Case: SBZD v Minister for Immigration &amp; Anor [2007] FMCA 1624
Outcome: affirmed
The essential question in this proceeding is whether the Refugee Review Tribunal ("the Tribunal") applied the wrong test when considering the issue of the availability of state protection in the context of an application for a protection visa. The proceeding is an appeal from a judgment of the Federal Magistrates Court of Australia, which dismissed an application for judicial review of the Tribunal's decision and ordered that the appellant pay the first respondent's costs of that proceeding. The judgment of the learned federal magistrate was delivered, and the orders made, on 11 October 2007. See SBZD v Minister for Immigration &amp; Anor [2007] FMCA 1624. The Tribunal's decision, dated 9 May 2007, was to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Citizenship, the first respondent) (in both cases, "the Minister") to refuse to grant to the appellant a protection visa. 2 The appellant is a citizen of the United Kingdom, who arrived in Australia on 29 October 1982. With the benefit of an appropriate visa, he resided lawfully in Australia. During the course of his residence in Australia, he was convicted and sentenced on charges of sexual offences in relation to his adopted daughter, and was imprisoned. As a result of his conviction and sentence, the appellant had his visa cancelled on character grounds, and was the subject of a deportation order, pursuant to s 200 of the Migration Act 1958 (Cth) ("the Migration Act "). On 16 September 2005, the appellant applied for a protection visa. The Minister's delegate's decision to refuse to grant the visa was made on 30 January 2006. The appellant applied to the Tribunal to review that decision. On 1 June 2006, the Tribunal affirmed the decision of the Minister's delegate. The appellant sought review of that decision of the Tribunal in the Federal Magistrates Court. On 22 September 2006, by consent, the Federal Magistrates Court set aside the decision and remitted the matter to the Tribunal, to be determined according to law. The decision of the Tribunal the subject of this proceeding followed that remittal. 3 By s 36 of the Migration Act , there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for the visa be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to refer to these two instruments, taken together, as the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who is a refugee, as defined in Art 1 of the Convention. By Art 1A(2) of the Convention, a refugee is (relevantly) 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 4 The substance of the appellant's case before the Tribunal was that he is a member of a particular social group, defined in various ways, but in each case depending on the fact that the offences of which he was convicted are such as to make him a child sex offender or paedophile, or a person perceived to be a child sex offender or paedophile. His fear of persecution is based on the existence in the United Kingdom of vigilante groups, who target paedophiles, or suspected paedophiles, for assault and even death. 5 The Tribunal accepted that the appellant had a genuinely held fear of harm if he returned to the United Kingdom. It accepted that his name and photograph had been communicated publicly in the past by the British media, which had portrayed him as a child sex offender or paedophile. The Tribunal therefore accepted that the appellant has some public profile as a child sex offender or paedophile in the United Kingdom. The Tribunal accepted that if the appellant returned to the United Kingdom, there was a real chance that his name and photograph would again be publicised by British media, and that he would be portrayed in such publicity as a child sex offender or paedophile.