Applicant C v Minister for Immigration and Multicultural Affairs

Case [2001] FCA 229

FEDERAL COURT OF AUSTRALIA

Applicant C v Minister for Immigration & Multicultural Affairs [2001] FCA 229

IMMIGRATION – refugees – application for protection visa – applicant Iraqi national – relative of applicant secured sponsorship for applicant from dissident Iraqi group in Syria upon payment of US$300 – applicant permitted to enter Syria for 3 months on the basis of such sponsorship – applicant left Syria after 2½ months and entered Australia via Indonesia – Tribunal found that applicant had right to re-enter Syria – whether the expression “right” in s 36(3) of the Migration Act means an enforceable right – whether Tribunal was required by law to affirm a delegate’s decision only if a particular matter was established – whether there was no evidence or other material from which the Tribunal could reasonably be satisfied that the applicant had the right to re-enter Syria – decision based on existence of a non-existent fact – no evidence or other material to justify the making of the decision – decision set aside and remitted to Tribunal.

Migration Act 1958 (Cth), ss 36(3), 476(1)(g), 476(4)(a) and (b)

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 referred to
Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526 referred to
Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 referred to
Al-Rahal v Minister for Immigration and Multicultural Affairs [2000] FCA 1005 referred to
Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554 followed
Doan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Olney J, Federal Court Judgment No 222/97, 9 April 1997) distinguished
Ratnayake v Minister for Immigration and Ethnic Affairs (1997) 74 FCR 542 distinguished
Magyari v Minister for Immigration and Multicultural Affairs partly reported in (1997) 50 ALD 341 (O’Loughlin J, Federal Court Judgment No 417/97, 22 May 1997) distinguished
Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 distinguished
Lia v Minister for Immigration and Multicultural Affairs [2001] FCA 65 distinguished

APPLICANT C v MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS

N 1033 of 2000

CARR J
12 MARCH 2001 
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

N 1033 OF 2000

BETWEEN:

APPLICANT C
Applicant

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent

JUDGE:

CARR J

DATE OF ORDER:

12 MARCH 2001

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The name of the applicant in this matter be kept confidential and not be disclosed other than to the parties, their legal advisers, or officers of the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal.

2.This application proceed under the name Applicant C v Minister for Immigration and Multicultural Affairs and all references to the applicant’s name on the Court file and other records are to be suitably masked in a manner to be selected by and at the discretion of the District Registrar.

3.No person, other than a party to these proceedings or their legal advisers, officers of the…

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AGLC
Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229
Case
[2001] FCA 229
Decision Date

CaseChat Overview and Summary

The matter before the court is an application for judicial review of a decision made by the Refugee Review Tribunal on 28 August 2000. The Tribunal affirmed a decision of the respondent’s delegate, made on 19 July 2000, not to grant the applicant a protection visa. The applicant, a citizen of Iraq, arrived in Australia without a visa in December 1999 and applied for a protection visa in May 2000. Following the Tribunal’s decision to uphold the refusal, the applicant sought judicial review of that decision. The applicant argued that the Tribunal’s decision was flawed because it was not supported by evidence or material, contrary to the requirements of s 476(1)(g) of the relevant legislation.

The primary legal issue before the court was whether the Tribunal’s decision to affirm the delegate’s refusal to grant the applicant a protection visa was lawful and supported by evidence. The applicant contended that the Tribunal failed to consider all relevant evidence, particularly concerning the risk of persecution if the applicant were returned to Iraq. The Tribunal had found that there was a real chance of the applicant being subjected to persecution, including arrest, interrogation, and torture, but nevertheless upheld the delegate’s decision. The court had to determine if the Tribunal’s decision was based on an error of law or if it was unsupported by evidence.

The court found that the applicant’s ground of review was valid, as the Tribunal’s decision was not supported by evidence or material. The Tribunal had acknowledged that there was a real chance of the applicant being subjected to persecution, including arrest, interrogation, and torture, but nevertheless upheld the delegate’s decision. This finding indicated a failure to properly consider the evidence regarding the risk of serious harm. The court concluded that the Tribunal’s decision was not in accordance with the law, as it was not based on evidence or material that justified the decision to affirm the refusal of a protection visa.

