Roguinski v Minister for Immigration & Multicultural Affairs [2001] FCA 1327

Roguinski v Minister for Immigration & Multicultural Affairs [2001] FCA 1327

Although it was open to the Tribunal to reject aspects of the applicant's claims on the country information, its conclusion that anti-Semitism generally did not manifest itself as persecution of individuals and that the country information showed only individual incidents of harassment demonstrated that it treated none of the described incidents, including rapes, beatings, arson and murders motivated by anti-Semitism, as capable of amounting to persecution. That disclosed a misconception or misapplication of the concept of "being persecuted" and a failure to determine whether the applicant had a well-founded fear of persecution as required by the Act. The Tribunal therefore failed to...

Jurisdiction
Australia
Judgment Date
17 September 2001
Procedural Posture
Application Under S 476(1) of the Migration Act 1958 for Review of a Decision of the Refugee Review Tribunal Affirming Refusal of a Protection Visa / Federal Court Judgment on Judicial Review Application
Outcome
Application allowed; Tribunal decision set aside and matter remitted to a differently constituted Tribunal for determination according to law.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'well Founded Fear of Being Persecuted' 'jurisdictional Error' 'non State Actors and State Protection' 'anti Semitism in the Russian Federation']
['migration Law' 'administrative Law' 'refugee Law'] ['protection Visa' 'refugee Review Tribunal' 'well Founded Fear of Being Persecuted' 'jurisdictional Error' 'non State Actors and State Protection' 'anti Semitism in the Russian Federation']

Case Brief

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Procedural Posture

Application Under S 476(1) of the Migration Act 1958 for Review of a Decision of the Refugee Review Tribunal Affirming Refusal of a Protection Visa / Federal Court Judgment on Judicial Review Application

Legal Issues

  1. 1 ['Whether the Refugee Review Tribunal misconceived or misapplied the concept of "being persecuted" in Art 1A(2) of the Refugees Convention.' 'Whether the Tribunal failed to ask the right question or ignored relevant material concerning the chance that the applicant would be targeted by anti-Semitic groups and that State authorities would be unable or unwilling to protect him.' 'Whether any error was reviewable under s 476(1)(b), (c) or (e) of the Migration Act 1958.']

Ratio Decidendi

Although it was open to the Tribunal to reject aspects of the applicant's claims on the country information, its conclusion that anti-Semitism generally did not manifest itself as persecution of individuals and that the country information showed only individual incidents of harassment demonstrated that it treated none of the described incidents, including rapes, beatings, arson and murders motivated by anti-Semitism, as capable of amounting to persecution. That disclosed a misconception or misapplication of the concept of "being persecuted" and a failure to determine whether the applicant had a well-founded fear of persecution as required by the Act. The Tribunal therefore failed to...

Court Disposition

Application allowed; Tribunal decision set aside and matter remitted to a differently constituted Tribunal for determination according to law.

Orders

  • ['The decision of the Tribunal made on 9 December 1998, affirming the decision not to grant the applicant a protection visa, be set aside.' 'The matter to which the decision relates be remitted to the Tribunal, differently constituted, for determination in accordance with law.' 'The respondent pay the costs of and...