SXWB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 440

FEDERAL COURT OF AUSTRALIA

SXWB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 440 SXWB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SAD.3 of 2005 MANSFIELD J 20 APRIL 2005 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD.3 OF 2005

BETWEEN: SXWB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 20 APRIL 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the respondent her costs of the application. 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 SAD.3 OF 2005

BETWEEN: SXWB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 20 APRIL 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) seeking to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 24 December 2004. It is contended that the decision of the Tribunal was attended with jurisdictional error, so that it should be set aside and the matter remitted to the Tribunal differently constituted for re-hearing: cf Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24; [2003] HCA 2. 2 The applicant arrived in Australia without travel documentation on 9 August 2004. Soon after, he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). To be eligible for the grant of that visa, the delegate of the respondent (and on review, the Tribunal) had to be satisfied that he was a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). For present purposes, that involved the decision-maker being satisfied that he is a refugee as defined by Art 1A(2) of the Convention, namely that he is 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; …'