VBAT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1528

FEDERAL COURT OF AUSTRALIA

VBAT v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1528 MIGRATION – protection visa – claim of well-founded fear of persecution for reason of religious belief – applicant claimed to be deputy director of underground church in China with responsibility for fund raising and recruiting members – whether Refugee Review Tribunal applied wrong test of commitment to religion and level of knowledge of religious principles and practices – whether Tribunal dealt with case put by applicant Migration Act 1958 (Cth) ss 5(1), 36, 474 Migration Regulations 1994 (Cth) Sch 1 item 1119, Sch 2 item 805.21 NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 – referred to APPLICANT VBAT OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 124 of 2002 GRAY J 10 DECEMBER 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 124 of 2002

BETWEEN: APPLICANT VBAT OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 10 DECEMBER 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 124 of 2002

BETWEEN: APPLICANT VBAT OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE: 10 DECEMBER 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT

The nature of the proceeding 1 The applicant in this proceeding seeks relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, now the Minister for Immigration and Multicultural and Indigenous Affairs (in both cases, "the Minister") who is the respondent to the proceeding. The delegate of the Minister had refused to grant to the applicant a protection visa, pursuant to the Migration Act 1958 (Cth) ("the Migration Act"). 2 The Migration Act makes provision for various types of visas, permitting people to travel to and enter Australia or to remain in Australia. One such type of visa is a protection visa, for which s 36 provides. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that 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 as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The term "Refugees Protocol" is defined in the same subsection as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call those two instruments, taken together, the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to 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". 3 The applicant is a citizen of the People's Republic of China. He arrived in Australia on 16 June 1998 with a visa entitling him to enter as a visitor. On 29 January 1999, he lodged an application for a protection visa. On 25 March 1999, the delegate gave her decision refusing to grant a protection visa. The applicant sought a review of the delegate's decision by the Tribunal. The Tribunal conducted a hearing, at which the applicant gave oral evidence, on 12 August and 28 October 1999. The member of the Tribunal who conducted that hearing then resigned from the Tribunal before making a decision. Another member conducted a further hearing, at which the applicant gave oral evidence, on 13 April 2000. On 11 January 2002, the Tribunal published its decision and its reasons for decision. It is that decision of the Tribunal that is the subject of the present proceeding.