Tontegode v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT THE COURT 1 This is an appeal from a judgment of a single Judge of the Court, dismissing an application for an order for review of a decision of the Refugee Review Tribunal ("RRT"), made on 23 January 2001. The RRT had affirmed a decision of a delegate of the respondent ("the Minister") to refuse to grant the appellants a protection visa. The appellants were unrepresented in this Court, as they were in the proceedings determined by the primary Judge. The appellants were, however, represented by a migration agent before the RRT. 2 The appellants are husband and wife. The male appellant arrived in Australia in February 1999 on a temporary business visa. His wife had arrived two weeks earlier on a student visa. Since only the male appellant made claims under the Convention relating to the Status of Refugees ("the Convention") we shall refer to him as simply the appellant. On the hearing of the appeal, the female appellant made oral submissions on behalf of the appellant. 3 Section 36(2) of the Migration Act 1958 (Cth) ("Migration Act") provides as follows: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." Article 1A(2) of the Convention defines a 'refugee' as a person who: "Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." (Emphasis added.) 4 The appellant lived in Latvia from 1984 or 1985 (when it was still part of the former Soviet Union), until he came to Australia in 1999. He travelled to Australia on an alien's passport, issued by the Republic of Latvia. The RRT accepted the appellant's claim that he was a stateless person, but found that his "country of former habitual residence" for the purposes of the Convention was Latvia. 5 The RRT found, on the information available to it, that the appellant would be able to return to Latvia on his passport. The RRT observed that, even if this finding were not correct, it would still be necessary for it to consider whether the appellant had a well-founded fear of persecution for one of the Convention reasons. In this the RRT was correct: see Minister for Immigration and Multicultural Affairs v Savvin (2000) 98 FCR 168. 6 The appellant applied for a protection visa on 21 May 1999, some three months after he arrived in Australia. The delegate's decision refusing to grant the visa was made on 2 July 1999. As we have noted, the RRT's decision was made on 23 January 2001. 7 In substance, the appellant claimed to fear persecution in Latvia by reason of his Jewish background, his Russian origins and his political views. In particular, he made the following claims: