NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

NAGV and NAGW of 2002 APPELLANTS

AND

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

& ANOR RESPONDENTS

NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6

2 March 2005

S187/2004

ORDER

1. Appeal allowed.

2. First respondent pay the appellants' costs.

3. Set aside the orders of the Full Court of the Federal Court of Australia made on 27 June 2003 and in their place order:

1. the appeal to that Court is allowed; 2. first respondent pay the appellants' costs; 3. set aside the order of Stone J made on 27 November 2002 and in its place order:

(i) order absolute for a writ of certiorari directed to the second respondent, quashing the decision of the second respondent dated 1 March 2002 in matter N99/29907;

1. order absolute for a writ of mandamus directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 3 September 1999; 2. first respondent pay the appellants' costs of their application under s 39B of the Judiciary Act 1903 (Cth).

On appeal from the Federal Court of Australia

Representation:

J Basten QC with J A Gibson and I Ryan for the appellants (instructed by Craddock Murray Neumann)

N J Williams SC with S B Lloyd for the first respondent (instructed by Clayton Utz)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

Immigration – Refugees – Refugee Review Tribunal – Decision – Judicial review – Tribunal found that appellants had genuine fear of persecution if returned to Russia – Tribunal concluded that Israel was a third country where appellants would have effective protection – Protection visa refused – Whether the Tribunal failed to observe the requirements in ss 36 and 65 of the Migration Act 1958 (Cth) – Whether each appellant was a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees – Whether this means anything other than "refugee" within the meaning of Art 1 of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees.