Fernando v Minister for Immigration & Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 962

IMMIGRATION – application to review decision of the Refugee Review Tribunal – decision not to grant protection visa – Tribunal found applicant not to be a “refugee” within the Convention definition – whether Tribunal based its decision on evidence of particular facts which did not exist – metaphor as an aid to statutory construction

Migration Act 1968 (Cth) s 476(1)(g), s 476(4)(b)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(h), s 5(3)(h)

Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1987) 13 FCR 511 referred to
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 applied

FERNANDO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. Q30 of 1999

HEEREY J
16 JULY 1999
MELBOURNE (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q30 of 1999

BETWEEN:	DESMOND FERNANDO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	HEEREY J
DATE OF ORDER:	16 JULY 1999
WHERE MADE:	MELBOURNE (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1.        The application is dismissed with costs, including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q30 of 1999

BETWEEN:	DESMOND FERNANDO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	HEEREY J
DATE:	16 JULY 1999
PLACE:	MELBOURNE (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

1. The applicant seeks review of a decision of the Refugee Review Tribunal affirming a decision not to grant protection visas to himself, his wife and their two children.

2. The Tribunal found that the applicant was not a refugee within the meaning of the United Nations Convention and Protocol Relating to the Status of Refugees, that is to say a person who has

   “… 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.”

   The Convention reason relied on in the present case is that of political opinion.

   The applicant

3. The applicant is a citizen of Sri Lanka having been born in that country in 1953.  His wife is a citizen of the Philippines.  He worked in Negombo, a town about 20 kilometres from Colombo, as the Assistant Transport Manager for a travel company from 1990 until March 1997.  He obtained an Australian visa on 9 July 1996.  He left Sri Lanka on 8 March 1997 and went to the Philippines to join his family who had been there for some three months.  The family travelled to Australia on 3 May 1997 and on 19 June 1997 applied for protection visas.  The applicant’s two children are now aged 11 and 7 years.

   The applicant’s case

4. The applicant claimed…