SZLGF v Minister for Immigration and Citizenship [2008] FCA 1369

The Requirements for the Grant of a Protection Visa 1 Under s 45 of the Migration Act 1958 (Cth) ('the Act'), a person who is not an Australian citizen who wants a visa, must apply for a visa of a particular class. An application for a visa is a valid application if it complies with the requirements of s 46 of the Act. Section 47(1) of the Act requires the Minister to consider valid applications for visas. Section 65 of the Act makes provision for the grant, or refusal, of visas. It relevantly provides: '65(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; … … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.' 2 In respect of protection visas s 36(2) of the Act relevantly provides: '36(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; … (b) a non-citizen in Australia who is the spouse … of a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa.' 3 The references to the Refugees Convention and to the Refugees Protocol are references to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (hereinafter collectively referred as 'the Convention'). 4 Whether under s 36(2) Australia has protection obligations to a particular person depends upon whether that person satisfies the definition of 'refugee' in Article 1A of the Convention in the context of other relevant Articles (per Gummow A-CJ, Callinan, Heydon and Crennan JJ in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 ('QAAH') at [37]). 5 In Article 1A(2) of the Convention, the term 'refugee' applies to any person who: '… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…' 6 The definition of 'refugee' is couched in the present tense and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to 'protection' is to 'external protection' by the country of nationality, for example, by the provision of diplomatic or consular protection, and not to the provision of 'internal protection' provided inside the country of nationality from which the refugee has departed (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 ('Khawar') at [62], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 ('SZATV') at [16]; see also QAAH). 7 The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition is also satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]. See also Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 ('S152') at [19]). 8 Where diplomatic or consular protection is available, a person must show not merely that he is unwilling to avail himself of such protection, but that his unwillingness is owing to his fear of persecution. He must justify, not merely assert, his unwillingness. A claimant's unreasonable refusal to seek the protection of his home authorities would not satisfy the requirements of Article 1A(2) of the Convention (per Gleeson CJ, Hayne and Heydon JJ in S152 at [19]). 9 It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 ('Guo') at 571-2 and 596 that the requirement that the 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572).