VSAI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1602

FEDERAL COURT OF AUSTRALIA

VSAI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1602

MIGRATION – judicial review – protection visa – whether Tribunal correctly applied the Chan test by finding that the incidence of rape and sexual abuse by military officers of female draftees did not occur on a sufficient scale to constitute persecution – whether Tribunal erred in law by not asking itself the right question - whether rape and sexual abuse of female draftees by military officers was "systematic" – appeal allowed - ss 91R(1)(b) and (1)(c) of the Migration Act 1958 (Cth). Convention Relating to the Status of Refugees. Opened for signature 28 July 1951. (vol. 189, p. 137 UN Treaty Series) (entered into force 22 April 1954) Art 1A(2) Migration Act 1958 (Cth) ss 91R(1)(b) and (1)(c) Migration Legislation Amendment Act (No. 6) 2001 (Cth) Abedi v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 114 FCR 186 referred to Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 referred to Applicant S v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 25 followed Applicant VEAZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1033 referred to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to Chan Yee Kin v Minister for Immigration & Local Government & Ethnic Affairs (1989) 169 CLR 370 applied Chen Shi Hai v (2000) 201 CLR 293 referred to Erduran v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 814 referred to Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244 referred to Mehenni v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 789; 164 ALR 192 considered Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 referred to Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to Minister for Immigration & Ethnic Affairs v Kord [2002] FCA 334 referred to Minister for Immigration & Ethnic Affairs v Rajalingam (1999) 93 FCR 220 followed Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied Minister for Immigration & Multicultural Affairs v Al Miahi [2001] FCA 744 referred to Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 considered Minister for Immigration & Multicultural Affairs v Hamad (1999) 87 FCR 294 at 297 [17] followed Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 referred to Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; 205 ALR 487 referred to Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 referred to Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 followed Periannan Murugasu v Minister for Immigration & Ethnic Affairs (unreported; Federal Court of Australia; 28 July 1987) referred to Puerta v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 309 referred to Ram v Minister for Immigration & Ethnic Affairs (1995) FCR 565 referred to SBAS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 528 referred to SRBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1387 considered Wang v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 548 referred to VSAI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 655 of 2003