SZFBS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1296

FEDERAL COURT OF AUSTRALIA

SZFBS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1296 Migration Act 1958 (Cth), s 36 Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951, Arts 1A(2), 1C(5)

NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60, considered QAAH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363, considered SZFBS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 275 OF 2006 TAMBERLIN J SYDNEY 29 SEPTEMBER 2006 IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 275 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZFBS

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 29 SEPTEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The appeal is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 275 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZFBS

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: TAMBERLIN J

DATE: 29 SEPTEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Emmett FM delivered on 30 January 2006 dismissing an application for review of a decision of the Refugee Review Tribunal ("RRT") handed down on 27 October 2004. The RRT decision affirmed a decision of the Minister's delegate refusing to grant the appellant a protection visa. 2 The appellant is a 28 year old male who is a citizen of Afghanistan and of Hazara ethnicity and Muslim Shia religion. He arrived in Australia on 16 December 1999 having departed Afghanistan illegally in October 1999 travelling with people smugglers. The appellant was granted a protection visa on 13 July 2000, providing him with three years temporary residence in Australia. 3 In January 2001, the appellant applied for a further protection visa. On 27 May 2004, the Department notified the appellant that it had refused his application for a protection visa on the basis that the appellant was no longer a person to whom Australia owes protection obligations under the Refugee Convention. 4 On 23 June 2004, the RRT received an application for review of the decision of the Minister's delegate and the appellant attended a hearing before the RRT on 1 September 2004. On 30 September 2004, the RRT affirmed the decision of the delegate not to grant the appellant a protection visa. 5 On 22 November 2004, the appellant filed an application in the Federal Magistrates Court seeking judicial review of the decision of the RRT. After a careful review of the decision and reasons of the RRT, Emmett FM found that there was no jurisdictional error because the circumstances in connection with which the appellant was recognised as a refugee had ceased to exist. Her Honour found that the findings of the RRT were reasoned and open to the RRT on the material and evidence before it. 6 In the Notice of Appeal filed on 17 February 2006, the ground raised is that the Court erred in finding that the RRT had correctly interpreted and applied Article 1C(5) of the Refugees Convention. 7 Shortly before the matter came on for a hearing before me, the respondent filed a Notice of Contention on 23 May 2006 which contended that the decision of Emmett FM should be affirmed on grounds other than those relied upon by her Honour, namely, that the RRT was required to consider whether the appellant had a well-founded fear of persecution for a Convention reason. It was submitted that this was significant because the RRT found that, as at the date of its decision, the appellant did not have a well-founded fear of persecution in Afghanistan for any Convention reason, and that this has the consequence that the appeal must be dismissed. 8 Counsel for the appellant opposed the hearing of the Notice of Contention on the basis that it had been filed at the last moment, and that he was not in a position to address it at that point in time. I accommodated this concern by allowing the Notice of Contention to be filed, but reserving the rights of the appellant to address by way of written submissions the arguments put forward by Counsel for the Minister on this question. Counsel for the appellant filed those submissions in relation to the Notice of Contention on 31 May 2006, and a reply was filed on behalf of the Minister on 6 June 2006.