Shi Qiang Yang v Minister for Immigration & Multicultural Affairs

[1997] FCA 637

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - application for protection visa - refusal - provisions of Migration Act 1958 (Cth) precluding further application - decisions reviewable by Refugee Review Tribunal - appeal dismissed.

Migration Act 1958 (Cth), ss 48A, 411, 475

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

SHI QIANG YANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

SG 98 of 1996

O’LOUGHLIN
ADELAIDE
17 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
SOUTH AUSTRALIA DISTRICT REGISTRY	)  SG 98  of 1996
)
GENERAL DIVISION	)

BETWEEN:	SHI QIANG YANG Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	O'LOUGHLIN
PLACE:	ADELAIDE
DATED:	17 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed with 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	)   SG 98 of 1996
)
GENERAL DIVISION	)

BETWEEN:	SHI QIANG YANG Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	O'LOUGHLIN
PLACE:	ADELAIDE
DATED:	17 JULY 1997

REASONS FOR JUDGMENT

The applicant in these proceedings Shi Qiang Yang (“Mr Yang”) was born in the People’s Republic of China on 8 August 1958. He arrived in Australia at Sydney Airport on 26 December 1989. On 1 July 1991 he applied for Refugee Status. That application had not been resolved by 1 September 1994 and, as a result of amendments to the Migration Act 1958 (Cth) (“the Act”), it became an application for a protection visa (Class 866). However, on 16 September 1994, a delegate of the respondent Minister decided that Mr Yang was not a refugee and that Australia did not have protection obligations towards him. His application for a protection visa was therefore refused.

On 21 October 1994, Mr Yang applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision. That application was unsuccessful; on 20 March 1995 the Tribunal affirmed the decision of the delegate. There the matter rested for some fourteen months.

The basic rule is that a non-citizen who has been refused a protection visa is not entitled to make a further application for such a visa: see s 48A of the Act. However, there is, in s 48B of the Act, a power vested personally in the Minister to exempt a non-citizen from the provisions of s 48A. It will be sufficient for the purposes of these reasons to set out only the provisions of sub-s 48B(1):

“48B.(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.”

On 24 May 1996, the applicant applied by letter to to the Minister for the grant of an exemption under s 48B of the Act. The applicant was once again unsuccessful. By letter dated 17 June 1996 (“the ORP letter”) an officer of the Onshore Refugee Program of the Department of Immigration and Multicultural Affairs wrote the applicant saying:

“Your previous application for Australia’s protection under the Refugees Convention was finally determined on 20.3.95. According to Section 48A of the Migration Act 1958, you are not able to make a further application for a Protection Visa unless the Minister decides that it is in the public interest for you to do so.

The information that you have provided does not indicate that it would be in the public interest for you to be allowed to make a further application for a Protection Visa.”

On 17 July 1996, Mr Yang applied to the Tribunal for a review of “the decision” that was contained in the ORP letter claiming, inter alia, that his “further application for a protection visa is in the public interest...”. The Tribunal struck out the application on the ground that it did not have jurisdiction to hear it. It is in respect of the last-mentioned decision of the Tribunal that the applicant now applies to this Court for an order of review. The only ground advanced in support of the current application for an order of review was that the ORP letter amounted to a refusal to recognise the applicant’s refugee status, that such a refusal was a reviewable matter by the Tribunal and that, therefore, the Tribunal had erred in concluding that it was without jurisdiction.

The argument that was advanced on behalf of the applicant sought to draw a distinction between an application for recognition of refugee status and an application for the grant of a protection visa. In my opinion, that argument is without substance, given that s 48(2)(b) of the Act specifically defines applications for protection visas to include “an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol...” It was submitted that a non-citizen might qualify as a refugee yet still be denied a protection visa because of other issues such as health or the public interest. On the other hand, no one could obtain a protection visa unless that person met several preconditions, one of which was recognition as a refugee pursuant to Article 1 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.

As I understand the submissions that were made on behalf of the applicant, the Tribunal had misunderstood the nature of the application that had been made by Mr Yang by erroneously classifying it as an application for a protection visa. It was, so it was submitted, in fact an application for recognition of refugee status. As I have said, I am of the opinion, there is no substance in this submission. The submission is contradicted by the contents of the application that was filed with the Tribunal on the applicant’s behalf. It contained the following submission:

I disagree with the decision made by the Onshore Refugee Program of the Department of Immigration and Multicultural Affairs. I consider that my further application for a protection visa is in the public interest...”

Nor could counsel for the applicant point to any provision in the Act which identified an application for recognition of refugee status as a decision reviewable by the Tribunal. Part 7 of the Act is entitled “Review of Protection Visa Decisions” and s 411 is included in that Part. Section 411 identifies those decisions that are described as “RRT - reviewable decisions”. By virtue of the amendments to the Act which took effect on 1 September 1994 the only decisions that are now reviewable are decisions to refuse or to cancel protection visas: sub-ss 411(c)(d). There is no provision enabling the Tribunal to review a decision (if indeed any such decision was made) that a person is not entitled to recognition as a refugee. Counsel for the applicant argued that a grant of refugee status was a substantive determination and that the Court should recognise such a grant (or the failure to make such a grant) as a reviewable decision. I cannot agree. In my opinion it is “a step along the way in a course of reasoning leading to an ultimate decision...”: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337.

The applicant’s letter of May 1996 is correctly categorised as an application to the Minister under s 48B for exemption from the prohibitory provisions of s 48A of the Act. The application was unsuccessful. There is no provision in the Act for any right of review or any right of appeal to the Refugee Review Tribunal. That is the end of the matter. The Tribunal was correct in concluding that it did not have any jurisdiction to determine the matter. Furthermore, s 475(1)(e) of the Act specifically precludes this Court from reviewing a decision of the Minister “not to exercise, or not to consider the exercise of, his or her power under s 48B...”.

The appeal must be dismissed with costs.

I certify that this and the 4 preceding pages are a true copy of the Reasons for Judgment of Justice O’Loughlin

Associate:

Dated:  17 July 1997

Counsel for the applicant	:	Mr JA Gibbons
Solicitors for the applicant	:	Elston & Gilchrist
Counsel for the respondent	:	Ms S Maharaj
Solicitor for the respondent	:	Australian Government Solicitor
Date of hearing	:	20 February 1997