SCAX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 86

FEDERAL COURT OF AUSTRALIA

SCAX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 86

SCAX (AN INFANT) BY HIS NEXT FRIEND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S287 of 2002

WEINBERG, STONE & JACOBSON JJ

9 MAY 2003

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S287 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: SCAX (AN INFANT) BY HIS NEXT FRIEND

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: WEINBERG, STONE & JACOBSON JJ

DATE OF ORDER: 9 MAY 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S287 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: SCAX (AN INFANT) BY HIS NEXT FRIEND

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: WEINBERG, STONE & JACOBSON JJ

DATE: 9 MAY 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT

THE COURT 1 This is an appeal from a judgment of O'Loughlin J, given on 28 November 2002, in which his Honour dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 18 February 2002. By that decision, the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse the appellant a protection visa.

Background 2 The appellant, a citizen of Afghanistan, is a Shia Muslim, of Hazaran ethnicity. He is about thirteen years of age, and brings this appeal by his next friend. His mother died when he was very young. He lived with his father and five other brothers and sisters in a village in the district of Sang-e-Masha, in the province of Ghazni. He arrived by boat in Australia, as an unlawful non-citizen, in May 2001. 3 On 25 July 2001, the appellant lodged an application for a Protection (Class XA) visa with the then Department of Immigration and Multicultural Affairs. On 27 November 2001, a delegate of the Minister refused that application. On 6 December 2001, the appellant applied to the Tribunal for a review of that decision. As noted above, that application was rejected on 18 February 2002. 4 The appellant is presently in the care and custody of the South Australian Department of Family and Youth Services. He has been living with a foster care family.