SAAZ v Minister for Immigration & Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA

SAAZ v Minister for Immigration & Multicultural Affairs

[2002] FCA 791

MIGRATION – application for protection visa - review of decision of Refugee Review Tribunal – contention that review by way of appeal – whether Tribunal’s review of the decision of the Minister’s delegate was a review by way of a re-hearing de novo.

MIGRATION – application for protection visa – review of decision of Refugee Review Tribunal – whether Tribunal erred in finding that the applicant was not a refugee sur place by reason of his conversion to Christianity – whether Tribunal misdirected itself as to meaning of persecution – whether Tribunal erred by failing to accord the applicant substantial justice.

Australian Constitution, ss 51(xix), 51(xxvii), 51(xxix)
Migration Act 1958 (Cth), ss 36(2), 65(1), 414, 415, 418, 420, 424, 424A, 425, 426, 427, 430(1), 474(1), 474(2), 475A
Judiciary Act 1903 (Cth), s 39B
Administrative Appeals Tribunal Act 1975 (Cth)

Craig v South Australia (1995) 184 CLR 163 – cited
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 – cited
Australian Telecommunications Commission v Colpitts (1986) 67 ALR 301 – cited
Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 – discussed
Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 – discussed
Phillips v Commonwealth of Australia (1963) 110 CLR 347 – discussed
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 – cited
Re Brindle;  Ex parte FB & FA McMahon Pty Ltd (1992) 108 ALR 470 – cited
Colpitts v Australian Telecommunications Commission (1986) 70 ALR 554 – cited
Woss v Jacobsen (1985) 60 ALR 313 - cited
SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726
Polites v Commonwealth (1945) 70 CLR 60 – cited
Horta v Commonwealth (1994) 181 CLR 183 – cited
Kartinyeri v Commonwealth (1998) 195 CLR 337 – cited
R v Hickman;  Ex parte Fox & Clinton (1954) 70 CLR 598 – discussed
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 – applied

SAAZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S 215 of 2001

MANSFIELD J
ADELAIDE
3 JULY 2002

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S.215 OF 2001

BETWEEN:

SAAZ
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

3 JULY 2002

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S.215 OF 2001

BETWEEN:

SAAZ
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MANSFIELD J

DATE:

3 JULY 2002

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. The applicant was born in Iran in September 1974.  He is a single man.  Until he arrived in Australia, he was a Shi’a Muslim.

  2. The applicant arrived in Australia on 20 April 2001, having left Iran illegally on a false…

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Details
Case
[2002] FCA 791
Decision Date

CaseChat Overview and Summary

The case of SAAZ v Minister for Immigration & Multicultural Affairs concerns an application by the applicant, a refugee from Iran, to have the decision of the Tribunal to refuse him a protection visa declared void. The Tribunal’s decision was made under the Migration Act 1958 (Cth), and the applicant sought a review under s 39B of the Judiciary Act 1903 (Cth). The primary legal issue was whether the Tribunal’s decision was subject to judicial review despite the privative clause in s 474(1) of the Act, which precludes review of such decisions.

The court considered the argument that the Tribunal had failed to properly review the decision of the delegate, as required by s 414(1) of the Act. Instead, it had re-heard the application afresh, which was not its role. The applicant also argued that s 474(1) should be read down to allow for judicial review in light of Australia’s obligations under the Refugees Convention and the right to access courts provided for in Art 16 of the Convention. The court found that the privative clause in s 474(1) of the Act was clear and unambiguous, and that it precluded judicial review of the Tribunal’s decisions. The court was not persuaded that the privative clause could be read down to accommodate the Convention rights, as this would involve disregarding the clear statutory language.

The court dismissed the application, upholding the finality of the Tribunal’s decision as intended by the privative clause. The court found that the Tribunal had properly exercised its jurisdiction and that there was no basis to interfere with its decision under the Act. The decision of the Tribunal remained final and conclusive.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

