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O'Sullivan, Maria --- "Minister for Immigration and Multicultural and Indigenous Affairs v QAAH: Cessation of Refugee Status" [2006] SydLawRw 17; (2006) 28(2) Sydney Law Review 359

* Assistant Lecturer, Monash University, PhD Candidate

[1] [2005] FCAFC 136; (2005) 223 ALR 494. The leave to appeal transcript is available at: <http://www.austlii.edu.au/ au/other/HCATrans/2005/1033.html> (accessed 7 May 2006).

[2] 1951 Convention relating to the Status of Refugees, 189 UNTS 150, supplemented by the 1967 Protocol relating to the Status of Refugees, 606 UNTS 267.

[3] Joan Fitzpatrick, ‘Current Issues in Cessation of Protection Under Article 1C’ UNHCR Background Paper (2001) at [75].

[4] It appears from Refugee Review Tribunal (RRT) decisions available to the public (at www.austlii.edu.au) that the RRT only began to consider Article 1C(5) from 2004 onwards and in relation to applications for further protection visas by Afghan and Iraq refugees who hold Subclass 785 TPVs. The writer was unable to obtain statistics from the Department as to the date at which it first commenced applying Article 1C(5).

[5] For instance, James Hathaway has stated that the change must be of ‘substantial political significance’, ‘truly effective’ and ‘durable’: James Hathaway, The Law of Refugee Status, (1991) at 200–03. See also James Hathaway, The Rights of Refugees under International Law (2005) at 922–941; Guy Goodwin-Gill, The Refugee in International Law, (2nd ed, 1996) 84.

[6] See eg, Hathaway (1991), id at 203–04; Hathaway (2005), id at 941–944.

[7] Section 36(2)(a) states that the criterion for a protection visa is that the applicant for the visa is a ‘non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention … .’

[8] For instance, Article 1C(1) may apply where the refugee has voluntary re-availed him or herself of the protection of the country of nationality.

[9] Article 1C (5) deals with applicants with a nationality and (6) with applicants who have no nationality (so called ‘stateless persons’).

[10] This is because it requires that certain non-citizens can only apply for a TPV at first instance, and are only eligible to apply for a permanent protection visa after grant of that TPV. Currently, Australia is the only Contracting State to the Convention which routinely grants only temporary protection to those applicants who show that they have an individualised well founded fear of persecution under the Convention. This is significant as ‘temporary protection’ in international refugee law discourse denotes protection granted in mass influx situations when individual status determination is not possible.

[11] Alice Edwards, ‘Tampering with Refugee Protection: The Case of Australia’ (2003) 15 International Journal of Refugee Law 192 at 201.

[12] The criteria is set out in Schedule 2, Item 785, Migration Regulations 1994.

[13] The criteria is set out in Schedule 2, Item 866, Migration Regulations 1994

[14] Item 785.22 and Item 866.22, Schedule 2, Migration Regulations 1994

[15] See Regulation 2.08F and Item 1403 of Schedule 1, Migration Regulations 1994.

[16] DIMIA Decision of March 2000, QAAH, above n1 (Wilcox J) at [4].

[17] See above n15.

[18] See eg, (Wilcox J) at [32–35]; (Lander J) at [196–97].

[19] This is important because by March 2003, the Taliban had been (arguably) removed from its position of the governing force in Afghanistan.

[20] DIMIA Decision, as cited (Wilcox J), QAAH at [11].

[21] RRT Decision, as cited in QAAH (Wilcox J) at [18–23].

[22] QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004]

FCA 1448.

[23] QAAH, above n1 (Wilcox J) at [69].

type of control as it did in 1999. The Tribunal would need to investigate, and make findings about, the extent of Taliban activity in the Afghan countryside, especially in the appellant’s home district.24

[24] QAAH, above n1 (Wilcox J) at [74].

[25] ‘If the facts are insufficiently elucidated for a confident finding to be made, the claim of cessation will fail and the person will remain recognized as a refugee’ (Wilcox J) id at [69].

[26] QAAH, above n1 (Wilcox J) at [78] [Emphasis added]. See also Madgwick J at [104].

[27] UNHCR, ‘The International Protection of Refugees: Interpreting Article 1 of the 1951

Convention Relating to the Status of Refugees’, UNHCR (April 2001) at [10]: <http:// www.refugeelawreader.org> .

[28] UNHCR Lisbon Roundtable Meeting of Experts, Summary Conclusions, May 2001, published in Erika Feller, Volker Turk, Frances Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, (2003) 550 at [27].

[29] DIMIA, Refugee and Humanitarian Division, ‘The Cessation Clauses (Article 1C): An Australian Perspective: A Paper Prepared as a Contribution to the UNHCR’s Expert Roundtable Series’ (October 2001) at 16.

[30] The question being: ‘is the nature of the changes such that it is more likely than not that the preexisting basis for fear of persecution has been removed?’: see Goodwin Gill, above n5 at 86–87.

[31] Joan Fitzpatrick, above n3, at [54], citing Goodwin-Gill at 87.

[32] US Immigration and Nationality Act 1952 (as amended), 8 USC 1158, Section 208 (c)(2)(A).

