Hussain v Minister for Immigration & Multicultural Affairs [2002] FCA 754

FEDERAL COURT OF AUSTRALIA

Hussain v Minister for Immigration & Multicultural Affairs [2002] FCA 754 NAVEED HUSSAIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS S.142 of 2001 MANSFIELD J 19 JUNE 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.142 OF 2001

BETWEEN: NAVEED HUSSAIN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 19 JUNE 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the respondent costs of the application.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.142 OF 2001

BETWEEN: NAVEED HUSSAIN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 19 JUNE 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal (the Tribunal) given on 27 July 2001. The Tribunal affirmed a decision of a delegate of the respondent refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 20 February 2001, about a month after the applicant arrived in Australia. 2 As the application to the Court was made before 2 October 2001, the Act as it stood prior to its amendment by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) applies. Relevantly for present purposes, the available grounds of review are those specified in s 476(1) of the Act as it stood prior to 2 October 2001. 3 To be granted the visa, it was necessary that the delegate of the respondent, and on review the Tribunal, be satisfied that the applicant 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): see s 36(2) of the Act. In the present matter, the issue was whether the decision-maker was satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, as the Tribunal appears to have proceeded on the basis that if the applicant was a "refugee" as so defined, he would satisfy the criterion expressed for the grant of the visa in s 36(2) of the Act, and the Tribunal would then have granted him the visa pursuant to s 65(1) of the Act. Article 1A(2) of the Convention defines a refugee as 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, is unable or, owing to such fear, is unwilling to return to it."