Rajanayake v Minister for Immigration & Multicultural Affairs [2001] FCA 352

FEDERAL COURT OF AUSTRALIA

Rajanayake v Minister for Immigration & Multicultural Affairs [2001] FCA 352

MIGRATION – refugee – application for review of decision of Refugee Review Tribunal unfavourable to refugee – claimant – Tribunal's finding against credit – whether Tribunal erred in law by failing to address true nature of claim – whether decision based on facts which did not exist – whether Tribunal failed to observe required procedures

Migration Act 1958 (Cth) s 476(1)(a), (e), (g); s 476(4)(b) Guden v Minister for Immigration & Multicultural Affairs (2000) 58 ALD 352 distinguished Nefoidova v Minister for Immigration & Multicultural Affairs [2000] FCA 179 followed Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 distinguished Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 followed CECIL SYLVESTER RAJANAYAKE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1291 OF 2000 LINDGREN J 3 APRIL 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1291 OF 2000

BETWEEN: CECIL SYLVESTER RAJANAYAKE

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 3 APRIL 2001

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 1291 OF 2000

BETWEEN: CECIL SYLVESTER RAJANAYAKE

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 3 APRIL 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 Section 29 of the Migration Act 1958 (Cth) ("the Act") provides that subject to the Act, the respondent ("the Minister") may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia, to remain in Australia, or to do both. 2 The applicant ("Mr Rajanayake") applies under subs 476(1) of the Act for review of a decision of the Refugee Review Tribunal ("RRT") affirming a decision of the Minister's delegate ("the Delegate") not to grant him a protection visa permitting him to remain in Australia. It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act. 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. The validity of Mr Rajanayake's application for the protection visa is not in question. 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"). Australia is a party to 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" (par 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 the jurisdiction provided by Part 8 of the Act, but no other jurisdiction, with respect to it (ss 485, 486). 7 Mr Rajanayake'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 reason of political opinion.