VTAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 927

FEDERAL COURT OF AUSTRALIA

VTAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 927

MIGRATION – application for refugee status – fear of persecution by reason of membership of a particular social group – whether parents of children born in contravention of China's one-child family planning laws ("black children"), or the "black children" whose birth resulted in the parents' contravention, are members of a particular social group – whether the consequences of contravening the laws constitute persecution of the parents or their child – whether the Refugee Review Tribunal constructively failed to exercise its jurisdiction – consideration of the duty of the Refugee Review Tribunal in respect of concessions made by the representative of an applicant

Migration Act 1958 (Cth) ss 36(1), 36(2), 65(1) and 91R

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 – applied Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 – applied W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 – cited NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 – cited Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 – distinguished Chan v Canada (Minister of Employment and Immigration) [1995] 3 SCR 593 – cited Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 – considered Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 – applied Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 – considered Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 – cited Stead v State Government Insurance Commission (1986) 161 CLR 141 – cited Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 – cited Cheung v Canada (Minister of Employment and Immigration) [1993] 2 FC 314 - cited Minister for Immigration and Multicultural Affairs v Wang (2003) 196 ALR 385 – cited Bushell v Repatriation Commission (1992) 175 CLR 408 – considered Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 – considered Minister for Immigration & Multicultural & Indigenous Affairs v VFAY [2003] FCAFC 191 – cited Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 – cited Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 – cited WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 687 – cited Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 - considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 – cited Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478 – cited Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 – cited SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625 – cited Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 – cited Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 259 – applied VTAO, VTAP and VTAQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V899 OF 2003 MERKEL J 19 JULY 2004 MELBOURNE