FEDERAL COURT OF AUSTRALIA
Firuzibakhsh v Minister for Immigration & Multicultural Affairs
[2002] FCA 982
MIGRATION – application for protection visa – review of decision of Refugee Review Tribunal – whether Tribunal erroneously failed to investigate the authenticity of a document – whether Tribunal erroneously failed to have regard to a letter from the applicant – whether it was incumbent on the Tribunal to respond to the letter – whether Tribunal erred in finding that the applicant did not have a well-founded fear of persecution in Iran by reason of his recent conversion to Christianity – whether the Tribunal based its decision on a fact that did not exist – whether the Tribunal’s decision was induced by actual bias.
Migration Act 1958 (Cth) ss 36, 65(1), 420(2), 427(1)(d), 475(1)(b), 476(1)(a), 476(1)(e), 476(1)(f), 476(1)(g), 476(4)(a), 476(4)(b)
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)
Migration Legislation Amendment Act (No. 1) 1998 (Cth)Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 – applied
Kabir v Minister for Immigration & Multicultural Affairs (2001) 184 ALR 295 – followed
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 – cited
Rahman v Minister for Immigration & Multicultural Affairs [1998] FCA 1096 – referred to
Sun Zhan Qui v minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 – referred to
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 – referred to
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 – referred to
Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 – referred to
Chen Shi Hui v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 – referred to
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 – referred to
Minister for Immigration & Multicultural Affairs v Indatissa [2002] FCA 181 – referred to
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 – referred toABOLFAZL FIRUZIBAKHSH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
S.64 of 2001
MANSFIELD J
9 AUGUST 2002
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S.64 OF 2001
BETWEEN:
ABOLFAZL FIRUZIBAKHSH
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
9 AUGUST 2002
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S.64 OF 2001
BETWEEN:
ABOLFAZL FIRUZIBAKHSH
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
9 AUGUST 2002
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Iran. He arrived in Australia on 26 March 2000. On 28 June 2000 he lodged an application for a protection visa under the Migration Act 1958 (Cth) (the Act). The application was refused by a delegate of the respondent on 13 November…
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- AGLC
- Firuzibakhsh v MIMA [2002] FCA 982
- Case
- [2002] FCA 982
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation and application of sections 424(1) and 427(1)(d) of the Migration Act. Specifically, the court had to determine whether the Tribunal was obligated to obtain additional information to address the applicant’s claim and whether the Tribunal had correctly applied the legal standards in assessing the applicant's fear of persecution. The court also needed to consider whether the applicant’s argument that the Tribunal had failed to properly consider his conversion to Christianity was well-founded.
The court examined the legislative provisions and previous judicial interpretations, concluding that sections 424(1) and 427(1)(d) were permissive rather than mandatory. The court held that there was no obligation on the Tribunal to obtain further information or to apply a specific test regarding the applicant's fear of persecution. The court found that the Tribunal had not erred in its assessment of the applicant's claim, and that the applicant's argument regarding the Tribunal's consideration of his conversion was not supported by the statutory language or previous decisions. Consequently, the court dismissed the application.
The court's final order was to dismiss the applicant's application, affirming the Tribunal's decision that the applicant's claim for a protection visa was not substantiated based on the well-founded fear of persecution due to his conversion to Christianity.
Orders
Orders of the court
1. The application is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: MANSFIELD J
The oral submissions by counsel on behalf of the applicant concentrated on the Tribunal’s consideration of whether the applicant has a well-founded fear of persecution by reason of his conversion to Christianity. In essence it was contended that the Tribunal failed properly to address that claim. It was submitted that the Tribunal failed to address the claim that the applicant’s conversion to Christianity has particular significance because he has converted from Islam to Christianity, and because in Iran he will be a member of a social group described as a “non-ethnic based Christian group”. The Tribunal is further submitted to have erred in the application of the law to the facts by failing to ask whether the applicant’s fear of persecution by reason of his conversion to Christianity is well-founded, but instead imposed some higher test or onus to determine whether he is a refugee for that reason.CONSIDERATION OF CONTENTIONS It appears that the applicant’s reliance on s 425(1)(b) of the Act is misconceived. After the commencement of the Migration Legislation Amendment Act (No.1) 1998 (Cth) (the amending Act) s 425(1) provided:“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”The amending Act significantly amended Part 7 Div 4 of the Act, dealing with the conduct of reviews by the Tribunal. It appears that, in substance, s 425(1)(b) as previously in force was replaced by s 424(1) of the Act. Section 424(1) provides:“In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.”Section 424A-C were enacted prescribing what the Tribunal then must do if it obtains such information to ensure procedural fairness to the applicant. Section 425 deals only with what the Tribunal must do to provide an applicant for a protection visa with a hearing. Section 427(1)(d) empowers the Tribunal, for the purpose of a review, to require the Secretary to arrange for the making of any investigation that the Tribunal thinks necessary with respect to the review. Section 427(1)(d) is permissive in its terms. It has been decided that s 427(1)(d) does not impose an obligation on the Tribunal to make inquiries of the nature suggested by the applicant, so as possibly to enliven s 476(1)(a) of the Act. The relevant authorities are reviewed by Katz J in Kabir v Minister for Immigration & Multicultural Affairs (2001) 184 ALR 295 at 306-307; [2002] FCA 248 at [51]-[56]. I will not repeat them. I adopt with respect his Honour’s analysis. It was not contended that those decisions are plainly wrong. I accordingly follow them. The applicant’s contentions do not seek to distinguish between the terms of s 427(1)(d) and s 424(1). They are both expressed in permissive terms. It was not contended that the terms of s 424(1) were such as to impose an obligation on the Tribunal in certain circumstances, even though s 427(1)(d) did not do so.