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Hay, Emily; Kneebone, Susan --- "Refugee Status in Australia and the Cessation Provisions: QAAH of 2004 v MIMIA" [2006] AltLawJl 36; (2006) 31(3) Alternative Law Journal 147

    QAAH of 2004 v MIMIA


    The Federal Court of Australia decision of QAAH of 2004 v MIMIA,[1] currently under appeal in the High Court of Australia, raises the issue of how art 1C(5) of the Convention Relating to the Status of Refugees[2] (‘the Refugees Convention’) applies in the context of Australia’s temporary protection visa (TPV) regime. The central question in QAAH is whether a person who has been recognised as a refugee by the granting of a TPV and who is applying for a permanent protection visa (PPV) must re-establish de novo that they meet the requirements of the Refugees Convention definition (the position taken by Lander J in QAAH), or whether they remain a refugee unless the government can prove that circumstances have changed so as to activate cessation (the majority’s approach in QAAH). In this article, it is argued that the former option does not conform with Australia’s obligations under the Refugees Convention. Different judges in the Federal Court of Australia have drawn conflicting conclusions on this issue, including the recent Full Court decision in NBGM v MIMIA.[3] In QAAH, the High Court will be called on once again to settle conflicting views and confusion in the Federal Court on issues of refugee law.

    The ‘ceased circumstances’ provision in the Refugees Convention

    Art 1A(2) of the Refugees Convention defines a refugee as a person who has ‘a well-founded fear of being persecuted’ for a Convention reason, who is outside the country of nationality and who is ‘unable’ or ‘unwilling to avail himself of the protection of that country’. Art 1C, the ‘cessation’ provision sits with other provisions in art 1, which exclude a person who otherwise satisfies the requirements of the definition in art 1A(2) of the Refugees Convention, from qualifying for refugee status. The exclusion provisions in art 1F apply to persons who do not deserve protection. But arts 1C, 1D and 1E apply to persons who do not need protection, either because of their voluntary act (for example, reacquiring nationality or acquiring a new nationality or residence) or because they have obtained equivalent protection. Article 1C(5) contains the

    so-called ‘ceased circumstances’ clause which provides that the Refugees Convention shall cease to apply to a recognised refugee if:

    He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality …

    The important distinction between art 1C(5) and the other cessation clauses is that an applicant has no control over the circumstances which are claimed to have ‘ceased to exist’.

    As situations stabilise in refugee-producing areas after protracted conflicts, there is a growing interest in using art 1C(5) to return refugees to their countries of origin, particularly from states that have suffered from an upsurge in applications for protection. These states may seek to utilise the Refugees Convention to their own advantage to minimise the burden of refugee protection.

    Application of art 1C(5)

    Art 1C(5) has typically been invoked by the United Nations High Commissioner for Refugees (UNHCR) in consultation with states, by way of a general declaration that circumstances in a particular country have fundamentally changed so as to remove a particular threat that may have been faced by a large number of refugees under its mandate. Examples of such declarations include both in Chile after elections and democratic developments and the large-scale voluntary repatriation of refugees took place, and in South Africa after the apartheid regime was dismantled. Cessation has rarely been invoked by states other than in group situations due to the administrative costs of individualised determinations and the recognised need to provide some form of stability for refugees.[4]

    The UNHCR Guidelines and Executive Committee of the High Commissioner’s Programme Conclusions outline in more detail how ‘ceased to exist’ should be interpreted.[5] Consistent with leading academic opinion, they suggest that changes in the refugee’s country should be ‘substantial, effective and durable’ or ‘fundamental and enduring’. Some indicators of such change that have been suggested by the UNHCR and the Executive Committee[6] are democratic elections, significant reforms to the legal and social structure, amnesties, repeal of oppressive laws, dismantling of repressive security forces, and general respect for human rights. The UNHCR recognises that observance of specific human rights need not be exemplary, but significant improvements and progress towards the development of national institutions to protect human rights are necessary. In terms of durability, no minimum time frame has been established, but 12 to 18 months has been suggested as indicative of durable change by the UNHCR. The UNHCR itself generally waits for four or five years to elapse before making a declaration of cessation.

