Shehu v Minister for Immigration & Multicultural Affairs [2002] FCA 35

FEDERAL COURT OF AUSTRALIA

Shehu v Minister for Immigration & Multicultural Affairs

[2002] FCA 35

Migration Act 1958 (Cth) s 36(2) Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 Minister for Immigration & Multicultural Affairs v Y (Davies J, 15 May 1998, unreported) Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 ARIANAT SHEHU V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS S 130 of 2001 MANSFIELD J ADELAIDE 31 JANUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIADISTRICT REGISTRY S 130 OF 2001

BETWEEN: ARIANAT SHEHU

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 31 JANUARY 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIADISTRICT REGISTRY S 130 OF 2001

BETWEEN: ARIANAT SHEHU

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 31 JANUARY 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION 1 Arianat Shehu (the applicant) was born in Albania on 9 November 1968. In December 1998 he married Valbona Shehu, also an Albanian, who was born on 30 July 1977. The applicant and Valbona Shehu have one child, Frances Shehu, who was born in Adelaide on 2 January 2001. 2 The applicant and his wife arrived in Australia on 15 June 1999. They applied for a protection visa under the Migration Act 1958 (Cth) (the Act) on 30 June 1999. It is common ground that that application was made because the applicant claimed to fear persecution if he were to return to Albania. Valbona Shehu made no separate claim of a fear of persecution on her own part, and her claim stood or fell with that of the applicant. As the application for review was made to the Court on 14 August 2001, references to the Act are references to the Act before it was amended by the Migration Legislation Amendment Act (No.1) 2001 (Cth) and associated legislation. 3 The application for a protection visa was refused by a delegate of the respondent on 2 October 2000. That decision was affirmed by the Refugee Review Tribunal (the Tribunal) on 27 June 2001. The applicant now seeks review of the decision of the Tribunal. 4 To be eligible for the grant of the visa, it was necessary for the delegate of the respondent, and on review the Tribunal, to be satisfied that the applicant met the criteria specified for the grant of that visa. Relevantly, the criterion applicable is that prescribed by s 36(2) of the Act, namely that the applicant is a person to whom Australia has 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; …"