Sivarasa, Vijayakumar v Minister for Immigration & Multicultural Affairs [1998] FCA 660

FEDERAL COURT OF AUSTRALIA IMMIGRATION - appeal from Refugee Review Tribunal - Tamil repeatedly arrested for questioning and then tortured - arrests justified by emergency - whether torture could be said not to have been inflicted for reasons of race or political opinion because police officers were guilty of "indiscriminate cruelty" - whether the Tribunal misinterpreted the definition of refugee or misapplied it to the facts found - requirement laid down in Applicant "A" to give such a case "close scrutiny" - whether the "real chance" test required consideration of the possibility that an indiscriminately cruel officer might torture the applicant, after arresting him for questioning as a Tamil, for reasons of race, the more readily because he was such an officer - whether the Tribunal failed to act according to substantial justice by rejecting part of the applicant's evidence as inconsistent with other evidence without giving him an opportunity to explain the alleged inconsistency - decision of Refugee Review Tribunal set aside. Migration Act 1958, ss 420, 476 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 applied Applicant "A" v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 applied Hurnam v Paratian [1998] 2 WLR 790 referred to R v Immigration Appeal Tribunal ex parte Jonah [1985] Imm A R referred to Adan v Secretary of State for the Home Department [1998] 2 WLR 702 referred to Paramanathan v Minister for Immigration and Multicultural Affairs (unreported, 15 May 1998) referred to Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 applied Jit v Minister for Immigration and Multicultural Affairs (unreported, 15 May 1998) referred to Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 referred to VIJAYAKUMAR SIVARASA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 135 of 1998 Burchett J Sydney 11 June 1998