Visvanathan v Minister for Immigration & Multicultural Affairs [1999] FCA 1508

FEDERAL COURT OF AUSTRALIA

Visvanathan v Minister for Immigration & Multicultural Affairs [1999] FCA 1508

MIGRATION – appeal from Refugee Review Tribunal – alleged failure by Tribunal to deal with one claim made by refugee claimants – whether Tribunal did in fact address that claim – suggested construction of Tribunal's Reasons for Decision according to which it did not do so. Logenthiran v Minister for Immigration and Ethnic Affairs (Wilcox, Lindgren and Merkel JJ, 21 December 1998, unreported) distinguished. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 followed THAMBIMUTHTU VISVANATHAN & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 563 of 1999 LINDGREN J 29 OCTOBER 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 563 OF 1999

BETWEEN: THAMBIMUTHTU VISVANATHAN

First Applicant

ARIYAMLAR VISVANATHAN

Second Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: LINDGREN J

DATE OF ORDER: 29 OCTOBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants pay the respondent's costs. 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 N 563 OF 1999

BETWEEN: THAMBIMUTHTU VISVANATHAN

First Applicant

ARIYAMLAR VISVANATHAN

Second Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: LINDGREN J

DATE: 29 OCTOBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT (ex tempore)

INTRODUCTION

1 The applicants, Mr and Mrs Visvanathan, apply under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") affirming a decision of a delegate of the respondent ("the Minister") not to grant them a protection visa. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant be a non-citizen in Australia 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 (compendiously, "the Convention"). Article 1A(2) of the Convention provides that a refugee is any person who: "owing to well-founded fear of being persecuted for reasons for 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." 2 The applicants' case is that they are outside the country of their nationality, Sri Lanka, and are unwilling to return to it because of a well-founded fear of being persecuted for reasons of imputed political opinion.