Hussain v Minister for Immigration & Multicultural Affairs [2002] FCA 793

FEDERAL COURT OF AUSTRALIA

Hussain v Minister for Immigration & Multicultural Affairs [2002] FCA 793 KARAR HUSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 90 of 2001 MANSFIELD J 3 JULY 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.90 OF 2001

BETWEEN: KARAR HUSSAIN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 3 JULY 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.90 OF 2001

BETWEEN: KARAR HUSSAIN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 3 JULY 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant arrived in Australia on 27 December 2000. He applied for a protection visa under the Migration Act 1958 (Cth) (the Act) on 3 February 2001. That application was rejected by a delegate of the respondent on 28 February 2001. The applicant applied for the decision to be reviewed by the Refugee Review Tribunal (the Tribunal). The Tribunal on 1 June 2001 affirmed the decision of the delegate of the respondent not to grant to the applicant a protection visa under the Act. 2 The application to the Court to review the Tribunal's decision was instituted prior to the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). It must accordingly be determined in accordance with the Act as it stood prior to that date, and in particular pursuant to the grounds of review then available under s 476(1) of the Act. 3 To be eligible to be granted the visa, it was necessary that the Tribunal be satisfied that the applicant met the criteria for the grant of the visa specified in the Act and the Regulations: s 65(1) of the Act. His application turned upon whether the Tribunal was satisfied that he met the criterion specified in s 36(2) of the Act, namely 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 turn that depended upon whether the Tribunal was satisfied that he is a "refugee" as defined in Art 1A(2) of the Convention, namely a 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."