Thomas v Minister for Immigration and Multicultural Affairs [2000] FCA 1735

FEDERAL COURT OF AUSTRALIA

Thomas v Minister for Immigration & Multicultural Affairs [2000] FCA 1735

JULIAN RAVENDRAN THOMAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 970 of 2000

HILL J 24 NOVEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 970 OF 2000

BETWEEN: JULIAN RAVENDRAN THOMAS

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE: 24 NOVEMBER 2000

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 Before the Court is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed the decision of the Minister for Immigration and Multicultural Affairs ("the Minister"), or a delegate of the Minister, not to grant a protection visa to Mr Julian Ravendran Thomas ("the applicant"). 2 Two matters are raised, each of which is said to constitute either a breach of s 476(1)(a) or s 476(1)(c) of the Migration Act 1958 (Cth) ("the Act"). For present purposes it does not matter how one characterises the submission of the applicant. It suffices to say that the real complaint is that the Tribunal constructively failed to exercise its jurisdiction by failing to deal with two matters, each of which it is alleged afforded a case for the applicant. 3 One of the criteria for obtaining a protection visa is that the decision-maker be satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees amended by the 1967 Protocol relating to the Status of Refugees ("the Convention"). Australia will have protection obligations to an applicant if that person satisfies the decision-maker that he or she is a refugee as defined in Article 1A(2) of the Convention. That definition is as follows. A refugee is 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; 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." 4 I shall deal separately with each of the two arguments. Bringing LTTE funds to Colombo 5 The first matter put on behalf of the applicant is (as it was before the Tribunal) that he had been forced to carry a parcel of money raised on behalf of contacts within the Liberation Tigers of Tamil Eelam ("the LTTE") and hand it to LTTE personnel in Colombo. The applicant said that he had taken the money to Colombo and, although the applicant did not and could not know, it was his case that he believed that the person to whom he gave money which was then taken to Colombo had been either arrested and tortured or, in an act of revenge against him, had informed on him to the authorities. The Tribunal dealt with this claim, as follows, in its reasons. 6 First, it noted the applicant's claim that he believed that he had been identified as an LTTE activist by the Sri Lankan authorities and was suspected of raising and transferring funds to the LTTE. The Tribunal noted also that it had put to the applicant that: "this suspicion that the authorities have that overseas Tamils generally raise money for the LTTE does not seem to lead to widespread arrest of returning Tamils." It dealt with an incident in 1993 when the applicant had returned to the United Arab Emirates ("UAE"), was rounded up at checkpoints and had had what the Tribunal referred to as "serious trouble".