NNN v Minister for Immigration & Multicultural Affairs [1998] FCA 191

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 272 of 1997

BETWEEN: "NNN"

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE(S): O'CONNOR J

DATE OF ORDER: 5 MARCH 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is 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

VICTORIA DISTRICT REGISTRY vg 272 of 1997

BETWEEN: "NNN"

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE(S): O'CONNOR J

DATE: 5 March 1998

PLACE: melbourne

EX TEMPORE REASONS FOR JUDGMENT This is an application to review a decision of the Refugee Review Tribunal ("RRT") made on 14 May 1997, affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa. The applicant seeks an order that the decision of the RRT made on 14 May 1997 be quashed and a declaration that on 14 May 1997 the applicant was a person who had a well-founded fear of persecution and was entitled to the grant of a protection visa. Alternatively, the applicant seeks an order that the application for determination of his refugee status be referred to the RRT to be further determined according to law.

Legislative Context The relevant provisions of the Migration Act in respect of this application are as follows: "420 (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a)is not bund by technicalities, legal forms or rules of evidence; and (b)must act according to substantial justice and the merits of the case." ... 476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; ... (e) that the decision involved an error of law, being an error involving an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias; ... (2) The following are not grounds upon which an application may be made under subsection (1): (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power." ... A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." Factual Background The applicant is a 62 year old man born in Syria and remains a Syrian citizen, but who had lived in Lebanon since 1948 or 1949. He lived in Lebanon until he left to come to Australia. The applicant claims he joined the Phalange in 1977 along with one of his sons and did whatever was required, including fighting the Syrians and manning barricades. He never took part in active fighting and left Lebanon because he had enough of the fighting and living in fear. He claims his life was in danger because of his and his son's involvement with the Phalange. The applicant left Lebanon in April 1989. The applicant has made a variety of applications to stay in Australia since he arrived in 1989. An application for a protection visa was lodged with the Department on 21 March 1996. The application was rejected by the a delegate of the Minister on 6 December 1996 and the applicant applied for a review of this decision to the RRT on 19 December 1996. The application for review was rejected by the RRT and his application for a protection visa refused on 14 May 1997.