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MIGRATION - whether appellant's protection visa application was invalid, for non-compliance with requirement that an applicant make "specific claims under the Refugees Convention"

VKAV v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

VKAV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 87 (9 May 2003)
Last Updated: 9 May 2003


FEDERAL COURT OF AUSTRALIA
VKAV v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 87


MIGRATION - whether appellant's protection visa application was invalid, for non-compliance with requirement that an applicant make "specific claims under the Refugees Convention"

Migration Act 1958 (Cth) ss 45, 41, 47, 65

Migration Regulations r 2.07

Item 866.211 in Schedule 2

Nie v Minister for Immigration & Multicultural Affairs [2000] FCA 347 considered

Shahabuddin v Minister for Immigration & Multicultural Affairs [2001] FCA 273 considered

Bal v Minister for Immigration & Multicultural Affairs (2002) 189 ALR 566 considered

APPLICANT VKAV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No V 824 of 2002

SPENDER, TAMBERLIN, KENNY JJ

MELBOURNE

9 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 824 OF 2002



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
APPLICANT VKAV

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
SPENDER, TAMBERLIN, KENNY JJ


DATE OF ORDER:
9 MAY 2003


WHERE MADE:
MELBOURNE




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 824 OF 2002



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
APPLICANT VKAV

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
SPENDER, TAMBERLIN, KENNY JJ


DATE:
9 MAY 2003


PLACE:
MELBOURNE





REASONS FOR JUDGMENT
THE COURT:

1 On 7 May 2003, the Court dismissed an appeal from orders made by Weinberg J on 8 November 2002, dismissing with costs an application for review of a decision of the Refugee Review Tribunal given on 8 August 2001, and advised it would give its reasons later. These are those reasons.

2 The sole ground of review relied upon before Weinberg J and the sole ground of the appeal before the Court on 7 May 2003 is whether the protection visa application lodged by the appellant on 31 December 1999 was a valid application for the purposes of ss 45, 46, 47 and 65 of the Migration Act 1958 (Cth) ("the Act"), as in force at the relevant time, being a time prior to the amendments which commenced in October 2001.

3 Weinberg J held that the protection visa application was a valid application. We agree with that conclusion, for the reasons given by his Honour.

4 Regulation 2.07(3) required that:

"[A]n appellant must complete an approved form in accordance with any directions on it."
5 The questions in the application form and the answers given by the appellant were as follows:

"I am seeking protection in Australia so that I do not have to go back to:
(Give name of country or countries)

A: Sri Lanka

Why did you leave that country?

If you need more space to answer, insert extra pages as required.

A: I left as I was unwilling to continue living in the conditions to which I was subjected and over the fear of the harm that would come to me.

What do you fear may happen to you if you go back to that country?

If you need more space to answer, insert extra pages as required.

A: I fear the harm that would be done to me as a young Tamil girl and this became increasingly fearful with my having to locate to employment in a predominantly Sinhala town - Homagama.

There was no protection to a young girl like me in such situation. I have discussed my fears with the adviser. In view of the time limits of the Visa and the regulations, he has advised that the application be lodged forthwith and details of the claim be submitted later once they are completed. I will do so soon.

Who do you think may harm/mistreat you if you go back?

If you need more space to answer, insert extra pages as required.

A: The Sri Lankan forces.

Why do you think they will harm/mistreat you if you go back?

If you need more space to answer, insert extra pages as required.

A: Due to ethnicity and political attitudes.

Do you think the authorities of that country can protect you if you go back?

If not, why not?

A: I have no faith that the Sri Lankan forces or authorities would protect me."

6 Contrary to the appellant's statement on 31 December 1999 that "details of the claim" would be submitted "soon", no further details of the appellant's claim to the Department of the respondent were provided before 22 March 2000, when a delegate of the respondent made a decision to refuse the grant of a protection visa to the appellant.

7 Item 866.211 in Schedule 2 of the Act provided that a criterion to be satisfied at the time of application was:

"The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:
(a) makes specific claims under the Refugees Convention ..."

8 The case for the appellant, both before Weinberg J and on this appeal, was that her answers in her application form do not amount to substantial compliance with the requirements of the legislative scheme, to make specific claims under the Refugees Convention. The contention before Weinberg J and on the appeal was that:

"To make specific claims [under] the Convention there must be a claim which is specific as to the nature of the persecution period, the reason the applicant fears persecution may be suffered, the agents of persecution, the reasons why protection is not available in the country of nationality, and details of any past persecution or other treatment which is the basis of the claim. In the present case there is no detail about past experiences, no detail about the nature of persecution to be feared, no detail of political opinions imputed, and no detail of the agents of persecution. On a fair reading not only of the material presented to the delegate of the respondent, but also on the structure and purpose of the Act and the Regulations, it cannot be said that there were specific claims made sufficient to amount to substantial compliance with the requirements of the Act and the Regulations for a valid application." [Emphasis added]
9 Weinberg J found:

"In my opinion, the information contained in the application made it sufficiently clear to the delegate that the applicant's claim related to her status as a Tamil, and that it had to do with her political opinions, actual or imputed. That is sufficient, according to the authorities set out above, to render the application valid."
10 It is unnecessary for us to repeat the detailed analysis by the primary judge of Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486, Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495, Nie v Minister for Immigration & Multicultural Affairs [2000] FCA 347, Shahabuddin v Minister for Immigration & Multicultural Affairs [2001] FCA 273, Bal v Minister for Immigration & Multicultural Affairs [2001] FCA 1191, and on appeal Bal v Minister for Immigration & Multicultural Affairs (2002) 189 ALR 566, being "the authorities set out above" referred to in the preceding paragraph.

11 We agree with Weinberg J where his Honour said:

"It seems to me that the level of information provided by the applicant in the present case exceeded by a considerable margin that which was provided by the applicant in Nie, which was held, nonetheless, sufficient to constitute a valid application. I would regard the level of specificity of the claims made in the present case as being broadly similar to that in Shahabuddin where the application was also held to be valid. In Bal the Full Court expressly approved the reasoning in both those cases, and did not express any dissent from the result arrived at in either case."
12 We dismissed the appeal for the above reasons. The appellant must pay the respondent's costs of the appeal, to be taxed if not agreed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Tamberlin, Kenny JJ.




Associate:

Dated: 9 May 2003

Counsel for the Appellant:
Mr Anthony Krohn






Solicitor for the Appellant:
Ravi James & Associates






Counsel for the Respondent:
Mr Christopher Horan






Solicitor for the Respondent:
Clayton Utz






Date of Hearing:
7 May 2003






Date of Judgment:
9 May 2003


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