[33] In the US context, the Immigration and Naturalisation Service.

[34] US Codes of Federal Regulations, 8 CFR (revised as of 1.1.06), section 208.13(b)(1)(ii).

[35] Immigration and Refugee Protection Act 2001, Canada. Section 108(1) sets out the test for cessation somewhat differently from Article 1C(5) in that it provides that a claim for refugee protection shall be rejected where ‘(e) the reasons for which the person sought refugee protection have ceased to exist’ (emphasis added). Compare wording of Article 1C(5) set out above at page 361.

[36] Section 108(2), ibid. Contrast Australia where the Department applies Article 1C(5) when determining a further protection visa by the holder of a TPV.

[37] See eg, US case of In re N-M-A Applicant, US Board of Immigration Appeals, Interim Decision No 3368, 21 October, 1998. This can be explained by the fact that neither of these countries have a temporary protection regime similar to that of Australia. The US does have temporary protected status (TPS), but this applies to particular national groups designated as having a protection need, see eg, Jane McAdam ‘Complementary Protection and Beyond: How States Deal with Human Rights Protection’ New Issues in Refugee Research Working Paper No 118 (2005) 17.

[38] See Re HBC, Canadian Immigration and Refugee Board, CRDD M96–08650, M96–08702 (Duquette, Yassini & Roy JJ) 18 June 1997. The three member panel of the Board held that the Minister had the burden of proving the change in circumstances on the balance of probabilities at [51].

[39] Mahmoud v Canada (Minister for Employment and Immigration) FCTD, 1999 ACWSJ LEXIS 46767 (Nadon J) 26 October 1993 at 46. See also Youssef v Canada (Minister for Citizenship and Immigration) FCTD, 1993 ACWSJ LEXIS 51344 (Teitelbaum J) 29 March 1999.

[40] Conversely, it may be difficult to argue ‘post-recognition’ cases in support of burden of proof arguments in situations where there has been no formal recognition of refugee status.

[41] UK Home Office, Immigration & Nationality Directorate, Asylum Policy Instruction (API) on Refugee Leave, undated, available at: <http://www.ind.homeoffice.gov.uk> (17 May 2006).

[42] Arif v Secretary of State for the Home Department [1999] INLR 327. Arif was also referred to in Fadilt Dyli v The Secretary of State for the Home Department [2000] UKIAT 00001.

[43] Arif id at 331. This has been cited with approval by Lord Phillips MR in Saad, Diriye and Osorio v Sec of State for the Home Department [2001] EWCA Civ 2008 at [54–55]. Brown LJ (now of the House of Lords) also endorsed his earlier approach in the recent House of Lords decision, In re B (FC)(Appellant)(2002) Regina v Special Adjudicator ex parte Hoxha (FC) [2005] EWCA Civ 112; [2005] 1 WLR 1063 at [66].

[44] See above page 366.

[45] See eg, UNHCR, ‘Case for the Intervener’, submission in Hoxha, above n43, 5 January 2005 at [9.7] at: <http://www.unhchr.org> (17 May 2006).

[46] See eg, UNHCR id at [9.7].

[47] QAAH, above n1 (Wilcox J) at [83].

[48] QAAH, above n1 (Lander J) at [305].

[49] QAAH, above n1 (Wilcox J) at [69].

[50] See eg, QAAH, above n1 (Wilcox J) at [61–66], [84–87]; compare with (Lander J) at [161–64], [181–82], [254–78].

[51] For example, Canada and the US, discussed above at page 365. See also Article 64 of Switzerland’s Asylum Act 1998 which provides that the Federal Office can revoke asylum or deprive persons of refugee status for reasons falling under Article 1C of the Convention.

[52] NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 213 ALR 668 (Gleeson, McHugh, Gummow, Hayne, Callinan & Heydon JJ) at [32] (footnotes in original omitted).

[53] NAGV above n52 at [43]. UNHCR has also said that ‘in practice, the application of Article 1 should be looked at in a holistic manner in line with the complex system of defining and protecting refugees as envisaged by the 1951 Convention’: UNHCR, ‘Case for the Intervener’, above n45, 2 at footnote 1.

[54] This, in turn, is central to the legal issues upon which QAAH turns, as once the section 36(2)– Article 1C(5) link is shown, it cannot logically or properly be argued that a decision to grant a TPV under section 36 has no relevance to a decision relating to a permanent protection visa.

[55] NAGV, above n52 at [47].

[56] Adan v Secretary of State for the Home Department [1998] UKHL 15; [1999] 1 AC 293.

[57] Lloyd in Adan, id at 306, cited by (Lander J) at [238].

[58] Lord Lloyd in Adan, above n56 at 306, cited in QAAH, above n1 (Lander J) at [238].

[59] Hoxha above n43 where Lord Hope of Craighead stated that Article 1C(5) ‘takes effect naturally when the refugee ceases to have a current well founded fear’ at [13], cited by (Lander J) in QAAH, above n1 at [241].

[60] NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373

[61] NBGM (Emmett J) at [61], cited in QAAH (Lander J) at [259].

[62] NBGM (Emmett J) at [63], cited in QAAH (Lander J), id at [259].