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Addo v Minister for Immigration & Multicultural Affairs

Addo v Minister for Immigration & Multicultural Affairs

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Addo v. Minister for Immigration & Multicultural Affairs [1999] FCA 940

MOHAMED ABDULLAHI ADDO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1430 OF 1998

SPENDER, O'CONNOR & EMMETT JJ

SYDNEY

9 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 1430 OF 1998

BETWEEN: MOHAMED ABDULLAHI ADDO
Appellant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

#DATE 09:07:1999
JUDGES:
SPENDER, O'CONNOR & EMMETT JJ
DATE OF ORDER: 9 JULY 1999
WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 1430 OF 1998

BETWEEN: MOHAMED ABDULLAHI ADDO
Appellant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGES: SPENDER, O'CONNOR & EMMETT JJ
DATE: 9 JULY 1999
PLACE: SYDNEY

REASONS FOR JUDGMENT

1 The Appellant, who is a citizen of Somalia, arrived in Australia on 1 December 1997. On 15 December 1997, he lodged an application for a Protection Visa with the Department of Immigration and Multicultural Affairs. On 15 January 1998, a delegate of the Respondent, the Minister for Immigration and Multicultural Affairs ("the Minister'), refused to grant a Protection Visa and on 20 January 1998, the Appellant sought review of that decision by the Refugee Review Tribunal ("the Tribunal").

2 On 12 March 1998, the Tribunal affirmed the decision not to grant a Protection Visa for reasons which were published on that day. The Appellant then filed an application to the Federal Court for review of the decision of the Tribunal. On 11 December 1998, a Judge of the Court dismissed that application with costs. The Appellant has now appealed to the Full Court.

3 The argument before the Primary Judge was based on grounds set out in the amended application for review dated 20 August 1998. However, on the hearing of the appeal, the Appellant sought to rely on grounds different from those relied upon before the Primary Judge. Leave was sought to file a supplementary notice of appeal and a further amended application for review. That course was not opposed by the Minister and leave was granted as sought.

4 The only ground now relied on by the Appellant is that the Tribunal erred in that procedures that were required by section 430(1) of the Migration Act 1958 ("the Act") to be observed in connection with the decision were not observed. Section 476(1)(a) of the Act provides that the following is a ground for review by the Federal Court of a judicially reviewable decision:

"(a) that procedures that were required by this Act or the Regulations to be observed in connection with the making of a decision were not observed."

5 Section 430(1) provides as follows:

"Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out…

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: [1999] FCA 940
Decision Date: 09 JULY 1999

CaseChat Overview and Summary

In the case of Addo v Minister for Immigration & Multicultural Affairs, the Federal Court of Australia dismissed an appeal against the refusal of a protection visa for a Somali national, Mohamed Abdullahi Addo. The Minister for Immigration and Multicultural Affairs had refused to grant Addo a protection visa, which was subsequently affirmed by the Refugee Review Tribunal. Addo then sought judicial review of the Tribunal's decision, which was dismissed by the Federal Court. The primary legal issue in this case was whether the Tribunal erred in its decision by not observing the procedures required by section 430(1) of the Migration Act 1958.

The Tribunal had found that Addo was not a credible or trustworthy witness, and that his claims of persecution in Somalia were not plausible. The Tribunal also found that, even if Addo was a member of the Biyomal sub-clan, there had been a material or substantial change of circumstances in Somalia since a cease-fire in January 1998, such that a very high degree of real protection was once again viable in his place of origin.

The Full Court found that the Tribunal had not erred in its decision, as it had set out its findings on any material questions of fact and referred to the evidence or other material on which those findings of fact were based. The Court held that there was no obligation for the Tribunal to give reasons for rejecting evidence inconsistent with the findings made, and that the Tribunal had adequately discharged its duty under section 430(1) of the Act.

The appeal was dismissed with costs, and the Court suggested that Addo may be an appropriate case for the Minister to consider under section 48B of the Migration Act, which allows for the exercise of discretion in certain circumstances.

Orders