FEDERAL COURT OF AUSTRALIA
S v Minister for Immigration & Multicultural Affairs [2000] FCA 735
MIGRATION – protection visa – review of decision of Refugee Review Tribunal – suggested “What if I am wrong?” test – referral to evidence – whether decision based on non-existent fact
WORDS AND PHRASES – “What if I am wrong?”
Migration Act 1958 (Cth) ss 430(1), 476(1)(a), (1)(g), 476(4)
Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 followed
Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 not followed
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied
R v Wainwright (1895) 13 Cox 171 mentioned
Attorney-General (South Australia) v Brown [1960] AC 432 at 454 mentioned
Lucas v The Queen (1970) 120 CLR 171 at 174 mentioned
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 applied
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 55-57 mentioned
Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415 followed
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220 appliedS v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NO. V 47 OF 2000HEEREY J
6 JUNE 2000
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 47 of 2000
BETWEEN:
S
ApplicantAND:
THE MINISTER FOR IMMIGRATION AND MULTICULUTRAL AFFAIRS
RespondentJUDGE:
HEEREY J
DATE OF ORDER:
6 JUNE 2000
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
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
VICTORIA DISTRICT REGISTRY
V 47 of 2000
BETWEEN:
S
ApplicantAND:
THE MINISTER FOR IMMIGRATION AND MULTICULUTRAL AFFAIRS
Respondent
JUDGE:
HEEREY J
DATE:
6 JUNE 2000
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant is a thirty-one year old male citizen of the People’s Republic of China. He arrived in Australia on 31 May 1997. He lodged application for a protection visa on 2 October 1997. The application was refused and the delegate’s decision was confirmed by the Refugee Review Tribunal on 19 May 1999. Following an order by consent for reconsideration the applicant’s application was reheard by the RRT differently constituted. On 7 January 2000 the RRT again affirmed the decision not to grant a protection visa.
The applicant’s case
The only Convention ground relied on by the applicant was political opinion.
The applicant came from an intellectual family, his father being a professor at Shanghai University and his mother a doctor. His parents were criticised because of their background and were sent for re-education during the Cultural Revolution.
The applicant had no major involvement in political activities until the 1989 pro-democracy movement. In 1989 the applicant had been a student at Shanghai University for three years. On 18 May 1989 the university joined with several others to demonstrate against Communism. The applicant made a speech as a representative of his university criticising…
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- Case
- [2000] FCA 735
- Decision Date
CaseChat Overview and Summary
The legal issues in the case centred on whether the RRT had failed to properly exercise its jurisdiction by not adequately considering all relevant issues in determining the applicant's claim. The applicant argued that the RRT had erred by not sufficiently exploring the possibility that he might be wrong in his assertions, and by not focusing on the factual core of his refugee claim. Another contention was that the RRT's decision was based on non-existent facts, specifically that the applicant had claimed to be a leader of the 1989 demonstrations when he had not.
The Federal Court rejected the applicant's arguments. The court found that the RRT had properly considered the evidence and provided sufficient reasoning for its decision. It was held that the RRT was not required to explore hypothetical scenarios such as "What if I am wrong?" and that the RRT's focus on the factual centrepiece of the claim was sufficient. Regarding the argument about non-existent facts, the court determined that the RRT's attribution of a leadership claim to the applicant was supported by the evidence. The court concluded that the RRT's decision-making process was lawful and that there were no jurisdictional errors.
The Federal Court dismissed the application for judicial review and ordered the applicant to pay costs, including reserved costs.
Orders
Orders of the court
The application is dismissed with costs, including reserved costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: HEEREY J
Full text does not contain this section.