W279/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 425

FEDERAL COURT OF AUSTRALIA

W279/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 425 Migration Act 1958 (Cth) ss 36(2), 425(1), 476, 476(1)(e), 476(1)(g), 476(4)(a), 476(4)(b) Waterford v The Commonwealth of Australia (1987) 163 CLR 54 referred to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied W279/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W279 of 2001 RD NICHOLSON J 11 APRIL 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRLIA DISTRICT REGISTRY W279 of 2001

BETWEEN: W279/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 11 APRIL 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 AUSTRLIA DISTRICT REGISTRY W279 of 2001

BETWEEN: W279/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 11 APRIL 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant brings an application seeking an order for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 4 July 2001. The decision affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa. The application is made in reliance upon s 476 of the Migration Act 1958 (Cth) ("the Act") as it stood at the date of filing of the application on 5 July 2001. 2 When the hearing commenced the applicant was represented by pro bono counsel. However, after opportunity was given for the applicant and counsel to confer confidentially using the video-link facilities of the Court, the pro bono counsel sought and obtained from the Court leave to withdraw. The burden of presenting the case for the applicant therefore fell upon the applicant himself. As a consequence of that, materials which he presented on the occasion of the hearing led to an adjournment to enable the respondent to prepare a submission in response. No written submissions were received in reply. 3 The applicant claimed to be a national of Iran. He arrived in Australia on 21 June 2000. His application for the visa was lodged on 1 March 2001. The delegate's refusal occurred on 30 March 2001. Relevant legislative 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". The reasons specified in Article 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 Article 33 of the Convention.