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Minister for Immigration & Multicultural Affairs v Sameh

Minister for Immigration & Multicultural Affairs v Sameh

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Case Copied 12 May 2000 35 min read

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FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578
MIGRATION – application for protection visa – visa applicant without nationality – application of Article 33 of Refugees Convention – visa applicant had not been accorded effective protection in the country of former habitual residence – whether visa applicant had been accorded effective protection in a third country and is able to return to third country – whether Refugee Review Tribunal failed to comply with s 430 of Migration Act 1958 (Cth) – extent of obligation imposed by s 430 – whether failure to comply with s 430 gave rise to ground of review under s 476(1)(a) of Act.
MIGRATION - application for protection visa – visa applicant without nationality – application of Article 33 of Refugees Convention – visa applicant had not been accorded effective protection in the country of former habitual residence – whether visa applicant had been accorded effective protection in a third country and is able to return to third country – whether Tribunal failed to address factual question necessary to determine if visa applicant had effective protection in third country – whether failure to do so constituted error of law under s 476(1)(e) of Act.
Migration Act 1958 (Cth) ss 36(2), 430, 430(1)(a), 476(1), 476(1)(a), 476(1)(d), 476 (1)(e), 476(3)(d), 476 (3)(e), Pt 7 Div 4
Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 applied
Rajendran v Minister for Immigration and Multicultural Affairs (von Doussa, O’Loughlin & Finn JJ, 4 September 1998, unreported) applied
Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 applied
Al-Sallal v Minister for Immigration and Multicultural Affairs [1999] FCA 369 applied
Minister for Immigration and Multicultural Affairs v Al-Sallal [1999] FCA 1332 applied
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 applied
Logenthiran v Minister for Immigration and Multicultural Affairs (1998) 56 ALD 639 applied
Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 applied
Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 applied
Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 applied
Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740 applied
Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681 applied
Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649 applied
Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 applied
Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 considered
Minister for Immigration and Ethnic Affairs v Prathapan (1998) 86 FCR 95 considered
Re The Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham [2000] HCA 1 applied
Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 considered
Koe v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 508 applied
Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 considered
Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 considered
Pettit v Dunkley [1971] 1 NSWLR…

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: [2000] FCA 578
Decision Date: 12 MAY 2000

CaseChat Overview and Summary

In the matter of Minister for Immigration & Multicultural Affairs v Sameh, the Federal Court of Australia was tasked with reviewing the decision of the Tribunal regarding the appellant's refugee status and appeal against deportation. The appellant, Sameh, argued that the Tribunal had failed to comply with procedural requirements and had misapplied the law in its determination that he could be deported to Iraq, where he would have access to effective protection. The Minister for Immigration & Multicultural Affairs appealed against the first instance decision, which had allowed Sameh's appeal against deportation.

The court was required to decide whether the Tribunal had erred in its procedures or interpretation of the law, which would render its decision reviewable under the Migration Act. The primary contentions were that the Tribunal failed to properly address key factual matters and legal principles relevant to Sameh's refugee status and ability to return to Iraq. The Minister argued that these issues did not constitute a ground for review under the Act. Conversely, Sameh's counsel maintained that the Tribunal's procedural lapses and misinterpretation of the law warranted judicial review.

The court examined the contentions, noting that the Tribunal's failure to comply with s 430 of the Act, which requires setting out reasons and findings on material questions of fact, does indeed constitute a procedural error reviewable under s 476(1)(a). The court also found that the Tribunal had not properly considered whether there was a real chance that Sameh would be unable to access the protection available to him in Iraq, a legal error that falls under s 476(1)(e). Consequently, the court concluded that the Tribunal's decision should be reviewed, leading to the dismissal of the Minister's appeal. The court directed that the Minister pay Sameh's costs of the appeal.

The court's final orders were to dismiss the appeal and direct that the appellant pay the respondent's costs of the appeal. This outcome affirms the first instance decision, which allowed Sameh's appeal against deportation, subject to the reasons provided by the court for the review.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay to the respondent costs of the appeal to be taxed.

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

We did not discern in the submissions on behalf of Mr Sameh any other matters under this heading which would attract a ground of review available under s 476(1) of the Act.Conclusion For the reasons given, in our judgment this appeal should be dismissed. The orders made by the learned judge at first instance should stand, albeit for the reasons now given. The Minister should pay to Mr Sameh his costs of this appeal to be taxed.

Ratio Decidendi

Legal Principle Established

The grounds of contention are that:(a)the Tribunal failed to comply with a procedure required for the making of the decision: s 476(1)(a), by failing to set out its reasons and findings on material questions of fact and by failing to refer to the evidence or other material on which the findings of fact were based for its decision as required by s 430 of the Act in respect of the following matters:(i)whether Mr Sameh had a well founded fear of persecution for a Convention reason if he were to return to Iraq by reason of his illegal departure from Iraq;(ii)whether Mr Sameh was able to travel to Iraq so that he could gain access to the effective protection which the Tribunal found was available to him in Iraq; and(iii)whether Mr Sameh was able to re-enter Jordan without a valid passport or travel document;(b)the Tribunal had erred in its interpretation of the applicable law relating to effective protection for a refugee in a third country so as to enliven s 476(1)(e) by:(i)failing to address the question whether there was a real chance that Mr Sameh would be unable to get access to the effective protection which the Tribunal found was available to him in Iraq (this ground was argued in conjunction with ground (a)(ii) above); and(ii)failing to address properly the particular circumstances of Mr Sameh.Consideration of contentions The appellant (“the Minister”) first submitted that the grounds of contention as expressed did not, in reality, identify any ground of review available under s 476 of the Act. It was argued that the essence of Mr Sameh’s complaints amount simply to the complaint that the Tribunal failed to take into account relevant considerations; or that the Tribunal took into account irrelevant considerations. In respect of the ground of review available under s 476(1)(d) of the Act, s 476(3)(d) and (e) exclude the failure to take into account relevant considerations and the taking into account of irrelevant considerations from those matters which may otherwise fall within its compass. It does not follow that s 476(3)(d) and (e) limit the scope of the proper operation of ss 476(1)(a) or s 476(1)(e). Those provisions are explicitly limited to their application to s 476(1)(d). It is necessary to consider Mr Sameh’s contentions to be satisfied that they truly do fall within the range of errors which ss 476(1)(a) or 476(1)(e) make reviewable. The Minister also submitted that the Tribunal’s failures to comply with s 430 of the Act, as contended for Mr Sameh, do not give rise to the ground of review under s 476(1)(a) in any event. Section 476(1)(a) was said to be limited in its operation to the procedures contained in Pt 7 Div 4 (ss 423 – 429A) of the Act. Section 430 is in Pt 7 Div 5 of the Act. There have been a number of decisions of the Full Court of this Court that the failure to comply with s 430(1) of the Act does amount to a failure to observe procedures required by the Act to be observed in connection with the making of a decision under s 476(1)(a): Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24; Logenthiran v Minister for Immigration and Multicultural Affairs (1998) 56 ALD 639; Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182; Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811; Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 (“Addo”); Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740; Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681 (“Yusuf”). The Minister has been granted on 11 February 2000 special leave to appeal to the High Court against the decision in Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649 and in Yusuf on that issue. The majority judgment of Whitlam and Gyles JJ in Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 (“Xu”) appears to have reached an opposite view; R D Nicholson J in that case reached a similar result but for more confined reasons and did not need to resolve the question to determine the appeal (par 93).