Devarajan v MIMA

[1999] FCA 796

FEDERAL COURT OF AUSTRALIA

Devarajan v Minister for Immigration & Multicultural Affairs [1999] FCA 796

MIGRATION – application for judicial review of Refugee Review Tribunal decision affirming refusal to grant a protection visa – applicant citizen of India – alleged fear of persecution on the basis of past conduct as a human rights activist and harassment suffered as a result – whether Tribunal took correct view of persecution for reasons of political opinion – relevance of harm being characterised as not part of a course of systematic conduct.

Migration Act 1958 (Cth) s 476(1)(e)

Abdalla v Minister for Immigration and Ethnic Affairs (1998) 51 ALD 11, applied

RAVI KUMAR DEVARAJAN v MINISTER for IMMIGRATION & MULTICULTURAL AFFAIRS
NG 502 of 1998

MOORE J

SYDNEY
16 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 502 OF 1998

BETWEEN:	RAVI KUMAR DEVARAJAN Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	MOORE J
DATE OF ORDER:	16 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The decision of the Refugee Review Tribunal of 23 April 1998 is set aside.

2.        The matter is referred to the Tribunal for further consideration.

3.        Respondent to pay the applicant’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 502 OF 1998

BETWEEN:	RAVI KUMAR DEVARAJAN Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	MOORE J
DATE:	16 JUNE 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for judicial review by Ravi Kumar Devarajan (“the applicant”) of a decision of the Refugee Review Tribunal (“the Tribunal”) of 23 April 1998. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refusing to grant the applicant a protection visa. A criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”): see s 36 of the Migration Act1958 (Cth) (“the Act”).

2. The applicant is a citizen of India who arrived in Australia on 22 September 1996.  On 16 October 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department").  On 8 April 1997 a delegate of the Minister refused to grant the protection visa and on 11 April 1997 the applicant sought review of that decision by the Tribunal.  After considering the circumstances of the applicant, the Tribunal affirmed the delegate’s decision, in substance, that the applicant was not a refugee.  Art 1A(2) of the Convention contains, for present purposes, the definition of refugee.  It provides:

   … the term ‘refugee’ shall apply to any person who;

   …

   (2)