Prathapan, Nagaratnam v Minister for Immigration & Multicultural Affairs [1997] FCA 937

FEDERAL COURT OF AUSTRALIA MIGRATION - review of decision of Refugee Review Tribunal - whether Tribunal erred in law - persecution need not be "constant and unremitting" - whether applicant was unable or unwilling to avail himself to the protection of France as a French national - proper approach to "protection issue" under Convention - relevance of degree of efficacy of protection in country of nationality Migration Act 1958 (Cth), s 476(1)(e)

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, applied Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695, applied Lal v Minister for Immigration and Ethnic Affairs (Madgwick J, 4 September 1996, unreported), considered Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314, considered Randhawa v Minister for Immigration and Ethnic Affairs (1994) 124 ALR 265, applied Yesus v Minister for Immigration and Ethnic Affairs (Madgwick J, 9 July 1996, unreported), considered

James Hathaway, The Law of Refugee Status, Butterworths, 1991, disapproved PRATHAPAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 236 of 1997 Madgwick J Sydney 5 September 1997

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 236 of 1997

BETWEEN: Nagaratnam Prathapan

Applicant

AND: Minister for Immigration and Multicultural Affairs

Respondent

JUDGE(S): MADGWICK J

DATE OF ORDER: 5 SEPTEMBER 1997

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Refugee Review Tribunal's decision be set aside. 2. The matter be remitted to the said Tribunal for rehearing according to law. 3. The respondent is to pay the applicant's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 236 of 1997

BETWEEN: Nagaratnam Prathapan