SBBO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 963

FEDERAL COURT OF AUSTRALIA

SBBO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 963

MIGRATION – Application for an order of review of a decision of the Refugee Review Tribunal – whether there was actual bias on the part of the Refugee Review Tribunal – whether the Refugee Review Tribunal correctly applied the "real chance" test in order to determine whether the applicants had a well-founded fear of persecution. SBBO, SBBP AND SBBQ v Minister for Immigration AND Multicultural AND Indigenous Affairs No S 37 of 2002 von DOUSSA J ADELAIDE 6 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 37 OF 2002

BETWEEN: SBBO, SBBP & SBBQ

APPLICANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: von DOUSSA J

DATE OF ORDER: 6 AUGUST 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Application dismissed. 2. The applicants, SBBO and SBBP, to 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

SOUTH AUSTRALIA DISTRICT REGISTRY S 37 OF 2002

BETWEEN: SBBO, SBBP & SBBQ

APPLICANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: von DOUSSA J

DATE: 6 AUGUST 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This application is brought under s 39B of the Judiciary Act 1903 by three applicants to review a decision of the Refugee Review Tribunal (the Tribunal) made on 31 January 2002 which affirmed a decision of a delegate of the respondent not to grant them protection visas. The first two applicants are husband and wife (and it is convenient to refer to them as the husband and the wife). They are citizens of Iran who arrived in Australia on 20 April 2001. The third applicant is their daughter, an infant, born a short time after they left Iran. 2 On 26 August 2001 the husband and wife lodged applications for protection visas on the ground that they were refugees within the meaning of Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol as those expressions are defined by s 5(1) of the Migration Act 1958 (Cth) (the Act) and, as such, were persons to whom Australia owed protection obligations. 3 A delegate of the respondent refused to grant protection visas on 13 September 2001. The applicants then applied to the Tribunal for review of that decision. The function of the Tribunal under s 414 of the Act is to conduct a review of the merits of the application, and in doing so must determine the entitlement of the applicants to recognition of their claimed status as refugees as at the date of the Tribunal's determination: see Minister of Immigration & Ethnic Affairs v Singh (1997) 72 FCR 288 and Minister of Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 at par 66 and the decisions there cited. By the time the Tribunal conducted the review the Act had been amended by the Migration Legislation Amendment Act (No 6) 2001 which came into force on 1 October 2001. That Act inserted a number of provisions about protection visas, including s 91R which relevantly provides: "(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. (3) …"