Baker v Minister for Immigration & Multicultural Affairs [2001] FCA 1605

FEDERAL COURT OF AUSTRALIA

Baker v Minister for Immigration & Multicultural Affairs [2001] FCA 1605 Migration Act 1958 (Cth) s 476

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited Minister for Immigration & Multicultural Affairs v Quiader [2001] FCA 1458 distinguished KHALID AHMAD BAKER v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 240 of 2001 RD NICHOLSON J 14 NOVEMBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 240 of 2001

BETWEEN: KHALID AHMAD BAKER

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 14 NOVEMBER 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. 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 240 of 2001

BETWEEN: KHALID AHMAD BAKER

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 14 NOVEMBER 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant applies to review the decision of the Refugee Review Tribunal ("the Tribunal") confirming the decision of the respondent through his delegate not to grant the applicant a protection visa. The application is made pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act"). 2 The applicant is a stateless Palestinian who has resided in Syria since birth. At the time of his appearance before the Tribunal he was aged 25 years and single. His parents were both born in Palestine. He undertook his secondary school education in Syria and last worked there as a self-employed businessman selling vegetables. He completed a period of compulsory military service in 1999. He arrived in Australia without a visa in August 2000. He made his application for a protection (class XA) visa on 7 March 2001. Relevant provisions 3 Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: "… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression "Convention" will be used to mean the Convention as amended by the Protocol. The same criterion appears in Sch 2 of the Migration Regulations in which item 785 and 866 both include the same criterion. 4 Article 1a(2) of the Convention defines a "refugee" to be any person who: "…owing to a 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it". 5 The reasons specified in Article 1a(2) are known as Convention reasons. The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Article 33 of the Convention.