Vpam v Minister for Immigration - [2005] FMCA 927

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VPAM v MINISTER FOR IMMIGRATION

[2005] FMCA 927

MIGRATION – Review of decision of Refugee Review Tribunal – protection visa application – well-founded fear of persecution in part of country of origin – reasonableness of proposed relocation within country – findings of fact – no jurisdictional error – application dismissed – costs.

Judiciary Act1903 (Cth)
Migration Act1958 (Cth)

NASB v Minister for Immigration & Multicultural & Indigenous Affair
Mok Gek Bouy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 47 FCR 1
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant:

VPAM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 380 of 2004

Judgment of:

Hartnett FM

Hearing date:

24 June 2005

Delivered at:

Melbourne

Delivered on:

5 July 2005

REPRESENTATION

Counsel for the Applicant:

Mr J.A. Gibson

Solicitors for the Applicant:

Erskine Rodan & Associates

Counsel for the Respondent:

Ms H.M. Riley

Solicitors for the Respondent:

Clayton Utz

ORDER:

The application is dismissed.
The applicant pay the respondent's costs fixed in the sum of $6500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 380 of 2004

VPAM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant made application to the Federal Court of Australia Victoria District Registry on 26 May 2003. By order of North J. that proceeding was transferred to this court on 14 April 2004. The applicant filed an amended application on 20 October 2003 and relies on that amended application and contentions of fact and law filed 20 October 2003. In response the respondent has filed a court book and contentions of fact and law, those contentions being filed 10 November 2003. The application is made under section 39B of the Judiciary Act1903 (Cth) and section 475A of the amended Part A of the Migration Act1958 (Cth) (the Act) for writs of prohibition and certiorari and for a declaration in relation to a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant is a national of Cambodia. He was born on 22 February 1973. He arrived in Australia on 28 June 2002 on a business short-stay visa valid for a visit of two weeks. The applicant lodged an application for a protection visa on 4 July 2002 with such application being refused by the respondent's delegate on 26 July 2002.
The applicant then lodged an application for review with the tribunal on 21 August 2002. The applicant attended the Tribunal hearing. By a decision dated 7 April 2003 the Tribunal affirmed the decision not to grant a protection visa. The applicant then filed his application for review in the Federal Court.
The applicant's principal contention is that the decision of the Tribunal was affected by a jurisdictional error constituted by its failure to address claims made by the applicant in assessing…

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: [2005] FMCA 927
Decision Date: 5 July 2005

CaseChat Overview and Summary

VPAM, a national of Cambodia, applied for a protection visa in Australia, arguing he had a well-founded fear of persecution if he returned to Cambodia due to his political activities with the Sam Rainsy Party (SRP). The Refugee Review Tribunal affirmed the Minister’s decision to refuse his application. VPAM sought judicial review of the Tribunal's decision in the Federal Magistrates Court of Australia.

The court had to determine if the Tribunal's decision was affected by a jurisdictional error, specifically whether the Tribunal failed to properly assess VPAM's claims and apply the correct legal test for determining a well-founded fear of persecution. VPAM argued the Tribunal misunderstood his claim that he feared persecution as a local activist during election periods in Cambodia, focusing on past persecution rather than the prospective risk of harm.

The court found that the Tribunal correctly assessed VPAM’s claims. The Tribunal considered the violence associated with political processes in Cambodia and concluded there was no real chance of VPAM facing persecution for his political opinions. The Tribunal concluded that VPAM did not have a genuine, subjective fear of persecution, and his past lack of harassment did not indicate a well-founded fear for the future. The court agreed that the Tribunal properly applied the law and did not make a jurisdictional error. Therefore, the application for judicial review was dismissed.

The court ordered that VPAM pay the Minister’s costs of $6500.

Orders