W248/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 51

FEDERAL COURT OF AUSTRALIA

W248/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 51 MIGRATION – protection visa – whether Tribunal in error of law in affirming respondent's rejection of application – whether Tribunal failed properly to inquire into two bases of claim – whether Tribunal failed to make a necessary finding of fact as to circumstance of applicant's second departure from his country – whether Tribunal ignored relevant material Migration Act 1958 (Cth) ss 476, 476(1)(b), 476(1)(c), 476(1)(e) Applicant A & Anor v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225 cited Minister for Immigration & Ethnic Affairs v Ibrahim (2000) 175 ALR 585 cited Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited W248/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W248 of 2001 RD NICHOLSON J 5 FEBRUARY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W248 of 2001

BETWEEN: W248/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 5 FEBRUARY 2002

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 W248 of 2001

BETWEEN: W248/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 5 FEBRUARY 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 24 May 2001. The Tribunal affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa. This application is made pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act"). 2 The applicant is a citizen of Burundi who arrived in Australia on 24 November 2000. 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 Art 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 Art 33 of the Convention.