NAEN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 216

FEDERAL COURT OF AUSTRALIA

NAEN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 216 MIGRATION – protection visas – requirement that Australia owe protection obligations to applicant – principle of effective protection – requisite connection with the third country – whether need for applicant to have prior connection with the third country – whether Israel's Law of Return means that Australia does not owe protection obligations to Jews. DISCRIMINATION LAW – finding that Israel's Law of Return means that a genuine refugee is not owed protection obligations under the Convention – whether finding involves discrimination on grounds of ethnic origin. Judiciary Act 1903 (Cth), ss 5(1), 39B(1), 65(1) Migration Act 1958 (Cth), s 36 Racial Discrimination Act 1975 (Cth), s 10(1) Migration Regulations, Sched 2, cl 866.221 Asylum and Immigration Appeals Act 1993 (UK) Statement of Changes in Immigration Rules (UK) Law of Return (Israel) Convention Relating to the Status of Refugees 1951, Arts 1A(2), 1E, 32, 33(1) Protocol Relating to the Status of Refugees 1967 Convention Determining the State Responsible for Examining Application for Asylum Lodged in One of the Member States of the European Communities 1990 International Convention on the Elimination of all Forms of Racial Discrimination Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154, cited Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549, discussed Applicant NAGV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1456, followed Bank of Western Australia v Commissioner of Taxation (1994) 55 FCR 233, cited Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, discussed Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526, cited Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1, cited Kola v Minister for Immigration and Multicultural Affairs [2002] FCAFC 59, cited Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443, cited Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549, discussed Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343, cited Al-Rahal v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 73, discussed Patto v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 119, discussed V872/00A v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 268, discussed Azemoudeh v Minister for Immigration and Ethnic Affairs (1985) 8 ALD 281, cited Abdi v Home Secretary [1996] 1 All ER 641, cited Katkova v Minister of Citizenship and Immigration (1997) 130 FTR 192, cited Sale v Haitian Centers Council Inc 509 US 155 (1993), cited Mabo v Queensland (No 1) (1988) 166 CLR 186, cited Gerhardy v Brown (1985) 159 CLR 70, cited Jones v Scully [2002] FCA 1080, cited A Achermann and M Gattiker, "Safe Third Countries: European Developments" (1995) 7 Int J Ref Law 19 R Dunstan, "Playing Human Pinball: The Amnesty International United Kingdom Section Report on UK Home Office 'Safe Third Country' Practice" (1995) 7 Int J Ref Law 606 J Crawford and P Hyndman, "Three Heresies in the Application of the Refugee Convention" 1 Int J Reg Law 155, at 168-169 R Byrne and A Shacknove, "The Safe Country Notion in European Asylum Law" (1996) 9 Harv Human Rights J 185 NAEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1227 of 2002 SACKVILLE J SYDNEY 19 MARCH 2003