Welivita, Udeni v Minister for Immigration & Ethnic Affairs & Anor [1996] FCA 989

CATCHWORDS IMMIGRATION - Refugees - definition of "refugee" in cl 1A (2) of Refugees Convention - "well-founded fear of being persecuted for reasons of ... political opinion" - relevance of the label "political offence" for extradition purposes - no question of principle. UDENI WELIVITA v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS No NG 958 of 1995 Lindgren J Sydney 18 November 1996

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 958 of 1995 GENERAL DIVISION ) BETWEEN: UDENI WELIVITA Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS First Respondent

AND: JOHN BLOUNT SITTING AS THE REFUGEE REVIEW TRIBUNAL Second Respondent CORAM: Lindgren J PLACE: Sydney DATE: 18 November 1996

MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 958 of 1995 GENERAL DIVISION ) BETWEEN: UDENI WELIVITA Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS First Respondent

AND: JOHN BLOUNT SITTING AS THE REFUGEE REVIEW TRIBUNAL Second Respondent CORAM: Lindgren J PLACE: Sydney DATE: 18 November 1996

REASONS FOR JUDGMENT INTRODUCTION The applicant applies pursuant to s 476 of the Immigration Act 1958 ("the Act") for review by the Court of a decision of the Refugee Review Tribunal ("RRT") dated 20 November 1995. The RRT found that the applicant and his de facto spouse were not entitled to protection as refugees under the Act. Consequentially, the RRT varied decisions of the delegate of the first respondent ("the Minister") so that the decisions had effect as decisions to refuse to grant the applicant and his de facto spouse "protection visas" (see later). The second respondent has submitted to such order as the Court might make save as to costs and did not participate in the hearing before me. CHRONOLOGY OF PROCEDURAL STEPS On 27 February 1993 the applicant, a Sri Lankan National entered Australia as a visitor accompanied by his de facto spouse, also a Sri Lankan National. He was granted an entry permit valid for one month. He was born on 16 March 1970 and so was aged 22 years 11 months at the time of entry. His de facto spouse was born on 17 February 1968 and so was aged 25 years at that time. On 26 March 1993 the applicant lodged with the Department of Immigration, Local Government and Ethnic Affairs ("the Department") an "Application for Refugee Status in Australia". His de facto spouse was included in the application. On or shortly after 26 March, the applicant also lodged with the Department an Application for Permission to Engage in Employment, an Application for Domestic Protection Temporary Entry Permit and an Application for Processing Entry Permit. On 19 November 1993 the Minister's delegate found that the applicant was not a refugee and by letter of the same date the Department advised him of the decision refusing his various applications. On 22 December 1993 the applicant applied to the RRT for review of the delegate's decision refusing his various applications. As from 1 September 1994 the Migration Reform Act 1992, which had received the Royal Assent on 7 December 1992, amended the Act and, in particular, introduced a visa known as a "protection visa" for persons who sought protection as refugees (see s 36 of the Act). The protection visa replaced the visas and entry permits previously granted for the same purpose. Section 39 of the Migration Reform Act 1992 provides, in effect, that refugee-related applications not finally determined before 1 September 1994 are to be dealt with as if they were applications for a protection visa. This provision explains the variation made by the RRT in the terms of the delegate's decisions noted in the Introduction section of these Reasons for Judgment. On 20 November 1995 the RRT made its decision referred to earlier, the subject of the present application. On 20 December 1995 the applicant filed his application in this Court for review of the RRT's decision. On 18 October 1996 the applicant filed an amended application. LEGISLATIVE FRAMEWORK Sub-sections 31 (1) and (2) of the Act provide that there are to be "prescribed classes of visas" and, as well, the classes of visas provided for by certain sections of the Act, including s 36. Sub-section 31 (3) provides, relevantly, that the regulations may prescribe criteria for visas of a specified class including the class provided for by s 36. Sub-section 36 (1) provides for the class of visas to be known as "protection visas". Sub-section 36 (2) provides that a criterion for a protection visa is that the applicant for it is a non-citizen in Australia "to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." Sub-section 5 (1) defines "Refugees Convention" to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and "Refugees Protocol" to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Sub-section 65 (1) of the Act provides that if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act or the Regulations have been satisfied, the Minister must grant the visa, and that if the Minister is not so satisfied, the Minister must refuse to grant it. Migration Regulation 2.03 provides that for the purposes of sub-s 31 (3) of the Act, the prescribed criteria for the grant to a person of a visa of a particular class are the criteria set out in a relevant Part of Schedule 2 to the Regulations. The Part of Schedule 2 to the Migration Regulations dealing with protection visas is that headed "SUBCLASS 866 - PROTECTION (RESIDENCE)". Clause 866.21 sets out "Criteria to be satisfied at the time of application" and cl 866.22 sets out "Criteria to be satisfied at time of decision". Clause 866.221 provides for this criterion: "The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention."