Case: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 (2005) 215 ALR 162
Outcome: cited
On 19 April 2004, I gave directions in the proceeding, including a direction that the applicant file and serve any amended application, with proper particulars of the grounds relied upon. I also granted a certificate pursuant to O 80 of the Federal Court Rules , so that the applicant could receive legal advice from a barrister. Counsel who ultimately appeared for the applicant accepted the referral. An amended draft order nisi was filed, in which prohibition was sought against the Minister, and certiorari and mandamus against the Tribunal, although the Tribunal was still not named as a respondent to the proceeding. Remedies cannot be sought against the Tribunal unless it is named as a respondent, so it will be necessary for me to make orders adding the Tribunal as a respondent, with consequential amendments to the documents filed. See SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 (2005) 215 ALR 162 . 6 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'. 7 Section 91R of the Migration Act provides relevantly as follows: '(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: ... (b) the persecution involves serious harm to the person; and ... (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.'