"W104/00A" v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which "affirmed" a decision of a delegate of the respondent ("the Minister") that a protection visa not be granted to the applicant. 2 The applicant arrived in Australia on 31 August 1999 and has been held in "immigration detention" thereafter. On 15 November 1999, he lodged an application for a protection visa. Grant of the visa was refused by a delegate of the Minister on 12 January 2000 and the applicant applied to the Tribunal for review of that decision. The Tribunal made its decision on 13 June 2000. 3 Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused. 4 Section 36(2) of the Act provides that: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 5 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "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). The term "protection obligations" is not defined in the Convention or the Act. 6 The Convention is a treaty pursuant to which the "Contracting States" agree to apply the provisions of the Convention to "refugees". Article 1(A) of the Convention provides: "For the purposes of the present Convention, the term 'refugee' shall apply to any person who: … (2)…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;…" Exceptions to, or cessations of, the operation of the foregoing are set out in, inter alia, Articles 1(C), 1(D), 1(E) and 1(F). 7 As a Contracting State, Australia has undertaken the obligations imposed on Contracting States by the Convention. Numerous obligations in respect of refugees are set out in the Convention, including undertakings by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. The foregoing may come within "protection obligations" as that term is used in subs 36(2) of the Act but the specific protection obligation undertaken by Australia is that contained in Article 33, namely, not to expel or return (refoul) a refugee in any manner whatsoever to the frontiers of territories where the life or freedom of the refugee would be threatened for any of the foregoing Convention reasons. In acceding to the Convention on 22 January 1954, Australia did not accept the obligations set out in Article 32. 8 The Tribunal recorded the applicant's claims as follows: "…the applicant stated that he had been born in Kuwait in 1974 but that his father and grandfather were Iraqis. His father had moved his family to Kuwait in the early 1970s where they had passed themselves off as Kuwaiti Bedoun (nomads of Kuwait with no citizenship but who were entitled to free Kuwaiti services such as education and medical care). In 1990, after the Iraqis invaded Kuwait, he and his family had left that country and travelled through Iraq into Iran where they had stayed (and he had legally married in 1999) until he had left Iran to come to Australia in July 1999. He said that he had bought a false Iraqi passport in his name which he had thrown into the sea while travelling with other boatpeople to Australia. The applicant said that his family had obtained legal Kuwaiti documents to enable them to leave Kuwait for Iran in October 1990. In 1991, the family had applied to return to Kuwait but Kuwait had refused permission for them to do so because they were Iraqis. The family had continued to live in Iran illegally; they had no green card. Due to being prevented from returning to Kuwait, they had thought about going to another country from Iran. About two years ago, he had heard that there was a way of getting to Australia through Indonesia, so he had been planning his exit from Iran ever since. He wanted to come to Australia because there was no war here and because it freely accepted migrants. He did not want to return to Iran or Iraq for a number of reasons.