STDB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 862

FEDERAL COURT OF AUSTRALIA

STDB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 862

Migration Act 1958 (Cth)

STJB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 861

STDB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 832 OF 2003

SELWAY J
8 JULY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 832 OF 2003

BETWEEN:	STDB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	8 JULY 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

The application be 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 832 OF 2003

BETWEEN:	STDB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	8 JULY 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. In these proceedings the applicant has sought the issue of writs of prohibition, certiorari, mandamus and/or injunctions in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’).  The applicant says that that decision is invalid by reason of a jurisdictional error made by the Tribunal.  For the reasons given below the application is dismissed.

2. The applicant is a citizen of Albania. He arrived in Australia on 20 November, 2000. On 21 December, 2000 he lodged an application for a protection visa. In order for the applicant to be granted a protection visa the respondent (‘the Minister’) had to be satisfied that Australia had protection obligations to the applicant under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Migration Act 1958 (Cth) (‘the Act’). In general terms the Minister had to be satisfied that the applicant was a ‘refugee’ as defined in the Convention, being a person who:

   ‘… owing to a well-founded fear of being persecuted for reason 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.’

3. The applicant claimed that he had a well founded fear of persecution by reason of a ‘blood feud’ involving his family and family X.  The blood feud was said to arise from a dispute over land which resulted in the applicant’s father shooting and killing a member of family X.  The applicant claimed that that family will kill a male member of the applicant’s family in revenge for the act by the applicant’s father.  The applicant claimed that he feared he would be killed if he returned to Albania.

4. On 15 August, 2001 the applicant’s application for a protection visa was refused by a delegate of the Minister.  On 12 September, 2001 the applicant applied for a review of that decision.  On 10 October, 2003 the Tribunal affirmed the decision to refuse a protection visa. 

5. The proceedings brought in this court allege that the decision of the Tribunal was invalid by reason of jurisdictional error.  The Tribunal decision in this case was handed down on the same day as its decision considered in STJB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 861 (‘STJB’).  The claims in each of the two cases were substantially similar.  The same Tribunal member considered both cases.  The reasons of the Tribunal in each case were substantially similar.  The alleged jurisdictional errors in each case are the same.  The parties are agreed that the same reasoning and result should apply in this case as in STJB.  I agree.

6. For the reasons given by me in STJB this application is dismissed.  I will hear the parties as to costs. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             8 July 2004

Counsel for the Applicant:	S Ower
Solicitor for the Applicant:	McDonald Steed
Counsel for the Respondent:	M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 June 2004
Date of Judgment:	8 July 2004