VAB v Minister for Immigration & Multicultural Affairs [2003] FCA 649

FEDERAL COURT OF AUSTRALIA

VAB v Minister for Immigration & Multicultural Affairs [2003] FCA 649 VAB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 1061 of 2001 GRAY ACJ 27 JUNE 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1061 of 2001

BETWEEN: VAB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GRAY ACJ

DATE OF ORDER: 27 JUNE 2003

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 1061 of 2001

BETWEEN: VAB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GRAY ACJ

DATE: 27 JUNE 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT

The nature of the proceeding 1 In this proceeding, the applicant seeks to have the Court set aside 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"), refusing to grant to the applicant and her son protection visas, pursuant to the Migration Act 1958 (Cth) ("the Migration Act"). 2 The applicant invokes the jurisdiction conferred on the Court by s 39B of the Judiciary Act 1903 (Cth) and the Migration Act. 3 The applicant is a citizen of the People's Republic of China. She arrived in Australia with her son on 31 July 2000. On 14 August 2000, the applicant lodged an application for a protection visa, on behalf of herself and her son. On 3 May 2001, a delegate of the Minister refused to grant protection visas. The applicant applied to the Tribunal for review of that decision. On 10 August 2001, the Tribunal conducted an oral hearing at which the applicant and her son gave evidence. On 29 August 2001, the Tribunal published its written decision and reasons for decision. It affirmed the decision not to grant protection visas. It is that decision of the Tribunal that the applicant asks the Court to set aside. 4 By s 36 of the Migration Act, there is a class of visas to be known as protection visas. 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, or a non-citizen in Australia who is the spouse or a dependent of such a person. 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 and the term Refugees Protocol is defined to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to refer to these two instruments, taken together, as the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who is a "refugee". The Convention defines a "refugee" in part as 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". 5 The application was originally filed in this Court on 3 October 2001. Accordingly, it is to be decided by reference to the provisions of the Migration Act, as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth); see item 8(2)(b) of Sch 1 to that Act.