WAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 908

FEDERAL COURT OF AUSTRALIA WAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 908 MIGRATION – judicial review – protection visa – Refugee Review Tribunal – well-founded fear of persecution – Iranian national – converted from Islam to Catholicism – whether at risk of persecution on grounds of religion if returned to Iran – findings of fact by Tribunal against risk of persecution – opportunity for reasonable relocation – whether findings based on no evidence or failure to address correct question – whether jurisdictional error – failure to address whether legal liability to death penalty and/or risk of imposition of death penalty supported well-founded fear of persecution - jurisdictional error – appeal allowed. NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 cited Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108 cited SGKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 44 followed WAHI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W1 OF 2003 FRENCH J 28 AUGUST 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W1 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: WAHI

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH

DATE OF ORDER: 28 AUGUST 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The decision of the learned Federal Magistrate dismissing the application for review is set aside. 3. An order in the nature of certiorari is made quashing the decision of the Refugee Review Tribunal made on 24 May 2002 affirming the decision not to grant the appellant a protection visa. 4. An order in the nature of mandamus is made requiring the Refugee Review Tribunal to reconsider the application for review according to law. 5. The Minister is to pay the appellant's costs of the proceedings at first instance and on this appeal.