WABU v Minister for Immigration & Multicultural Affairs [2002] FCAFC 203

FEDERAL COURT OF AUSTRALIA

WABU v Minister for Immigration & Multicultural Affairs [2002] FCAFC 203

MIGRATION – appeal – refusal of protection visa – whether Tribunal in error of law – whether no evidence before Tribunal – whether primary judge in error of law in findings of fact on additional evidence Migration Act 1958 (Cth) ss 5(1), 36(2), 48B, 417, 476(1)(e), 476(4)(b) Federal Court Rules O 80 Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 referred to Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 referred to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred to Minister for Immigration & Multicultural Affairs v Farahanipour (2001) 181 ALR 535 referred to WABU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W521 of 2001 GRAY, RD NICHOLSON and EMMETT JJ 25 JUNE 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W521 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WABU

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GRAY, RD NICHOLSON and EMMETT JJ

DATE OF ORDER: 25 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 W521 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WABU

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GRAY, RD NICHOLSON and EMMETT JJ

DATE: 25 JUNE 2002

PLACE: PERTH

REASONS FOR JUDGMENT

THE COURT: 1 The appellant, a male person then aged 20 years, arrived in Australia on 20 December 2000. On 9 January 2001 he applied for a protection (class XA) visa. On 13 February 2001 a delegate of the respondent refused that application. On 10 April 2001 the Refugee Review Tribunal ("the Tribunal") affirmed the decision of the delegate. On 1 November 2001 Carr J dismissed an application for review of the Tribunal decision. That application, like the application for the protection visa, was made in reliance on provisions in Migration Act 1958 (Cth) ("the Act"). The appellant now appeals from the decision of Carr J. 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…".