VNAM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 893

FEDERAL COURT OF AUSTRALIA

VNAM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 893 Migration Act 1976 s 91R(1) Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited NACV v the Minister for Immigration and Multicultural Affairs [2002] FCA 411 cited NAEH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 28 cited Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 cited VNAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 1036 OF 2003 SUNDBERG J 9 JULY 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1036 OF 2003

BETWEEN: VNAM

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SUNDBERG J

DATE OF ORDER: 9 JULY 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal.

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 1036 OF 2003

BETWEEN: VNAM

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SUNDBERG J

DATE: 9 JULY 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant is a Hindu of Indian nationality who entered Australia on 26 July 2000 on a Student Temporary Class TU visa, subclass 560. He obtained a further subclass 560 visa on 4 August 2000, but this was cancelled by a delegate of the respondent on 24 January 2002 for failure to meet the conditions attached to the visa. The Migration Review Tribunal dismissed an application to review that decision. The appellant then applied for a protection visa. A delegate of the respondent refused to grant the visa. That refusal was affirmed by the Refugee Review Tribunal. The appellant then sought review of the Tribunal's decision by the Federal Court alleging jurisdictional error, namely that the Tribunal erred in finding that he was not a member of a group of a kind which fell within the meaning of a "particular social group" in article 1A of the Refugees Convention. The application was transferred to the Federal Magistrates Court which dismissed it. The present appeal is from that decision. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 the Chief Justice determined that the appeal should be heard by a single judge. 2 The appellant's principal claim to refugee status was based on the possible reaction of his family and friends to his lack of educational achievement in Australia. He said he was ashamed to return home without the qualifications it was anticipated he would obtain there. The appellant also claimed he had had some problems consequent upon a fight with some Muslim students in 1996. 3 As to the principal claim, the Tribunal noted that the appellant had not identified any particular social group the membership of which would give rise to a well‑founded fear of persecution. The Tribunal postulated a group such as persons who have come to Australia to study and returned home without a degree, or persons who have gone overseas to study and returned home without a degree. It referred to authorities establishing that a social group must be a cognisable group within society and be identifiable as a social unit. It said: "In his evidence to the Tribunal, he did not indicate that there were other people in a similar situation to him in India who had been treated badly because they had not obtained a degree when they went to study in Australia or other places overseas. There is no evidence before the Tribunal that his is a cognisable social group within Indian society. The Tribunal finds that the applicant is not a member of a particular social group and consequently does not have a fear of persecution for this Convention ground."