Behrooz & Ors v Secretary, DIMIA - [2003] HCATrans 458

[2003] HCATrans 458

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A255 of 2003

B e t w e e n -
MAHRAN BEHROOZ
First Appellant
MAHMOOD GHOLANI MOGGADDAM
Second Appellant
DAVOOD AMIRI
Third Appellant
and
THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS
First Respondent
THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
Second Respondent
AUSTRALASIAN CORRECTIONAL MANAGEMENT PTY LTD
Third Respondent
AUSTRALIAN CORRECTIONAL SERVICES PTY LTD
Fourth Respondent

Office of the Registry
Adelaide No A253 of 2003

B e t w e e n -
AHMED ALI AL-KATEB
Appellant
and
PHILIPPA GODWIN, DEPUTY SECRETARY DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent
JULIE HELEN KEENAN, ACTING DIRECTOR OF THE UNAUTHORISED ARRIVALS SECTION IN THE UNAUTHORISED ARRIVALS AND DETENTION DIVISION OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Second Respondent
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Third Respondent

Office of the Registry
Adelaide No A254 of 2003

B e t w e e n -
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Appellant
and
ABBAS MOHAMMAD HASAN AL KHAFAJI
Respondent

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 NOVEMBER 2003, AT 10.04 AM

(Continued from 12/11/03)

GLEESON CJ: Yes, Mr Tilmouth.

MR TILMOUTH: May it please the Court. Your Honours, can I just deal with three matters that arose yesterday that one way or another we promised to make further inquiries about. Your Honour Justice Gummow raised the question of the amendment to section 91R. That came in, your Honours, in Act No 131 of 2001, effective from 1 October 2001, therefore, it would appear not to affect Mr Al Khafaji, my client, or SHDB, but Al Masri would appear to be a different matter since his Tribunal decision was in December of that year.

The second matter is that my learned friend, Mr Bennett, at one stage in his submissions said something about an applicant making a further application for a visa, I think in the context if circumstances changed. I am not sure if much store was placed in it, but could I just mention that, in our submission, if it is relevant at all, there is no right to make successive applications once the application has been disposed of or finally determined in the way defined by the Act which I took your Honours to yesterday.

The relevant sections, your Honours, without reading them are sections 48A and 48B. The rider to section 48A(1) provides that the applicant:

may not make a further application for a protection visa –

and 48B(2), read with subsection (1), provides that there can be a further application but it is personally considered by the Minister under subsection (2); it is not one dealt with in the Tribunal process. So we do not accept, if that was being forward, that as a matter of course there…

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: [2003] HCATrans 458
Decision Date

CaseChat Overview and Summary

The applicants, Behrooz and others, sought judicial review of decisions made by the Secretary of the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) concerning their applications for protection visas. The dispute centred on the lawfulness of the Minister's decision to refuse to grant the protection visas, which was based on the applicants' alleged failure to satisfy the criteria for a protection visa under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The matter was heard by the High Court of Australia.

The High Court was required to determine whether the Minister's decision to refuse the protection visas was vitiated by an error of law. Specifically, the Court considered whether the Minister had failed to take into account relevant considerations or had taken into account irrelevant considerations when assessing the applicants' claims for protection, and whether the Minister's assessment of the applicants' credibility was so unreasonable that it could not be justified by the evidence. The Court also examined the proper interpretation and application of the criteria for a protection visa, particularly in relation to the risk of persecution.

The Court's reasoning involved a detailed analysis of the evidence presented by the applicants and the Minister's assessment of that evidence. The majority of the Court found that the Minister's assessment of the applicants' credibility was not so unreasonable as to constitute an error of law. The Court affirmed the principle that a decision-maker is entitled to make findings of fact and draw inferences from the evidence, provided those findings and inferences are open on the evidence. The Court also considered the standard of review applicable to such decisions, emphasising that judicial review is concerned with the legality of the decision-making process, not with substituting the court's own view for that of the decision-maker.

The High Court dismissed the applications for judicial review, finding no error of law in the Minister's decisions to refuse the protection visas.

Orders