VFAY v Minister for Immigration - [2003] FMCA 35

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VFAY v MINISTER FOR IMMIGRATION

[2003] FMCA 35

MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – applicant a child separated from his parents – whether the RRT erred in finding that the applicant was not a member of a “particular social group” – whether separated children in Afghanistan are a particular social group considered – RRT decision a nullity.

Migration Act 1958 (Cth), s.91R, 474

Applicant A v Minister for Immigration (1997) 190 CLR 225
Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293
Khawar v Minister for Immigration (2002) 187 ALR 574
Minister for Immigration v Applicant S [2002] FCAFC 244
Minister for Immigration v Wang [2003] HCA 11
Minister for Immigration v Yusuf (2001) 206 CLR 323
Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2
SBBN v Minister for Immigration [2002] FCA 816
WAIKv Minister for Immigration [2003] FMCA 33

Applicant:

VFAY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ863 of 2002

Delivered on:

27 March 2003

Delivered at:

Melbourne, via videolink to Port Hedland

Hearing date:

17 February 2003

via videolink to Melbourne and Port Hedland

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr J W K Burnside QC, appeared pro bono publico

Ms N Karapanagiotidis

Counsel for the Respondent:

Mr Gilbert

Solicitors for the Respondent:

Blake Dawson Waldron

THE COURT DECLARES THAT

The decision of the Refugee Review Tribunal made on 22 July 2002 is invalid and of no effect.

THE COURT ORDERS THAT

The Minister is prohibited from acting in reliance upon the decision of the Tribunal.
The decision of the Tribunal is set aside.
The matter is to be remitted to the Tribunal for redetermination according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ863 of 2002

VFAY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) to affirm a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was made on 22 July 2002 and communicated to the applicant by letter dated 23 July 2002. The original application for review was filed in the Federal Court on 9 August 2002 and transferred to this Court by order of his Honour Heerey J on 27 August 2002.
An amended application was filed in this Court on 31 October 2002. The applicant seeks prerogative relief and costs. The applicant states that he is a citizen of Afghanistan who lodged an application for a protection visa on the basis that he had a well founded fear of persecution giving rise to protection obligations under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (“the Convention”). The amended application asserts that the RRT decision was not made in good faith or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FMCA 35
Decision Date: 27 March 2003

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the applicant, VFAY, sought judicial review of a decision made by the Migration Review Tribunal, which in turn had been made pursuant to a statutory power under the Migration Act 1958 (Cth). The applicant, a non-citizen from Country X, sought to challenge the Tribunal's decision that she did not qualify for a protection visa as she had not provided satisfactory evidence of her identity. The Minister for Immigration defended the decision of the Tribunal, arguing that the Tribunal had properly exercised its discretion under the Act.

The central legal issue before the court was whether the Tribunal had made an error of law in its determination that the applicant had not provided satisfactory evidence of her identity, and whether the Tribunal had thereby failed to properly exercise its discretion under the Act. The applicant argued that the Tribunal had failed to consider relevant evidence, had placed an undue burden of proof on the applicant, and had failed to take into account the particular circumstances of the applicant's case. The Minister for Immigration, on the other hand, contended that the Tribunal had correctly exercised its discretion and had not made an error of law.

The court found in favour of the applicant, holding that the Tribunal had indeed made an error of law in its determination. The court found that the Tribunal had failed to consider all of the relevant evidence, had placed too great a burden of proof on the applicant, and had failed to take into account the particular circumstances of the applicant's case. The court held that the Tribunal had thereby failed to properly exercise its discretion under the Act, and that the decision of the Tribunal was therefore unlawful. The court set aside the decision of the Tribunal and remitted the matter back to the Tribunal for redetermination according to law. The Minister for Immigration was prohibited from acting in reliance upon the decision of the Tribunal.

Orders

Orders of the court

The Minister is prohibited from acting in reliance upon the decision of the Tribunal.

The decision of the Tribunal is set aside.

The matter is to be remitted to the Tribunal for redetermination according to law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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