Al-Asam v Minister for Immigration and Multicultural Affairs

[2001] FCA 232

FEDERAL COURT OF AUSTRALIA

Al-Asam v Minister for Immigration & Multicultural Affairs [2001] FCA 232

Migration Act 1958 (Cth) ss 476, 481

Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023, referred to

McDade v Minister for Immigration & Multicultural Affairs [2000] FCA 809, referred to

ABDUL RUDDA ALI SALMAN AL-ASAM v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 9 of 2000

R D NICHOLSON J
12 MARCH 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 9 of 2000

BETWEEN:	ABDUL RUDDA ALI SALMAN AL-ASAM APPLICANT
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	12 MARCH 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 9 of 2000

BETWEEN:	ABDUL RUDDA ALI SALMAN AL-ASAM APPLICANT
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	R D NICHOLSON J
DATE:	12 MARCH 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 23 February 2001 reasons for judgment were delivered in relation to this matter. The conclusion in the reasons was that aside from one important matter, the applicant had made out a case for reconsideration of his application under s 476 of the Migration Act 1958 (Cth) (“the Act”) to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 January 2000. The important matter was that the Tribunal’s ultimate conclusion that the applicant could relocate to northern Iraq was one which was open to it. Accordingly it was concluded that the application for review should be dismissed.

2. In the light of that conclusion draft orders were placed before the hearing to the effect that the application be dismissed.  In the event orders were made reserving the former orders for further submission. 

3. For the successful respondent it is submitted that orders should be made in terms of the draft orders proposed.  For the applicant orders are sought in the following form:

   1.The Tribunal’s decision is set aside.

   2.The matter be remitted to the Tribunal for a determination, without further hearing, that the Applicant does not qualify as a refugee on the grounds that he can safely relocate to Northern Iraq as previously determined by the Tribunal.

   3.There be no order as to costs.

4. For the applicant it is said that unless the Tribunal’s decision is set aside it will remain open to the respondent to be able to return the applicant to central Iraq, a course which the conclusion reached by the Court should preclude.  Further, it is said that not only could this course be open to the respondent but that unless the decision is set aside a lawful duty may arise in the respondent to return the applicant to Iraq other than to northern Iraq.  This obligation is said to be possible to arise if central Iraq is the only country which will take the applicant:  Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 at 60.

5. An alternative submission is made for the applicant that if the Court will not set aside the Tribunal decision that it should set aside that portion of the decision which it has found to have been in error. 

6. For the respondent attention is directed to the powers of the Federal Court on an application review as set out in s 481 of the Act which reads:

   “(1)On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders:

   (a)an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies;

   (b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;

   (c)an order declaring the rights of the parties in respect of any matter to which the decision relates;

   (d)an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties.”

   Here it is said that because the Tribunal has rejected every single ground of review it is not open to the Court to set aside the decision of the Tribunal. 

7. The alternative submission for the applicant cannot succeed. The decision of the Tribunal read “The Tribunal affirms the decision not to grant a protection visa”. There is therefore no “part” of the decision which could be set aside in exercise of the power to that effect contained in s 481(1)(a).

8. As to the primary submission for the applicant I consider that the respondent is correct in the submission that, all grounds of review having failed, the respondent is entitled to an order dismissing the application.  Counsel for the applicant has been unable to support his submission by reference to any authority that may have assisted the adoption of the course of action which he has proposed.  I do not find anything which can assist the applicant in Rajamanikkam or in McDade v Minister for Immigration & Multicultural Affairs [2000] FCA 809 to which I was referred.

9. For these reasons I consider that the orders should be made in the form of the draft orders.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.

Associate:

Dated:             12 March 2001

Counsel for the Applicant:	Mr H Christie
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 February 2001
Date of Judgment:	12 March 2001