 1A of the Convention). 9 Article 1C(5) of the Convention has been described as a 'cessation provision' . It provides that the Convention shall cease to apply to any person falling under Art 1A if that person can no longer, because the circumstances giving rise to his or her recognition as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of his or her nationality. 10 The Tribunal, which made its decision before the publication of NBGM , concluded that Art 1C(5) had no relevance to the appellant's application for a protection visa because he had not, as an individual, been recognised as a refugee when he came to Australia. The Tribunal considered s 36(3) of the Act to be determinative of the appellant's application. Section 36(3) provides: '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.' 11 The appellant contended that the Tribunal erred both in concluding that he had not previously been recognised as a refugee and in treating s 36(3) of the Act as determinative of his application. The appellant submitted that the Tribunal ought to have proceeded on the basis that, because he was recognised as a refugee when he came to Australia, Australia owes protection obligations in respect of him unless those obligations have ceased because of Art 1C(5) of the Convention. As I do not accept the Tribunal erred in treating s 36(3) as determinative of the appellant's application, it is not necessary for me to reach a concluded view on whether he was recognised as a refugee when he entered Australia. 12 As mentioned above, the relevance of Art 1C(5) to a determination of whether an individual is entitled to a protection visa has recently been considered by a Full Court in NBGM . The Full Court was constituted by five judges. The differing views expressed by the members of the Full Court complicate the identification of guiding principles. 13 The appeal in NBGM was dismissed by a majority constituted by Black CJ and Mansfield and Stone JJ. Nonetheless, the appellant submits that I should follow the approach preferred by Allsop J, with whom Marshall J agreed, to the interaction of s 36(3) of the Act and Art 1C(5) of the Convention. Assuming the appellant to have been recognised as a refugee when he came to Australia, on the approach preferred by Allsop J, Australia will have protection obligations with respect to him unless Art 1C(5) applies to him. 14 I conclude that to accept the above submission would be to disregard [25] of the reasons for judgment of the Chief Justice in NBGM . Both Mansfield and Stone JJ expressed agreement with this paragraph. In [25] the Chief Justice noted that the majority of the Full Court agreed that, in considering an application for a protection visa, the decision-maker must be satisfied that, at the time the decision is made, the appellant then has a well-founded fear of persecution for a Convention reason. 15 The Tribunal was not satisfied that at the time of its decision the appellant had a well-founded fear of persecution for a Convention reason. It was therefore not open to the Tribunal to be satisfied that the appellant was entitled to a protection visa whatever the operation, if any, of Art 1C(5) of the Convention in respect of the appellant. 16 The appellant claimed to fear persecution in Vietnam because the Vietnamese authorities would impute to him the political opinions of his father who had been a member of the South Vietnamese army. The Tribunal did not accept that the political opinion of the appellant's father would lead to the appellant being persecuted in Vietnam. In its reasons for decision the Tribunal observed: 'The evidence shows that his father had only low-ranking involvement in the Vietnam War. It shows that the state considered his debt discharged and atonement complete after six months in re-education. The Applicant's father was allowed to return to the community and operate a small private business, however unrewarding, and was later allowed by the state to depart Vietnam.'