WADP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 672

FEDERAL COURT OF AUSTRALIA

WADP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 672 Judiciary Act 1906 (Cth) s 39B Migration Act 1958 (Cth) ss 36(2), 91R, 424, 426(2), 474(2), 474(3)(i), (4), and (5), 475A, 477(1), 477(2), 483 Migration Legislation (Judicial Review) Act 2001 (Cth) R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 followed R v Murray; Ex parte Proctor (1949) 77 CLR 387 followed NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 considered Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred to Walton v Minister for Immigration & Multicultural Affairs [2001] FCA 1839 considered Waterford v The Commonwealth (1987) 163 CLR 54 followed WADP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W3 of 2002 RD NICHOLSON J 31 MAY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRLIA DISTRICT REGISTRY W3 of 2002

BETWEEN: WADP

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 31 MAY 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 W3 of 2002

BETWEEN: WADP

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 31 MAY 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application which is accepted by the respondent as being one seeking to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 21 December 2001. In that decision the Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection (class XA) visa. The application is brought in reliance on the provisions of the Migration Act 1958 (Cth) ("the Act") as they stood at the date of the lodgement of the application, namely 3 January 2002. 2 The applicant is a citizen of Iran. He arrived in Australia on 11 February 2000. The delegate's decision adverse to his application was made on 16 January 2001. Relevant legislative provisions 3 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. 4 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.