    While nominally supporting UN Guidelines on the application of the provision, in practice, Australia’s approach is in direct contrast to the cautious process of consultation undertaken by the UNHCR when considering cessation. Yet Australia’s paper for the UNHCR’s Expert Roundtable Series in 2001 endorsed the cautious and restrictive approach to art 1C(5) articulated by the UNHCR’s Handbook[7] and Executive Committee Conclusions. Of particular importance are statements in the paper to the effect that once determined to be a refugee, that status is retained ‘unless and until’ circumstances arise in which cessation can be brought into effect,[8] and a recognition that the burden of proof should be on the authorities to show substantial, effective and durable change.[9] Subsequently, however, as will be explained below, the Australian government has taken a different approach. This has been facilitated by the serendipitous coincidence between the TPV regime and art 1C(5).

    Until recently, it has been considered impractical and inappropriate for governments to seek out individual refugees to whom the cessation clause may apply. However, in 1999, the Australian government introduced the TPV regime, which applies to all persons found to be refugees but who arrived in Australia without immigration clearance. The TPV regime, in effect, institutionalises review of each individual’s refugee status when they apply for permanent protection after the expiry of their TPV. It provides the Australian government with a natural opportunity to consider whether art 1C(5) applies, which has led to the development of a new legal discourse.

    A stated purpose of the TPV regime in Australia is to consider, upon application for further protection, ‘whether the situation in the home country has changed and the TPV holder is no longer in fear of persecution’.[10] This in itself is inconsistent with the UNHCR Handbook and Guidelines which warn against the periodic review of status.[11] The use of the TPV system by the Department of Immigration is also highly questionable, as many TPV holders have had their visas extended (as in QAAH) in order to delay consideration of their status, in the apparent hope that conflict will have subsided in their home country and that art 1C(5) can be invoked. This use of the TPV system highlights the conflict between the Refugees Convention and the Australian government’s desired implementation of it through the Migration Act 1958 (Cth).

    Iraq and Afghanistan have been two major source countries of refugee influx in the period since the introduction of TPVs. Subsequent events in both countries have led to many claims for PPVs being refused by the Minister. In the cases of NBGM and QAAH, the applicants were both male Afghanis of Hazara ethnicity and Shi’a religious affiliation. Both were recognised as refugees and granted a TPV, which were subsequently extended, but were later refused PPVs by the Department of Immigration and the Refugee Review Tribunal (RRT). The RRT stated in both cases that the circumstances of the persecution had ceased because the Taliban was no longer a governing authority and was not a viable political force, despite ongoing ‘security problems’. In NBGM, the Full Court of the Federal Court has recently upheld the decision of Emmett J at first instance.[12] Emmett J’s decision which required TPV holders applying for a PPV to re-establish de novo that they meet the requirements of the Refugees Convention definition, has led to a conflict of authority in the Federal Court and to ambiguity and inconsistency in decisions of the RRT. Emmett J’s approach was rejected by a majority in QAAH but to add to the confusion, was accepted for different reasons by the Full Court on appeal in NBGM. The Full Court in NBGM decided by a narrow majority of 3:2 that the Migration Act required a de novo hearing for a PPV. Thus, the need for the High Court’s resolution of the issue is made more urgent.

    Temporary protection

    The introduction of the TPV regime in Australia coincided with the peak of asylum seekers arriving by boat without immigration clearance in the late 1990s, culminating in the Tampa incident and subsequent legislation in 2001. Conflicts in the Middle East including Afghanistan and Iraq contributed significant numbers to these unauthorised arrivals. Therefore, the possibility of using the ‘changed circumstances’ provision in relation to arrivals from these countries is of particular interest to the Department of Immigration.

