SYVB v Refugee Review Tribunal [2005] FCA 1093

FEDERAL COURT OF AUSTRALIA

SYVB v Refugee Review Tribunal [2005] FCA 1093 SYVB v REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SAD 92 of 2005 MANSFIELD J 12 AUGUST 2005 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 92 OF 2005

BETWEEN: SYVB

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 12 AUGUST 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay to the second respondent her 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 92 OF 2005

BETWEEN: SYVB

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: MANSFIELD J

DATE: 12 AUGUST 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT

introduction 1 The applicant is a 25 year old male Iranian, of Arab ethnicity and of the Shia Muslim religion. He arrived in Australia on 20 December 2000 and since that date has been in immigration detention. 2 On 9 January 2001 the applicant applied for a protection visa under the Migration Act 1958 (Cth) (the Act). He claimed to have a well-founded fear that he would be persecuted if he returned to Iran by reason of his Arab ethnicity. Hence, he claimed to be a 'refugee' as defined in the Convention, and to satisfy the criterion for a protection visa in s 36(2) of the Act. A delegate of the second respondent (the Minister) refused that application on 13 February 2001. The Refugee Review Tribunal (the RRT) affirmed that decision on 11 April 2001. This is the fourth occasion in which the applicant has sought the intervention of the Federal Court of Australia with respect to his status under the Act, although in reality it is only the second occasion in which he has sought to challenge the validity of the RRT decision under the Act. 3 Under the then provisions of Pt 8 of the Act, following the RRT decision, the applicant sought judicial review of the RRT's decision. On 10 September 2001 Lee J dismissed that application: S v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1661. The applicant sought to appeal from that decision at first instance, but did not do so within the time permitted by the Federal Court Rules and so had to seek an extension of time to appeal. On 4 February 2002 his application for an extension of time within which to appeal from the decision at first instance was refused, in essence because it had no prospects of success: S v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 191. The applicant applied to the High Court of Australia for special leave to appeal from that interlocutory judgment refusing him an extension of time within which to appeal, but that application was deemed to have been abandoned under the High Court Rules on 4 November 2002. That process completed the first judicial review proceeding. 4 Thereafter, the applicant was vulnerable to being removed from Australia pursuant to s 198 of the Act. He continued to maintain that he could not safely return to Iran. On 19 December 2003 he applied for an injunction to restrain the Minister from removing him from Australia, notwithstanding that his application for a protection visa had been finally determined (see s 5(9) of the Act). An interim injunction was granted on 19 December 2003 restraining the Minister from removing him from Australia, but that injunction was vacated by consent on 7 April 2004. It is accepted that that application is not directly relevant to the present proceedings. It was not an attempt to challenge the validity of the RRT decision. It raised the question whether, in his circumstances, s 198 of the Act required or permitted the applicant's removal from Australia. At that time, there were two decisions of the Full Court of this Court in M38/2002 v Minister for Immigration & Multicultural Affairs (2003) 131 FCR 146 (M38) and NATB v Minister for Immigration & Multicultural Affairs (2003) 133 FCR 506 which had decided that persons who were unlawful non-citizens in the position of the applicant were liable to be removed from Australia pursuant to s 198 of the Act without further inquiry as to whether they may suffer serious harm upon their removal to their country of nationality. An application to the High Court for special leave to appeal from the decision in M38 was refused. It appears that the injunction was vacated as a result. 5 The third application before the Court occurred on 10 May 2005. Apparently there was then imminent action to remove the applicant from Australia. He brought an urgent application for an interlocutory injunction restraining the Minister from removing him from Australia. That application was refused by Nicholson J on 10 May 2005: SYVB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 600. At the time, the applicant undertook to institute an application for substantive relief to support the application for the interlocutory relief which he claimed. That has led to the current application. Again, therefore, it was but an interlocutory step in the present application. The application of 13 May 2005 argued three bases in support of the interlocutory injunction sought. The first was to challenge the Minister's decisions not to grant the applicant permission to make a second application for a protection visa whilst in Australia under s 48B of the Act, and not to exercise the Minister's power under s 417 of the Act to permit the applicant to remain in Australia notwithstanding the decision of the RRT. Nicholson J pointed out that neither of those decisions was vulnerable to judicial review in any event by reason of s 48B(6) and s 417(7) respectively, so there was no arguable case to support the interlocutory injunction. The second basis upon which the applicant sought the interlocutory injunction was by reason of him having applied for a protection visa whilst in Australia, and therefore being perceived as having political beliefs inconsistent with those of the ruling regime in Iran and so exposing him to the risk of persecution. (His circumstances related to a period of time before the introduction of s 91X of the Act, which would now preclude such a claim.) In any event, Nicholson J found that there was no arguable case in the circumstances that that contention could succeed. The third basis upon which an interlocutory injunction was sought was that the RRT had not considered the inability or unwillingness of Iran to protect the applicant as an ethnic Arab in Iran from private violence. Nicholson J found that that proposition was 'possibly arguable', or 'weakly made out', but concluded that on the balance of convenience there was no basis for granting the interlocutory injunction in the circumstances. 6 The present application was instituted on 13 May 2005. For the reasons explained, it is in essence the second judicial review application in respect of the RRT's decision. It is contended that the RRT decision involved jurisdictional error. It is now necessary for jurisdictional error to be demonstrated to enable the Court to grant the relief sought, namely to quash the decision of the RRT of 11 April 2001: see generally Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALJR 454;[2003] HCA 2 (Plaintiff S157/2002). 7 There were two grounds of jurisdictional error alleged in the amended application filed on 22 June 2005. They were: (1) that the RRT failed to accord natural justice to the applicant in the making of its decision; and (2) that the RRT erred in law in the application of the 'well-founded fear test'.