WACW v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 155

FEDERAL COURT OF AUSTRALIA

WACW v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 155

MIGRATION – appeal – refusal of protection visa – whether no evidence – whether error of law – whether error of law in non-observance of United Nations Handbook on Procedures Migration Act 1958 (Cth) ss 5(1), 36(2), 476(1)(e), 476(1)(g), 476(4)(b)

United Nations Handbook on Procedures and Criteria for Determining Refugee Status (1979)

Chan v Minister for Immigration & Ethic Affairs (1989) 169 CLR 379 followed Applicant A v Minister for Immigration & Ethnic Affairs [1997] 190 CLR 225 referred to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 followed WACW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W567 of 2001 GRAY, RD NICHOLSON and EMMETT JJ PERTH 29 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W567 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WACW

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY, RD NICHOLSON and EMMETT JJ

DATE OF ORDER: 29 MAY 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W567 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WACW

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY, RD NICHOLSON and EMMETT JJ

DATE: 29 MAY 2002

PLACE: PERTH

REASONS FOR JUDGMENT

THE COURT: 1 The appellant is a male Iranian citizen. He arrived in Australia on 19 June 2000. At that time he was almost 33 years of age. On 1 March 2001 he lodged an application for a protection visa (class XA) under the Migration Act 1958 (Cth) ("the Act"). On 26 March 2001 a delegate of the respondent refused the application. On 18 July 2001 the Refugee Review Tribunal ("the Tribunal") affirmed the decision of the delegate. On 7 December 2001 Carr J dismissed an application by the appellant to review the decision of the Tribunal. Because of the date at which the appellant applied for judicial review, his application and the appeal must be dealt with pursuant to the provisions of s 476 of the Act as they stood prior to amendments which came into operation on 2 October 2001. 2 The criterion for a protection visa is whether, at the time of the decision, the decision-maker is satisfied that the appellant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"): ss 5(1) and 36(2) of the Act. In accordance with Art 1A(2) of the Convention, to qualify as a refugee an applicant must show that "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he … is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…".