Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Saha v Minister for Immigration & Multicultural Affairs [2001] FCA 772
MIGRATION – application for protection visa – nature of obligation of Tribunal to record reasons for decision – material findings of fact.
Migration Act 1958 (Cth), ss 5, 14, 65, 189, 430, 476
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 applied
Abebe v Commonwealth (1999) 197 CLR 510 considered
Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 referred to
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 referred to
SAMIR SAHA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 120 of 2000 LEE J 22 JUNE 2001 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY W 120 OF 2000
BETWEEN: SAMIR SAHA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE: LEE J
DATE OF ORDER: 22 JUNE 2001
WHERE MADE: PERTH
THE COURT ORDERS THAT: The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY W 120 OF 2000
BETWEEN: SAMIR SAHA
Applicant
AND: MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
JUDGE: LEE J
DATE: 22 JUNE 2001
PLACE: PERTH
REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 ("the Act") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 27 June 2000 which "affirmed" a decision of a delegate of the respondent ("the Minister") that the applicant not be granted a "protection visa". 2 The applicant is a 26 year old citizen of Bangladesh. He arrived in Australia on 25 September 1999 as an "unlawful non-citizen" as defined in s 14 of the Act. Pursuant to s 189 of the Act the applicant was "detained" upon arrival and thereafter held in a "detention centre". On 17 December 1999 the applicant applied for a protection visa which was refused by a delegate of the Minister on the 17 April 2000. The applicant applied to the Tribunal for review of the delegate's decision on 20 April 2000. 3 Under s 65 of the Act if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused. 4 Section 36(2) of the Act provides that: "(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 5 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967). The term "protection obligations" is not defined in the Convention or the Act. 6 The Convention is a treaty pursuant to which the "Contracting States" agree to apply the provisions of the Convention to "refugees". Article 1(A) of the Convention provides: "For the purposes of the present Convention, the term 'refugee' shall apply to any person who:
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