Abebe, Ex parte- Re Min for Immig & Multicultural Affairs - [1998] HCATrans 398

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S139 of 1997

In the matter of -
An application for Writs of Prohibition, Certiorari, Mandamus and Habeas Corpus and Injunctions against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
First Respondent
LUKE HARDY (Constituting the REFUGEE REVIEW TRIBUNAL)
Second Respondent

Ex parte -
SENIET ABEBE
Prosecutrix

Office of the Registry
Sydney No S53 of 1998

B e t w e e n -
SENIET ABEBE
Plaintiff
and
THE COMMONWEALTH OF AUSTRALIA

Defendant

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 NOVEMBER 1998, AT 10.21 AM

(Continued from 11/11/98)

___________________

GLEESON CJ: Yes, Mr Jackson.

MR JACKSON: Thank you, your Honour. There are five matters I wish to deal with, each of them briefly, in concluding our submissions.

The first concerns a matter raised by your Honour Justice Callinan yesterday, and I was to give your Honour a reference to the Tribunal’s view about the depth of participation in AAPO required before a person might be exposed to risk. The passages to which I wish to refer are at page 41. At page 41 your Honours will see, first of all, that in the passage about line 15 it said:

The Applicant claimed that the branch had about 200 members.

Named the leader of it:

and clearly indicated that neither she nor her husband had any titles or posts in the branch or the greater party other than the status of member.

That is really by way of introduction. One goes then further down the page to about line 41, and what your Honours will see is a discussion about the participation of her husband in relation to demonstrations, with particular emphasis upon the organisation of demonstrations, about line 49. That passage goes through to page 42 about line 16.

What appears from that, in our submission, is that the member of the Tribunal appears to be taking the view that it was difficult to see how the husband could have been in the position to organise the large demonstrations of the kind that had attracted some imprisonment of persons involved in them.

The points we would seek to make about it are really twofold. The first is that the member of the Tribunal does not appear to have taken into account the fact that the evidence supported her case by showing that there might be persecution of relatively low‑level members of AAPO – the references are set out in paragraph 18 of our written submissions.

GLEESON CJ: By the evidence, do you mean her evidence?

MR JACKSON: No, your Honour; I am referring to the material that was received from, for example, the Department of Foreign Affairs, and so on. The references we have set out in paragraph 18 of our written submissions in the last sentence.

GUMMOW J: Paragraph 18…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] HCATrans 398
Decision Date

CaseChat Overview and Summary

This matter concerned an application for leave to appeal to the High Court of Australia from a decision of the Full Federal Court. The applicant, Mr Abebe, sought to challenge the Minister for Immigration and Multicultural Affairs' refusal to grant him a protection visa. The core of the dispute revolved around the Minister's assessment of Mr Abebe's claims for protection, particularly in light of his alleged persecution in his country of origin.

The High Court was required to determine whether the Full Federal Court had erred in law in upholding the Minister's decision. Specifically, the Court considered whether the Minister had properly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in assessing Mr Abebe's claims. A key legal issue was whether the Minister's assessment of the applicant's credibility and the objective country information was reasonable and consistent with the statutory framework.

The High Court, in dismissing the application for leave to appeal, found no arguable error of law in the Full Federal Court's decision. The majority of the Court held that the Minister's assessment, including the evaluation of the applicant's evidence and the consideration of country information, was within the bounds of reasonableness and did not disclose any legal error. The principles applied centred on the proper interpretation and application of the statutory criteria for the grant of a protection visa, and the limited scope for judicial review of administrative decisions where no error of law is demonstrated.

Orders