Minister for Immigration & Multicultural & Indigenous Affairs v WAIK [2003] FCAFC 307

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v WAIK [2003] FCAFC 307 MIGRATION – protection visa – membership of a particular social group – whether Refugee Review Tribunal failed to consider the question of whether the applicant was a member of a particular social group – where applicant a member of a sub-tribe in Afghanistan – where applicant feared 'extra-judicial killing' at the hands of members of a different sub-tribe – where Governor of province a member of the different sub-tribe MIGRATION – protection visa – where applicant 17 years of age at time of application – whether application a 'valid application' under s 46 of the Migration Act 1958 (Cth) –operation of s 69 of the Migration Act 1958 (Cth)

Immigration (Guardianship of Children) Act 1946 (Cth) ss 5, 6 Migration Act 1958 (Cth) ss 46, 47, 69, 411, 495 Migration Regulations 1994 (Cth) regs 1.03, 1.18, 2.07, Sch 1, Pt 4, Item 1401 Immigration and Multicultural Affairs, Minister for, Re; Ex parte Miah (2001) 206 CLR 57 cited Soondur v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 578 cited Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297 cited WAIK v Minister for Immigration [2003] FMCA 33 overruled MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v WAIK W77 OF 2003 TAMBERLIN, R D NICHOLSON & EMMETT JJ 19 DECEMBER 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W77 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

APPELLANT

AND: WAIK

RESPONDENT

BETWEEN: WAIK

CROSS-APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS