VWTP v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VWTP v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 57

MIGRATION – Protection Visa – Review of decision of Refugee Review Tribunal – whether jurisdictional error – credibility finding.

Machmud v Minister for Immigration & Multicultural Affairs(2001) 66 ALD 98
Re Minister for Immigration and Multicultural Affairs: ex Parte Durairajasingham (2000) 168 ALR 407

Applicant: VWTP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 209 of 2005

Judgment of: McInnis FM

Hearing date: 8 December 2005

Delivered at: Melbourne

Delivered on: 31 January 2006

REPRESENTATION

Counsel for the Applicant: Mr. R. Sorensen

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the Respondents: Mr. S. Hay

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The Amended Application filed 16 March 2005 be dismissed.

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 209 of 2005

VWTP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant relies upon an amended application filed 16 March 2005 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 October 2004.  The Tribunal affirmed the decision of a delegate of the First Respondent to refuse the Applicant the grant of a protection visa. 

2. The Applicant is a citizen of Sri Lanka who had arrived in Australia on 22 September 2003.  It should be noted that the Tribunal had before it for consideration the applications of the Applicant, his wife and two children.  It appears that in the proceedings before this Court there is only one Applicant named, though nothing would appear to turn on that fact for the purpose of this application. 

3. On 17 October 2003 the Applicant applied for the protection visa.  In that application, it was claimed that the Applicant would face persecution at the hands of his former commanding officer in the Sri Lankan army if he were to return to Sri Lanka, because the Applicant was the main witness to an incident where 30 to 40 Liberation Tigers of Tamil Eelam (LTTE) prisoners were killed, and at the subsequent inquiry the Applicant refused to give the evidence his commanding officer ordered him to give. 

4. The application as amended seeking judicial review essentially raises three errors which the Applicant claims entitle him to relief.  The errors in summary form may properly be referred to as follows:-

   a)The Tribunal erred in law by requiring the Applicant to corroborate his claims.

   b)Failure to consider relevant considerations.

   c)Failure to properly assess the availability of state protection.

The Tribunal's Decision

1. It is noted that the Tribunal rejected a number of the Applicant's claims.  It did accept however, that the Applicant was a former Sri Lankan army officer who had ceased in that capacity in about 1995 as a result of a court martial at which he pleaded guilty…