The applicant now seeks an order under s 39B of the Judiciary Act 1903 (Cth) for an order declaring the Tribunal’s decision to be void and of no effect.BACKGROUND As is commonly the case in such matters, the determination of the application for a protection visa depended upon whether the Tribunal was satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention). That is because s 36(2) of the Act prescribes the satisfaction of the decision-maker on that matter as a criterion for the grant of the visa. If the criterion is not met, the application must be dismissed: s 65(1) of the Act. In turn, the question whether that criterion was met depended upon whether the Tribunal was satisfied that the applicant is a “refugee” as defined in Article 1A(2) of the Convention, namely 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”THE APPLICANT’S CLAIMS The applicant claimed to have a well-founded fear of persecution by reason of political opinion imputed to him by the authorities. As appears below, the Tribunal also considered a claim that he may have a well-founded fear of being persecuted by reason of his religion, namely his conversion to Christianity whilst in Australia, and by reason of his illegal departure from Iran in conjunction with his application for a protection visa. It appears that the Tribunal largely accepted his background. He was educated for 12 years, and then between 1996 and 2000 worked in a grocery shop for his father. From August 2000 he worked for his uncle in a printing business. The particular problems of which he complained occurred from about the end of October 2000 whilst working in that business. His claims relating to those problems were, in part, not accepted by the Tribunal. He told the Tribunal that about the end of October 2000 he attended the printing business one morning to find anti-government slogans graffitied on the outside of the shop wall. He promptly cleaned them up. The same occurred the following day, and he again cleaned them up. On the third day, in addition to graffiti on the shop wall, which he cleaned up, he found some leaflets urging anti-government action. He took them inside and put them in the corner. Later that morning, the premises were raided by the authorities and the leaflets found. He and his uncle were arrested. He was questioned about his involvement in anti-government activities and then released. He believes that his uncle was questioned for some days and has since disappeared. The applicant has not seen him since.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Finally, the Tribunal addressed the applicant’s claim that, by reason of his illegal departure from Iran and his application for refugee status in Australia, he has a well-founded fear of persecution upon his return to Iran. The Tribunal referred to information provided by the Department of Foreign Affairs and Trade of March 1996 that the most likely penalty for an Iranian who has left Iran illegally is a fine. It was satisfied that the treatment the applicant would undergo upon return to Iran as the result of his illegal departure did not amount to persecution within the meaning of the Convention, because, without more, such punishment would involve the ordinary enforcement of a law of general application and did not make the applicant a refugee. It noted that nothing in the applicant’s evidence suggested that, in his case, any punishment would be greater by reason of actual or imputed political opinion. Consequently, it was not satisfied that the applicant would face harm amounting to Convention persecution because he left Iran illegally or because he had applied for refugee status after arrival in Australia, or for a combination of those reasons.CONSIDERATION OF THE GROUNDS OF REVIEW It was accepted that the decision of the Tribunal is a “privative clause decision” as defined in s 474(2) of the Act. Consequently, the applicant had to confront the provisions of s 474(1) of the Act which provide:“A privative clause decision:(a)is final and conclusive; and(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”The applicant by counsel contended that the decision of the Tribunal should be declared invalid, notwithstanding the apparent width of s 474(1), for two principal reasons:(1)The obligation of the Tribunal under s 414(1) of the Act is to review the decision of the delegate of the respondent, and not to re-hear that decision afresh. It was contended that the review of the decision of the delegate involved addressing the delegate’s decision to see if the delegate had erred in some way in reaching the decision to refuse to grant the protection visa. The Tribunal did not in fact address the delegate’s decision at all to see whether it was erroneous in significant ways. It had simply re-heard the application for the protection visa, and having done so, rejected it.(2)Section 474(1) must be read consistently with Art 16 of the Convention. It provides:“A refugee shall have free access to the courts of law on the territory of all contracting states.”As the Tribunal is not a “court of law”, Art 16 must, it is contended, refer to those courts within Australia entitled to exercise jurisdiction under s 39B of the Judiciary Act. Moreover, the “free access” requires that review by the Court cannot or should not be constrained by provisions such as s 474(1). In other words, the argument was that s 474(1) must be read consistently with the obligation which Australia undertook by acceding to the Convention, and that s 474(1) must be read down to accommodate the right for which Art 16 of the Convention provides. An alternative way of presenting that argument was that Australia, by ratifying the Convention, and then by incorporating the Convention into the Act, particularly by reference to the definition of “refugee” in s 36(2) of the Act, has exercised the external affairs power under s 51(xxix) of the Constitution, and by doing so has limited its sovereign power to legislate inconsistently with the rights which the Convention creates. It was described in argument as a partial surrender of sovereignty. It was argued that s 474(1) must be read down to accommodate rights which exist under Art 16 of the Convention.