VAV & VAW v Minister for Immigration & Multicultural Affairs [2002] FCA 646

FEDERAL COURT OF AUSTRALIA

VAV & VAW v Minister for Immigration & Multicultural Affairs [2002] FCA 646 MIGRATION – appeal from decision of Refugee Review Tribunal – refusal to grant protection visa – applicants claimed fear of persecution if returned to Indonesia – privative clause decision – decision of administrative character – whether jurisdictional error – merits review sought. Migration Act 1958 (Cth): ss 36(2), 474, 475A, 476 Migration Legislation Amendment (Judicial Review) Act 2001 (Cth): Sch 1 Pt 2 Item 8(2)(b) Judiciary Act 1903 (Cth): s 39B R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 applied R v Murray; Ex parte Proctor (1949) 77 CLR 387 referred to VAV and VAW v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS V 1141 of 2001 GOLDBERG J 27 MAY 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1141 of 2001

BETWEEN: VAV and VAW

Applicants

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 27 MAY 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants pay the respondent's costs of and incidental to 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 1141 of 2001

BETWEEN: VAV and VAW

Applicants

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: GOLDBERG J

DATE: 27 MAY 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 The applicants, who are husband and wife, have applied to the Court to review the decision of the Refugee Review Tribunal ("the Tribunal") on 12 September 2001, whereby the Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse to grant protection (class XA) visas to the applicants pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). The Tribunal was not satisfied that the applicants were persons to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the 1967 Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). The Tribunal therefore concluded that the applicants did not satisfy the criterion set out in s 36(2) of the Act for a protection visa. 2 The applicants arrived in Australia on 11 September 2000, and on 25 September 2000 they lodged an application under the Act for protection (class XA) visas with the Department of Immigration and Multicultural Affairs.