Anwari v Minister for Immigration & Multicultural Affairs [2002] FCA 217

FEDERAL COURT OF AUSTRALIA

Anwari v Minister for Immigration & Multicultural Affairs [2002] FCA 217 MIGRATION – application for protection visa – rejection of applicant's claim to be a national of Afghanistan – whether Tribunal obliged to find that the applicant was a person not having a nationality – whether Tribunal obliged to consider whether applicant was a habitual resident of Afghanistan.

Migration Act 1958 (Cth) ss 36(2), 425, 476(1) Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Migration Amendment Act 1991 (Cth) Hussain v Minister for Immigration & Multicultural Affairs [2001] FCA 523 – applied Yusuf v Minister for Immigration & Multicultural Affairs (2001) 180 ALR 1 – applied Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 – referred to MUHAMMAD ALI ANWARI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS S.108 of 2001 MANSFIELD J 15 MARCH 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.108 OF 2001

BETWEEN: MUHAMMAD ALI ANWARI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 15 MARCH 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the respondent costs of the application to be taxed. IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.108 OF 2001

BETWEEN: MUHAMMAD ALI ANWARI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 15 MARCH 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal (the Tribunal) given on 13 July 2001. The Tribunal affirmed a decision of a delegate of the respondent made on 28 March 2001 refusing to grant a protection visa for which the applicant had applied under the Migration Act 1958 (Cth) (the Act) on 22 January 2001. As the application to the Court was made on 20 July 2001, before the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) on 2 October 2001, the Act as in force on the date of the application applies. 2 The real issue before the Tribunal was whether the applicant satisfied the criterion specified in s 36(2) of the Act for the grant of the visa, namely whether the Tribunal was satisfied that he is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention). The applicant would have met that criterion if the Tribunal were satisfied that he is a refugee as defined in Article 1A(2) of the Convention. It defines a refugee as 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; or, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."