Sivarasamoorthy v Minister for Immigration & Multicultural Affairs [2000] FCA 556

FEDERAL COURT OF AUSTRALIA

Sivarasamoorthy v Minister for Immigration & Multicultural Affairs [2000] FCA 556 MATHAN SIVARASAMOORTHY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 85 OF 2000 LINDGREN J 2 MAY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 85 OF 2000

BETWEEN: MATHAN SIVARASAMOORTHY

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 2 MAY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant 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 85 OF 2000

BETWEEN: MATHAN SIVARASAMOORTHY

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 2 MAY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction

1 The Applicant applies under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") dated 2 February 2000, affirming a decision of a delegate ("the Delegate") of the respondent ("the Minister") not to grant him a protection visa. 2 Section 496 of the Act provides that the Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under the Act. It is not in dispute that the Minister delegated all relevant powers to the Delegate. 3 Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is 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"). 4 Article 1A(2) of the Convention provides that a refugee is any person who: "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; 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." 5 Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. 6 The RRT's decision was a "judicially reviewable decision" (s 475(1)(b) of the Act), the Applicant was entitled to apply to this Court for review of it on certain grounds (s 476) and the Court has with respect to it the jurisdiction provided by Pt 8 of the Act, but no other jurisdiction (ss 485, 486). 7 The Applicant's case is that he is outside the country of his nationality, Sri Lanka, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of race, membership of a particular social group and (imputed) political opinion.