Appellant WAEK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 117

FEDERAL COURT OF AUSTRALIA

Appellant WAEK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 117

MIGRATION – appeal from decision of primary judge dismissing appeal from Refugee Review Tribunal – protection visa application – appellant claimed persecution from Iranian authorities because of the nature of his employment as a musician – whether error of law – whether no evidence or other material to justify the making of the decision refusing to grant the protection visa APPELLANT WAEK OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W32 OF 2002 BRANSON, GOLDBERG & ALLSOP JJ 7 MAY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W32 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPELLANT WAEK OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT JUDGES: BRANSON, GOLDBERG & ALLSOP JJ

DATE OF ORDER: 7 MAY 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W32 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPELLANT WAEK OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BRANSON, GOLDBERG & ALLSOP JJ

DATE: 7 MAY 2002

PLACE: PERTH

REASONS FOR JUDGMENT

INTRODUCTION 1 By an order dated 24 October 2001 a judge of the Court (R D Nicholson J) dismissed an application dated 12 April 2001 made by the appellant for an order for review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had on 4 April 2001 affirmed a decision of a delegate of the Minister for Immigration & Multicultural Affairs ("the delegate") to refuse to grant the appellant a protection visa. The appellant has appealed to the Full Court from the order made by R D Nicholson J. The law to be applied on the appeal is the law in force prior to the coming into operation of the new judicial review scheme that applies to all visa‑related decisions made on and from 2 October 2001 and all Court applications made on and from the same date. 2 To obtain the protection visa that he sought, the appellant was required to satisfy the Tribunal that he 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")). For the purposes of the Act, the Refugees Convention is the Convention relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol relating to the Status of Refugees 1967. The Refugees Convention as amended by the 1967 Protocol will hereafter be referred to simply as "the Convention". For present purposes the appellant is a person to whom Australia has protection obligations under the Convention if he is 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; … ."