VMAC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 44

FEDERAL COURT OF AUSTRALIA

VMAC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 44

Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 36, 5(1), 430(1), 91R

Convention relating to the Status of Refugees done at Geneva on 28 July 1951 Protocol relating to the Status of Refugees done at New York on 31 January 1967

VMAC v Minister for Immigration [2003] FMCA 509 affirmed APPLICANT VMAC OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 1075 of 2003 GRAY J 4 FEBRUARY 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1075 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: APPLICANT VMAC OF 2003

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 4 FEBRUARY 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1075 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: APPLICANT VMAC OF 2003

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE: 4 FEBRUARY 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT

The nature and history of the proceeding 1 In this appeal, counsel for the appellant has attempted to persuade the Court, by any means possible and impossible, and generally without regard to what has gone before, that a decision of the Refugee Review Tribunal ('the Tribunal') should be set aside. The appeal is from a judgment of the Federal Magistrates Court of Australia in VMAC v Minister for Immigration [2003] FMCA 509. The federal magistrate dismissed an application, brought by the appellant, for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act') in respect of the Tribunal's decision. The Tribunal's decision was to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in each case 'the Minister') to refuse to grant the appellant a protection visa. 2 By s 36 of the Migration Act 1958 (Cth) ('the Migration Act'), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms 'Refugees Convention' and 'Refugees Protocol' are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments, taken together, the 'Convention'. For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to 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'. 3 The appellant is a citizen of Nigeria and a Christian. On 16 September 2000, he arrived in Australia. On 23 October 2000, he lodged an application for a protection visa. On 8 November 2000, a delegate of the Minister made a decision, refusing to grant a protection visa. The appellant applied to the Tribunal for review of that decision. The Tribunal's decision, dated 28 November 2002, was to affirm the decision not to grant a protection visa. The appellant applied to this Court for relief pursuant to s 39B of the Judiciary Act. His application was transferred to the Federal Magistrates Court, where it was heard and determined, with the result being the judgment from which this appeal is brought.