    Temporary protection has been used internationally in times of mass influx of refugees, in order to provide urgent humanitarian protection in a crisis, for example the airlifting of Kosovars in 1999. However, commentators are adamant that Australia’s ‘crisis’ in the late 1990s did not amount to a mass influx.[13]

    The UNHCR views temporary protection as a short-term strategy to secure the immediate physical safety of refugees before a more durable solution is found. The Refugees Convention does contemplate that refugee status may not be permanent, as the inclusion of cessation provisions in the Refugees Convention evidences, but when read as a whole (including arts 33 and 34), it is clear that cessation ‘due to changed circumstances’ is intended to be interpreted very narrowly and applied very cautiously. In particular, the UNHCR Handbook makes it clear that the status of a refugee ‘should not in principle be subject to frequent review to the detriment of his sense of security’.[14] The UNHCR Guidelines on art 1C(5) note that art 34 of the Refugees Convention urges states to facilitate the assimilation and naturalisation of refugees, and that where cessation clauses are applied on an individual basis, ‘it should not be done for the purposes of a rehearing de novo.’[15]

    The UNHCR has stressed on many occasions that refugee protection must provide ‘durable’ solutions.[16] For example, in its Submission to the Senate Legal and Constitutional References Committee’s Inquiry into the Administration and Operation of the Migration Act, the UNHCR expressed a number of concerns with Australia’s TPV regime, especially the lack of entitlement to family reunion, the fact that TPV holders have no right of re-entry to Australia and that they are not eligible to receive Convention Travel Documents.[17] The UNHCR noted that the TPV regime falls short of international standards and best practices.

    The overriding question at issue in the QAAH appeal is the effect of the recognition of refugee status by grant of a TPV. This is not an issue which had been adequately addressed in the decisions, including QAAH, until the recent Full Federal Court decision in NBGM. We therefore turn to the interrelationship between the TPV system and Australia’s obligations under the Refugees Convention in more detail.

    The Refugees Convention, the Migration Act and TPVs

    Section 36 of the Migration Act is the means by which the Refugees Convention is incorporated into Australian domestic law. Section 36(2) states that protection visas can be granted to ‘a non-citizen in Australia to whom … Australia has protection obligations under the Refugees Convention’. This provision must be read with s 65 of the Migration Act and the relevant regulations. In Chen Shi Hai v MIMIA,[18] it was recognised that the purpose of s 36(2) is to identify persons entitled to protection as refugees as defined in art 1A(2) in accordance with Australia’s obligations as a signatory to the Refugees Convention. This reading of s 36(2) was applied in the decision of NAGV v MIMIA,[19] in which the High Court rejected an argument that persons with ‘effective protection’ in a third country were not ‘refugees’ within the meaning of s 36(2). That is, it rejected an attempt to read any extra qualification into the refugee definition by means of s 36(2). The High Court in NAGV accepted that the Migration Act picks up the whole of art 1 of the Refugees Convention. This reasoning is crucially relevant to the resolution of the conflict of opinion in the Federal Court. The centrally important issue in QAAH is the effect of the decision to grant the applicant a TPV and to subsequently extend the visa.

    Section 36 of the Migration Act defines ‘protection visas’ and the circumstances which lead to them being granted to individuals in general terms. The Migration Regulations set out the classes and subclasses of protection visas. Item 1401 of Schedule 1 provides for Protection (Class XA) Visas, with two subclasses — 785 (Temporary Protection) and 866 (Protection). Schedule 2 of the Migration Regulations outlines the criteria for each visa. TPVs were originally granted for a maximum of 36 months, but in 2001 amendments were made allowing TPVs to continue until final determination of an application for permanent protection is made (provided the application for permanent protection is made within 36 months). PPVs are also subject to a temporal limitation of five years (Regulation 866.5). The Migration Regulations refer, as does s 36(2), to Australia’s protection obligations under the Refugees Convention.

    As Allsop J explains convincingly in the Full Court in NBGM, an individual who is granted a TPV under the Act after an assessment of his or her ‘well-founded fear’ is a recognised refugee in both international and domestic law. As the Australian government recognised in its paper prepared for the UNHCR’s Expert Roundtable Series, a recognised refugee remains such ‘unless and until’ cessation can be invoked.[20] However, in the same paper, it is stated, ‘In order to be granted the permanent visa, he or she must at this later time be determined to be a refugee and be owed protection by Australia, in accordance with the criteria set out in the Refugees Convention and domestic legislation’.[21] Clearly the Australian government considers that it can use the TPV regime to manipulate the lives of recognised refugees. This convenient reading of its obligations under the Refugees Convention conflicts with the UNHCR view that administrative decisions about refugee status are declaratory; the effect of such decisions is to recognise the status of the person in international law.[22]

    The question which the High Court will have to address in QAAH is whether Allsop J’s analysis in NBGM (with which Marshall J agreed) of the relationship between the Refugees Convention and the Migration Act is correct. His view was that the framework of the TPV and PPV system can and should be read to conform with art 1 of the Refugees Convention. The majority in NBGM by contrast relied on ss 36(3) and (4) of the Migration Act to support the conclusion of Emmett J at first instance, namely that an application for a PPV requires a de novo hearing. It is submitted that the majority reasoning is erroneous and irrelevant for the reasons given by Allsop J. Further discussion of this issue is outside the scope of this article. However, we submit that Allsop J’s analysis is to be preferred on the basis of general principles about the need for consistency between domestic legislation and international obligations.

    A key issue in the High Court appeal in QAAH will be the relationship between the international and domestic laws. In some recent cases concerning the exercise of administrative detention and removal powers under the Migration Act, this conflict has been decided by reference to the ambiguity principle, the proposition that in cases of ambiguity in domestic legislation, the courts should favour the international treaty. However, somewhat disconcertingly, all the judges in QAAH and NGBM applied this principle to reach conflicting conclusions. The question of whether there is ambiguity in the Migration Act, therefore, is likely to be central to the appeal of QAAH.

    The indeterminacy of Parliament’s intentions in creating the TPV regime is manifested in these different legal interpretations. Australia’s ratification of the Refugees Convention and nominal acceptance of obligations and norms accompanying that Convention simply does not accord with a system requiring refugees to re-prove their fear of persecution after it has already been determined. It does, however, fit with a system that requires the state to prove that the circumstances leading to the fear no longer exist. This is to recognise the separate roles of arts 1A(2) and C(5) of the Refugees Convention. The TPV regime in effect withholds the full protection of refugee status until a further determination is made on application for a PPV, and as such is arguably inconsistent with the Refugees Convention.

    The Australian decisions on article 1C(5)

    The High Court in QAAH will be asked to deal with a conflict of opinion between those who follow the Australian government’s interpretation of domestic law, in asserting that a TPV holder who is applying for a permanent protection visa must re-establish de novo that they meet the requirements of the Refugees Convention definition, and those whose view is that the domestic law must be read to conform with art 1C(5) of the Refugees Convention. The latter view is supported by the majority in QAAH and the minority in NBGM.

    The practical outcome of the differences between these positions is very real in the context of art 1C(5). If art 1C(5) is read naturally, it requires that the authorities prove that the circumstances in the refugee’s county of origin that caused the relevant fear of persecution have ‘ceased to exist’. In the absence of such proof, refugee status is maintained. If, however, art 1C(5) is read as effectively requiring a fresh determination under art 1A(2), the refugee must re-establish that they hold a well-founded fear of persecution. The obvious burden that this reversal imposes is compounded by the difficulties in proving the continuance of events and relationships that took place several years ago in another country. As Wilcox J in QAAH observes, this effective reversal of the burden of proof is contrary to UNHCR Guidelines advising that the burden should rest with the contracting state to establish that the original circumstances have ceased to exist.

    In the next sections, we elaborate on the differences between the judgments about the interpretation and application of art 1C(5) which will be relevant on appeal in QAAH.

    The relationship between articles 1A(2) and 1C(5)

    The differences in opinion described above to a large extent reflect the views of the judges about the relationship between art 1A(2) and art 1C(5) of the Refugees Convention. For example, at first instance in NBGM, Emmett J took the view that they should be construed as ‘having some symmetry in their effect’.[23] He said that the underlying rationale of the Refugees Convention is that ‘… so long as the relevant

    well-founded fear exists, such that a person is unable or unwilling to avail himself or herself of the protection of the country of his or her nationality, he or she will be permitted to remain in the Contracting State’[24] He then stated that protection obligations continue only for so long as a person meets the criteria of art 1A(2). Thus, cessation will apply if the applicant cannot show that they have a well-founded fear of persecution for one of the five Refugees Convention reasons.

    This interpretation effectively negates the purpose of art 1C(5) and requires a TPV holder to make a fresh application for refugee status. Emmett J’s analysis is, with respect, incorrect, as Allsop J pointed out on appeal.[25] The purpose of art 1C(5) as explained above is to put the burden on a state to prove that the circumstances which led to the fear have ceased. As pointed out by RRT Member, Dr Mirko Bagaric, in RRT Reference V04/17240 on 18 January 2004, ‘[f]or a person already declared to be a Refugees Convention refugee, art 1C(5) does not mirror the sphere of protection conferred by art 1A(2); it enlarges it’.

    As Allsop J explained in the Full Court in NBGM, art 1A(2) and art 1C(5) of the Refugees Convention clearly requires a two-stage process, namely recognition and cessation. Importantly, his analysis of the operation of these two provisions was accepted by Black CJ in the majority in that case (and possibly Mansfield J who agreed with the Chief Justice).[26] These provisions do not prescribe mere procedures as Stone J argued, but go to the very heart of the Refugees Convention and the importance of recognition of refugee status. Allsop J said:

    The fact that recognition is determined at a particular time does not mean that the consequences of recognition are somehow made ephemeral or evanescent by that temporal link …[27]

    The differences in opinion about the interrelationship between art 1A(2) and art 1C(5) are also reflected in approaches to specific application of the cessation clause.

    The standard of proof — ‘ceased to exist’

    The degree of change required to satisfy the ‘ceased to exist’ test will broaden or tighten the operation of art 1C(5). One formulation of the standard necessary is ‘substantial, effective and durable’ change. This was endorsed by the Australian government in its contribution to the UNHCR’s Expert Roundtable Series and was further defined as:

    Substantial, in the sense that the power structure under which persecution was deemed a real possibility no longer exists;
    Effective, in the sense that they exist in fact, rather than simply promise, and reflect a genuine ability and willingness on the part of the home country’s authorities to protect the refugee; and
    Durable, rather than transitory shifts which last only a few weeks or months.

    The ‘substantial, effective and durable’ test is consistent with the UNHCR Guidelines and the views of other state parties to the Refugees Convention. However, Emmett J in NBGM said this expression does not constitute a legal test as these words do not appear in the Refugees Convention. His Honour said that there should be strict adherence to the actual language of the Refugees Convention, which simply refers to particular circumstances ‘ceasing to exist’.[28] With respect, this analysis is unhelpful and circular when it comes to determining the meaning of ‘ceased to exist’. In contrast to the ‘substantial, effective and durable’ test, it does not provide any clear standard of review. In refugee status determinations, as a large amount of country information capable of supporting many different conclusions is available, it is necessary for decision-makers to have clear guidance on what is to be understood by ‘ceased to exist’.

    By contrast, in QAAH, the majority judges considered that the ‘substantial, effective and durable’ formulation is mandated by the text of the Refugees Convention. They explained that this does not mean that it is a legal test, but that it is a helpful guide to determine the level of change that has occurred. This view was accepted by Allsop J in NGBM.[29] This higher threshold of what constitutes ‘ceased circumstances’ places a heavier burden on the state.

    Emmett J’s refusal in NBGM to endorse the ‘substantial, effective and durable’ formulation reflects his approach which defers to the domestic legislation, without reference to international guidelines. This is despite the Department of Immigration’s own approval of this formulation in its Paper for the UNHCR’s Expert Roundtable Series.

