NABX/02 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 661

FEDERAL COURT OF AUSTRALIA

NABX/02 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 661 MIGRATION – application for review of a Refugee Review Tribunal decision – whether Tribunal overlooked evidence that was central to the applicant's claim – where evidence emerged at the hearing and was not mentioned in the written application.

Migration Act 1958 (Cth) NABX/02 AND NABY/02 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 87 of 2002 MOORE J 27 MAY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 87 of 2002

BETWEEN: NABX

FIRST APPLICANT

NABY

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 27 MAY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 87 of 2002

BETWEEN: NABX

FIRST APPLICANT

NABY

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 27 MAY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an application for constitutional writs arising from a decision of the Refugee Review Tribunal ("the Tribunal") of 9 January 2002, affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is based on whether the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 ("the Convention"). The applicant and his wife ("the second applicant"), who are citizens of Burma, arrived in Australia on 8 May 2000. On 12 May 2000 they lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) ("the Act"). On 1 June 2000 a delegate of the Minister refused the grant of a protection visa and on 22 June 2000 the applicant applied to the Tribunal for review of that decision.