WACD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 187

FEDERAL COURT OF AUSTRALIA

WACD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 187

Migration Act 1958 (Cth) ss 5(1), 36, 476(1)(e), 48A, 48B, 417, 476(1)(g) Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred to WACD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 532 of 2001 GRAY, RD NICHOLSON AND EMMETT JJ 14 JUNE 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 532 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WACD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: GRAY, RD NICHOLSON AND EMMETT JJ

DATE OF ORDER: 14 JUNE 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. 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 W 532 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WACD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: GRAY, RD NICHOLSON AND EMMETT JJ

DATE: 14 JUNE 2002

PLACE: PERTH

REASONS FOR JUDGMENT

THE COURT:

Introduction 1 This is an appeal from a judgment of a single judge of the Court, who dismissed an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) ("the Migration Act") of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refusing to grant to the applicant a protection visa. 2 Section 36 of the Migration Act provides that there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom Australia has protection obligations pursuant to the Refugees Convention as amended by the Refugees Protocol. The term "Refugees Convention" is defined in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The term "Refugees Protocol" is similarly defined to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments together the "Convention". For present purposes, it is sufficient to note that the effect of the Convention is that Australia has protection obligations to a person who: "owing to 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". 3 The appellant is a citizen of Iran. He arrived in Australia on 6 January 2001. On 26 January 2001, he lodged an application for a protection visa pursuant to the Migration Act. On 6 March 2001, a delegate of the Minister refused to grant him a protection visa. The appellant applied to the Tribunal for review of that decision. On 21 May 2001, the Tribunal published its decision and its reasons for decision. The Tribunal affirmed the decision of the delegate not to grant a protection visa. The appellant applied to the Court for judicial review of the Tribunal's decision. On 26 October 2001, the learned primary judge dismissed the application with costs. The appellant has appealed to this Court from that judgment. Because of the history of the matter, it must be dealt with pursuant to the provisions of s 476 of the Migration Act as they stood prior to amendments which came into operation on 2 October 2001.