NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54

HIGH COURT OF AUSTRALIA

GUMMOW ACJ

KIRBY, CALLINAN, HEYDON AND CRENNAN JJ

NBGM APPLICANT

AND

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS & ANOR RESPONDENTS

NBGM v Minister for Immigration and Multicultural Affairs

[2006] HCA 54

15 November 2006

S145/2006

ORDER

1. Special leave to appeal from the whole of the judgment and orders of the Full Court of the Federal Court of Australia given on 12 May 2006 be granted.

2. The appeal be treated as having been instituted and heard instanter and be dismissed with costs.

On appeal from the Federal Court of Australia

Representation

G C Lindsay SC with L J Karp for the applicant (instructed by Legal Aid Commission of New South Wales)

S J Gageler SC with S B Lloyd for the first respondent (instructed by Sparke Helmore)

Submitting appearance for the second respondent.

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

NBGM v Minister for Immigration and Multicultural Affairs

Immigration – Refugees – Application for permanent protection visa – Statute requiring Minister to be satisfied Australia owes protection obligations to the applicant under the Convention – Applicant previously granted temporary protection visa for a specified period – Whether previous grant of temporary protection visa entitles applicant on application for a new visa to a presumption of being owed protection obligations under the Convention – Construction of Migration Act 1958 (Cth), s 36 – Construction of the Convention.

Words and phrases – "refugee", "protection obligations", "cessation".

Migration Act 1958 (Cth), ss 5(1), 36.

Convention relating to the Status of Refugees, Art 1A, Art 1C(5).

Protocol relating to the Status of Refugees.

1. GUMMOW ACJ. I agree generally with the reasons for judgment of Callinan, Heydon and Crennan JJ and in particular with the conclusion that the reasoning in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004[1] produces the result that this appeal must fail. 2. This conclusion is reached independently of any view of the construction of sub‑ss (3), (4) and (5) of s 36 of the Migration Act 1958 (Cth) ("the Act"). The sufficiently decisive consideration is found in the use of the present tense in s 36(2) and the supporting considerations discussed in QAAH. 3. Sub‑sections (3), (4) and (5) were added by the Border Protection Legislation Amendment Act 1999 (Cth)[2]. It would be a curious result if the outcome in the present case was owed only to such recent amendments and would have differed before the making of those amendments. 4. Further, there are various issues of construction of sub‑ss (3), (4) and (5) of s 36. Some of these I referred to in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji[3]. Others divided the Full Court in the present case. These matters do not require determination for an outcome in the present appeal which favours its dismissal. 5. Special leave to appeal should be granted. The appeal should be taken as instituted and heard instanter and dismissed with costs. However, that would leave to the Full Court the question of costs as reserved by order 3 of its orders made on 12 May 2006. 6. KIRBY J. This is an appeal from orders of the Full Court of the Federal Court of Australia, exceptionally constituted by five judges[4]. The Full Court had been so constituted because of doubts that had arisen in respect of the divided decision of an earlier Full Court in QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs[5]. By inference, it was hoped that a Full Court of larger numbers would settle clearly the point upon which the Full Court in QAAH had divided. 7. In the result, however, the Full Court in the present matter was also divided[6]. The same issues that had led to the divisions in QAAH re-emerged and, indeed, were sharpened. Accordingly, when this Court granted special leave to the Minister to appeal in QAAH, an order was made returning an application for special leave to appeal on the part of the putative refugee in the present matter, NBGM ("the applicant")[7] to be heard at the time as the appeal in QAAH. 8. Argument in the appeal in QAAH, and in the application in NBGM, was accordingly heard together. Substantially, the issues are common. The outcome in QAAH controls the outcome in NBGM's application. In my opinion, that application should succeed. Special leave should be granted. NBGM's appeal should be allowed and a new hearing, before the Refugee Review Tribunal ("the Tribunal"), should be ordered.