SBBH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 986

FEDERAL COURT OF AUSTRALIA

SBBH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 986 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 - referred to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 - cited SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 - discussed NADO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 797 - discussed NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 - discussed SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 688 – referred to Sun Zan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 – referred to Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 – referred to SBBH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S.14 of 2002 MANSFIELD J 21 AUGUST 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.14 OF 2002

BETWEEN: SBBH

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.14 OF 2002

BETWEEN: SBBH

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 21 AUGUST 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant is a single young man from Iran. He arrived in Australia on 20 April 2001, and subsequently on 18 July 2001 applied for a protection visa under the Migration Act 1958 (Cth) (the Act). That application was duly considered by a delegate of the respondent, and rejected on 4 September 2001. The applicant sought review of that decision by the Refugee Review Tribunal (the Tribunal). On 19 December 2001, the Tribunal affirmed the decision of the delegate not to grant a protection visa to the applicant. 2 This is an application under s 39B of the Judiciary Act 1903 (Cth) to have the decision of the Tribunal set aside. 3 It is common ground that, for the purposes of determining the application favourably to the applicant, it was necessary that the Tribunal be satisfied that the criteria prescribed in the Act and the Migration Regulations for the grant of a protection visa were satisfied: s 65(1) of the Act. It was further common ground that, in this particular matter, the relevant criterion was that specified in s 36(2) of the Act, namely that the Tribunal be satisfied that the applicant is a non-citizen in Australia 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 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."