W308/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 82

FEDERAL COURT OF AUSTRALIA

W308/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 82 Migration Act 1958 (Cth) ss 36(2), 476(1)(e), 476(1)(g) Abebe v Commonwealth of Australia (1999) 197 CLR 510 cited W308/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 308 of 2001 RD NICHOLSON J 12 FEBRUARY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY 308 of 2001

BETWEEN: W308/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 12 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 308 of 2001

BETWEEN: W308/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 12 FEBRUARY 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application seeking an order for review of a decision made by the Refugee Review Tribunal ("the Tribunal") on 27 June 2001. The decision was to the effect that the Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa (class XA). The application seeks to invoke aspects of the jurisdiction of the Court pursuant to s 476(1) of the Migration Act 1958 (Cth) ("the Act"). 2 The application was first set down for hearing on 13 December 2001. However, due to stress and anxiety then said to be experienced by the applicant (a factor which he claimed continued at this hearing of the application), the hearing was changed to 5 February 2002. Notice of that change was given to the applicant in writing by letter from the District Registrar dated 17 December 2001. 3 The applicant is a citizen of Iran. He arrived in Australia on 27 December 2000. He applied for the visa on 20 January 2001. Relevant provisions 4 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. 5 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". 6 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. 7 The applicant's claim was that he had a well-founded fear of persecution if he is returned to Iran by reason of his political profile or imputed political profile.