WACN v Minister for Immigration & Multicultural Affairs [2002] FCA 504

FEDERAL COURT OF AUSTRALIA

WACN v Minister for Immigration & Multicultural Affairs [2002] FCA 504 Federal Magistrates Act 1999 (Cth) s 39 Judiciary Act 1903 (Cth) ss 39B, 44 Migration Act 1958 (Cth) ss 36(2), 474(1), 474(2), 475A, 476(1), 477, 477(1)(b) Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Sch 1, Item 8(1) R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 discussed R v Murray; Ex parte Proctor (1949) 77 CLR 387 discussed Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 referred to Walton v Ruddock [2001] FCA 1839 referred to NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 referred to NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 referred to Craig v The State of South Australia (1995) 184 CLR 163 considered Waterford v The Commonwealth of Australia (1987) 163 CLR 54 referred to WACN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W555 of 2001 RD NICHOLSON J 29 APRIL 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRLIA DISTRICT REGISTRY W555 of 2001

BETWEEN: WACN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 29 APRIL 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The applications be dismissed. 2. The applicant pay the respondent's costs of the applications. 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 W 555 of 2001

BETWEEN: WACN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 29 APRIL 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant brings two applications before the Court. One is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 21 November 2001 adverse to an application made by him. The other is an application under the Migration Act 1958 (Cth) ("the Act") on the Court's general form of application but not accompanied by any statement of claim. Each was lodged on 30 November 2001. 2 The Federal Court has no jurisdiction in respect of the Migration Act application. The former s 476(1) providing for application to the Federal Court for review of decisions of, inter alia, the Tribunal, was repealed with effect from 2 October 2001 by the Migration Legislation Amendment (Judicial Review) Act 2001. The new Pt 8 of the Act no longer provides for any application to the Federal Court. Accordingly, the Migration Act application must be dismissed. 3 The decision to which the review application relates affirmed a decision of a delegate of the respondent not to grant to the applicant a protection (class XA) visa. The applicant arrived in Australia on 1 March 2001. He applied for the visa on 10 April 2001. The delegate's refusal occurred on 18 June 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 items 785 and 866. 5 Article 1a(2) of the Convention defines a "refugee" to be any 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 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.