SQMB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 98

FEDERAL COURT OF AUSTRALIA

SQMB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 98 SQMB and SQNB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL SAD 557 of 2003 MANSFIELD J 18 FEBRUARY 2005 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 557 OF 2003

BETWEEN: SQMB & SQNB

APPLICANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 18 FEBRUARY 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicants pay to the first respondent 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 SAD 557 OF 2003

BETWEEN: SQMB & SQNB

APPLICANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MANSFIELD J

DATE: 18 FEBRUARY 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for orders by way of certiorari, prohibition and mandamus in respect of a decision of the Refugee Review Tribunal (the Tribunal) dated 1 May 2003 and published on 23 May 2003. The Tribunal affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (the respondent) not to grant to the applicants protection visas for which they had applied under the Migration Act 1958 (Cth) (the Act). 2 The applicants arrived in Australia on 2 December 2001. Shortly thereafter, they applied for protection visas under the Act. To be eligible for the grant of those visas, it was necessary that the delegate of the respondent, and on review the Tribunal, be satisfied that the criteria specified under the Act and the Migration Regulations were met. Relevantly, s 36(2) of the Act provides that a criterion for a grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the decision-maker is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention), or is the spouse or dependent of such a person. The first named applicant was the principal applicant. He claimed to be a person to whom Australia has protection obligations under the Convention as he claimed to be a refugee as defined in Art 1A(2) of the Convention, namely that he is a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.' 3 The second named applicant herself claimed to satisfy s 36(2) of the Act simply in her capacity as a spouse of the first-named applicant. Her entitlement to a protection visa clearly stood or fell with the application of the first named applicant. In the circumstances, I shall hereafter call the first named applicant the principal applicant. 4 The applicants are husband and wife. They are citizens of India. The principal applicant is a Sikh from Punjab. He claimed to be a refugee and in broad terms to have a well-founded fear of persecution by reason of his ethnicity and religion, because he was not prepared to pay a bribe to a police officer who sought to elicit a bribe from him in the course of him conducting his trucking business, and that thereafter he had been framed by the police who had charged him with drug offences. He claimed that he was targeted for such extortion because he was a Sikh. He also claimed that, because he is a member of the Congress Party, his local Member of Parliament has refused to assist him. 5 The Tribunal found: 'The Tribunal finds the husband applicant's claims implausible and does not accept them for the following reasons. The applicant claims he has been charged with serious offences and his matter was before the Court when he departed India in December 2001. However, he was issued with a passport in August 2001, which indicates to the Tribunal that the Indian government had no objection to his departing the country. Moreover, he then departed through airport controls which the independent evidence, which the Tribunal accepts, indicates that he would have been detected at the airport as someone currently wanted by the authorities. On the evidence before it, the Tribunal is not satisfied that the husband applicant has a well-founded fear of persecution within the meaning of the Convention and finds there is no real chance the husband applicant would suffer serious harm for reason of a Convention reason in the reasonably foreseeable future should he return to India.' 6 As the Tribunal was not satisfied that the principal applicant met the criterion for eligibility for a protection visa specified under s 36(2) of the Act, s 65(1) of the Act required it to affirm the decision not to grant him a protection visa. It followed that the application of the second named applicant was also dismissed.