W171/01A v Minister for Immigration & Multicultural Affairs [2001] FCA 1753

FEDERAL COURT OF AUSTRALIA

W171/01A v Minister for Immigration & Multicultural Affairs [2001] FCA 1753 Migration Act 1958 (Cth) ss 476(1)(a), 476(1)(e), 476(1)(g), 476(3)(f) Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 230 cited Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 cited Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48 cited Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited W171/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 171 of 2001 RD NICHOLSON J 12 DECEMBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 171 of 2001

BETWEEN: W171/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 12 DECEMBER 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 171 of 2001

BETWEEN: W171/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 12 DECEMBER 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 30 April 2001 whereby the Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa (class XA). The application for review has the effect of invoking such jurisdiction as the Court has pursuant to s 476(1) of the Migration Act 1958 (Cth) ("the Act"). 2 The applicant is a citizen of Iran. He arrived in Australia in December 2000. He lodged his application for a protection visa on 21 January 2001. The delegate's refusal occurred on 12 February 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.