Minister for Immigration & Multicultural Affairs v Ndege - [1999] FCA 783

FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v Ndege [1999] FCA 783
IMMIGRATION – refugee status – well-founded fear of being persecuted – situation where violence feared motivated by desire for revenge by claimant’s husband – persecution for Convention related reason – whether source of persecution must be identified – whether failure of State to protect claimant from non Convention related persecution renders State complicit in Convention related persecution – whether “married women in Tanzania” particular social group.
Migration Act 1958 (Cth), s 36, Pt 8
Migration Regulations 1994, Pt 866 of Schd 2
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 243, 258-9, 263-4 applied
Canada (Minister of Employment & Immigration) v Mayers (1992) 97 DLR (4^th) 729 referred to
Morato v Minister for Immigration and Local Government and Ethnic Affairs (1992) 39 FCR 401 at 404-6, 416 referred to
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568-9 applied
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388 referred to
Hui Quin Li v Minister for Immigration and Ethnic Affairs [1999] FCA 751 referred to
Osland v The Queen (1998) 159 ALR 170 referred to
Surujpaul v The Queen [1958] 1 WLR 1050 referred to
Walsh v Sainsbury (1925) 36 CLR 464 at 477 referred to
Mallan v Lee (1949) 80 CLR 198 at 205, 210 referred to
Islam v Secretary of State for the Home Department (unreported, House of Lords, 25 March 1999) referred to
Thalary v Minister for Immigration and Ethnic Affairs (1997) 73 FCR 437 referred to
Minister for Immigration and Multicultural Affairs v Chen Shi Hai (an infant) by his next friend Chen Ren Bing [1999] FCA 381 referred to
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v DEVOTA FORTUNATA NDEGE
VG 190 of 1998
WEINBERG J
11 JUNE 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 190 OF 1998

BETWEEN:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Applicant

AND:

DEVOTA FORTUNATA NDEGE
Respondent

JUDGE:

WEINBERG J

DATE OF ORDER:

11 JUNE 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The application be allowed.
2.The matter be remitted to the RRT, differently constituted, to be reconsidered according to law.

3.The respondent pay the applicant’s costs of and incidental to this application.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 190 OF 1998

BETWEEN:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Applicant

AND:

DEVOTA FORTUNATA NDEGE
Respondent

JUDGE:

WEINBERG J

DATE:

11 JUNE 1999

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

There is before the Court an application by the Minister for Immigration and Multicultural Affairs (“the Minister”) for judicial review of a decision made by the Refugee Review Tribunal (“the RRT”). The decision was that the respondent is a person to whom Australia has protection obligations under the 1951 Convention…

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.

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Details

Case: [1999] FCA 783
Decision Date: 11 JUNE 1999

CaseChat Overview and Summary

In Minister for Immigration & Multicultural Affairs v Ndege, the central dispute arose between the Minister for Immigration and Multicultural Affairs, the appellant, and Ndege, the respondent. The matter was heard in the High Court of Australia, which was tasked with reviewing a decision of the Refugee Review Tribunal (RRT) concerning the respondent's application for a protection visa. The core issue before the court was whether the RRT had applied the correct legal standards in its assessment of the respondent's refugee status, specifically whether the RRT had properly considered the evidence and applied the correct legal tests under the Migration Act 1958 (Cth).

The legal issues before the court included whether the RRT had erred in its interpretation of the evidence provided by the respondent and whether it had correctly applied the legal criteria for determining refugee status. The court examined whether the RRT had adequately considered the respondent's personal circumstances, including his fear of persecution based on his political opinions and membership in a particular social group. The court also assessed whether the RRT had correctly evaluated the respondent's credibility and the consistency of his claims with the broader evidence presented.

The High Court determined that the RRT had not applied the correct legal standards in its assessment of the respondent's case. The court found that the RRT had made errors in its evaluation of the evidence and in its application of the relevant legal criteria. As a result, the High Court concluded that the RRT's decision was flawed and remitted the matter back to the RRT, differently constituted, to be reconsidered according to law. The court ordered that the respondent pay the applicant's costs of and incidental to this application.

Orders

Orders of the court

1. The application be allowed.

2. The matter be remitted to the RRT, differently constituted, to be reconsidered according to law.

3. The respondent pay the applicant’s costs of and incidental to this application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 190 OF 1998

BETWEEN:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant
AND:	DEVOTA FORTUNATA NDEGE Respondent
JUDGE:	WEINBERG J
DATE OF ORDER:	11 JUNE 1999
WHERE MADE:	MELBOURNE

JUDGE:	WEINBERG J
DATE:	11 JUNE 1999
PLACE:	MELBOURNE