Nejad v Minister for Immigration & Multicultural Affairs [2000] FCA 741

FEDERAL COURT OF AUSTRALIA

Nejad v Minister for Immigration & Multicultural Affairs [2000] FCA 741 FARID SEDAGHAT NEJAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 34 OF 2000 SPENDER, LINDGREN AND MADGWICK JJ 31 MAY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 34 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: FARID SEDAGHAT NEJAD

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: SPENDER, LINDGREN AND MADGWICK JJ

DATE OF ORDER: 31 MAY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 34 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: FARID SEDAGHAT NEJAD

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: SPENDER, LINDGREN AND MADGWICK JJ

DATE: 31 MAY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT LINDGREN J:

Introduction

1 The appellant appeals from a judgment of a Judge of the Court dismissing his application for review of a decision of the Refugee Review Tribunal ("the RRT"). The RRT had decided that it was not satisfied that the appellant was a refugee and it affirmed a decision of a delegate of the respondent (respectively "the Delegate" and "the Minister") to refuse him a protection visa. 2 Section 29 of Migration Act 1958 (Cth) ("the Act") provides that, subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do one or both of the following: (a) travel to and enter Australia; (b) remain in Australia. 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 delegated all necessary powers to the Delegate. 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. 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 is 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"). 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 also include the criterion 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 appellant's case before the RRT had been that he was outside the country of his nationality, Iran, and was unwilling to return to it because of a well-founded fear of being persecuted for reasons of religion. Procedural background 7 The appellant arrived in Australia on 23 May 1999. By an application bearing date 24 May 1999, apparently signed on 28 May 1999 and lodged on 2 June 1999, he applied for a protection visa (visa sub-class 866). The Delegate refused the application on 17 June 1999. On 18 June 1999, the appellant applied to the RRT for review of the Delegate's decision. The RRT conducted a hearing on 2 August 1999. On 16 August 1999, it affirmed the Delegate's decision. The appellant's application filed in this Court on 9 September 1999 for review of the RRT's decision specified no grounds. All relevant parts of the form were filled in "Details will be sent later". 8 The application for review was dismissed by the primary judge on 9 December 1999. In his notice of appeal filed on 13 January 2000, the appellant relies on the ground that the primary judge erred in two respects: first, in not finding that the RRT had made an error of law; and second, "in not adjourning the case so as to obtain a new translation to be made of his statements".