NADB v Minister for Immigration & Multicultural Affairs [2002] FCA 200

FEDERAL COURT OF AUSTRALIA NADB v Minister for Immigration & Multicultural Affairs [2002] FCA 200

MIGRATION – protection visa – application for review of a decision of Administrative Appeals Tribunal (AAT) – Judiciary Act 1903 (Cth) s 39B – whether AAT erred in law because it failed to consider what crime was committed by the applicant under Indonesian law – whether the application of Article 1F of the Convention Relating to the Status of Refugees 1951 could be determined without reference to whether the applicant is a "refugee" – whether AAT erred in law by failing to determine whether the applicant had a well-founded fear of persecution for reasons of political opinion – whether AAT erred in law in failing to balance the seriousness of the crimes committed by the applicant against the possible harm to the applicant if returned to his country of origin in determining whether Article 1F was attracted – whether AAT erred in law in concluding that the applicant's drug trafficking crimes were "serious non-political crimes" under Article 1F – whether AAT erred in law by failing to consider and determine whether the applicant passed the character test under s 501 of the Migration Act 1958 (Cth)

Convention Relating to the Status of Refugees 1951 Article 1A, 1A(2), 1F, 1F(a), 1F(b), 1F(c), 7 Migration Act 1958 (Cth) s 36(2), 411, 474, 474(2), 500(1)(b), 500(4), 501, 501(6) Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Judiciary Act 1903 (Cth) s 39B, s 39B(1)

Daher v Minister for Immigration & Ethnic Affairs (1997) 77 FCR 107 followed NABL v Minister for Immigration & Multicultural Affairs [2002] FCA 102 followed R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 cited R v Murray; ex parte Proctor (1949) 77 CLR 387 cited Ovcharuk v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 173 referred to Sullivan v Department of Transport (1978) 20 ALR 323 cited A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 referred to Commissioner of Taxation v Glennan (1999) 90 FCR 538 referred to Arquita v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 465 cited Selvarajah v Minister for Immigration & Multicultural Affairs [2001] FCA 1307 cited Chahal v United Kingdom 23 E.H.R.R. 413 (1996) referred to, distinguished T v Secretary of State for the Home Department [1995] 1 WLR 545 cited T v Immigration Officer [1996] A.C. 742 cited, followed Dhayakpa v Minister for Immigration & Ethnic Affairs (1995) 62 FCR 556 cited S v Refugee Status Appeals Authority [1998] 2 NZLR 291 cited Malouf v Canada (Minister of Citizenship & Immigration) (1995) 190 N.R. 230 referred to Minister for Immigration & Multicultural Affairs v Singh HCA 7 referred to