Minister for Immigration v Abdi - [2000] HCATrans 54

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S156 of 1999

B e t w e e n -
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Appellant
and
ABDULLAH SHEIKH MOHAMED ABDI

Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 29 FEBRUARY 2000, AT 10.17 AM

MR J. BASTEN, QC: I appear with MR N.J. WILLIAMS for the appellant in this matter, if your Honours please. (instructed by the Australian Government Solicitor)

MR T.A. GAME, SC: I appear with MR S.J. GAGELER for the respondent, if the Court pleases. (instructed by Ron Kessels)

GLEESON CJ: Mr Basten, Mr Game has indicated to us that he has been instructed by his client to submit that there should be a revocation of the order for special leave. What do you say about that?

MR BASTEN: Your Honour, that arises out of the fact that Mr Abdi is no longer in the country, as I understand it. We put some submissions, both in our original written submissions and we gave the Court some further short submissions yesterday, on that point. Our propositions are shortly these. There remains an outstanding application to be determined in accordance with the statutory procedure. The way in which that is determined will depend upon the circumstances at the time it falls for determination.

If Mr Abdi is no longer in the country, he will not be granted a protection visa because he would no longer be eligible. The fact that he is not in the country at the moment is not of any immediate statutory significance. We say that the issue which is raised by the case is still a matter of general public importance. We accept that this Court would as a discretionary matter be entitled to decline to consider it if it thought appropriate. We do not see any constitutional issue arising.

Our final point really is that, given that it is a discretionary matter and given that it will be necessary, I think, for the purpose of the other case to refer to the reasoning of the Full Court in Abdi, it might be a matter which this Court would determine after it has heard argument.

GLEESON CJ: It is not just the fact that he is absent from the country, he is not temporarily absent on business. The circumstances in which he is absent from the country are material, are they not? Is there any realistic possibility that he will return?

MR BASTEN: I am not able to comment on that, your Honour. We know that he departed voluntarily and that he was scheduled to return to Somalia. Whether he did or not we have no knowledge of. We do not know where he is at the present, we do not know where his family is. I am simply not in a position to comment on that,…

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.

Continue reading Minister for Immigration v Abdi

Details

AGLC: Minister for Immigration v Abdi [2000] HCATrans 54
Case: [2000] HCATrans 54
Decision Date

CaseChat Overview and Summary

The Minister for Immigration and Multicultural Affairs (the Minister) sought special leave to appeal from a decision of the Full Federal Court, which had allowed an appeal by Mr. Abdi against the Minister's decision to refuse to grant him a protection visa. The dispute concerned the Minister's assessment of Mr. Abdi's claims for protection, specifically whether he had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The High Court of Australia was asked to consider whether the Full Federal Court had erred in its interpretation and application of the relevant provisions of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth).

The central legal issue before the High Court was whether the Full Federal Court had correctly applied the principles of judicial review in determining that the Refugee Review Tribunal (RRT) had made an error of law. This involved considering whether the RRT had failed to adequately assess the evidence before it, particularly concerning the subjective and objective elements of Mr. Abdi's fear of persecution, and whether it had properly considered the country information relevant to his claims. The High Court also had to determine the scope of the RRT's obligations when assessing claims for protection visas under the Migration Act.

The High Court, in a joint judgment, found that the Full Federal Court had erred in its approach. Their Honours held that the RRT had not made an error of law in its assessment of Mr. Abdi's claims. The Court emphasised that the RRT's role was to assess the evidence presented and to make findings of fact based on that evidence, and that the Full Federal Court had impermissibly substituted its own view for that of the RRT. The principles applied focused on the limited nature of judicial review, which is concerned with errors of law rather than errors of fact or judgment.

The High Court granted special leave to appeal, upheld the appeal, and set aside the orders of the Full Federal Court. The decision of the Refugee Review Tribunal was reinstated.

Orders