Paramananthan, Kirushanthan v Minister for Immigration & Multicultural Affairs Minister for Immigration & Multicultural Affairs v Sivarasa, Vijayakumar [1998] FCA 1693

FEDERAL COURT OF AUSTRALIA MIGRATION – appeals in one case by refugee-claimant, in other by Minister – application for judicial review of decisions of Refugee Review Tribunal failed in one case and succeeded in the other – substantially identical passage in Tribunal's Reasons for Decision in both cases – arrest, detention and interrogation of young Tamil males from areas in Sri Lanka controlled by Liberation Tigers of Tamil Eelam – subsequent torture in detention – Tribunal's approach of distinguishing between detention of such persons and what happened to them in detention – former, although discriminatory, held not "persecution" because motivated by need to combat terrorism – latter held not shown to be motivated by Convention ground – error of law arising from approach taken – failure to address question whether "real chance" of persecution – failure to address claims made in recent report supplied by refugee-claimants' solicitor to Tribunal.

Migration Act 1958 ss 430, 476 (1) (a), (e)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, applied Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, considered Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, considered Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, considered KIRUSHANTHAN PARAMANANTHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 533 of 1998 MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v VIJAYAKUMAR SIVARASA NG 652 of 1998 WILCOX, LINDGREN, MERKEL JJ 21 DECEMBER 1998 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 533 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: KIRUSHANTHAN PARAMANANTHAN