Sathiyanathan v Minister for Immigration & Multicultural Affairs [1999] FCA 1168

FEDERAL COURT OF AUSTRALIA

Sathiyanathan v Minister for Immigration and Multicultural Affairs [1999] FCA 1168 MIGRATION – Migration Act 1958 (Cth) – application for review of a decision of the Refugee Review Tribunal – whether error of law – need for consideration of past and future persecution – whether refugee on basis of general human rights experiences of Tamils in Sri Lanka Migration Act 1958 (Cth) s 476(1)(e) Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

NADARAJAH SATHIYANATHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 1228 of 1998 BRANSON J MELBOURNE (video link to SYDNEY) 26 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1228 of 1998

BETWEEN: NADARAJAH SATHIYANATHAN

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: BRANSON J

DATE OF ORDER: 26 AUGUST 1999

WHERE MADE: MELBOURNE (video link to SYDNEY)

THE COURT ORDERS THAT: The decision of the Refugee Review Tribunal be affirmed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1228 of 1998

BETWEEN: NADARAJAH SATHIYANATHAN

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: BRANSON J

DATE: 26 AUGUST 1999

PLACE: MELBOURNE (video link to SYDNEY)

REASONS FOR JUDGMENT

INTRODUCTION 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") by which the Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa. 2 In the circumstances of this case, the critical criterion for the grant to the applicant of a protection visa was that the Tribunal was satisfied that he is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together the "Refugees Convention"). For the Tribunal to be satisfied that Australia has protection obligations to the applicant under the Refugees Convention it was required to be satisfied that he was 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 …." (Article 1A(2) of the Refugees Convention).