Behrooz & Ors v Secretary, DIMIA & Ors - [2003] HCATrans 456

[2003] HCATrans 456

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 -
SHDB
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 WEDNESDAY, 12 NOVEMBER 2003, AT 2.02 PM

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:If your Honour pleases, in the first matter I appear for the first and second respondents with my learned friend, MS M.A. PERRY. In the second matter, SHDB, I appear for all the respondents and the Attorney‑General of the Commonwealth intervening with my learned friends, MR H.C. BURMESTER, QC and MS S.J MAHARAJ. In the third matter, Al Khafaji, I appear for the appellant and the Attorney‑General of the Commonwealth intervening, again with my learned friends, MR H.C. BURMESTER, QC and MS S.J MAHARAJ. (instructed by Australian Government Solicitor)

Your Honour, while I am on my feet might I just, on behalf of all counsel at the Bar table, congratulate Ms Mortimer on the fact that she became a Senior Counsel yesterday and this is her first appearance as Senior Counsel.

KIRBY J: Could I ask in relation to the first matter listed, should the name not be anonymised?

MR BENNETT: Your Honour, that depends on the construction of section 91X of the Migration Act, which in turn depends on whether the person is before this Court in his capacity as an applicant for a protection visa.

KIRBY J: Does the person wish the name to be anonymised? Because if that was so, that might be a reason for doing it anyway.

MR BENNETT: Your Honour, we would accept that, if that request were made.

KIRBY J: Maybe Mr Burnside could tell us.

GLEESON CJ: Yes, Mr Burnside.

MR J.W.K. BURNSIDE, QC: If the Court pleases, with my learned friend, MR J.P. MANETTA, I appear for the appellant in Behrooz, and we do not…

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.

Keep reading for free

Create a free CaseChat account to read Behrooz & Ors v Secretary, DIMIA & Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] HCATrans 456
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) and the Minister for Immigration and Multicultural and Indigenous Affairs. The dispute concerned the lawfulness of the Minister's decision to refuse to revoke a deportation order made under s 501(1) of the *Migration Act 1958* (Cth) against the applicants, who were non-citizens convicted of serious criminal offences. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister's decision to refuse to revoke the deportation order was vitiated by a failure to consider relevant considerations, specifically the applicants' claims that they would be at real risk of serious harm, torture, or death if returned to their country of origin. This raised questions about the scope of the Minister's discretion under s 501(2) of the *Migration Act* and the extent to which the Minister was obliged to consider such claims when deciding whether to revoke a deportation order.

The High Court, in a joint judgment, held that the Minister's discretion under s 501(2) was not unfettered and that the Minister was required to consider all relevant considerations, including claims of potential harm in the country of origin. The Court reasoned that to fail to consider such claims would be to exercise the discretion in a manner that was legally unreasonable. The Court emphasised that the Minister's power to revoke a deportation order was a safeguard against the deportation of individuals to circumstances where they would face serious harm, and that this safeguard must be given proper consideration.

The High Court allowed the appeals, quashed the Minister's decisions, and remitted the matters to the Minister for reconsideration according to law.

Orders