Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

FEDERAL COURT OF AUSTRALIA Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 MIGRATION – judicial review – protection visa – administrative review – review by Refugee Review Tribunal – duty of Tribunal upon review – duty to consider evidence and contentions relied upon as establishing criteria for grant of visa – reasons for decision – inferences to be drawn from failure to advert to particular contention and evidence in reasons – inferred failure to consider evidence and contentions – Iranian nationals – Sabian Mandaeans – various claims – marriage of Sabian Mandaean son to Muslim woman – claimed persecutory repercussions for parents if returned to Iran – failure to consider – jurisdictional error – appeal allowed Migration Act 1958 (Cth) Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 cited NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 cited Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 cited Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited APPLICANT WAEE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V141 OF 2003 FRENCH, SACKVILLE AND HELY JJ 15 AUGUST 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V141 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: APPLICANT WAEE

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FRENCH, SACKVILLE AND HELY JJ

DATE OF ORDER: 15 AUGUST 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The decision of his Honour Raphael FM made on 25 October 2002 dismissing the appellant's application and ordering that he pay the respondent's costs of the application is set aside. 3. An order in the nature of certiorari is made quashing the decision of the Refugee Review Tribunal made on 21 December 2001 affirming the refusal of a protection visa to the appellant and his wife and two children. 4. An order in the nature of mandamus is made requiring the Refugee Review Tribunal to determine the appellant's application for review according to law. 5. The respondent is to pay the appellant's costs of the appeal and of the application in the Federal Magistrates Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.