Kaddari v Minister for Immigration & Multicultural Affairs [2000] FCA 659

FEDERAL COURT OF AUSTRALIA

Kaddari v Minister for Immigration & Multicultural Affairs [2000] FCA 659 Migration Act 1958 (Cth) ss 500(1) (c), (4), 504 Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the New York Protocol done at New York on 31 January 1967 Art 33(2) Schedule 4 to the Migration Regulations (1994) Director General Security v Sultan (1998) 90 FCR 334 followed Daher v Minister for Immigration & Ethnic Affairs (1997) 77 FCR 107 considered Shanahan v Scott (1957) 96 CLR 245 considered Collector of Customs v Lawlor (1979) 2 ALD 1 applied MOHAMED KADDARI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 64 OF 2000 TAMBERLIN J SYDNEY 18 MAY 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 64 OF 2000

BETWEEN: MOHAMED KADDARI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 18 MAY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The applicant to pay the costs of the respondent. 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 64 OF 2000

BETWEEN: MOHAMED KADDARI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 18 MAY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("AAT") constituted by a Deputy President delivered on 23 December 1999. 2 The AAT found that it had no jurisdiction to review the respondent's decision to refuse the applicant a protection visa and dismissed the application to the AAT. 3 The short question is whether the AAT erred in its construction of the jurisdiction conferred on it by the Migration Act 1958 (Cth) ("the Act"). 4 Mr Kaddari is an Algerian national who arrived in Australia on 12 May 1997. On 4 June he lodged an application for a protection visa and on 6 August 1997 a delegate of the respondent ("the Minister") refused that application. Mr Kaddari lodged an Application for Review with the Refugee Review Tribunal ("the RRT") on 7 August 1997. On 4 December 1997 the RRT decided to remit the matter to the Minister with a direction that Mr Kaddari "be taken to have satisfied the criterion for a protection visa specified in Article 1A of the Refugee Convention". The reference to "the Convention" is a short-hand reference to the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the New York Protocol done at New York on 31 January 1967. On 7 October 1999 a delegate of the Minister refused Mr Kaddari's application for a protection visa on the ground that he did not satisfy one of the criteria for a protection visa; namely the public interest criterion 4002. On 13 October 1999 Mr Kaddari applied to the AAT for review. This was dismissed on the ground that its jurisdiction under s 500(1)(c) of the Act only extends to reviewing a refusal of a protection visa where that refusal is based on Articles 1F, 32 or 33(2) of the Convention.