O v Minister for Immigration & Multicultural Affairs [2000] FCA 380

FEDERAL COURT OF AUSTRALIA

"O" v Minister for Immigration & Multicultural Affairs [2000] FCA 380 "O" v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1507 OF 1999 LINDGREN J 24 MARCH 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1507 OF 1999

BETWEEN: "O"

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: LINDGREN J

DATE OF ORDER: 24 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be 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

NEW SOUTH WALES DISTRICT REGISTRY N 1507 OF 1999

BETWEEN: "O"

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: LINDGREN J

DATE: 24 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT (ex tempore)

Introduction 1 Without opposition by the respondent ("the Minister"), I ordered under s 50 of the Federal Court of Australia Act 1976 (Cth) that the applicant be referred to as "O" and that the title of, and references to, the proceeding be altered accordingly and I made related orders. 2 The applicant applies under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal (the "RRT") dated 22 December 1999 affirming a decision of a delegate of the Minister ("the Delegate") not to grant a protection visa. 3 Section 65 of the Act provides that after considering a valid application for a visa the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. Section 496 of the Act provides that the Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under the Act. It is not in dispute that the Minister made the necessary delegation to the Delegate. 4 One of the matters specified in s 65 is that the criteria for the visa specified in the Act or the Regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it be a non-citizen in Australia 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 (compendiously, "the Convention'"). 5 Article 1A(2) of the Convention provides that a refugee is any 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." 6 Criteria to be satisfied by an applicant for a protection visa at the time of the decision include the criterion specified in clause 866.221 of Schedule 2 to the Migration Regulations 1994 which is, again, that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. 7 The RRT's decision was a "judicially-reviewable decision" (s 475(1)(b) of the Act), the applicant was entitled to apply to this Court for review of it on certain grounds (s 476) and the Court has jurisdiction with respect to the RRT's decision (s 486). 8 The applicant's case is that he is outside the country of his nationality, Algeria, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of religion, membership of a particular social group or political opinion. In particular, he claims that he is a Catholic Berber who was actively involved in the Mouvement Culturel Berbčre ("MCB"). Procedural background 9 The applicant arrived in Australia on 30 November 1998 on a French passport in the name of André Noel Coiffet and a visa issued in Stuttgart. On 16 December 1998 he applied for a protection visa (visa subclass 866). On 6 January 1999 the Department of Immigration and Multicultural Affairs decided to issue the applicant with a bridging visa entitling him to work. On 30 March 1999 the Delegate refused the application for a protection visa. On 15 April 1999 the applicant applied to the RRT for review of the Delegate's decision. On 24 June 1999 and 3 September 1999 the Refugee Advice and Casework Service (Australia) Inc ("RACS") made written submissions on behalf of the applicant to the RRT. On 7 September 1999 the RRT conducted a hearing attended by the applicant. He was assisted at the hearing by Sonia Di Mezza, a solicitor with RACS and by an interpreter. The RRT gave its Reasons for Decision on 22 December 1999 and the applicant commenced the present proceeding by filing his application for an order of review on 30 December 1999.