O v Minister for Immigration & Multicultural Affairs [1999] FCA 1405

FEDERAL COURT OF AUSTRALIA

"O" v Minister for Immigration & Multicultural Affairs [1999] FCA 1405 MIGRATION – application for review of Refugee Review Tribunal decision refusing grant of a protection visa – whether procedures required to be observed by the Tribunal in accordance with s 430 and s 476(1)(a) of the Migration Act 1958 (Cth) were observed – whether the Tribunal erred by basing its decision on a fact that did not exist. Migration Act 1958 (Cth) ss 430, 476(1)(a) Baljit Kaur Singh & Ors v Minister for Immigration and Multicultural Affairs [1999] FCA 1126, cited

"O" v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 680 of 1999 MOORE J 14 OCTOBER 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 680 OF 1999

BETWEEN: "O"

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MOORE J

DATE OF ORDER: 14 OCTOBER 1999

WHERE MADE: SYDNEY

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

NEW SOUTH WALES DISTRICT REGISTRY N 680 OF 1999

BETWEEN: "O"

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MOORE J

DATE: 14 OCTOBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT Introduction 1 The applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 12 July 1999, which affirmed a decision of the Department of Immigration and Multicultural Affairs ("the Department") to refuse to grant him a protection visa. 2 The applicant is a young man who is a Kurdish Iranian. He arrived in Australia without a passport and has since been held in detention. On 10 May 1999 the applicant applied for a protection visa and on 28 May 1999 a delegate of the Department refused the application. On 31 May 1999, the applicant sought review by the Tribunal of the decision of the delegate. The applicant now applies to this Court for judicial review of the decision of the Tribunal. 3 Section 36(2) of the Migration Act 1958 (Cth)("the Act") provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Refugees Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together hereafter referred to as "the Convention"). 4 Article 1A(2) of the Convention defines a refugee as any person who: "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…" Background 5 As will be apparent shortly the issues raised in this application for judicial review are narrow in compass. Accordingly it is unnecessary to set out in great detail the basis upon which the applicant claimed to be a refugee. The essence of his claim was that he was a Kurdish Iranian whose uncle had been executed for belonging to the Kurdish Democratic Party of Iran which was an organisation to which he had been making donations. The Tribunal did not accept this aspect of the applicant's account. The Tribunal did accept, however, that the applicant's father had worked for the SAVAK which was a secret police force of the Shah of Iran. It also accepted that in 1978 the applicant's father had shot and killed a son of a religious leader and in 1985 his father was arrested and imprisoned for eight years. It was accepted that his father's experiences had certain adverse consequences for the applicant. The Tribunal also accepted the applicant was a Christian who had converted from the Islamic faith. The Tribunal had before it information derived from the Department of Foreign Affairs and Trade as well as a US Department of State Report: Iran Country Report on Human Rights Practices for 1998 ("the 1998 State Department Report") which, amongst other things, discussed the position of Christians in Iran.