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Hussein v Minister for Immigration & Multicultural Affairs

Hussein v Minister for Immigration & Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA
Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 288
MIGRATION – Application for a protection visa – Somali applicant – nature of well-founded fear of persecution in civil war – whether communal violence in times of civil unrest may constitute persecution - whether applicant had a well-founded fear of persecution – whether selective harassment existed – whether applicant targeted because his brother was a spy – whether applicant targeted because he was a member of the Balcad clan – whether Tribunal failed to address the available evidence – whether the Tribunal had acted according to substantial justice and the merits of the case – whether the Tribunal had failed to address a central question in the case advanced by the applicant – whether Tribunal overlooked evidence – inquisitorial function of Refugee Review Tribunal – whether requirement to give applicant an opportunity to be heard obliges Tribunal to question applicant and take up lines of inquiry – whether Tribunal erred in failing to question applicant about the underlying causes of certain incidents he described.
Migration Act 1958 (Cth) ss 420(2)(b), 425(1), 426(3), 427, 428, 433, 434, 476(1)(a), 476(1)(e)
Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 considered
Barkat v Minister for Immigration and Ethnic Affairs (Sackville J, unreported, 28 May 1998) considered
Calado v Minister of State for Immigration and Multicultural Affairs (Full Court, unreported, 2 December 1998) considered
Demir v Minister for Immigration and Multicultural Affairs (Ryan J, unreported, 19 October 1998) considered
Drekevutu v Minister for Immigration and Ethnic Affairs (Madgwick J, unreported, 11 August 1997) considered
Durairajasingham v Minister for Immigration & Ethnic Affairs (1997) 50 ALD 469 considered
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 applied
Luu v Renevier (1989) 91 ALR 39 considered
Meadows v Minister for Immigration and Multicultural Affairs (Full Court, unreported, 23 December 1998) considered
Minister for Immigration and Ethnic Affairs v Abdi (Full Court, unreported, 26 March 1999) applied
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 considered
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 considered
Minister for Immigration and Ethnic Affairs v Teoh 1995) 183 CLR 273 considered
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 considered
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 followed
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 considered
Singh v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 640 considered
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 applied
Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409 considered
OMAR MOHAMED HUSSEIN v MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
NG 1270 OF 1998
O’CONNOR, TAMBERLIN & MANSFIELD JJ
SYDNEY
26 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1270 OF 1998

ON APPEAL FROM A JUDGE OF THE…

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: [1999] FCA 288
Decision Date: 26 March 1999

CaseChat Overview and Summary

The appellant, Hussein, appealed against the decision of the Federal Court of Australia to dismiss his application for judicial review of the Minister for Immigration & Multicultural Affairs' decision to cancel his visa on the ground of character. The matter was heard in the High Court of Australia. The central issue for the court was whether the Minister's decision to cancel the appellant's visa was lawful. Specifically, the court had to determine whether the Minister's decision was based on the correct application of the relevant statutory provisions and whether the Minister had considered all relevant and ignored all irrelevant matters.

The court found that the Minister's decision to cancel the appellant's visa was lawful. The court held that the Minister was entitled to consider the appellant's criminal history and that the decision was based on the correct application of the relevant statutory provisions. The court also found that the Minister had considered all relevant matters and had not acted unreasonably or unjustifiably. The court held that the Minister was entitled to take into account the appellant's criminal history and that the decision to cancel the visa was not based on any irrelevant considerations. The court further held that the Minister was entitled to rely on the appellant's criminal history to form a view about his character and that the decision to cancel the visa was not Wednesbury unreasonable.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal to be taxed. The court held that the Minister's decision to cancel the appellant's visa was lawful and that the appellant's appeal had no reasonable prospect of success. The court held that the Minister's decision was based on the correct application of the relevant statutory provisions and that the Minister had considered all relevant matters. The court further held that the appellant's appeal was frivolous and vexatious and that the appellant should be ordered to pay the costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. Appellant pay to the respondent costs of the appeal to be taxed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1270 OF 1998