Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 962

FEDERAL COURT OF AUSTRALIA

Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 962 IMMIGRATION – application to review decision of the Refugee Review Tribunal – decision not to grant protection visa – Tribunal found applicant not to be a "refugee" within the Convention definition – whether Tribunal based its decision on evidence of particular facts which did not exist – metaphor as an aid to statutory construction

Migration Act 1968 (Cth) s 476(1)(g), s 476(4)(b) Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(h), s 5(3)(h) Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1987) 13 FCR 511 referred to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 applied

FERNANDO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO. Q30 of 1999 HEEREY J 16 JULY 1999 MELBOURNE (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q30 of 1999

BETWEEN: DESMOND FERNANDO

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 16 JULY 1999

WHERE MADE: MELBOURNE (HEARD IN BRISBANE)

THE COURT ORDERS THAT: 1. The application is dismissed with costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q30 of 1999

BETWEEN: DESMOND FERNANDO

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: HEEREY J

DATE: 16 JULY 1999

PLACE: MELBOURNE (HEARD IN BRISBANE)

REASONS FOR JUDGMENT 1 The applicant seeks review of a decision of the Refugee Review Tribunal affirming a decision not to grant protection visas to himself, his wife and their two children. 2 The Tribunal found that the applicant was not a refugee within the meaning of the United Nations Convention and Protocol Relating to the Status of Refugees, that is to say a person who has "… owing to 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." The Convention reason relied on in the present case is that of political opinion.