Machmud v Minister for Immigration & Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041

MIGRATION – review of decision of Refugee Review Tribunal – whether Tribunal failed to exercise jurisdiction by not considering certain country information – whether decision involved error of law – whether Tribunal erred in requiring applicant to substantiate claims

Migration Act 1958 (Cth) ss 476(1)(c), 476(1)(e)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 referred to
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 discussed

FAIZAWATI MACHMUD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1316 OF 2000

HILL J
3 AUGUST 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1316 OF 2000

BETWEEN:	FAIZAWATI MACHMUD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	3 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The decision of the Refugee Review Tribunal be set aside.

2.The matter be remitted to a differently constituted Tribunal to consider and determine the application according to law.

3.The respondent Minister pay the costs of the applicant.

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	N 1316 OF 2000

BETWEEN:	FAIZAWATI MACHMUD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	3 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Faizawati Machmud applies to the Court for judicial review under s 476 of the Migration Act1958 (Cth) (the “Act”) of a decision of the Refugee Review Tribunal (the “Tribunal”) affirming the decision of a delegate of the Respondent Minister for Immigration and Multicultural Affairs (the “Minister”) not to grant to her a protection visa. It is a requirement of s 65(1) of the Act that a visa may be granted only if the decision-maker is satisfied that the prescribed criteria set out in the Act and the regulations to it have been satisfied. It suffices here to say that it is a requirement for a Protection Visa that the applicant be a person to whom Australia has protection obligations by virtue of that person being a refugee as defined in the 1951 Convention Relating to the Status of Refugees as varied by the 1967 Protocol Relating to the Status of Refugees (compendiously referred to as the “Convention”).

2. The applicant is a citizen of Indonesia who arrived in Australia on 30 January 1999.  Shortly thereafter she lodged an application for a protection (class AZ) visa. In her application, which was before the Tribunal, she referred to a document which was called her “attached claims”.  In that document in response to question 36 on the application form, vis “Why did you leave that country?”, she said:

   “I had to leave Indonesia primarily for reasons of:

   ·    Political imbalance (may lead to…