QAAX of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") seeking, amongst other things, the following orders: (a) A writ of certiorari quashing the decision of the second respondent, Refugee Review Tribunal ("the Tribunal") dated 4 November 2003, (handed down 2 December 2003), to affirm the decision of the first respondent's delegate rejecting the applicants' application for protection visas; (b) A writ of mandamus requiring the second respondent to rehear and decide the applicants' application according to law. 2 The applicants are husband and wife and a son (born 15 May 1988) of the wife. Each of the applicants is a citizen of the Russian Federation. 3 The applicants obtained passports on 10 December 2002 and arrived in Australia on 12 January 2003. They lodged an application for Protection (Class XA) visas on 3 February 2003. On 13 March 2003 a delegate of the Minister rejected the applicants' application for protection visas and the Tribunal on 4 November 2003 affirmed that decision. 4 Section 36 of the Migration Act 1958 (Cth) ("the Act") provides for protection visas: '(1) There is a class of visas to be known as protection visas. (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 (b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa.' 5 Article 1A(2) of the Convention Relating to the Status of Refugees (1951) defines a refugee as a person who: '… owing to a 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.' 6 Article 33(1) of that Convention provides: 'No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.' 7 Section 91R of the Act provides: '(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.' 8 The grounds for this application are: