FEDERAL COURT OF AUSTRALIA

WAED v Minister for Immigration and Multicultural Affairs [2002] FCAFC 333

MIGRATION – Appeal from single Judge dismissing an application for review of decision of Refugee Review Tribunal (“RRT”) – RRT affirmed decision of delegate not to grant protection visa to applicant – application of Article 1(D) of Refugee Convention – whether expression “ipso facto” in Article 1(D) confers an entitlement on the appellant to a protection visa

Migration Act 1958 (Cth)

WAEI v Minister for Immigration and Multicultural Affairs [2002] FCAFC 334 referred to

Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329 referred to

WAED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 23 of 2002

HILL, MOORE AND TAMBERLIN JJ

SYDNEY (HEARD IN PERTH)

8 NOVEMBER 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

HILL J:

1                     I have read the judgment of Tamberlin J and for the reasons which I have given in Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329, I am of the view that protection obligations do not automatically arise under the second paragraph for Article 1(D) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).  Thus, as the appellant does not fall within the definition of “refugee” in article 1A(2) of the Convention, the appeal must be dismissed with costs.

Associate:

Dated:              8 November 2002

REASONS FOR JUDGMENT

MOORE J:

2                     I agree with the reasons and orders of Tamberlin J.

Associate:

Dated:              8 November 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

tamberlin j:

3                     This is an appeal from a decision of a Judge of the Court dismissing an application for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 August 2001 by which the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant a protection visa to the appellant.  The appellant is a stateless Palestinian, registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”).  He was born in Syria and has lived there most of his life.  He arrived in Australia on 24 August 2000.  On 14 December 2000 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”).  On 21 March 2001 a delegate of the Minister refused to grant a protection visa.  On 26 March 2001 the appellant applied to the Tribunal for a review of that decision.

4                     In substance the issues in this case are virtually identical with those raised in the decision in WAEI v Minister for Immigration and Multicultural Affairs [2002] FCAFC 334 so far as the submissions made in relation to the operation of Article 1(D) of the Convention Relating to the Status of Refugees done in Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”) are concerned. 

5                     In written submissions for the appellant, it is conceded that unless the second paragraph of Article 1(D) applies so as to automatically entitle him to protection regardless of whether he satisfies the definition in Article 1(A) of the Convention, then the appeal must fail.

6                     For the reasons I gave in Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329, I do not consider that the second paragraph of Article 1(D) automatically applies by reason of the expression “ipso facto” to confer an entitlement on the appellant to a protection visa.

7                     The Minister in this matter has filed a Notice of Contention, arguing that the primary Judge erred in his interpretation of Article 1(D).  It is not necessary on this appeal to deal with those contentions.

8                     In so far as the appeal relates to the reasons of the decision of the Tribunal that the appellant is not a “refugee”, I agree with the primary Judge that the Tribunal’s decision in relation to its assessment of whether the appellant was a “refugee” turned on the appellant’s credibility and consider that no reviewable error has been made out.

9                     For the above reasons the appeal should be dismissed with costs.

Associate:

Dated:              8 November 2002