VOAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1189

FEDERAL COURT OF AUSTRALIA

VOAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1189 MIGRATION – visa – protection visa – Tribunal rejected specific claims of activities on behalf of LTTE – whether Tribunal ignored a substantial element of applicants' case – whether material focussed on risk of persecution by reason of being Tamils returning to Sri Lanka and failed asylum seekers – whether fact that peace negotiations proceeding an irrelevant consideration

Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 5(1), 36, 474 VOAX, VOAY AND VOAZ v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 362 of 2003 GRAY J 15 SEPTEMBER 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 362 of 2003

BETWEEN: VOAX

FIRST APPLICANT

VOAY

SECOND APPLICANT

VOAZ

THIRD APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 15 SEPTEMBER 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants 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 362 of 2003

BETWEEN: VOAX

FIRST APPLICANT

VOAY

SECOND APPLICANT

VOAZ

THIRD APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE: 15 SEPTEMBER 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT

The nature and history of the proceeding 1 By their amended application in this proceeding, the applicants seek relief pursuant to s 39B of the Judiciary Act 1903 (Cth), for the purpose of quashing 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') to refuse to grant to the applicants protection visas. 2 By s 36 of the Migration Act 1958 (Cth) ('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. The terms 'Refugees Convention' and 'Refugees Protocol' are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments, taken together, the 'Convention'. For present purposes, it is sufficient to note that, pursuant to the Convention, Australia owes 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 An alternative criterion for a protection visa, pursuant to s 36(2)(b) of the Migration Act, is that the person applying for the visa be a non-citizen in Australia who is the spouse or a dependent of a non-citizen to whom the Minister is satisfied that Australia has protection obligations under the Convention and who holds a protection visa. 4 The applicants are a husband and wife and their child. Although the third applicant has been included in the title to the proceeding, the Tribunal did not deal with any claim of the third applicant, who was born after the first and second applicants had applied for protection visas. They are citizens of Sri Lanka, of Tamil ethnic origins. The first applicant claims to be a person to whom Australia has protection obligations pursuant to the Convention. The claims of the second and third applicants for protection visas are based on their being the spouse and a dependent respectively of the first applicant. 5 The first and second applicants arrived in Australia on 28 August 1998. On 18 September 1998, they applied for protection visas. The Minister's delegate refused to grant them protection visas. The Tribunal affirmed that decision on 20 July 2001. The applicants applied to this Court to set aside the decision. On 19 March 2002, the Court set aside the decision by consent and remitted the matter to the Tribunal, differently constituted, to be determined according to law. The Tribunal conducted a hearing on 22 August 2002, at which the first and second applicant each gave oral evidence. Two other witnesses also gave evidence. On 19 March 2003, the Tribunal recorded its written decision and its reasons for decision. It handed down its decision and reasons for decision on 11 April 2003. Its decision was again to affirm the decision not to grant protection visas. It is that second decision of the Tribunal that the applicants seek to set aside in the current proceeding.