Minister for Immigration and Multicultural Affairs v Respondents S152/2003

Immigration – Refugees - Applications for protection visas by de facto husband and wife nationals of Ukraine - Well-founded fear of persecution - Husband claimed to suffer religious persecution as Jehovah's Witness - Refugee Review Tribunal found that incidents of which husband complained were individual and random incidents and did not amount to persecution, and that the chance that he would suffer persecution in future was remote - Tribunal rejected claim that state encouraged or condoned persecution of Jehovah's Witnesses - Whether Full Court of Federal Court erred in concluding that Tribunal committed jurisdictional error in failing to consider a different claim of whether the husband might suffer future harm from private individuals because of religious belief and whether the government of Ukraine was able in a practical sense to stop such harm occurring - Absence of evidence before Tribunal to support a conclusion that Ukraine did not provide level of protection required.

Immigration – Refugees - Applications for protection visas - Relevance of attitude or capacity of state to whether fear of harm well-founded, to whether there is persecution, to whether a person is outside country of nationality owing to well-founded fear of persecution and to unwillingness of person to seek protection of state - Protection theory and accountability theory - Non-state actor - Harm by non-state actors - Persecution by non-state actors - State complicity in persecution - Persecution tolerated or condoned by state - Failure of state protection - Unwilling or unable to provide protection.

International law – Treaty - Interpretation - Refugees Convention - "Persecution" - Different theories of persecution - Meaning of treaty provisions - Proper approach to meaning - Primacy of text - Approaches of courts in countries of refuge - Protection theory and accountability theory - Whether a third theory applicable.

Words and phrases – "well-founded fear", "persecution", "protection".

Migration Act 1958 (Cth) – s 36(2).

Convention relating to the Status of Refugees – Art 1A(2).