MIMA v Shaibo

[2000] FCA 600

FEDERAL COURT OF AUSTRALIA

Minister For Immigration & Multicultural Affairs v Shaibo [2000] FCA 600

IMMIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – Sri Lankan Tamil voluntarily joins police force – sent to north of country to fill void left by departing armed forces – deserts police force because of fear for his life and because appalled at torture, murder and rape committed by some members of police force – upon return to Sri Lanka, would be offered amnesty upon terms requiring him to resume service in north of country – whether fear of persecution on Convention ground made out – whether Tribunal erred in law in concluding that applicant before it (present respondent) feared persecution on Convention ground.

Migration Act 1958 (Cth) s 476(1)(e)

Murillo-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150, cited
Timic v Minister for Immigration and Multicultural Affairs [1998] FCA 1750, cited
Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834, cited
Mehenni v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 192, cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v MOHAMED ELIYAS CADER MEERA SHAIBO

N 979 OF 1999

LINDGREN J
10 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 979 OF 1999

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPLICANT
AND:	MOHAMED ELIYAS CADER MEERA SHAIBO RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	10 MAY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The decision of the Refugee Review Tribunal made on 13 August 1999 in proceeding N 97/20520 be set aside and the matter to which that decision related be referred to the Refugee Review Tribunal for further consideration and decision in accordance with law.

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 979 OF 1999

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPLICANT
AND:	MOHAMED ELIYAS CADER MEERA SHAIBO RESPONDENT

JUDGE:	LINDGREN J
DATE:	10 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The Applicant (“the Minister”) applies under s 476(1) of the Migration Act1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“RRT”) setting aside a decision of a delegate (“the Delegate”) of the Minister not to grant the respondent (“Mr Shaibo”) a protection visa.

2. Section 29 of the Act provides that subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do one or both of the following:

   (a)travel to and enter Australia;

   (b)remain in Australia.

   Section 496 of the Act provides that the Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under the Act. It is not in dispute that the Minister delegated all relevant powers to the Delegate.

3. Section 65 of the Act provides that after considering a…