Ali v Minister for Immigration & Multicultural Affairs [2001] FCA 1677

FEDERAL COURT OF AUSTRALIA

Ali v Minister for Immigration & Multicultural Affairs [2001] FCA 1677

Migration Act 1958 (Cth) ss 65(1), 425, 476(1)

Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559 applied MUHAMMAD ALI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS S 111 of 2001 MANSFIELD J 3 DECEMBER 2001 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 111 OF 2001

BETWEEN: MUHAMMAD ALI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 3 DECEMBER 2001

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent 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

SOUTH AUSTRALIA DISTRICT REGISTRY S 111 OF 2001

BETWEEN: MUHAMMAD ALI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 3 DECEMBER 2001

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal (the Tribunal) made on 23 July 2001. The Tribunal affirmed a decision of a delegate of the respondent to refuse to grant to the applicant a protection visa, for which he had applied under the Migration Act 1958 (Cth) (the Act) on 22 January 2001 shortly after his arrival in Australia on 31 December 2000. 2 To be eligible to be granted that visa, the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention). In practical terms, that means that the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, namely a 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." 3 The applicant claimed to be a citizen of Afghanistan, of the Shi'a religion, and of Hazaran ethnicity. He claimed to have left Afghanistan because of oppression by the Taliban. He said that he had spent a year in the mountains away from his village avoiding the Taliban, because they wanted to take him to war. If he were to return to Afghanistan, he feared that his life would be in danger as the Taliban would either kill him or conscript him to fight. He said that the Taliban would take him and send him to the front line because of his religion and ethnicity.