Rajendran, Karthigesu v The Minister for Immigration & Multicultural Affairs [1998] FCA 1085

Rajendran, Karthigesu v The Minister for Immigration & Multicultural Affairs [1998] FCA 1085

The Full Court held that the reasoning in Thiyagarajah was not restricted to cases where a third country had recognised the applicant as a refugee. It extended at least to cases where the applicant was entitled to permanent residence, could in time become a citizen, and had effective protection in the third country to which return was proposed. On the Tribunal's findings, New Zealand afforded the applicant a right to re-enter and reside permanently and there was no real risk or real chance that New Zealand would return him to Sri Lanka. Accordingly, Australia would not breach Article 33 by returning him to New Zealand without first determining his refugee status, and the appeal had to be...

Jurisdiction
Australia
Judgment Date
04 September 1998
Procedural Posture
Migration Appeal Concerning Refusal of a Protection Visa / Appeal to the Full Court of the Federal Court of Australia From Dismissal of Judicial Review Proceedings
Outcome
Appeal dismissed.
Legal Topics
['protection Visa' 'refugee Convention Obligations' 'non Refoulement Under Article 33' 'return to Third Country' 'permanent Residence in New Zealand' 'article 1 E Exclusion']
['migration Law' 'refugee Law'] ['protection Visa' 'refugee Convention Obligations' 'non Refoulement Under Article 33' 'return to Third Country' 'permanent Residence in New Zealand' 'article 1 E Exclusion']

Case Brief

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Procedural Posture

Migration Appeal Concerning Refusal of a Protection Visa / Appeal to the Full Court of the Federal Court of Australia From Dismissal of Judicial Review Proceedings

Legal Issues

  1. 1 ['Whether Australia could return the applicant to New Zealand, where he retained permanent residence and a right of re-entry, without first assessing his refugee status.' 'Whether return to New Zealand would breach Article 33 of the Convention Relating to the Status of Refugees 1951.' 'Whether the reasoning in Minister for Immigration and Multicultural Affairs v Thiyagarajah applied where the third country rights arose from permanent residence rather than recognition as a refugee.' 'Whether the applicant faced a real chance of being returned from New Zealand to Sri Lanka.' "Whether Article 32 prevented expulsion while the applicant held a visitor's visa or bridging visa."]

Ratio Decidendi

The Full Court held that the reasoning in Thiyagarajah was not restricted to cases where a third country had recognised the applicant as a refugee. It extended at least to cases where the applicant was entitled to permanent residence, could in time become a citizen, and had effective protection in the third country to which return was proposed. On the Tribunal's findings, New Zealand afforded the applicant a right to re-enter and reside permanently and there was no real risk or real chance that New Zealand would return him to Sri Lanka. Accordingly, Australia would not breach Article 33 by returning him to New Zealand without first determining his refugee status, and the appeal had to be...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.']