NADO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 169

FEDERAL COURT OF AUSTRALIA

NADO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 169 MIGRATION – appeal from a decision of a primary judge affirming decision of Refugee Review Tribunal – whether jurisdictional error existed in the decision of the Refugee Review Tribunal Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 36(2), 91R, 91R(2) NADO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 448 OF 2003 FRENCH, SACKVILLE & HELY JJ 8 AUGUST 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 448 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NADO

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH, SACKVILLE & HELY JJ

DATE OF ORDER: 8 AUGUST 2003

WHERE MADE: SYDNEY

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 448 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NADO

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH, SACKVILLE & HELY JJ

DATE: 8 AUGUST 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a decision of a judge of this Court which dismissed an application by the appellant under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal ('the RRT') made on 15 October 2002. By that decision, the RRT affirmed a decision of the Minister's delegate not to grant a protection visa to the appellant. 2 The appellant is a national of Russia and a homosexual. He claimed to fear persecution in Russia by reason of his homosexuality. The RRT accepted that, as a Russian homosexual, the appellant was a member of a 'particular social group' for the purpose of the Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees ('the Convention'). However, the RRT found that the appellant's claimed fear of persecution was not genuine, and it was not satisfied that the appellant's fear of Convention-related persecution were well-founded. The RRT was not satisfied that the appellant was a person to whom Australia has protection obligations under the Convention. Therefore the appellant did not satisfy the criteria set out in s 36(2) of the Migration Act 1958 (Cth) ('the Act') for a protection visa.