SBAO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 373

FEDERAL COURT OF AUSTRALIA

SBAO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 373 SBAO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S.232 of 2001 MANSFIELD J 9 APRIL 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.232 OF 2001

BETWEEN: SBAO

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 9 APRIL 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the respondent 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

SOUTH AUSTRALIA DISTRICT REGISTRY S.232 OF 2001

BETWEEN: SBAO

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 9 APRIL 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant is an Iranian of Bakhtiari ethnicity, and a Shi'a Muslim. He was born in 1971, and after completing 12 years of primary and secondary education, he underwent a short period of training and qualified as a welder. Between 1991 and January 1999 he worked as a welder in Ahvaz in Iran, and then subsequently in Bandar Abbas until he left Iran. He left Iran legally, using a genuine passport. He arrived in Australia on 15 July 2001, and then applied for a protection visa under the Migration Act 1958 (Cth) (the Act). 2 On 25 October 2001 a delegate of the respondent refused to grant that visa to him. He sought review by the Refugee Review Tribunal. On 29 November 2001 the Tribunal affirmed the decision of the delegate. 3 This application now seeks an order under s 39B of the Judiciary Act 1903 (Cth) setting aside the Tribunal's decision. 4 For the applicant to have been granted the visa, it was necessary that the delegate of the respondent and, on review, the Tribunal be satisfied that he 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). That is because s 36(2) of the Act prescribes that matter as a criterion about which the delegate of the respondent and, on review, the Tribunal must be satisfied if it is to grant the visa to the applicant. If the Tribunal is not satisfied that that criterion is met, then it must refuse to grant the visa to the applicant: s 65(1). In practical terms, in the present matter, that meant that 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; …"