Federal Court of Australia
JUDGMENT No. ume detd wate
FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No NG 749 of 1994 GENERAL DIVISION
BETWEEN:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Applicant AND: WANG YONG QIANG and ANOTHER Respondent CORAM: SACKVILLE J. RECEIVED PLACE: SYDNEY DATE: 9 NOVEMBER, 1994 16 NOV 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL F NT
HIS HONOUR: The applicant has filed in these proceedings an application to review a decision by the Refugee Review Tribunal which, as I have already indicated, was made on 4 October 1994. In that decision, the tribunal remitted the first respondent's application for what is known as a protection visa for reconsideration by the applicant. The tribunal gave a direction that the first respondent must be taken to have satisfied the criterion that he is a person to whom Australia has protection obligations under the Refugees Convention, that is the 1951 Convention in Relation to the Status of Refugees as amended by
the 1967 Protocol.
The applicant claims that the decision of the tribunal involved an error of law, in that the tribunal held that the use of
coercive birth control measures against the first respondent amounted to persecution within the meaning of the Refugees
Convention. The applicant now proceeds ex parte for an order pursuant to s.482(2) of the Migration Act 1958. That subsection permits the Court, if an application is made to review a decision of the Refugee Review Tribunal, to make an order staying the decision. The application, as I previously indicated, is made by way of a notice of motion supported by an affidavit of Mr
Markus. Mr Markus has also appeared on behalf of the applicant.
As I have also previously indicated, the first respondent is presently held in custody in Port Hedland Western Australia. He is, so I infer from the tribunal's reasons, a 38 year old man of Chinese nationality who arrived in Australia by boat and without any official permit or visa on 28 May 1994. He was taken into custody as what is described as an "unprocessed person" and subsequently sought protection as a refugee. His application was, however, rejected by the Department of Immigration and Ethnic Affairs. Thereafter the first respondent obtained a review of that decision by the Refugee Review Tribunal which
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