VWSR v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VWSR v MINISTER FOR IMMIGRATION [2005] FMCA 977

MIGRATION – Review of Refugee Review Tribunal decision.

Migration Act 1958 (Cth)

NABD of 2002 v Minister for Immigration [2005] HCA 29
NADN v Minister for Immigration [2004] FCA 15
NAEB v The Minister for Immigration [2004] FCAFC 79,
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113
S395/2002 v The Ministerfor Immigration  [2003] HCA 71
SZACV v The Minister for Immigration [2004] FCA 469
U v Minister for Immigration and Multicultural Affairs [2001] FCA 364.
VWBA v Minister for Immigration [2005] FCA 71

Applicant: VWSR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 1579 of 2004

Judgment of: Riethmuller FM

Hearing date: 6 June 2005

Date of Last Submission: 6 June 2005

Delivered at: Melbourne

Delivered on: 15 July 2005

REPRESENTATION

Counsel for the Applicant: Mr Pizer

Solicitors for the Applicant: Allens Arthur Robinson

Counsel for the Respondent: Mr Horan

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Court declares that the decision of the Refugee Review Tribunal made on 30 September 2004 is invalid and of no effect.

2. A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal.

3. A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.

4. The respondent do pay the applicant’s costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG1579 of 2004

VWSR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of Burma.  He arrived in Australia on 19 November 2002.  On 10 Decision 2002 he lodged an application for a protection visa.  On 17 November 2003 a delegate of the Minister refused to grant a protection visa.  On 26 November 2003 the applicant applied to the Refugee Review Tribunal (the ‘Tribunal’) for a review of that decision.  The Tribunal refused the review application on 30 September 2004.

2. In the decision of the Tribunal it set out the relevant law at pages 1 to 4. 

3. The Tribunal member then sets out in some detail the activities of the applicant in Burma and Thailand, and then his political activities in Australia.  The applicant summarises the findings of the Tribunal with respect to factual matters as follows:

   (a)the Applicant was outside his country of nationality (namely, Burma);

   (b)the Applicant had a subjective concern of returning to Burma;

   (c)the sort of treatment the Applicant described and claimed to fear if he returned to Burma  would amount to persecution;

   (d)the Applicant’s fear of persecution is grounded in at least one of the reasons set out in the Refugees Convention;

   (e)when he was in Burma, the Applicant was involved in some underground activities supportive of the ABSDF between 1990 and 1996;

   (f)the Applicant’s support for the ABSDF in Burma was “low key” and that the Applicant did…