Re Minister for Immigration and Multicultural Affairs; Ex parte SE

The applicant, SE, sought prerogative relief from the High Court of Australia, specifically an order nisi and an interlocutory injunction to restrain his removal from Australia. The dispute arose after the Refugee Review Tribunal affirmed a decision to deny SE a protection visa, a decision SE contended was unreasonable and procedurally flawed.

The central legal issues before Hayne J were whether the Refugee Review Tribunal's decision was unreasonable, whether the Tribunal failed to take relevant considerations into account, and whether the Tribunal followed the required statutory procedures, which would impact the lawfulness of SE's proposed removal. The applicant argued that the Tribunal had failed to ask itself the correct question when assessing his claim for a protection visa, specifically concerning his fear of persecution based on his membership of the Shikal clan.

Hayne J found that the applicant's argument that the Tribunal had not considered his fear of persecution on account of his clan membership was not sustainable. The Tribunal's reasons indicated it had considered the applicant's clan and the events affecting his family, but concluded that these events occurred within the context of general civil war and breakdown of law and order, rather than as targeted persecution for a Convention reason. The Tribunal explicitly stated it was satisfied that neither the applicant nor his family were specific targets of harassment amounting to persecution on account of his clan membership or ethnic origin. Hayne J did not accept that the Tribunal had fallen into the error identified in other cases, where the distinction between fleeing general conflict and facing targeted persecution was not properly considered.

Consequently, Hayne J refused the application for an order nisi, discharged the interlocutory injunction restraining the applicant's removal, and ordered that the applicant pay the costs of the application, certifying for counsel.