SBBK v MIMIA

Case [2002] FCA 565

FEDERAL COURT OF AUSTRALIA

SBBK v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 565

MIGRATION – application for review of RRT decision – whether RRT erred in concluding that applicant will not suffer persecution if returned to Iran – whether RRT considered applicant was part of a social group – whether “women in Iran” or “divorced women in Iran” may constitute a social group for Convention reason – whether applicant would be afforded State protection if returned – whether RRT erred in concluding that the applicant’s conversion to Christianity was not genuine – whether privative clause protects error by RRT in not considering whether applicant was part of a social group – breach of an essential precondition by decision-maker

WORDS and PHRASES – “membership of a social group”

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 36, 65, 415, 474,

Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14 applied
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited
R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 297 cited
Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 cited

SBBK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

S17 of 2002

TAMBERLIN J
10 MAY 2002
SYDNEY (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S17 OF 2002

BETWEEN:

SBBK
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

10 MAY 2002

WHERE MADE:

SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

  1.        The application is allowed. 

2.        The decision of the Refuge Review Tribunal is set aside. 

3.The matter to be remitted to the Refugee Review Tribunal for reconsideration in accordance with these reasons. 

4.        The respondent pay the applicant’s costs.

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

S17 OF 2002

BETWEEN:

SBBK
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE:

10 MAY 2002

PLACE:

SYDNEY (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

  1. This is an application under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) for review of a decision of the Refugee Review Tribunal (“the RRT”) given on 3 January 2002 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) to refuse a protection visa under the Migration Act 1958 (Cth) (“the Act”).

  2. The application for protection visa claims that the applicants, a mother and son, were “refugees” within the meaning of the Convention Relating to the Status of Refugees Done at Geneva on 28 July 1951 as Amended by the Protocol Relating to the Status of Refugees Done at New York on 31 January 1967 (“the Convention”).  Article…

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AGLC
SBBK v MIMIA [2002] FCA 565
Case
[2002] FCA 565
Decision Date

CaseChat Overview and Summary

In the case of SBBK v MIMIA, the applicant, an Iranian citizen, sought a review of the Refugee Review Tribunal's (RRT) decision to reject her application for a protection visa. The applicant argued that she faced persecution in Iran due to her membership of a particular social group, specifically women or divorced women in Iran who are exposed to violence and lack effective protection from state authorities. The RRT found that the applicant was not a member of a social group within the meaning of the Convention definition, among other reasons, leading to the rejection of her visa application. The applicant appealed the RRT's decision, and the court was required to determine whether the RRT's decision contained any fundamental errors of principle and whether the privative clause in section 474 of the Act applied to protect the RRT's decision.

The court held that there was a fundamental error of principle in the RRT's decision, as it failed to address the central question of whether the applicant was a member of a particular social group. The court found that the RRT did not consider the applicant as a member of either "women in Iran" or "divorced women in Iran," and without such consideration, the RRT could not decide whether the applicant would face persecution if returned to Iran due to her membership of such a group. The court concluded that the failure to address these essential questions fell within the exceptions to the principles laid down in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and other relevant authorities. Therefore, the privative clause in section 474 of the Act did not apply to protect the RRT's decision in this case.

In light of the court's findings, the application was allowed, and the decision of the RRT was set aside. The matter was remitted to the RRT for reconsideration in accordance with the court's reasons. Additionally, the respondent was ordered to pay the applicant's costs. This decision underscores the importance of considering the membership of a particular social group when assessing an applicant's risk of persecution, and highlights the limitations of privative clauses in protecting administrative decisions that fail to address essential questions.

Orders

Orders of the court

1.

The application is allowed.

2. The decision of the Refuge Review Tribunal is set aside.

3. The matter to be remitted to the Refugee Review Tribunal for reconsideration in accordance with these reasons.

4. The respondent pay the applicant’s costs.

Background

Background to the litigation

In these reasons I will refer to the position of the mother, who is the applicant in these proceedings, but I also bear in mind the position of the child. The applicant is an Iranian citizen and on her behalf it is submitted that that there is a real chance that she will be persecuted if returned to Iran for reasons of her membership of a particular social group, namely women or divorced women in Iran, or women in such a grouping who are exposed to violence in circumstances where effective protection from State authorities or other agencies will not be available to her or the child. She submits that violence to women in Iran is condoned or tolerated by the State or State authorities. The application for a protection visa was rejected by the RRT having regard to the following findings:· the applicant was not a member of any social group within the meaning of the Convention definition;· the applicant fabricated parts of her story to advance her claims;· the claims of family problems in relation to her treatment by her mother and sisters did not amount to persecution;· legal and social restrictions on women in Iran did not amount to persecution;· even if her ex-husband harmed her if she returned, this would not constitute persecution for a Convention reason;· possible prosecution for the crime of kidnapping of her child when leaving Iran would not amount to persecution for a Convention reason;· the child’s alleged conversion to Christianity was not accepted as genuine;· the applicant’s claim to have converted to Christianity was opportunistic and not genuine; and· evidence by a psychologist in relation to the applicant travelled beyond the range of professional expertise.BACKGROUND The applicant was born in 1968 in Teheran. She is divorced from her husband, whom she married in 1992 and she later came to Australia with their son who was born in September 1994. Her parents are divorced and her father re-married. She was educated at university level and completed a Bachelor of Science Degree in 1992 at Teheran University. She worked as a nurse while she was studying. She and her husband lived in Teheran during the marriage. In 1996 she started to work as a nurse for the National Oil Company and left that employment in December 2000. She travelled to Australia via Singapore, Malaysia and Indonesia, arriving in Australia on 13 April 2001. She claimed that in her marriage she was often beaten, sometimes two or three times a day, commencing about two months after her marriage. Her husband became more aggressive about six months before the divorce in July 1999. She says she was beaten because her husband disagreed with her views on equality of the sexes. She says she was sometimes beaten in front of her son. The child was also sometimes beaten. On many occasions she claims to have been sexually assaulted by her husband and says this was so common in Iran that she could not complain to anyone. She strongly objected to the situation in which women were placed in Iran where they could be beaten by their husbands and disagreed with aspects of the Koran in relation to a man having more than one wife. In 1999 she and her husband agreed to divorce and custody of the son was given to the husband. The husband prevented her from seeing the son. She was looked down upon by her peers because she was divorced and she referred to numerous incidents in relation to the psychological withdrawal of her son. Her husband visited her, expressed regret and wanted her back. She refused and he threatened to kill himself and her and to take the son and to kill the three of them. He was suicidal and threatened to throw acid in her face. She later agreed to a temporary re-marriage for a one year period with her husband known as “segheh” which she said was in order to obtain custody of her son. During this temporary further marriage while her husband was away with his work for a period of three months she decided to leave the country. She obtained a false passport and had her son’s name placed in it. She then flew to Singapore with him. She said that she was informed by her family that her husband had threatened to complain to the authorities and take their son from her. She feared return to Iran as he may kill her and her son. She claims the authorities will not protect her and so she cannot go anywhere in Iran.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

TAMBERLIN J
Section 474 of the Act provides as follows:“474 Decisions under Act are final(1) 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.(2) In this section:privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).…” I have come to the conclusion that there has been a fundamental error of principle in relation to the applicant’s claim as disclosed in the RRT reasons for decision. This is the failure to address the central question whether the applicant was a member of a particular social group, namely, whether she was a member of a social group comprised by “women in Iran” or “divorced women in Iran”. Although some descriptions of groups were raised in the material before the RRT no consideration was given to the applicant as a member of either of these groups. In the absence of such a consideration, the RRT could not decide whether as a member of a social group there was any real chance that if returned to Iran, she would be persecuted for reasons of membership of that group. In my view, the failure to address these essential questions comes within the exceptions to the principles laid down in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 ff. See also R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 297 and Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602. It is clear from these and other authorities that a privative clause will not usually protect a decision that exceeds constitutional limits, or a decision that is made in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, nor will the privative clause serve to validate a decision where there has not been a compliance with a condition that is essential to the exercise of jurisdiction in accordance with statutory terms. These principles underpin the enactment of s 474 so that, in my view, the protection afforded by s 474 of the Act does not apply in the present case. The RRT by s 415, for the purposes of the review exercise carried out by it, can exercise all the powers and duties that are conferred by the Act on the Minister. One essential precondition, (among others), to the performance by the Minister of the duty under s 65 is to consider the matters set out in s 65(1)(a)(i)-(iv). If the Minister is not satisfied of the existence of any of these matters then the visa must be refused. Before a decision can be made under this section, it is necessary that the Minister should consider whether the applicant is a “refugee” as defined by the Convention. This in turn requires a consideration of whether the applicant is a member of a particular social group who is liable, by reason of that membership, to be persecuted. Unless this is considered and a determination is made whether an applicant is a member of a relevant particular social group, it is not possible for the Minister to determine the central question of possible persecution by reason of such membership.

Ratio Decidendi

Legal Principle Established

Established by: TAMBERLIN J

I consider that the RRT has addressed the position of the child and that there has been no error of law in relation to its approach on this aspect.PRIVATIVE PROVISION – OPERATION OF s 474 In my opinion the errors in the present case are not protected by s 474 of the Act. Section 36 of the Act is concerned with protection visas. Relevantly, it provides:“(2) A criterion for a protection visa is that the applicant for the visa is:(a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or …” Section 65 of the Act provides: “65 Decision to grant or refuse to grant visa (1) After considering a valid application for a visa, the Minister: (a) if satisfied that:(i)the health criteria for it (if any) have been satisfied; and (ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and (iv)any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.” Section 474 of the Act provides as follows:“474 Decisions under Act are final(1) 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.(2) In this section:privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).…” I have come to the conclusion that there has been a fundamental error of principle in relation to the applicant’s claim as disclosed in the RRT reasons for decision. This is the failure to address the central question whether the applicant was a member of a particular social group, namely, whether she was a member of a social group comprised by “women in Iran” or “divorced women in Iran”. Although some descriptions of groups were raised in the material before the RRT no consideration was given to the applicant as a member of either of these groups. In the absence of such a consideration, the RRT could not decide whether as a member of a social group there was any real chance that if returned to Iran, she would be persecuted for reasons of membership of that group. In my view, the failure to address these essential questions comes within the exceptions to the principles laid down in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 ff. See also R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 297 and Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602. It is clear from these and other authorities that a privative clause will not usually protect a decision that exceeds constitutional limits, or a decision that is made in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, nor will the privative clause serve to validate a decision where there has not been a compliance with a condition that is essential to the exercise of jurisdiction in accordance with statutory terms. These principles underpin the enactment of s 474 so that, in my view, the protection afforded by s 474 of the Act does not apply in the present case.