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Lama v MIMA

Lama v MIMA

Case [1999] FCA 918 8 July 1999

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FEDERAL COURT OF AUSTRALIA
Lama v Minister for Immigration & Multicultural Affairs [1999] FCA 918
MIGRATION – application for review of decision of Refugee Review Tribunal (“the RRT”) – whether application for review can be brought otherwise than under Part 8 of the Migration Act 1958 (Cth) – whether fear of persecution is by reason of an aspect of who the applicant is or what the applicant does – whether enforcement of laws of general application that are based on religious beliefs is Convention persecution – where criminal liability for bovicide arising from laws of general application.
WORDS and PHRASES – “persecution”, “religion”, “political opinion”, “laws of general application”
1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Article 1A(2)
Migration Act 1958 (Cth) ss 476, 485(1)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 and 6
Judiciary Act 1903 (Cth) s 39B
Yao Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583, cited
Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401, applied
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, cited
Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293, cited
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, followed
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, followed
Minister for Immigration and Multicultural Affairs v Rahmin Darboy [1998] FCA 931, followed
“Z” v Minister for Immigration and Multicultural Affairs [1998] FCA 1578, followed
Minister for Immigration and Ethnic Affairs v Eshutu [1999] HCA 21, followed
SONAM LAMA v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 923 OF 1998
TAMBERLIN J
SYDNEY
8 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 923 OF 1998

BETWEEN:

SONAM LAMA
Applicant

AND:

MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

TAMBERLIN J

DATE OF ORDER:

8 JULY 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application for an extension of time to bring an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth) is dismissed with costs.

2.The application for review under the Migration Act 1958 (Cth) is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 923 OF 1998

BETWEEN:

SONAM LAMA
Applicant

AND:

MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

TAMBERLIN J

DATE:

8 JULY 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This case raises the question whether punishment under Nepalese law for killing a cow (“bovicide”) can be said to constitute persecution for a religious or political reason.
On 6 August 1998, the Refugee Review Tribunal (“the RRT”) decided that the applicant was not a refugee and was therefore not entitled to a protection visa under the Migration Act 1958 (Cth) (“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.

Continue reading Lama v MIMA

Details

AGLC: Lama v MIMA [1999] FCA 918
Case: [1999] FCA 918
Decision Date: 8 JULY 1999

CaseChat Overview and Summary

Lama, an individual, sought to extend the time limit for bringing an application for judicial review of a decision by the Minister for Immigration and Multicultural Affairs (MIMA). The application was dismissed by the Federal Court of Australia, which was also asked to review the original decision by MIMA under the Migration Act 1958 (Cth).

The primary legal issues before the court were whether the applicant was entitled to an extension of time to bring his application for judicial review, and whether the application for review of MIMA’s decision should be granted. The court considered the relevant statutory time limits, the principles of equity, and the merits of the applicant’s case.

In dismissing the application for an extension of time, the court found that the applicant had not demonstrated any special circumstances that would warrant an extension. The court held that the statutory time limits for bringing an application for judicial review were strict and could not be extended by the court in the absence of exceptional circumstances. The court also found that the applicant had not demonstrated any grounds for review of MIMA’s decision under the Migration Act 1958 (Cth). The court held that the decision was lawful and that the applicant had not demonstrated any error of law or procedural unfairness.

The court ordered that the application for an extension of time be dismissed with costs, and that the application for review of MIMA’s decision be dismissed with costs.

Orders

Orders of the court

1. The application for an extension of time to bring an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth) is dismissed with costs.

2. The application for review under the Migration Act 1958 (Cth) is dismissed with costs.

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

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Citations

AGLC Citation

Lama v MIMA [1999] FCA 918

Most Recent Citation

SZVYD v MIBP [2019] FCA 648

Cases citing this decision · 13 of 13 shown

2004488 (Refugee)
[2025] ARTA 1450 Para 29

…CA 918, at [29]. In “Z" v Minister for Immigration & Multicultural Affairs [1998] FCA 1578, the Court dealt with the issue of harsh punishments for sexual conduct outside marriage in an Islamic nation and found that if the law were of general application, it would not amount to persecution if punishment were impo…
1728939 (Refugee)
[2024] AATA 600 Para 38

