Appellant WADX of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 126

FEDERAL COURT OF AUSTRALIA

Appellant WADX of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 126

MIGRATION – appeal from decision of primary judge dismissing appeal from Refugee Review Tribunal – protection visa application – appellant claimed persecution from Iranian authorities because of participation in demonstration, breaches of the dress code and involvement with Iran Paad and workplace union – whether error of law – where appellant claimed his written submissions were not before the primary judge APPELLANT WADX OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W13 OF 2002 BRANSON, GOLDBERG & ALLSOP JJ 9 MAY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W13 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPELLANT WADX OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT JUDGES: BRANSON, GOLDBERG & ALLSOP JJ

DATE OF ORDER: 9 MAY 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT

1. The appeal be dismissed.

2. The appellant pay the costs of the respondent.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W13 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPELLANT WADX OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: BRANSON, GOLDBERG & ALLSOP JJ

DATE: 9 MAY 2002

PLACE: PERTH

REASONS FOR JUDGMENT

INTRODUCTION 1 This is an appeal from a decision of a judge of the Court (Carr J). By an order dated 18 December 2001 his Honour dismissed the appellant's application dated 20 August 2001 for an order for review of a decision of the Refugee Review Tribunal ("the Tribunal"). On 16 August 2001 the Tribunal had affirmed a decision of a delegate of the respondent not to grant to the appellant a protection visa. 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 or after the same date. 2 There has been no appearance today by or on behalf of the appellant. The Court had earlier been informed by an officer of the Court that the appellant had chosen not to avail himself of the opportunity given to him to fly from the detention centre to Perth for the purpose of the appeal hearing. Nor did he wish to utilise a video‑link to conduct his appeal. Nonetheless, the Court considers it appropriate to give consideration to the merits of the appeal in the light of the material that is before it. 3 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; … ."