SBAK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 731

FEDERAL COURT OF AUSTRALIA

SBAK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 731 SBAK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S.227 of 2001 MANSFIELD J 19 JUNE 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.227 OF 2001

BETWEEN: SBAK

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 19 JUNE 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 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.227 OF 2001

BETWEEN: SBAK

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 19 JUNE 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for an order declaring a decision of the Refugee Review Tribunal (the Tribunal) given on 22 November 2001 to be invalid. If successful, the consequence would be that the applicant's review before the Tribunal would still need to be determined. 2 The applicant is a national of Turkey. The Tribunal accepted his personal history. He was born in Kilcan Koyu village in the Kilis Province of Turkey. Until some years ago, the Kilis Province was part of the Gaziantep Province. It is south of Gaziantep, in the south-eastern part of Turkey near the Syrian border. The applicant was educated in Gaziantep city between 1975 and 1987. He is a self-employed farmer. He speaks Turkish, and not Kurdish. 3 He left Turkey on 2 May 2001, eventually arriving in Australia on 1 July 2001. On 30 July 2001 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). To be eligible to be granted that visa it was necessary that the decision-maker 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). In practical terms, that meant that the decision-maker had to be satisfied that he is a "refugee" as defined in Article 1A(2) of the Convention, namely a person who holds a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and further that he is unable or, owing to such fear, is unwilling to avail himself of the protection of Turkey.