MIMA v Y

[1998] FCA 515

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Application for review of decision that applicant had refugee status - Brazil - Police corruption - whether threatened harm was persecution or individualised violence - whether exposure of corruption amounted to expression of political opinion - motivation behind harm - Is a State a political entity?

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

Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300
Commissioner of Taxation v McCabe (1990) 26 FCR 431
N.S.W. Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1956) 94 CLR 509

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v Y & ORS
NG 80 of 1998

DAVIES J
SYDNEY
15 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 80  of   1998

BETWEEN:

MINISTER FOR IMMIGRATION     MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS
APPLICANT

AND:

Y
FIRST RESPONDENT

AY
SECOND RESPONDENT

ADY
THIRD RESPONDENT

JUDGE:

DAVIES J

DATE OF ORDER:

15 MAY 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The application be 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 80 of 1998

BETWEEN:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
APPLICANT

AND:

Y
FIRST RESPONDENT

AY
SECOND RESPONDENT

ADY
THIRD RESPONDENT

JUDGE:	DAVIES J
DATE:	15 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This application by the Minister for Immigration & Multicultural Affairs seeks orders of review with respect to a decision of a Refugee Review Tribunal ("the Tribunal") in which the Tribunal remitted the matter to the primary decision-maker with the direction that Y, his wife and daughter were persons to whom Australia has protection obligations under the Refugees' Convention.  Article 1A(2) of the Refugees' Convention describes a refugee as a person who:

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." (emphasis added)

The Tribunal concluded that the present respondents satisfied the definition.

The application is brought under s 476(1)(e) of the Migration Act 1958 (Cth) which provides, inter alia:

"476(1) Subject to subsection (2), application may be made for  review  by  the  Federal  Court of  a judicially-reviewable decision on  any  one  or  more  of  the  following  grounds. 

...

(e)  that  the  decision  involved  an  error  of  law,  being  an  error  involving  an  incorrect  interpretation  of  the  applicable  law  or  an  incorrect  application  of  the  law  to  the  facts  as  found  by  the  person  who  made  the  decision,  whether  or  not  the  error  appears  on  the  record  of  the  decision;  ..."

Counsel for the Minister, Mr Robert Beech-Jones, conceded that he could not point to any express error in the Tribunal's exposition of the law to be applied, but he submitted that an inference of error could be…