Mezbur, a (also known as Kovic, A) v Minister for Immigration, Local Government and Ethnic Affairs

[1993] FCA 1018

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JUDGMENT No. ....... ,.......,,, , ,e , .

JN IN THEDERAL COURT OF AU!TIIULU

NEW SOUTH WALES DISTRICT REGISTRY	1	No. NG72 OF 1993
G E N E R A L N

M2	ASIM MEZBUR	KNOWN AS ALAN
KOVICl

ku!m FOR IMMIGRATION. LOCt%

GOVERNMENT AND JZl'HNIC AFFAIRS

COURT:	Beazley J
PLACE:	Sydney
J3ATJ2	15 October 1993

COURT OF

~EASONS FOR EX TEMPORE JUDGMENT

This is an appeal from a decision of the Deputy President of the Administrative Appeals Tribunal (the Tribunal) made on 22 January 1993, wherein the Tribunal reviewed an order made on 19 December 1991 to deport the applicant pursuant to s55 of the Migratiort Act 1958. It is clear, and I suppose both parties agree, the Tribunal fell into error in two respects in its determination. The first error was in

the judgment of the Chief Justice at 388 and in the judgment of McHugh J at 426.

finding in effect in paragraph 28 of its reasons that there must be an individualised

threat to an applicant to show a well founded fear of persecution. The Tribunal failed to apply the principles determined by the High Court in Chan Yee Kin v

Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, and in particular in

Secondly, and perhaps more fundamentally, the Tribunal misconstrued the provisions

of s55 of the Miprion Act 1958 in findmg that that section required a period of less than ten years' residence. The applicant alleges a further error in the manner in which the Tribunal dealt with the applicant's refugee status, however the respondent disputes the relevance of this issue to the determination at all. Having regard to my

satisfaction that there are at least two other errors of law made in the determination, it is not necessary for me to determine this issue. However, the parties should be free to re-argue that matter, and any other matter, before the Tribunal as they are respectively advised.

Accordingly, I make the following orders:

1. That the matter be remitted to the Tribunal to be dealt with according to law

   with or without further evidence.

2. That the respondent pay the applicant's costs.

I certify that this and the preceding page are a true copy of the Reasons for Judgment

herein of her Honour Justice Beazley.

Associate: lW&" Date: 20 January 1994

Counsel for the Applicant:	Mr G Craddock
Solicitors for the Applicant:	Peter Baker Solicitor
Counsel for the Respondent:	Mr P Roberts with MS E Tmscott
Solicitors for the Respondent:	Australian Government Solicitor
Date of hearing:	15 October 1993