Tharmalingam v MIMA

FEDERAL COURT OF AUSTRALIA

MIGRATION - refugee - refusal of protection visa - whether Refugee Review Tribunal required to review those claims which it had accepted and “speculate”, in the sense of “predict” or “assess” as to likelihood of persecution in the future on the basis of those claims.

Migration Act 1958 (Cth) ss 430 (1) (c); 476 (1) (a), (e)

Welivita v Minister for Immigration & Ethnic Affairs, unreported, 18 November 1996, Lindgren J.
Wu v Minister for Immigration and Ethnic Affairs (1997) 72 FCR 524 (FC)
Eshetu v Minister for Immigration & Ethnic Affairs (1997) 71 FCR 300 (FC)
Coonghe v Minister for Immigration and Ethnic Affairs, unreported, 6 April 1998,
Finkelstein J.

SENTHILNATHAN THARMALINGAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 966 of 1997

LINDGREN J
SYDNEY
19 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 966  OF   1997

BETWEEN:	SENTHILNATHAN THARMALINGAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		LINDGREN J
DATE OF ORDER:		19 MAY 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal dated 23 October 1997 be set aside and the matter be remitted to the Tribunal for determination in accordance with law.

1. The respondent 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 966 OF 1997

BETWEEN:	SENTHILNATHAN THARMALINGAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		LINDGREN J
DATE:		19 MAY 1998
PLACE:		SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION
The applicant (“Mr Tharmalingam”) applies for review of a decision of the Refugee Review Tribunal (“the RRT”) dated 23 October 1997 affirming a decision of a delegate of the respondent (“the Delegate” and “the Minister” respectively) not to grant him a protection visa. Subsection 36 (2) of the Migration Act 1958 provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the “Refugees’ Convention” as amended by the “Refugees’ Protocol”. These expressions are defined to mean, respectively, the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. I will refer to them compendiously as “the Convention”. In order for Australia to have protection obligations to Mr Tharmalingam, he must satisfy the definition of a refugee in Article 1A (2) of the Convention as a person who:

“Owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable,…