VWOV v Minister for Immigration - [2005] FMCA 751

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VWOV & ANOR v MINISTER FOR IMMIGRATION

[2005] FMCA 751

MIGRATION – Dual nationality – effective and formal nationality – effective protection – obligation of Tribunal to enquire re: effective nationality.

Migration Act 1958, ss.36 & 474

Koe v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 508
Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332
Applicants in V722 of 2000 v Minister for Immigration and Multicultural Affairs [2002] FCA 1059
Abebe v The Commonwealth (1999) 197 CLR 510

Applicants:

VWOV & VWOX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 1188 of 2004

Judgment of:

O’Dwyer FM

Hearing date:

19 May 2005

Delivered at:

Melbourne

Delivered on:

13 October 2005

REPRESENTATION

Counsel for the Applicants:

Mr. Gibson

Solicitors for the Applicants:

Phillip Zalman Shulman

Counsel for the Respondent:

Ms. Macdonnell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application for Review filed on 21 July 2004, and amended in the Amended Application filed on 12 April 2005, is dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1188 of 2004

VWOV & VWOX

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

From the applicants’ perspective, central to this application to review are the issues of dual nationality and the distinction to be drawn between effective and formal nationality. An ancillary issue is whether the Refugee Review Tribunal (the Tribunal), once alerted to the issue of effective and formal nationality, is obligated to make its own enquires to ensure it takes into consideration relevant information in order to properly determine whether applicants for a protection visa can avail themselves of protection in the other country of nationality.
The applicants contend that the Tribunal failed, in light of the factual matters put to it, and matters which it should have taken into account which were readily available to it, to consider and determine whether there was effective nationality of the other country which would ensure the applicants protection from persecution. As a consequence of that failure, the applicants contend, the Tribunal failed to exercise jurisdiction and its decision is thereby infected by jurisdictional error. In developing their contention, the applicants relied on the Full Court’s decision in Koe v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 508.
From the Respondent’s perspective, s.36(3) of the Migration Act 1958 (the Act), which was added to the Act after the decision in Koe’s case, in the context of the Tribunal’s findings, is a complete answer to the application for review.

Background

The applicants are nationals of, and were residents in, Moldova. In the applicants’ own material filed in support of their protection visas, and in evidence before the Tribunal, the applicants claimed nationality of both Moldova and Romania. Evidence before the Tribunal also indicated that they had travelled to, and stayed in Romania for short…

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 751
Decision Date: 13 October 2005

CaseChat Overview and Summary

The matter before the court involved an applicant, VWOV, who sought a review of a decision made by the Minister for Immigration. The applicant's case was that they were eligible for a protection visa, which the Minister had refused. The case was heard in the Federal Court of Australia, which has jurisdiction to review decisions made by the Minister under the Migration Act 1958.

The legal issues before the court were whether the Minister's decision was lawful and whether there were any errors in the way the decision was made. The applicant argued that the Minister had failed to properly consider their application and had made errors in law. The Minister argued that the decision was lawful and based on a correct interpretation of the relevant legislation.

The court found that the Minister's decision was lawful and that there were no errors in the way the decision was made. The court held that the Minister had properly considered the applicant's claims and had made a decision based on the evidence before them. The court also held that the applicant had not satisfied the criteria for a protection visa and that the Minister's decision was therefore correct. As a result, the court dismissed the applicant's application for review and ordered that the applicant pay the Minister's costs in the sum of $6,500.00.

Orders

Orders of the court

The Application for Review filed on 21 July 2004, and amended in the Amended Application filed on 12 April 2005, is dismissed.

The Applicant pay the Respondent’s costs fixed in the sum of $6,500.00.

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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