    The ‘circumstances in connection with’

    Another point of difference of opinion is in relation to the meaning of ‘the circumstances in connection with’ referred to in art 1C(5). Clearly, this refers to those circumstances which were the grounds for the refugee’s original claim for protection or ‘well-founded’ fear of persecution. Although this may seem straightforward, there are many different ways of defining these circumstances which will affect the likelihood of cessation being proved. This can significantly impact on applicants for permanent protection by Australia’s TPV holders.

    A key factor in the cases relating to Afghanistan and Iraq is whether the circumstances that were connected to the original fear are defined as ‘the Taliban’ or ‘Saddam Hussein’s regime’, or more generally as the ‘government’. If the former is taken, then the removal of these regimes from power would constitute a change of circumstances. If, however, the circumstance in connection with the fear is understood as the ‘government’, then there will be no change of circumstances until the regime currently in power is able and willing to protect the refugee from the relevant fear. For example, Emmett J in NBGM approved the narrower definition of the relevant ‘circumstances’ and concluded that the change of regime constituted the necessary change.

    This narrow interpretation of the ‘circumstances’ is dangerous for a number of reasons. The UNHCR has noted that cessation is not appropriate when political change simply substitutes a new risk of persecution for a refugee. The lower threshold allows the cessation clause to be more readily applied. As a result of applying this narrow test, decision-makers in Australia have tended to take a two-stage approach. After finding that the cessation clause applies, they then undertake a fresh examination of the applicant’s case under art 1A(2). This involves a much more onerous burden on the applicant, with a much lower chance of success. Fresh claims under art 1A(2) may fail on credibility grounds, or may not be consistent with country information available at that time.

    In some cases, however, when decision-makers consider the applicant’s current situation as a fresh claim under art 1A(2), they find in favour of the applicant. This suggests that art 1C(5) is being applied too narrowly and that applicants are unnecessarily put to proof in those cases. For example, in both RRT Reference V04/17128 (9 February 2005) and RRT Reference N04/50128 (16 February 2005), it was found that the Saddam Hussein regime had been removed, and therefore art 1C(5) applied. The Tribunal Members then found that the applicants had a well-founded fear of persecution from Ba’athist elements. A similar analysis in relation to an Afghani applicant fearing persecution from non-state Taliban elements can be found in RRT Reference V04/17232 (9 December 2004).

    The uncertainty that exists in this area is shown by the fact that in many cases decided before QAAH, applicants argued that the toppling of the Taliban and Saddam Hussein regimes did not bring the cessation clause into operation, citing various sources demonstrating the ongoing violence and persecution, and the new governments’ inability to protect people from this harm. In these cases, it was argued that this was not generalised violence, but the continuing targeting of people for Refugees Convention reasons, by previous Taliban forces that had simply changed sides or regathered strength, or by Ba’athist insurgents responsible for continuing instability throughout Iraq. Applicants consistently argued that the Minister and the RRT were wrongly applying the tests. For example, a strong argument was made in NBEM v MIMIA[30] that the approach of Emmett J in NBGM was ‘clearly wrong’.[31] However Jacobson J in that case was unconvinced, and remained confident that Emmett J’s interpretation was correct.[32]

    In QAAH, Wilcox and Madgwick JJ found that the relevant ‘circumstances’ should not relate to fear of persecution from the Taliban as the governing authority only, but rather more generally to the fear of the Taliban in any form, including factions and warlords, from which the interim government was unable or unwilling to protect the applicant.[33] This is because the original grounds on which the applicant was granted protection were stated and accepted by the delegate of the Minister as fear of the ‘Taliban’, and they found no grounds to further narrow the definition. In our view, this interpretation is consistent with the purpose of art 1C(5). As Allsop J pointed out in NGBM, art 1C(5) is not the mirror of the well-founded fear test in art 1A(2). As he explains, the Emmett J view begins with a mistaken understanding of the decision-making task.