…y affect or impact upon people differently.[3] [3] Zheng Jia Cai v MIMA (Federal Court of Australia, French J, 13 June 1997) at 16; Lama v MIMA [1999] FCA 918 at [30]. Indeed, the Tribunal accepts that the decree will impact on the applicant’s ability to attend church on Sundays, if any employment that she might…
1908055 (Refugee)
[2022] AATA 1665 Para 1

…unal finds that the applicant faces a real chance of being forcibly recruited into the Syrian army but in the absence of any discriminatory practices relevant to the applicant’s circumstances, it finds such recruitment is the non-discriminatory application of generally applicable laws for the purposes of s 5J(4)(…
1721346 (Refugee)
[2022] AATA 799 Para 43

…MIBP [2019] FCA 648 at [14]. In this case, the Tribunal finds that the applicant faces a real chance of being forcibly recruited into the Syrian army but in the absence of any discriminatory practices relevant to the applicant’s circumstances, it finds such recruitment is the non-discriminatory application of ge…
1712448 (Refugee)
[2021] AATA 5072 Para 1

…Lama v MIMA [1999] FCA 918 at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620; Alamdar v MIMA [2001] FCA 1244; and SZVYD v MIBP [2019] FCA 648 at [14]. The applicant stated that in Malaysia he will not be able to earn a living as it is hard to find another job in his country and he has been disowned by his…
1609044 (Refugee)
[2020] AATA 6193

…nic Affairs and McIllhatton (1996) 40 ALD 445 Iyer v MIMA [2000] FCA 52 Kopalapillai v MIMA (1998) 86 FCR 547 Lama v MIMA [1999] FCA 918 MIAC v MZYYL [2012] FCAFC 147 MIMA v Lay Lat (2006) 151 FCR 214 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Minister for Immigration and Citizenship v L…
1803255 (Refugee)
[2020] AATA 3833

…nt S v MIMA (2004) 217 CLR 387 Chen Shi Hai v MIMA (2000) 201 CLR 293 Lama v MIMA [1999] FCA 1620 Lama v MIMA [1999] FCA 918 MIAC v SZGUR (2011) 241 CLR 594 MZXRE v MIAC (2009) 176 FCR 552 SZDCD v MIBP [2019] FCA 326 SZDTM v MIAC [2008] FCA 1258 SZEPZ v MIMA (2006) 159 FCR 291 Yang v Carroll (1994) 852 F Supp 460…
1700813 (Refugee)
[2020] AATA 6187 Para 16

…In any event, having considered the applicant’s claims and the evidence, the Tribunal finds that there is no real chance the applicant faces a real chance of serious harm on return to Malaysia due to pollical support for Keadilan either from BN supporters, her ex-husband or the authorities. Cumulative factors 179…
1615354 (Refugee)
[2019] AATA 5959 Para 37

…or repugnant in our society: see e.g., Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997) at 16; Lama v MIMA [1999] FCA 918 (Tamberlin J, 8 July 1999) at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620 (Branson, Sackville and Kiefel JJ, 19 November 1999); and Alamdar v MIM…
1611379 (Refugee)
[2019] AATA 6004 Para 42

…v MIMA [1999] FCA 918 (Tamberlin J, 8 July 1999) at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620 (Branson, Sackville and Kiefel JJ, 19 November 1999); and Alamdar v MIMA [2001] FCA 1244 (Emmett J, 30 July 2001). Accordingly, what the applicant must demonstrate to satisfy the refugee criteria is that the…
SZVYD v MIBP
[2019] FCA 648 Para 2

…5] FCA 475; “Z” v Minister for Immigration and Multicultural Affairs [1998] FCA 1578; and Lama v Minister for Immigration & Multicultural Affairs [1999] FCA 918; 57 ALD 613. How one society controls or regulates the use of one drug or another, or regulates social behaviour (unless striking at fundamental human ri…
1700854 (Refugee)
[2019] AATA 4990

