Mubarak v Minister for Immigration & Multicultural Affairs [2000] FCA 193

FEDERAL COURT OF AUSTRALIA

Mubarak v Minister for Immigration & Multicultural Affairs [2000] FCA 193

KHEDIR AWAD NASSER MUBARAK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 38 OF 2000

MOORE J

1 MARCH 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY N 38 of 2000

BETWEEN: KHEDIR AWAD NASSER MUBARAK

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MOORE J

DATE OF ORDER: 1 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant 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

DISTRICT REGISTRY N 38 of 2000

BETWEEN: KHEDIR AWAD NASSER MUBARAK

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MOORE J

DATE: 1 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT Nature of present application 1 This is an application by Khedir Awad Nasser Mubarak ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 11 January 2000. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant a protection visa. 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"). Background 2 The applicant arrived in Australia on 14 April 1999, having travelled from Jordan via Egypt. He entered Australia using a Saudi Arabian passport that had been tampered with. On 30 April 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 18 May 1999 the application was refused by a delegate of the Minister, and on 20 May 1999 the applicant sought review of that decision. Both the delegate and the Tribunal considered the circumstances of the applicant and whether the applicant was a refugee. Art 1A(2) of the Convention contains, for present purposes, the definition of refugee. It provides: "… 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 in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it." Proceedings before the Tribunal 3 The essence of the applicant's case before the Tribunal was that he will be subjected to persecution if forced to return to Jordan, Iraq or Kuwait because he is a stateless Bedoun who has been persecuted in Kuwait and has resided illegally in Iraq and Jordan. The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and a consideration by Australian courts of what is comprehended by the definition of "refugee" and by the notion of "persecution". Reference was made to the judgments of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225 and MIEA v Guo (1997) 191 CLR 559. The Tribunal then noted that Australia does not owe protection obligations to a person who has been accorded effective protection in a third country, referring to Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 151 ALR 685 and Karthigesu Rajendran v Minister for Immigration and Multicultural Affairs [1998] FCA 464. The Tribunal stated: "Effective protection in this context is protection which will effectively ensure there is not a breach of Article 33 of the Convention which prohibits the return of a refugee to the frontiers of territories where his or her life or freedom would be threatened for one of the five Convention reasons. […] In determining whether an applicant has effective protection in a third country relevant considerations will be: whether the applicant has the right to reside in, enter and re-enter the third country; whether there is a risk that the third country will return the applicant to his or her country of nationality; and whether the applicant has a well-founded fear of persecution in the third country itself."