    QAAH and NGBM highlight the questionable consistency of Australia’s TPV regime with international refugee law. This system creates the unorthodox situation of institutionalised periodic review of refugee status contrary to UNHCR Guidelines, and is inconsistent with the concept of ‘durable solutions’. Until the Full Federal Court decision in QAAH, applicants for permanent protection were being forced to re-establish their claim for protection anew. The majority decision in QAAH more accurately reflects Australia’s obligations under the Refugees Convention. By shifting the burden back onto the authorities to establish cessation, supporting a more onerous standard of what is meant by the clause ‘ceased to exist’, the TPV regime would be more consistent with international refugee law. We would urge the High Court to follow this path.

    [*] EMILY HAY is an arts/law student at Macquarie University. This article is based on an essay submitted in fulfilment of the assessment in International Refugee Law in the Faculty of Law, Monash University when the author was an exchange student at that University.

    DR SUSAN KNEEBONE teaches law at Monash University and is a Foundation Member of the Castan Centre for Human Rights Law, Faculty of Law, Monash University.

    © 2006 Emily Hay and Susan Kneebone

    [1] [2005] FCAFC 136 (27 July 2005) (‘QAAH’).

    [2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).

    [3] [2006] FCAFC 60 (12 May 2006) (‘NBGM’).

    [4] UNHCR, ‘Guidelines on International Protection: Cessation of Refugee Status under arts 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees’ (10 February 2003) (‘UNHCR Guidelines’) [3].

    [5] Ibid, and Conclusion No 69 (XLIII), Conclusions adopted by the Executive Committee on the International Protection of Refugees 1975–2004, 136–7.

    [6] Conclusion No 69 (XLIII), ibid.

    [7] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979, re-edited 1992) (‘UNHCR Handbook’) [135].

    [8] Department of Immigration and Multicultural Affairs, Australia, ‘The Cessation Clauses (art 1C): An Australian Perspective’ (Paper presented at the UNHCR Expert Roundtable, October 2001) 8.

    [9] Ibid 16–17.

    [10] Department of Immigration and Multicultural and Indigenous Affairs, ‘Fact Sheet No 68: Temporary Protection Visa Holders Applying for Further Protection’ (Canberra, 2003).

    [11] UNHCR Guidelines, above n 4 [3]; UNHCR Handbook, above n 7 [135].

    [12] NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373 (25 October 2004).

    [13] See, eg, C M-J Bostock, ‘The International Legal Obligations Owed to the Asylum Seekers on the MV Tampa’ (2002) 14 International Journal of Refugee Law 279, 293; T Magner, ‘A Less than “Pacific” Solution for Asylum Seekers in Australia’ (2004) 16 International Journal of Refugee Law 53.

    [14] UNHCR Handbook, above n 7 [135].

    [15] UNHCR Guidelines [18].

    [16] Traditionally, these are described as voluntary return, integration in country of first asylum and resettlement in a third country.

    [17] UNHCR Regional Office Canberra, ‘Senate Legal and Constitutional References Committee: Inquiry into the Administration and Operation of the Migration Act 1958: Submission by the United Nations High Commissioner for Refugees’ (28 July 2005) 5.

    [18] [2000] HCA 19; (2000) 201 CLR 293.

    [19] [2005] HCA 6 (2 March 2005).

    [20] Department of Immigration and Multicultural Affairs, Australia, ‘The Cessation Clauses (art 1C): An Australian Perspective’ (Paper presented at the UNHCR Expert Roundtable, October 2001).

    [21] Ibid 10.

    [22] UNHCR Handbook, above n 7 [28].

    [23] NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373 [37].

    [24] Ibid [39].

    [25] NBGM [2006] FCAFC 60 [166], [172], [202], [221].

    [26] Ibid [23]. However, as explained above, the majority relied on provisions in the Migration Act in reaching their decision. In particular, they interpreted the words ‘country apart from Australia’ in s 36(3) of the Migration Act to include the country of origin. With respect, this interpretation is clearly inconsistent with the legislative intent and erroneous.

    [27] Ibid [173].

    [28] NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373 [44].

    [29] [2006] FCAFC 60 [172].

    [30] [2005] FCA 161 (7 March 2005).

    [31] Ibid [20].

    [32] Ibid [25].

    [33] QAAH [2005] FCAFC 136 [73]–[76].

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