…a v MIMA [1999] FCA 1620 (Branson, Sackville and Kiefel JJ, 19 November 1999); and Alamdar v MIMA [2001] FCA 1244 (Emmett J, 30 July 2001). 144. However, a law of general application is capable of being implemented or enforced in a discriminatory manner.[40] If a law of general application is enacted for a select…
1414437 (Refugee)
[2016] AATA 3072 Para 1

…& Anor v Minister for Immigration & Multicultural Affairs [1997] FCA 923 per French J at 16; Lama v Minister for Immigration & Multicultural Affairs [1999] FCA 918 per Tamberlin J at [30], quoted with approval by Branson, Sackville and Kiefel JJ on appeal in Lama v Minister of Immigration & Multicultural Affairs…

View all 13 citing cases →

Cases cited in this decision · 10 of 10 shown

Minister for Immigration and Multicultural Affairs v Eshetu
[1999] HCA 21 Para 15

…this does not form a valid ground for review as a “procedure” within s 476 of the Act: see Minister for Immigration and Ethnic Affairs v Eshutu [1999] HCA 21.…
Z v Minister for Immigration and Multicultural Affairs
[1998] FCA 1578 Para 5

…The decision of Moore J in Darboy was followed and applied by Katz J in “Z” v Minister for Immigration and Multicultural Affairs [1998] FCA 1578 That case concerned the Islamic Penal Code of 1991, which at all relevant times was in force in Iran. Under that Code, consensual sexual intercourse between unmarried adu…
MIMA v Darboy
[1998] FCA 931 Para 4

…The first case is Minister for Immigration and Multicultural Affairs v Rahmin Darboy [1998] FCA 931. That was a decision of Moore J, who set aside a decision of the RRT and remitted the matter for reconsideration. The RRT in that case had concluded that the Iranian Criminal Code, which created an offence of adult…
Applicant A v Minister for Immigration and Ethnic Affairs
[1997] HCA 4 Para 1

…p for harassment on a Convention ground which lies at the heart of the definition. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258-259, McHugh J referred to the enforcement of a generally applicable criminal law in these terms: “Conduct will not constitute persecution, however,…
Yao v Minister for Immigration and Ethnic Affairs
[1996] FCA 838 Para 4

…lly reviewable decisions”. This provision also operates to exclude review under the ADJR Act: see Yao Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583 per Black CJ and Sundberg J at 588 and Davies J at 599. The decision under review in this proceeding is a decision of the RRT which, pursuant to s 475, i…
Jahazi v Minister for Immigration & Ethnic Affairs
[1995] FCA 941 Para 17

…r of decisions including Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 and Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293. The decision-maker states that the Convention ground must be more than merely linked in a peripheral way to the feared persecution, and that in case…
Ram v The Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal
[1995] FCA 433 Para 17

…The decision-maker then reviewed a number of decisions including Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 and Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293. The decision-maker states that the Convention ground must be more than merely linked in a peripheral way to…
Morato, G.C.S. v The Minister for Immigration, Local Government and Ethnic Affairs
[1992] FCA 982 Para 15

…aware of his act. The decision-maker referred to the Full Court decision in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401, and in particular to the passage in the reasons of Black CJ, which stated that a critical element of the Convention definition must be fear of persecu…
Chan v Minister for Immigration and ethnic Affairs
[1989] HCA 62 Para 1

…In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429, McHugh J pointed out that “persecution” in the Convention sense involves selective harassment. It was not necessary, in his Honour’s view, that the conduct complained of should be directed against a person as an individual. He or she cou…
Ram v Minister for Immigration and Ethnic Affairs
[1995] AATA 381

…) 69 FCR 583, cited Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401, applied Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, cited Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293, cited Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, followed Appli…

Legislation cited in this decision · 3

Administrative Decisions (Judicial Review) Act 1977 (Cth)
5, 6 3 mentions (from Para 2)
Migration Act 1958 (Cth)
476, 485(1) 3 mentions (from Para 2)
Judiciary Act 1903 (Cth)
39B 2 mentions (from Para 2)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 923 OF 1998

BETWEEN:	SONAM LAMA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	TAMBERLIN J
DATE OF ORDER:	8 JULY 1999
WHERE MADE:	SYDNEY

JUDGE:	TAMBERLIN J
DATE:	8 JULY 1999
PLACE:	SYDNEY