SHHB v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1358

FEDERAL COURT OF AUSTRALIA

SHHB v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1358

SHHB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

SAD 39 of 2005

MANSFIELD J
9 SEPTEMBER 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 39 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF SOUTH AUSTRALIA

BETWEEN:

SHHB
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

9 SEPTEMBER 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay to the first respondent her costs of the application.

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	SAD 39 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF SOUTH AUSTRALIA

BETWEEN:

SHHB
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	9 SEPTEMBER 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The appellant is an Albanian.  After his arrival in Australia on 15 December 1999 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). That application was refused by a delegate of the first respondent and subsequently on 5 February 2003 the second respondent, the Refugee Review Tribunal (the Tribunal), affirmed the decision of the delegate. On 25 March 2003 the appellant applied for an order in the nature of prerogative relief to quash the decision of the Tribunal on grounds of jurisdictional error. On 6 July 2004 that application was dismissed by a Federal Magistrate.

2. The present appeal is an appeal from the decision of the learned Federal Magistrate refusing to quash the decision of the Tribunal.  In the events which have happened it is necessary to refer only briefly to the facts.  The appellant claimed to be eligible for a protection visa because he is a refugee as defined in Art 1A(2) of the Refugee Convention as amended by the Refugee Protocol.  He claimed to be a refugee by reason of his membership of a particular social group, namely his family, and that he feared persecution by reason of his membership of that social group.

3. In essence, his claim was that he feared persecution by reason of a blood feud following an incident which occurred on 2 October 1997.  By reason of s 91S of the Act the learned Magistrate determined that there was no well-founded fear of persecution and so dismissed the application to quash the decision of the Tribunal.  The appeal was instituted following an extension of time to do so granted on 26 April 2005.  At that time the appellant acknowledged that decisions of the Full Court of this Court in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301; SCAG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 302; and STCB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 266 were binding upon the Court unless plainly wrong, and were adverse to the appellant’s claims.

4. Those cases decided that, in circumstances such as those which related to the appellant’s claim, s 91S of the Act leads to the conclusion that the claim must fail.  Nevertheless, an extension of time was granted because it then appeared that, in certain matters in which the same question had arisen, an application for special leave to appeal to the High Court to test the correctness of those decisions of the Full Court of this Court would be heard in August 2005.

5. Counsel for the appellant has now indicated that two of those matters were the subject of an application for special leave to appeal to the High Court in its August sessions in Adelaide including, in particular, STYB v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA Trans 594 (STYB) heard on 11 August 2005.  The transcript indicates that special leave to appeal was refused because, in those particular matters, the applicant has insufficient prospects of success.  In those circumstances, counsel for the appellant acknowledges that the ground of appeal cannot presently succeed because I am bound to apply the law as determined by the decisions of the Full Court of this Court to which I have referred.  In other words, on the basis of those decisions, the ground of appeal that the Tribunal committed jurisdictional error by interpreting s 91S of the Act so as to exclude the appellant's claim in circumstances where he asserted a personal subjective fear of persecution in Albania on the basis of his membership of a particular special group, namely his family, must fail. 

6. That is obviously an appropriate acknowledgment in the circumstances which I have outlined.  I have explained why the result must be that this appeal should be dismissed with costs.  Counsel for the appellant has indicated that, notwithstanding that it is accepted that I am bound to reach that result by the decisions of the Full Court to which I have referred, the appellant wishes to reserve his position and, at least, to consider the prospect of seeking special leave to appeal to the High Court from this decision as I am sitting as a Full Court constituted by a single Judge in accordance with the determination of the Chief Justice of 6 May 2005.  Such an application can be made direct to the High Court.

7. The orders of the court are that the appeal be dismissed with costs. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             26 September 2005

Counsel for the Applicant:	S Ower
Solicitor for the Applicant:	McDonald Steed McGrath
Counsel for the Respondents:	K Tredrea
Solicitor for the Respondents:	Sparke Helmore
Date of Hearing:	9 September 2005
Date of Judgment:	9 September 2005