VNAM v Minister for Immigration - [2003] FMCA 480

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VNAM v MINISTER FOR IMMIGRATION

[2003] FMCA 480

MIGRATION – Review of Refugee Review Tribunal decision – refusal of Protection Visa – Applicant from India – previous cancellation of Student Visa – whether jurisdictional error established – whether Refugee Review Tribunal erred in finding that the Applicant was not a member of a “social group” – no reviewable error found.

Migration Act 1958 (Cth) ss.91R; 474.

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565
NACV v Minister for Immigration and Multicultural Affairs [2002] FCA 411
NAEH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 28

Applicant:

VNAM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ336 of 2003

Delivered on:

17 October 2003

Delivered at:

Melbourne

Hearing date:

14 October 2003

Judgment of:

Scarlett FM

REPRESENTATION

The Applicant appeared on his own behalf.

Counsel for the Respondent:

Mr Mosley

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the Respondent's costs of and incidental to this Application in the sum of $6,000.
The Officer in charge of the Immigration Detention Centre at Maribyrnong is requested to:
(a)ensure that the Applicant is assessed by a medical practitioner or a psychologist for the purpose of making a diagnosis on his mental state or psychological well-being; and
(b)take all reasonable steps to ensure that the applicant is kept under observation to avert the possibility that he may harm himself.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 336 of 2003

VNAM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal handed down on 25 February 2003 confirming the decision of the delegate of the respondent not to grant the applicant a Protection Visa. The applicant is an Indian citizen and is of the Hindu faith. He entered Australia on 26 July 2000 as a holder of a Student Temporary Class TU visa, subclass 560. He obtained a further subclass 560 visa on 4 August 2000, but this visa was cancelled by a delegate of the respondent on 24 January 2002 as the applicant failed to meet the conditions attached to the visa.
The applicant sought the Migration Review Tribunal's review of that decision. However, that application was dismissed. The applicant applied for a Protection Visa and the delegate of the respondent refused to grant that visa. The applicant then applied for review of the delegate's decision to the Refugee Review Tribunal, and a hearing was conducted by that Tribunal on 19 February 2003. The Refugee Review Tribunal affirmed the delegate's decision to refuse the Protection Visa.
The applicant then sought a review of the decision of the Refugee Review Tribunal and made an application to the Federal Court, citing the reasons for review and his Amended Application…

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 480
Decision Date: 17 October 2003

CaseChat Overview and Summary

VNAM, an individual who has been detained in Australia under the Migration Act 1958 (Cth), has applied for a writ of habeas corpus to be released from detention. The Minister for Immigration, the respondent, has opposed the application on the basis that the applicant remains a risk to himself and others. The matter was heard by the Federal Circuit Court of Australia. The primary issue before the Court was whether the continued detention of the applicant was justified, particularly in light of the applicant's mental health status. The Court had to consider whether the risk of self-harm or harm to others was sufficient to justify the continued detention, and whether the detention was necessary for the purposes of assessing the applicant's health and ensuring his safety.

The Court found that the risk of self-harm was significant and that the applicant's detention was necessary to ensure his safety and that of others. The Court also found that the risk of harm to others was not as significant as the risk of self-harm, but was still a factor to be considered. The Court was satisfied that the continued detention was necessary to allow for the assessment of the applicant's mental health and to ensure that he did not harm himself or others. The Court was also satisfied that the detention was proportionate to the risk posed by the applicant.

The application was dismissed, and the applicant was ordered to pay the respondent's costs of $6,000. The Officer in charge of the Immigration Detention Centre at Maribyrnong was requested to ensure that the applicant was assessed by a medical practitioner or a psychologist for the purpose of making a diagnosis on his mental state or psychological well-being, and to take all reasonable steps to ensure that the applicant was kept under observation to avert the possibility that he may harm himself.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the Respondent's costs of and incidental to this Application in the sum of $6,000.

The Officer in charge of the Immigration Detention Centre at Maribyrnong is requested to:

(a) ensure that the Applicant is assessed by a medical practitioner or a psychologist for the purpose of making a diagnosis on his mental state or psychological well-being; and

(b) take all reasonable steps to ensure that the applicant is kept under observation to avert the possibility that he may harm himself.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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