NBEM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 161

FEDERAL COURT OF AUSTRALIA

NBEM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 161 MIGRATION – application for permanent protection visa - removal of Taliban from power - whether Article 1C(5) of the Refugees Convention applies - interaction with s 36(3) of the Migration Act 1958 (Cth) – decisions of single Judges of the Federal Court of Australia followed

Migration Act 1958 (Cth) s 36(3) Refugees Convention 1951, Article 1C(5)

NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373 followed QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1448 referred to SWNB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1606 referred to NBEM v Minister for Immigration and Multicultural and Indigenous Affairs N 697 of 2004 JACOBSON J 7 MARCH 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 697 OF 2004

BETWEEN: NBEM

APPLICANT

AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 7 MARCH 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed; and 2. The applicant pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 697 OF 2004

BETWEEN: NBEM

APPLICANT

AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 7 MARCH 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1. This is an application under s39B of the Judiciary Act 1903 (Cth) to review a decision of the Refugee Review Tribunal ("the RRT"). 2. The applicant is a citizen of Afghanistan. He belongs to the Hazara ethnic group; is a Shia Muslim; and comes from the village of Tabarghanak Khojali in the Jaghori district of Ghazni province. Having arrived in Australia in October 1999, he lodged an application for a protection visa and was subsequently granted a temporary protection visa for a period of three years. That visa was granted on the basis that the applicant had a well founded fear of persecution by the Taliban for reason of his race (Hazara). 3. The applicant made a further application for a permanent protection visa on 11 August 2000, which was refused by a delegate for the Minister on 25 September 2003. By this time, the Taliban had been removed from power in Afghanistan. The application was rejected on the ground that the applicant did not face a real chance of persecution on return to Afghanistan by the Taliban or other groups or factions. Review of this decision was sought in the RRT on 2 October 2003. On 13 April 2004, the RRT handed down its decision, which affirmed the decision of the delegate. 4. The RRT approached its task on the basis that the applicant had already been found to be a refugee in relation to his application for a temporary protection visa, and therefore observed that: "the first question I need to address is whether, in accordance with Article 1C(5) of the Convention, he can no longer continue to refuse to avail himself of the protection of his country of nationality because the circumstances in connection with which he was recognised as a refugee have ceased to exist" 5. The RRT went on to consider whether the applicant had ceased to be a refugee under the Refugees Convention 1951 ("the Convention") by reason of the operation of Article 1C(5): s 36(2)(a) of the Migration Act 1958 (Cth) ("the Act"). Under that Article the Convention ceases to apply to a person owed protection obligations if that person can no longer continue to refuse to avail himself or herself of the protection of the country of his or her nationality because the circumstances in connection with which he has been recognised as a refugee have ceased to exist. This is known as the "Cessation clause". 6. The RRT looked at various country information and concluded that the situation in Afghanistan had changed. The RRT observed that the applicant was granted refugee status on the basis of his fear of the Taliban, and that the Taliban was removed from power in Afghanistan in mid-November 2001. The RRT accepted that Taliban remnants remain in Afghanistan, but that the information available indicated that the Taliban no longer exists as a political movement. "I find on the basis of the evidence referred to above that the Taliban have been removed from power in Afghanistan. I do not accept that there is any chance of the Taliban re-emerging as a viable political movement in Afghanistan in the reasonably foreseeable future. I do not accept on the evidence before me that there is a real chance that the Applicant will be targeted by elements of the Taliban remaining in Afghanistan because he is a Hazara or a (non-practicing) Shia Muslim. I find that because the circumstances in connexion with which the applicant was recognised as a refugee – namely his fear of the Taliban - have ceased to exist, he can no longer continue to refuse to avail himself of the protection of his country of nationality for those reasons. Therefore, Article 1C(5) of the Convention applies to the applicant." 7. The RRT went on to consider whether, even if it was wrong in its conclusion about the application of Article 1C(5), s 36(3) of the Act was applicable. That is whether, as at the date of the decision, the applicant has a well-founded fear of being persecuted on the basis of the circumstances in connection with which he was originally recognised as a refugee if he returns now or in the reasonably foreseeable future. 8. The RRT also found that: "… as a national of Afghanistan, the Applicant is able to avail himself of a right to enter and reside in that country. For the reasons given above, having regard to the changed circumstances in Afghanistan…I find that the Applicant no longer had a well-founded fear of being persecuted on the basis of the circumstances in connection with which he was originally recognised as a refugee if he returns to Afghanistan now or in the reasonably foreseeable future." 9. Therefore, it found that s36(3) applies and Australia was taken not to have protection obligations to the Applicant. 10. The RRT then turned to consider whether, having regard to the situation in Afghanistan at the date of the decision, the Applicant has a well-founded fear of persecution for one of the five reasons set out in the Convention, but for reasons unrelated to the circumstances in connection with which he was originally recognised as a refugee: see s 36(2) of the Act. 11. I note that the findings of the RRT on this point are not the subject of the application for judicial review. However, for completeness, I note that the RRT considered the applicant's evidence at length, and after addressing each of the applicant's claims, the RRT concluded that it was not satisfied the Applicant had a well-founded fear of persecution for a Convention reason if he returns to Afghanistan, and therefore, pursuant to s36(2), Australia no longer has a protection obligation to him.