Amirbadvi v Minister for Immigration and Multicultural Affairs

[1999] FCA 253

FEDERAL COURT OF AUSTRALIA

Amirbadvi v Minister for Immigration & Multicultural Affairs
[1999] FCA 253

BEHZAD AMIRBADVI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 372 OF 1999

LEHANE J
22 JUNE 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 372 OF 1999

BETWEEN:	BEHZAD AMIRBADVI Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	LEHANE J
DATE OF ORDER:	22 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The parties have liberty to apply to have the matter restored to the list for the purposes of the question of 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 WALES DISTRICT REGISTRY	N 372 OF 1999

BETWEEN:	BEHZAD AMIRBADVI Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	LEHANE J
DATE:	22 JUNE 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal dated 27 April 1999, by which the Tribunal affirmed a decision not to grant protection visas to the applicant, Mr Amirbadvi, and his wife.  The circumstances, as reflected in the Tribunal's findings, may be summarised as follows.

2. Mr Amirbadvi is an Iranian citizen; his wife is a Russian citizen.  They arrived in Australia during January 1999 and applied for protection visas on 7 January 1999.  They met in South Korea.  They returned to Russia where they were married and where Mr Amirbadvi converted to Christianity.  His wife also is a Christian.  They conducted, in the part of Russia from which Mrs Amirbadvi came, a business which involved, as I understand it, importing, buying and selling goods of various kinds.  The precise nature of the business is not particularly important for present purposes; what is important is that the evidence of the applicant, which the Tribunal accepted, was that he and his wife were subject to extortion by the Russian mafia.  On one occasion, Mr Amirbadvi was severely ill treated physically by the mafia.  In those circumstances, the applicants decided to travel to Iraq.  On their arrival there, it quickly became apparent that Mr Amirbadvi's conversion to Christianity and his marriage to a foreigner would give rise, at the very least, to considerable difficulties for the applicant and his wife.

3. Accordingly, they decided to leave.  Mrs Amirbadvi was able to leave using her Russian passport.  Her husband, whose Iranian passport had been confiscated, obtained the assistance of people described as "people smugglers" and left on false documents.  The applicant and his wife travelled to Thailand, after which they came to Australia, arriving, as I have mentioned, in January 1999.

4. In those circumstances, the Tribunal concentrated its attention on whether, on the assumption that, tested by reference to Iran, the applicant and his wife were refugees, they would nevertheless have effective protection in Russia within the principles discussed in a series of cases, the first and leading among which is Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543. In short, the Tribunal held that, within those principles, the applicant and his wife would receive effective protection in Russia. That is a conclusion which Mr Amirbadvi wishes to challenge, but the challenge is one which the court cannot entertain unless it is such as to show that one of the legal grounds is present on which the court has power to review a decision of the Refugee Review Tribunal.

5. The Tribunal considered country information from various sources, which made it clear that extortion by the mafia, and failure by the authorities, particularly the police, to interfere in that extortion, were serious problems for those, particularly those without power or influence, who seek to conduct businesses in Russia.  The Tribunal found, however, on the material before it that extortion of this kind is a commonplace of carrying on business in Russia, that it is something to which probably 80 per cent of business are subject and that it is not a form of extortion which is applied in a discriminatory way, for example, to the proprietors of businesses who are foreign.

6. That is a conclusion with which Mr Amirbadvi expressed strong disagreement, but again, regarded simply as a finding of fact, it is unchallengeable in this Court unless it can be shown to lead to the existence of a ground on which the Court can review a decision of the Tribunal.  I have read, with some care, the decision of the Tribunal.  I have considered the relevant documents which have been filed by the Department and written submissions provided by the respondent.  I have also been addressed this morning by Mr Amirbadvi.  I conclude that the Tribunal's findings of fact were open to it on the material before it and are unchallengeable in this Court.  It is also, I think, clear that the Tribunal member correctly understood the principles expounded in Thiyagarajah and the cases which follow it.  It should perhaps be noted particularly that the Tribunal expressly found that Russia is a party to the Refugees Convention, a matter held to be essential to the application of the Thiyagarajah principle by Katz J in Al‑Sallal v Minister for Immigration and Multicultural Affairs, 8 April 1999, unreported.

7. The particular ground alleged in the application is that the Tribunal's decision involved an error of law.  The particulars given of that error are that the Tribunal, in finding that the applicant and his wife had effective protection in Russia, misapplied the test under art 33 of the Refugees Convention and s 36(2) of the Migration Act 1958 (Cth). I am unable to find that that ground is made out. I cannot see in the reasons any other apparently available ground of review. Accordingly, the application must fail.

8. I should not, however, leave the matter at that.  This case is unusual in my experience, in that I was informed this morning of a significant change in circumstances which, though it cannot affect the outcome of this proceeding, may have other consequences.  Mr Amirbadvi informed me that he has been in detention since his arrival in Australia and I understand that that is so.  He informed me also that since the Tribunal made its decision, his wife has returned to Russia, has separated from him and has possibly already commenced – certainly, has said that she intends to commence – divorce proceedings against him.  I should emphasise that these are matters of which I have been informed this morning.  I have not taken evidence about them; it would be inappropriate for me to do so.  I can add, however, that counsel for the Minister informed me that it is indeed the case that Mrs Amirbadvi has left Australia and presumably returned to Russia.  That is of significance at least for this reason, that the basis on which the Tribunal found that effective protection was available in Russia to Mr Amirbadvi was that he would be entitled as his wife's husband to go to Russia and to make an application for residency and that in the particular circumstances Russia, as a party to the Convention, would not be likely to return him to Iran.  Quite plainly, if the applicants are no longer married or if divorce proceedings have been commenced, that may well no longer be the case.

9. The usual rule, for which s 48A of the Migration Act provides, is that a non-citizen who, while in the migration zone, has made an application for a protection visa may not make a further application for a protection visa while in the migration zone where the grant of the visa has been refused, whether or not the application has been finally determined.  In the case of Mr Amirbadvi, that section would, subject to a dispensation, clearly have the effect that he could not, while he remains here, make a further application for a protection visa.  The grant has been refused.  It may be – it is not necessary to decide this – that the result of my decision today will be that the application has been finally determined.

10. Section 48B of the Migration Act gives the Minister a power to dispense with the provisions of s 48A as they apply to a particular non-citizen. The power is one which may be exercised only by the Minister personally. It is to be exercised having regard to the public interest. It is clear – s 50 makes it so – that the power is available for exercise where there has been a change of circumstances. All I can add is that the circumstances, as I have recounted them, seem to make it clear that this would be an appropriate case for the making of an application to the Minister for the exercise of his power under s 48B and where it would be appropriate – this of course is a matter for the Minister – to consider, on such an application, the matters of which I have been told this morning and, of course, relevant evidence concerning them.

11. I can only express additionally the hope that Mr Amirbadvi, who has no facility in English, may receive some assistance in finding his way through what, even to a lawyer, is somewhat of a labyrinth.

12. I have thought it appropriate in the unusual circumstances to make the remarks I have just made.  They are no more than that; as I have said, they cannot affect the outcome of this application for judicial review, which must be dismissed.  I think, in the unusual circumstances, though costs have been applied for, it would be inappropriate for me to make an order for costs, at least at this stage.  It is, perhaps, a case in which it is appropriate for me to reserve liberty to apply on that matter, which I do.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             24 June 1999

Counsel for the Respondent:	Ms A F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 June 1999
Date of Judgment:	22 June 1999