NBMZ v Minister for Immigration: Federal Court Quashes Ministerial Decision to Refuse Visa

Friday 11 April 2014 @ 11.51 a.m. | Immigration

In NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 (9 April 2014), the Full bench of the Federal Court of Australia has quashed a Federal Government decision made under the previous Labor Government to refuse to grant a protection (class XA) visa to a group of refugees who had been convicted of offences while they were in detention.

The court has quashed the Federal Government's decision to refuse the protection visas on the basis that such refusal: "fails to take into account Australia's obligations regarding indefinite detention".

Background to the case

The case involved an Iranian refugee (NBMZ) who, under the previous Labor Government's administration, had been denied a protection visa because he had damaged more than $8500 of property in a detention centre were he was being held. Although NBMZ, was found to be a genuine refugee in need of protection, the Minister for Immigration had refused to grant him a visa on the grounds that he failed the "character test" (see Migration Act 1958 (Cth) s 501(6) (the Act)) due to his violent rampage in the detention centre.

Claims and Issues

NBMZ argued that indefinite immigration detention with no realistic prospect of removal from Australia in the reasonably foreseeable future was beyond the scope of Minister’s discretion to refuse a protection via under s 501(1) of the Act. Key questions in the case were, whether the Minister's exercise of power was affected by a "jurisdictional error, and whether the minister was obliged to consider the:

  • individual circumstances of the applicant,
  • legal consequences for the applicant of visa refusal
  • legal framework within which the discretion under section 501(1) is exercised,
  • risk to the Australian community if applicant were granted a visa, and
  • whether the Minister was permitted to take into account "general deterrence" of the offending behaviour in detention.

The case also required the court to consider the relationship between the Convention Relating to the Status of Refugees, (opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (the Convention) and the Act and the extent of the "protection obligations" that were owed to persons satisfying the definition of a “refugee” under Article 1A(2) of the Convention.

The Result

The Full bench found in a unanimous decision that by refusing to grant the protection (class XA) visa, the Minister for Immigration had not paid any regard to the "human" consequences of his decision. Without a visa, NBMZ could not remain in Australia and by law faced deportation, however, under the Convention, NBMZ could not be sent back to Iran, where he had been accused of a serious capital crime (the renunciation and criticism of his former religion). Further, there was no evidence of any third country willing to take NBMZ. In this position, as the SMH reports, NBMZ was left in a position that provided no options and as a result the court has ordered the government to reassess NBMZ's application for a (class XA) visa.

The reasons for the Migration Minister's decision to refuse NBMZ the (class XA) visa are reported as being that:

“The Australian community has an expectation that people who seek to remain in Australia will respect Australia's laws and legal authority and be of good character.”

In responding to these reasons, Justice Buchanan found the Migration Minister's opinion that NBMZ's “behaviour demonstrates a fundamental disrespect for Australian laws, standards and authorities" was "out of all proportion" and could be characterised as “exaggerated and unbalanced”, finding that the Migration Minister had failed to demonstrate how NBMZ was a risk to the public.

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