Tiquia v Minister for Immigration & Multicultural Affairs [2001] FCA 490

FEDERAL COURT OF AUSTRALIA

Tiquia v Minister for Immigration & Multicultural Affairs [2001] FCA 490

MIGRATION – review of decision of Refugee Review Tribunal – refusal to grant protection visas – error of law – whether incorrect interpretation of applicable law – whether incorrect application of law to facts – whether applicants seeking merits review.

Migration Act 1958 (Cth): ss 36(2), 476(1)(e)

Migration Regulations 1994: Sch 2 subclass 866

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied Eduardo Tiquia & Ors v Minister for immigration and multicultural affairs v 858 of 2000 goldberg J 1 MAY 2001 melbourne

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 858 of 2000

BETWEEN: EDUARDO TIQUIA

First Applicant

ROSEMARIE TIQUIA

Second Applicant

EDUARDO TIQUIA JNR

Third Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 1 MAY 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 858 of 2000

BETWEEN: EDUARDO TIQUIA

First Applicant

ROSEMARIE TIQUIA

Second Applicant

EDUARDO TIQUIA JNR

Third Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: GOLDBERG J

DATE: 1 MAY 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 The applicants have applied to the Court pursuant to Pt 8 of the Migration Act 1958 (Cth) ("the Act") for judicial review of the decision of the Refugee Review Tribunal ("the Tribunal") on 22 September 2000 to affirm the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), on 18 February 2000 to refuse to grant subclass 866 (Protection) visas to the applicants. The applicants rely on one ground of review, that the Tribunal fell into error of law within s 476(1)(e) of the Act in that it failed to consider the failure of police authorities in the Philippines to afford protection to the applicants. 2 The applicants are husband, wife and son and are citizens of the Phillipines. They arrived in Australia on 24 May 1999 on a visitor's visa subclass 676 which was valid until 24 June 1999. On 24 June 1999 they applied for subclass 866 (Protection) visas with the Department of Immigration and Multicultural Affairs pursuant to the Act. The criteria for the grant of a subclass 866 (Protection) visa are set out in Pt 866 of Sch 2 to the Migration Regulations 1994 and in s 36 of the Act. 3 A criterion for a protection visa is that the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951, as amended by the Protocol Relating to the Status of Refugees 1967 ("the Convention"): s 36(2) of the Act. If an applicant is a member of a family unit in which one family member is a person to whom Australia has protection obligations and who satisfies the other criteria for the grant of a protection visa, the applicant may be granted a protection visa without satisfying this criteria, provided the applicant satisfies the remaining criteria. Article 1A(2) of the Convention defines a refugee as 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 to 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 The first applicant, ("Mr Tiquia"), claimed that he has a well‑founded fear of being persecuted by the New People's Army ("NPA") on return to the Philippines. The second applicant, ("Mrs Tiquia"), and the third applicant, their son, were included in Mr Tiquia's application as members of his family unit. 5 On 18 February 2000, a delegate of the Minister refused to grant the visas and on 17 March 2000 the applicants applied to the Tribunal for review of that decision. On 22 September 2000, the Tribunal affirmed the decision of the delegate to refuse the visa applications as the Tribunal was not satisfied that Mr and Mrs Tiquia were persons to whom Australia has protection obligations under the Convention. On 2 November 2000, the applicants applied to the Court for an order of review in respect of the Tribunal's decision.