Wijetunga v Minister for Immigration & Multicultural Affairs [2002] FCA 857

FEDERAL COURT OF AUSTRALIA

Wijetunga v Minister for Immigration & Multicultural Affairs [2002] FCA 857

MIGRATION - protection visa - applicant claimed fear of persecution and violence at the hands of a particular person - no mention of that person in reasons of tribunal - tribunal referred to all allegations relating to that person, but did not mention that person in its reasons – whether tribunal failed to consider case put by applicant - whether jurisdictional error – mistake of fact by tribunal about evidence given by applicant – whether decision based on particular fact Migration Act 1958 (Cth) ss 5(1), 36, 420, 476(1), 476(4) Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 applied Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 applied LOKUPITUMPAGE DON GAMINI WIJETUNGA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 1001 of 2001 GRAY J 5 JULY 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1001 of 2001

BETWEEN: LOKUPITUMPAGE DON GAMINI WIJETUNGA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 5 JULY 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. 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 1001 of 2001

BETWEEN: LOKUPITUMPAGE DON GAMINI WIJETUNGA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE: 5 JULY 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT

The nature of the proceeding 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), to refuse to grant to the applicant a protection visa, pursuant to the Migration Act 1958 (Cth) ("the Migration Act"). 2 Section 36 of the Migration Act provides that there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for the visa be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The term "Refugees Convention" is defined in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The term "Refugees Protocol" is similarly defined to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these instruments, taken together, the "Convention". For present purposes, it is sufficient to note that the effect of the Convention is that Australia has protection obligations to a 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". 3 The applicant is a citizen of Sri Lanka. He arrived in Australia on 27 June 1998 on a tourist (short stay) visa, having spent six years in Fiji. On 13 July 1998, he lodged an application for a protection visa. On 4 December 1998, a delegate of the Minister made a decision refusing the application. The applicant sought review of that decision by the Tribunal. On 10 January 2001, the Tribunal affirmed the decision of the delegate of the Minister. The applicant applied to the Court for judicial review of the Tribunal's decision. By consent, the Court made orders setting aside the Tribunal's decision and referring the matter to the Tribunal for further consideration. 4 The matter was then reheard by the Tribunal, constituted by a different member. On 31 July 2001, the Tribunal published its written decision and reasons for decision. Its decision was again to affirm the decision of the delegate of the Minister not to grant a protection visa. In this proceeding, the applicant seeks judicial review of this second decision of the Tribunal. 5 Because of the age of the matter, it is necessary to deal with it by reference to the provisions of the Migration Act as they stood prior to significant amendments that came into operation on 2 October 2001.