Kadiroglu, Kemal & Ors v Minister for Immigration & Multicultural Affairs [1998] FCA 1656

FEDERAL COURT OF AUSTRALIA MIGRATION – application for review of decision of the Refugee Review Tribunal refusing the grant of a protection visa – applicants citizens of Turkish Republic of Northern Cyprus – whether Tribunal misconceived what is comprehended by the notion of persecution – whether Tribunal's conclusions were reasonably open to it. Migration Act 1958 (Cth) s 476(1)(e) Prahastono v MIMA (1997) 77 FCR 260

KEMAL KADIROGLU & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 728 of 1998

MOORE J SYDNEY 15 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 728 of 1998

BETWEEN: KEMAL KADIROGLU

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MOORE J

DATE OF ORDER: 15 DECember 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed 2. The applicants pay the respondent's 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 NG 728 of 1998

BETWEEN: KEMAL KADIROGLU

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MOORE J

DATE: 15 December 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT This is an application for judicial review by Kemal Kadiroglu ("the applicant husband"), his wife Muzaffer Kadiroglu ("the applicant wife") and his two children of a decision of the Refugee Review Tribunal ("the Tribunal") of 29 June 1998. The Tribunal affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant protection visas to the applicants. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). It is convenient, for present purposes, to refer principally to the circumstances of the applicant husband rather than the applicant wife. Before entering Australia they both resided with their children in the north of Cyprus. The applicant husband arrived in Australia on 8 April 1995. The applicant wife and their daughter arrived in Australia on 23 May 1995. On 7 July 1995 they lodged a combined application for protection visas with the Department of Immigration and Multicultural Affairs as did their son on 7 August 1995 (having arrived in Australia on 25 July 1995). On 3 February 1997 a delegate of the Minister refused to grant the applications. Both the delegate and the Tribunal considered the circumstances of the applicants and the question of whether they were refugees. Part 1A(2) of the Convention contains for present purposes the definition of refugee. It provides: (1) … the term "refugee" shall apply to any person who; … (2) Owing to a 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.