Arif v Minister for Immigration & Multicultural Affairs [2002] FCA 1053

FEDERAL COURT OF AUSTRALIA

Arif v Minister for Immigration & Multicultural Affairs

[2002] FCA 1053 Migration Act 1958 (Cth), ss 36(2), 65(1), 42(1), 476(1)(a), 476(1)(e), 476(1)(g), 476(4)(b) Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Migration Legislation Amendment Act (No.1) 1998 (Cth) Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 - cited Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 - discussed Dabare v Minister for Immigration & Multicultural Affairs (2000) FCA 731 - discussed Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 - discussed Minister for Immigration & Multicultural Affairs v Rajamanikkam [2002] HCA 32 - discussed Tobasi v Minister for Immigration & Multicultural Affairs [2002] FCA 1050 - discussed SAID ARIF v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS S.104 of 2001 MANSFIELD J 23 AUGUST 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.104 OF 2001

BETWEEN: SAID ARIF

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 23 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.104 OF 2001

BETWEEN: SAID ARIF

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 23 AUGUST 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal (the Tribunal) given on 28 June 2001. The Tribunal affirmed a decision of a delegate of the respondent given on 28 March 2001 refusing to grant to the applicant a protection visa for which he had applied on 20 February 2001, shortly after his arrival in Australia, under the Migration Act 1958 (Cth) (the Act). 2 The Tribunal's decision turned upon whether it was satisfied that the applicant met the criterion for the grant of the visa specified in s 36(2) of the Act, namely 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). The Tribunal would have been satisfied that he met that criterion if it were 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." 3 As the delegate of the respondent, and on review the Tribunal, was not satisfied that the applicant is a refugee under Art 1A(2) of the Convention, s 65(1) of the Act dictated that the application for the visa should be refused.