SBKC v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant is a Nigerian national. 2 On 22 December 1995 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). His wife and one of his children was also an applicant for a protection visa. That application was refused by a delegate of the respondent on 7 November 1996. The Refugee Review Tribunal (the Tribunal) affirmed the decision of the delegate on 19 May 2000. In the interim period, there had been two earlier decisions of the Tribunal affirming the decision of the delegate which had been set aside by the Court for error, and which required in each instance the matter to be reconsidered by the Tribunal. 3 The present application was instituted on 16 August 2005, some five years after the Tribunal decision. It seeks to have the decision of the Tribunal quashed for jurisdictional error: see Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. The application does not identify the nature of the jurisdictional error asserted. The supporting affidavit of the applicant indicates that the jurisdictional error is twofold: (1) that the Tribunal had regard to certain information (which I shall call 'the information') about the state of affairs in Nigeria as reported in: (a) the 'Economist' on 15 January 2000; (b) a book "Freedom of Religion and Belief: A World Report', Boyle and Sheen, Routledge, London, 1997; (c) BBC News World Service, 4 April 2000. and that the information was not information to which the Tribunal was entitled to have regard because it all related to a period of time after the date of the application for the protection visa. (2) that the Tribunal did not inform the applicant that it proposed to have regard to the information in deciding the review of the application for the protection visa when it was obliged to do so. 4 The first respondent has applied by motion of 1 September 2005 to summarily dismiss the application on the ground that it has no prospect of success, and is an abuse of the process of the Court. She contends that the issues which the applicant now raises as alleged jurisdictional errors either have no prospects of success, or have already been resolved adversely to the applicant so that he should not be permitted to revive them under another guise in the current proceedings. On 30 September 2005 I ordered, on the motion, that the application of the applicant be summarily dismissed. These are my reasons for that order. 5 The applicant has a further application, presently under consideration, for a visa under the Act. Apart from the application for a protection visa and the procedures relating to it, he was a secondary applicant to an application for a Sub-class 103 (Parent) visa with his wife, made on 11 August 1999, and refused on character grounds in relation to the applicant on 11 June 2002. That decision has also been the subject of extensive review processes. For present purposes it is necessary to refer only to those processes concerning review of the decision of the Tribunal of 19 May 2000. 6 On 3 July 2000 the applicant sought judicial review of the Tribunal's decision. The application was dismissed: Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 402 (the review at first instance). An appeal from the review at first instance was unsuccessful: Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1868. On 4 February 2002 the applicant applied to the High Court for special leave to appeal from the decision of the Full Court dismissing the appeal from the application for review at first instance. On 11 April 2003 the High Court refused the application for special leave to appeal (the leave to appeal application). The matter then apparently rested for some 12 months. On 10 March 2004 the applicant applied to the High Court for prerogative writs in respect of the decision of the delegate of the respondent, subsequently reviewed by the Tribunal and affirmed on 19 May 2000, for alleged jurisdictional error. That application was refused on 9 August 2004. 7 The relevant step is the current application, again after about a year of apparent inactivity. 8 It is necessary to address separately each of the two grounds of alleged jurisdictional error to determine whether the motion should succeed. 9 The first point raises the question whether the Tribunal was entitled to have regard to the information, even though it was information obtained by the Tribunal after the date of the application. The point has been decided adversely to the applicant's contention by the Full Court of this Court: Minister for Immigration & Ethnic Affairs v Singh (1997) 72 FCR 288. It determined that the Tribunal was to decide a review application on the facts applicable at the date of determination by the Tribunal of the application, rather than at the date of the application itself. In doing so, the Tribunal is entitled to have regard to information up to that date. Its function is to review the decision of a delegate of the respondent as if it were in the shoes of the initial decision-maker: see ss 414 and 415 of the Act. The criteria for the grant of a protection visa under the Act specified in Sch 2 of the Migration Regulations include criterion 866.22 as criteria to be satisfied at the time of the decision. Criterion 866.221 is that the respondent (and on review the Tribunal) be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Necessarily that directed the Tribunal's attention to the state of affairs at the time of its decision. It had to decide whether, at the time of its decision, there was a real chance that the applicant might be persecuted if he were to return to Nigeria. It was appropriate in the circumstances for the Tribunal to have regard to information relevant to that question, including the state of affairs in Nigeria at the time of its determination, to do so. In my view that contention is without merit and has no prospects of success.