SBAQ v Minister For Immigration & Multicultural & Indigenous Affairs [2002] FCA 985

FEDERAL COURT OF AUSTRALIA

SBAQ v Minister For Immigration & Multicultural & Indigenous Affairs

[2002] FCA 985

MIGRATION – application for review of decision of Refugee Review Tribunal – conflicting opinions of linguists as to country of origin of applicant – whether Tribunal erred in giving no weight to either opinion. Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), s 36(2), s 474(1) Minister for Immigration & Multicultural Affairs v Yusuf [2001] FCA 30, 180 ALR 1 - cited R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 – referred to Minister for Immigration & Multicultural Affairs v SBBA [2002] FCAFC 195 - discussed SBAQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S.237 of 2001 MANSFIELD J 21 AUGUST 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.237 OF 2001

BETWEEN: SBAQ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 21 AUGUST 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.237 OF 2001

BETWEEN: SBAQ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 21 AUGUST 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 28 November 2001 to be null and void. 2 The Tribunal affirmed a decision of a delegate of the respondent given on 26 June 2001 refusing to grant the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 4 May 2001, soon after his arrival in Australia on 11 April 2001. 3 To be eligible 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). That is a criterion for the grant of a protection visa specified in s 36(2) of the Act. If the delegate of the respondent, and on review the Tribunal, was not satisfied that the criterion was met, s 65(1) of the Act required the application to be refused. In practical terms, in the present matter, the satisfaction or otherwise of the Tribunal and of the delegate as to the existence of that criterion depended upon whether the delegate of the respondent, and on review the Tribunal, was satisfied that the applicant 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."