Shetty v Minister for Immigration & Multicultural Affairs [1999] FCA 1601

FEDERAL COURT OF AUSTRALIA

Shetty v Minister for Immigration Multicultural Affairs [1999] FCA 1601 MIGRATION – Migration Act 1958 (Cth) – well founded fear of being persecuted for reasons of membership of a particular social group – whether Tribunal entitled to isolate question of whether harm feared serious enough to constitute persecution Migration Act 1958 (Cth) ss 36, 476 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, distinguished Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, approved, followed Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, approved, followed Kanagasabai v Minister for Immigration and Multicultural Affairs [1999]FCA 205, approved, followed Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260, approved, followed JACINTHA ASHOK SHETTY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 110 of 1999 BRANSON J SYDNEY 18 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 110 of 1999

BETWEEN: JACINTHA ASHOK SHETTY

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: BRANSON J

DATE OF ORDER: 18 NOVEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. 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 N 110 of 1999

BETWEEN: JACINTHA ASHOK SHETTY

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: BRANSON J

DATE: 18 NOVEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an application made under s 476 of the Migration Act 1958 (Cth) ("the Act") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa. 2 Section 36 of the Act provides as follows: "(1) There is a class of visas to be known as protection visas. (2) A criterion for 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." 3 Australia will have protection obligations to the applicant under the Refugees Convention as amended by the Refugees Protocol (together hereafter referred to as the "Refugees Convention") if the applicant: "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 [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country …." (Article 1A(2) of the Refugees Convention)