Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Buchari v Minister for Immigration & Multicultural Affairs [2001] FCA 432
migration – review of decision of Refugee Review Tribunal – whether Tribunal failed to apply "real chance of persecution" test – whether a presumption of continuity of a past well-founded fear of persecution – whether Tribunal failed to consider effectiveness of State protection. Migration Act 1958 (Cth) Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 considered Minister for Immigration and Multicultural Affairs v Gui [1999] FCA 1496 referred to Ahmed v Minister for Immigration and Multicultural Affairs [2000] FCA 123 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 referred to TONNY BUCHARI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N61 of 2001 STONE J SYDNEY 19 APRIL 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N61 of 2001
BETWEEN: TONNY BUCHARI
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: STONE J
DATE OF ORDER: 19 APRIL 2001
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 N61 of 2001
BETWEEN: TONNY BUCHARI
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: STONE J
DATE: 19 APRIL 2001
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 On 23 February 1999, the applicant, a citizen of Indonesia of Chinese ethnicity, applied to the respondent ("Minister") for a protection visa pursuant to the Migration Act 1958 (Cth) (the "Act"). A delegate of the Minister refused to grant a protection visa on 15 October 1999, which refusal was upheld by the Refugee Review Tribunal ("Tribunal") on 29 November 2000 in a decision handed down on 19 December 2000. 2 Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees done at Geneva, as "amended" by the 1967 Protocol Relating to the Status of Refugees done at New York ("the Convention"). 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."
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