Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, KIRBY, HAYNE AND HEYDON JJ

MINISTER FOR IMMIGRATION AND MULTICULTURAL

AFFAIRS APPELLANT

AND

RESPONDENTS S152/2003 RESPONDENTS

Minister for Immigration and Multicultural Affairs v Respondents S152/2003

[2004] HCA 18

21 April 2004

S152/2003

ORDER

1. Appeal allowed. 2. Set aside orders 1, 2 and 3 made by the Full Court of the Federal Court on 23 May 2002 and, in lieu thereof, order that the appeal to the Full Court of the Federal Court be dismissed. 3. Appellant to pay the respondents' costs of the appeal to this Court.

On appeal from the Federal Court of Australia

Representation:

J Basten QC with S B Lloyd for the appellant (instructed by Sparke Helmore)

N J Williams SC with B M Zipser for the respondents (instructed by the respondents)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Multicultural Affairs v Respondents S152/2003

Immigration – Refugees – Applications for protection visas by de facto husband and wife nationals of Ukraine – Well-founded fear of persecution – Husband claimed to suffer religious persecution as Jehovah's Witness – Refugee Review Tribunal found that incidents of which husband complained were individual and random incidents and did not amount to persecution, and that the chance that he would suffer persecution in future was remote – Tribunal rejected claim that state encouraged or condoned persecution of Jehovah's Witnesses – Whether Full Court of Federal Court erred in concluding that Tribunal committed jurisdictional error in failing to consider a different claim of whether the husband might suffer future harm from private individuals because of religious belief and whether the government of Ukraine was able in a practical sense to stop such harm occurring – Absence of evidence before Tribunal to support a conclusion that Ukraine did not provide level of protection required.