STKB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant seeks certiorari to quash the decision of the Refugee Review Tribunal (the Tribunal) given on 25 August 2003. Of course, this Court has no jurisdiction to grant certiorari except as ancillary to some other jurisdiction lawfully vested in the Court. No other jurisdiction is identified. On the assumption that some head of jurisdiction could be identified, it is appropriate to consider, however, presuming that the application could be further considered whether any jurisdictional error in the decision of the Tribunal has been shown. For the reasons given below I am of the view that no jurisdictional error has been established. The application must be dismissed. 2 The applicant arrived in Australia on 22 October 1999. On 29 May 2000 he applied for a temporary protection visa. That visa was cancelled on 4 December 2002. The decision to cancel the temporary visa was affirmed by the Refugee Review Tribunal on 4 March 2003. The applicant sought judicial review in this Court of the Tribunal's decision. That application was dismissed by me in SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 502. That decision was affirmed by the Full Court on appeal: [2003] FCAFC 303 (SHJB). I understand that the applicant has sought special leave from the High Court to appeal from the Full Court decision. The High Court has yet to hear that application. 3 On 7 August 2000 the applicant sought to be granted a permanent protection visa. In order to obtain such a visa the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') had to be satisfied that the applicant is a person to whom Australia has protection obligations 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.' 4 The application for a permanent protection visa was refused by a delegate on 2 June 2003. The applicant sought to have that decision reviewed by the Tribunal. On 25 August 2003 the Tribunal affirmed the decision of the delegate. It is in relation to that decision that the applicant complains. 5 The factual background to the claim is set out in SHJB. It is unnecessary to repeat it. The evidence and issues that were before the Tribunal in this case were broadly the same as those considered by the previous Tribunal as discussed in SHJB. In this case the Tribunal was again faced with a dispute in the evidence. The applicant claimed that he was from Afghanistan. On the other hand there was a good deal of material (much of it collected by newspaper journalists) alleging that he was, in fact, a citizen of Pakistan. After what would appear to be a careful consideration of the material before it the Tribunal concluded that the applicant was from Pakistan. Consequently it concluded that that he did not have a well founded fear of persecution. 6 I note that the Tribunal took into account some of the criticisms made in SHJB of the use of some evidence by the Tribunal in the previous case. It would appear that the Tribunal in this case did not take account of that evidence in its consideration of the application by the applicant for a permanent protection visa. 7 The parties are agreed that for the applicant to succeed in his application to this court for prerogative relief the applicant must show that there was a jurisdictional error in the process, reasons or decision of the Tribunal. Although there were a number of grounds of alleged jurisdictional error set out in the Amended Application, at the hearing the applicant only alleged two jurisdictional errors. 8 First, the applicant argued that the decision of the Tribunal was irrational and/or unreasonable. The applicant says that the manner in which the Tribunal dealt with the evidence before it was irrational and/or unreasonable. It is unnecessary to go through the detail of why the applicant makes that claim. The applicant accepts that he cannot succeed if the test for irrationality or unreasonableness is the test proposed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 that is, 'has the decision maker come to a result that is so absurd that no sensible person could do so?' Obviously that is a very narrow test. However, the applicant says that where the issue involves basic human rights a different test of reasonableness should be applied. That test would be subject to a 'margin of appreciation' with the relevant margin being proportionate to the extent of the interference with human rights.