Balan v Minister for Immigration & Multicultural Affairs [1999] FCA 827

FEDERAL COURT OF AUSTRALIA

Balan v Minister for Immigration and Multicultural Affairs [1999] FCA 827 KOHILARATNAM BALAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO DG 6 OF 1998 O'LOUGHLIN J 23 June 1999 ADELAIDE (Heard in Darwin)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY DG 6 OF 1998

BETWEEN: KOHILARATNAM BALAN

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 23 June 1999

WHERE MADE: ADELAIDE (Heard in Darwin)

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs which costs are to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY DG 6 OF 1998

BETWEEN: KOHILARATNAM BALAN

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: O'LOUGHLIN J

DATE: 23 JUNE 1999

PLACE: ADELAIDE (Heard in Darwin)

REASONS FOR JUDGMENT 1 The applicant in these proceedings is Kohilaratnam Balan ("Mrs Balan"). She is a Tamil who was born in Jaffna Polikandi in northern Sri Lanka on 11 September 1967; she arrived in Australia with her husband on 4 February 1996. Mr Balan, who is aged thirty eight, is also a Tamil but he is from Colombo. A year or so later, on 15 January 1997, they both applied for protection visas pursuant to s 36 of the Migration Act 1958 (Cth) ("the Act"). On 14 June 1997, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister") came to the conclusion that neither of them was a refugee; the delegate subsequently decided that the applicant and her husband were not entitled to the grant of protection visas. 2 On 30 June 1997, Mr and Mrs Balan applied to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decisions. Their applications were unsuccessful. On 15 May 1998, the Tribunal published its decision and its reasons for affirming the earlier decisions of the delegate. Mrs Balan now asks this Court to review the decision of the Tribunal; Mr Balan had not made a similar application. 3 Mr Grant, counsel for the Minister, informed the Court that the Minister would proceed upon the premise that Mrs Balan was the head of her family unit. A spouse of the head of a family unit is, under the Migration Regulations, a member of the same family. Therefore, Mr Balan, as a member of the same family unit will be entitled, should Mrs Balan be successful in these proceedings, to follow the outcome of her application. 4 The prescribed criteria for the grant of a protection visa are set out in subs 36(2) of the Act and cl 866 of Sch 2 to the Migration Regulations: see subs 31(3) and Reg 2.03. Subsection 36(2) of the Act states that the criterion for the grant of a protection visa is that: "… the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 5 The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5 of the Act as meaning "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." 6 A refugee is defined by Art 1A(2) of the Convention as amended by the Protocol as a person who: "Owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it." 7 In determining whether one or more convention reasons applies to an applicant's circumstances, Black CJ (with whom French J agreed) said in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417 at 420: "The convention definition does not extend to all persons who have a well-founded fear of being persecuted in their country of nationality; it requires that there be a fear of being persecuted for one of the specified reasons. Those reasons may of course overlap, but a recognition that this is so should not obscure the fact that a well-founded fear of persecution for a specified reason must be shown. Each element of the definition must be considered. … . It is not enough to establish only that persecution is feared by reason of some act that a person has done, or is perceived to have done, and that others who have done an act of the same nature are also likely to be persecuted for that reason." 8 This Court's power to review the Tribunal's decision is found in ss 475 and 476 of the Act. The first of those sections identifies decisions that are judicially reviewable and a decision of the Tribunal is one such decision. Section 476 provides that an application may be made for review of a Tribunal's decision by this Court on one or more of the grounds that are set out in subs (1) of that section. In her amended application for an order of review the applicant relied upon the provisions of pars 476(1)(a) and (e). Those provisions are as follows: "476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) – (d) … (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) – (g) …" 9 It was submitted on the applicant's behalf that the Tribunal did not act according to the substantial justice and the merits of the case in that it failed properly to consider, among other things, Mrs Balan's evidence in relation to her claims of mistreatment at the hands of the Indian Peace Keeping Forces ("the Indian PKF") and her evidence in relation to her claims that when she was detained by the Indian PKF in January 1988 "they were accompanied by anti LTTE groups"; 10 These grounds are a reflection of the provisions in par 420(2)(b) of the Act which provides that the Tribunal, in reviewing a decision: "(b) must act according to substantial justice and the merits of the case." 11 As a result of the recent decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 - 13 May 1999, it is now clear that s 420 of the Act does not create rights or grounds of review that are additional to those given in s 476; see par 158 per Hayne J. Gleeson CJ and McHugh J, in their joint judgment, explained that provisions such as s 420 are intended to be facultative, not restrictive: "Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals."(par 49)