Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 511

FEDERAL COURT OF AUSTRALIA

Wang v Minister For Immigration & Multicultural Affairs [2000] FCA 511 IMMIGRATION - Refugee - protection visa - application for review of decision of Refugee Review Tribunal - persecution on grounds of religion - applicant a member of "underground" Protestant Christian church in China - Chinese legal requirement that churches be registered - applicant alleges persecution on grounds of religion for worshipping at unregistered church - whether Tribunal erred in law by asking itself wrong question - distinction between "religion" and church organisation and governance Minister for Immigration and Multicultural Affairs v Zheng [2000] FCA 50, referred to JI DONG WANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1481 OF 1999 LINDGREN J 26 APRIL 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1481 OF 1999

BETWEEN: JI DONG WANG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 26 APRIL 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 1481 OF 1999

BETWEEN: JI DONG WANG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 26 APRIL 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction

1 The applicant ("Mr Wang") applies under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") dated 10 December 1999 affirming a decision of a delegate ("the Delegate") of the respondent ("the Minister") not to grant him a protection visa. 2 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 he made the necessary delegation to the Delegate. 3 One of the matters specified in s 65 is that the criteria for the visa specified by 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 the 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"). 4 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." 5 Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application include that specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994 which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. 6 The RRT's decision was a "judicially reviewable decision" (s 475(1)(b) of the Act), Mr Wang was entitled to apply to this Court for review of it on certain grounds (s 476) and the Court has jurisdiction with respect to it (s 486). 7 Mr Wang's case is that he is outside the country of his nationality, The People's Republic of China, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of religion.