The court allowed the application for judicial review, set aside the decision of the Tribunal, and remitted the matter to a differently-constituted Tribunal for reconsideration according to law. The court also made orders to protect the applicant’s identity and to restrict access to the documents in the proceedings to ensure confidentiality. The respondent was ordered to pay the applicant’s costs of the application.

Orders

Orders of the court

1. The name of the applicant in this matter be kept confidential and not be disclosed other than to the parties, their legal advisers, or officers of the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal.

2. This application proceed under the name Applicant C v Minister for Immigration and Multicultural Affairs and all references to the applicant’s name on the Court file and other records are to be suitably masked in a manner to be selected by and at the discretion of the District Registrar.

3. No person, other than a party to these proceedings or their legal advisers, officers of the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal, be given access to any document filed in these proceedings without leave from a judge.

Note:

1. The Refugee Review Tribunal’s decision of 28 August 2000, affirming the decision not to grant the applicant a protection visa, is set aside.

2. The matter is remitted to the Refugee Review Tribunal, differently constituted, for re-consideration according to law.

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

Note:

Background

Background to the litigation

This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 28 August 2000, to affirm the decision of a delegate of the respondent, on 19 July 2000, not to grant a protection visa to the applicant. FACTUAL AND PROCEDURAL BACKGROUND The applicant is a citizen of Iraq. He arrived in Australia by boat from Indonesia on 20 December 1999, without a visa. On 7 May 2000 the applicant applied for a protection visa. On 19 July 2000 a delegate of the respondent refused to grant that visa. On 24 July 2000 the applicant applied to the Tribunal for review. Following the Tribunal’s decision to affirm the decision of the respondent’s delegate, the applicant, on 25 September 2000, applied to this Court for a review of the decision. The Tribunal found that there would be a real chance of the applicant being subjected to persecution if returned to Iraq. The evidence was that the applicant’s father had been executed in 1980 by Iraqi security forces, an event which had a continuing negative impact on the applicant’s employment opportunities. Following the assassination of Imam Al-Sadr on 19 February 1999, Iraqi security forces searched for and detained a large number of students, including friends of the applicant, at the Faculty of Z at Z. The applicant and his friends regularly attended Friday prayers, which made them a special target of the authorities. In April 1999 security forces broke into the applicant’s familial home (where he lived with his mother and brother) at a time when the applicant was not at home. The security forces searched the house and found religious books, one of which was written by the Imam Al-Sadr. The security forces asked questions about the books and arrested the applicant’s brother. His brother is still detained by the security forces, his family has not had any contact with him, and does not know where he is. The Tribunal stated that it was satisfied that the applicant was and continues to be perceived by the Iraqi authorities as politically suspect. It said that it was satisfied that the treatment which the applicant would face upon return to Iraq would include arrest, interrogation and torture. It would have been open to the Tribunal (on the basis of the evidence before it) to have included execution in that list. The risk of serious harm should the applicant, by some mischance, be returned to Iraq is obviously very high. It was for that reason that, after reserving judgment and without any motion, I decided that, subject to any valid objection from the parties, I would at the time of delivering judgment make fairly stringent confidentiality orders and I arranged these reasons in a manner designed to reduce the likelihood of the applicant being identified. The applicant’s unchallenged and accepted evidence was that he went into hiding in a relative’s house during April and May 1999 and then moved to another relative’s house elsewhere in Iraq where he learned that the Iraqi security forces were continuing to search for him. A cousin of his in X arranged an invitation from the Iraqi Affairs Office in Damascus for the applicant to visit Syria. The Iraqi Affairs Office is run by groups in opposition to the Iraqi Government. The applicant’s relatives arranged a driver to take the applicant from Iraq to Syria. He arrived in that country on 17 September 1999. The applicant’s evidence was that he was entitled to stay in Syria, pursuant to that invitation, for only three months and was not entitled to return. He left Syria about 2½ months later.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CARR J
In my view, the applicant has made out his ground of review. In terms of s 476(1)(g) there was simply no evidence or other material to justify the making of the Tribunal’s decision.CONCLUSION For the above reasons, the application will be allowed, the decision of the Tribunal will be set aside and the matter will be remitted to a differently-constituted Tribunal for reconsideration according to law.

Ratio Decidendi

Legal Principle Established

Established by: CARR J

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