Case: SBLF v Minister for Immigration and Citizenship &amp; Anor [2007] FMCA 1477
Outcome: cited
The proceeding before this Court is an appeal from a judgment of the Federal Magistrates Court, published as SBLF v Minister for Immigration and Citizenship &amp; Anor [2007] FMCA 1477. The learned federal magistrate dismissed an application by the appellant for judicial review of the decision of the Tribunal, signed on 7 August 2006 and handed down on 29 August 2006. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Citizenship, the first respondent to this appeal) (in both cases "the Minister"), refusing to grant to the appellant a protection visa. 3 It is accepted that the appellant is a citizen of Albania, who arrived in Australia on 2 November 2005, having obtained a visa to travel to Australia by using a false Italian passport. On 29 November 2005, the appellant applied for a protection visa. On 2 February 2006, the Minister's delegate made a decision to refuse to grant the visa. The appellant then applied to the Tribunal for review of that decision. Having been unsuccessful in that application, the appellant filed an application in the Federal Magistrates Court, for relief of the kind available under s 39B of the Judiciary Act 1903 (Cth), on 22 September 2006. He filed an amended application on 5 April 2007. The federal magistrate heard the application on 11 April 2007 and gave judgment on 31 August 2007. 4 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that 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 call those two instruments, taken together, the "Convention". For present purposes, it is sufficient to note that Australia has protection obligations to any 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 5 The appellant attempted to establish a well-founded fear of being persecuted, should he return to Albania, for reasons of religion and political opinion. He claimed that he professed the Catholic religion, in a country dominated by Muslims, and was consequently in danger of persecution by reason of his religion. He also claimed that he had expressed publicly his opposition to an extremist Muslim political party and so was in danger of persecution on the ground of political opinion. He claimed to have been assaulted and beaten severely. He claimed that shots had been fired at him. He claimed that his parents had been forced to sell their house for less than its value and to move their place of residence because of threats. He claimed that his persecutors were still making inquiries of his parents in Albania as to the appellant's whereabouts, and still making threats. He claimed to have been dismissed from employment. He said that he feared that, if he returned to Albania, the Muslims would make an example of him and would beat him and shoot him. 6 Section 414(1) of the Migration Act provides that, if a valid application is made for review of an RRT-reviewable decision (of which there is no dispute that the Minister's delegate's decision was one), "the Tribunal must review the decision." By s 415(1) , the Tribunal may, for the purposes of the review, exercise all the powers and discretions conferred by the Migration Act on the person who made the decision. It is well accepted that the Tribunal is required to perform its function by considering the subject matter of a decision of a delegate of the Minister afresh, on the material before the Tribunal, and not to decide whether that decision was correct on the material before the Minister's delegate. Section 420 of the Migration Act provides: (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case. 7 Division 4 of Pt 7 of the Migration Act contains provisions concerning the conduct by the Tribunal of a review. Among them is s 425(1): The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 8 Section 425(2) contains exceptions to this obligation, none of which is applicable to the present case. 9 Also found in Div 4 of Pt 7 of the Migration Act is s 422B(1) , which provides: This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. 10 The appellant's original application for a protection visa was made with the assistance of a registered migration agent. The substance of his claim to have a well-founded fear of persecution for reasons of religion and political opinion was contained in a typewritten and signed statement 14 short paragraphs in length. The appellant's account of his experiences recorded in that statement was very brief. Before the Minister's delegate considered the matter, two invitations were sent to the appellant's migration agent, addressed to the appellant, offering opportunities to provide additional information to support the claims. The migration agent responded to the first invitation, without providing any substantive information. There was no response on behalf of the appellant to the second invitation. The Minister's delegate found that the appellant had "provided little or no evidence to support his claims". Consequently, the Minister's delegate was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.