Before the High Court: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH: cessation of refugee status

On 16 December 2005 the High Court granted the Minister for Immigration, Multicultural and Indigneous Affairs special leave to appeal from a decision of the Full Court of the Federal Court, QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs (hereafter QAAH). The Full Court in a majority decision held that the correct test for granting a permanent protection visa to a person who has already been recognised as a refugee pursuant to the grant of a temporary protection visa (TPV), is via application of the cessation clause in Article 1C(5) of the 1951 Refugee Convention (hereafter the Convention), rather than considering the matter afresh under Article 1A(2) of the Convention. Importantly, the majority also found that it si for the decision maker attempting to argue cessation to present evidence that clearly demonstrates that the cessation requirements apply to the individual applicant. Put simply, in a decision concerning a person on a TPV applying for permanent protection the onus is on the decision maker to demonstrate that the person is no longer a refugee rather than on the applicant to demonstrate why they continue to be a refugee.The focus of this paper will be on the following two legal issues:(a) was the decision of the majority of the Full Federal Court correct in relation to the burden of proof issue?(b) what effect does the grant and expiration of a temporary protection visa have on the status of an applicant under the Refugee Convention?