Case: NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60
Outcome: considered
The appellant argues that the RRT did not treat the views expressed by commentators as being the test for application of Article 1C(5). In support of this, the appellant refers to the recent decision of the Full Federal Court in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60 at [184] where Allsop J, with whom a majority of other judges agreed, said: "The approach is not to ask whether a claim of such a well-founded fear has been made out, but to ask whether, in respect of someone who has been recognised as a refugee (that is who has made out that claim), circumstances have so changed as to warrant the conclusion that the well-founded fear which previously existed can no longer be maintained as a basis for refusing to avail himself or herself of the protection of the country of nationality and, so, that the protection of the Convention should cease. A lack of demonstrable clarity in the reality and durability of the change in relevant circumstances will lead to the grounds for cessation not being established ." (Emphasis added) 15 I accept that for the purpose of the present case the emphasised formulation of the test is appropriate and that this was the test addressed by the RRT. 16 The appellant submits that the observation by the RRT that the expressions of the commentators (which were to similar effect as the approach later enunciated by Allsop J) do not constitute "legal tests" evidences that the wrong test was applied by the RRT. 17 I do not accept this submission. The correct test is enunciated by the RRT. The RRT rightly notes that it is important to return the language of the Convention and there is no reason to doubt that the RRT has done this. The use of the expression "legal tests" does not signify that the RRT has adopted a different or inconsistent approach, but rather that it was conscious of the need to apply the language of the Act . On a fair reading of the reasons, I consider that the RRT has sought to apply and has formulated the correct approach to the question, while at the same time bearing in mind the importance of giving primacy to the language of the Convention. 18 In addition, the appellant submits that in the application of the test to the circumstances of the case, the RRT has not correctly applied the test because it has ignored a number of relevant circumstances. 36 The respondent relies on the recent decision of the Full Federal Court in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60. Black CJ, Mansfield and Stone JJ agreed that s 36(3) -(5) had to be satisfied in respect of an application for a permanent protection visa where the person had been previously accepted as a refugee at an earlier time. Black CJ at [25] referred to the concurrence of Mansfield J at [59] and Stone J at [149] in these terms: "... whilst there are two lines of reasoning leading to the majority conclusion that the appeal should be dismissed, there is a common conclusion about the task to be performed by the decision-maker on an application for a permanent protection visa where the relevant circumstances are said to have changed since the appellant was granted a temporary protection visa . The majority would agree that s 36 mandates that the decision-maker must be satisfied that, at the time the decision is made, the appellant for a permanent protection visa then has a well-founded fear of persecution for a Convention reason. The circumstance that a previous decision-maker was satisfied that the applicant had such a fear when a temporary protection visa was granted is not sufficient to establish what s 36 requires." (Emphasis added) 37 In my view, the above statement of principle by the majority accords with a reasonable interpretation of the language of s 36(3) -(5). In terms, s 36(2) requires that whenever there is an application for a protection visa of any kind, the Minister must be satisfied that Australia has protection obligations to the applicant. Subsections (3), (4) and (5) expressly exclude the operation of such obligations unless the person has a well-founded fear of persecution on Convention grounds. These provisions are in terms calculated to enliven a requirement that there must exist a well-founded fear where a new claim is made for a protection visa. The making of the claim expressly activates the requirement and this is not displaced by generalised overtones which are said to emerge inferentially from the terms of Article 1C(5) when that provision did not contemplate legislative modifications of the type enacted in s 36. 38 The above statement in NBGM is the most recent Full Court statement on the question as to the interpretation and interaction between s 36 as amended and Article 1C(5), and I am bound by this expression of principle. I note that special leave has been granted by the High Court in relation to that proceeding, and that the High Court has recently heard the appeal and reserved its decision. 39 In these circumstances, the appellant submits that the reasons of Wilcox and Madgwick JJ in the earlier Full Court case QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363 should be followed and applied. In that case, the majority held that if the decision-maker is satisfied that an applicant has already been recognised as a refugee under Art 1A(2) of the Convention and is not satisfied that this status has ceased under Art 1C(5), then Australia will have protection obligations to the applicant. The appellant says that on a correct reading, NBGM has no ratio-decidendi and therefore no application, or alternatively that it is authority contrary to the position of the respondent. It is argued that on a correct analysis, it can be seen that Stone J arrived at her decision in her separate reasons on a basis inconsistent with reasoning of Black CJ and Mansfield J. The appellant submits that for this reason, and notwithstanding her Honour's statement at [149] expressing her agreement with the proposition set out therein, the position as articulated in [25] of Black CJ's reasons should not be followed. Therefore, it is said, the majority decision in QAAH correctly expresses the law and must be applied. 40 Where recently three members of a five-member Full Court have expressly committed to a specific statement of principle as being applicable to the question before me, I consider that I should follow that statement. In my view, the position as stated by Black CJ in [25] cannot be said to be clearly wrong. The question before me is not to be resolved by arcane dissection and analysis of the chains of reasoning by each of the five different members of the Court of the type which has been adopted in the arguments in relation to the ratio-decidendi of NBGM . The concurrence of the majority judges in the statement as to the interpretation and application of s 36 as amended is conclusive for the determination of the question before me on this issue. 41 The consequence of this in the present case is that I am not persuaded the RRT has erred in requiring that it must be satisfied that the appellant had a well-founded fear of persecution, or in finding that the appellant did not have a well-founded fear of persecution for a Convention reason. Nor have I been pointed to any error in the reasons of Emmett FM that would warrant the setting aside of this decision. The appeal is therefore dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 29 September 2006 Counsel for the Appellant: L J Karp Solicitor for the Appellant: Legal Aid New South Wales Counsel for the Respondents: T Wong Solicitor for the Respondents: Clayton Utz Date of Hearing: 24 May 2006 Date of Final Written Submissions: 6 June 2006 Date of Judgment: 29 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1296.html