NBKS v Minister for Immigration and Multicultural and Indigenous Affairs

The case of NBKS v Minister for Immigration and Multicultural and Indigenous Affairs involves the applicant, an Iranian national who arrived in Australia in 1992 on a refugee visa. He had been recognised as a refugee by the UNHCR in 1990. The applicant subsequently committed serious crimes and a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made a decision to deport him. This decision was affirmed by the Administrative Appeals Tribunal (AAT) in 1999. The AAT found that the applicant would be justified in being expelled from Australia under Article 33(2) of the Convention Relating to the Status of Refugees due to his criminal activities and the risk of re-offending. The applicant sought judicial review of a decision by the Refugee Review Tribunal, affirming the Minister's decision not to grant him a protection visa.

The legal issues the court had to decide included whether the Tribunal was correct in reconsidering whether the applicant held a well-founded fear of persecution under Article 1A of the Convention when determining if the applicant fell within section 36(3) of the Migration Act 1958. This section contemplates that Australia is not taken to owe protection obligations to a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in any country apart from Australia, including countries of which he is a national, unless the non-citizen has a well-founded fear of persecution in the relevant country for a Convention reason. The court had to determine whether the Tribunal correctly applied the law in deciding that the applicant did not have a well-founded fear of Convention-related persecution in Iran.

The court found that the Tribunal did not err in its consideration of whether the applicant held a well-founded fear of persecution under Article 1A of the Convention. The court concluded that the Tribunal correctly applied the law and did not exceed its jurisdiction by reconsidering this issue. The court noted that the Tribunal had before it all relevant files and evidence, and had appropriately considered the applicant's circumstances and the human rights situation in Iran. The court found that the Tribunal's decision was supported by the evidence and was not unreasonable.

Accordingly, the court dismissed the applicant's application for judicial review and ordered that the Refugee Review Tribunal be added as a party to the proceedings. The applicant was also ordered to pay the first respondent's costs. The court's decision upheld the Tribunal's affirmation of the Minister's decision not to grant the applicant a protection visa.