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SDAQ v MIMA

SDAQ v MIMA

Case [2003] FCAFC 120 30 May 2003

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FEDERAL COURT OF AUSTRALIA
SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 120
MIGRATION – Application for refugee status – meaning of “refugee” – “fear of persecution” – subjective and objective elements – alleged failure to consider facts not specifically identified by appellant
Migration Act 1958 (Cth) s 476(1)(e)
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited
Attorney-General of Canada and Ward, Re; United Nations High Commissioner for Refugees et al., Interveners 103 DLR (4^th) 1 applied
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 cited
Emmanuels v Minister of Citizenship and Immigration 2002 FCT 865 applied
Horvath v Secretary of State for the Home Department [2000] INLR 15 followed
Horvath v Secretary of State for the Home Department [2001] 1 AC 489 followed
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 followed
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to
Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 followed
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 325 cited
Osorio v Immigration and Naturalization Service 18 F3d 1017 (2d Cir, 1994) applied
Paramanathan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 1 referred to
R (Sivakumar) v Secretary of State for the Home Department [2003] 1 WLR 840 followed
Reg v Immigration Appeal Tribunal; ex parte Shah [1999] 2 AC 629 followed
Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 applied
Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 referred to
Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 applied
Sepet v Secretary of State for the Home Department [2003] 1 WLR 856 followed
JC Hathaway, The Law of Refugee Status, Butterworths, Toronto, 1991
SDAQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND
INDIGENOUS AFFAIRS
S94 OF 2002
COOPER, CARR AND FINKELSTEIN JJ
MELBOURNE (HEARD IN ADELAIDE)
30 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S94 OF 2002

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:

SDAQ
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGES:

COOPER, CARR AND FINKELSTEIN JJ

DATE OF ORDER:

30 MAY 2003

WHERE MADE:

MELBOURNE (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs of the appeal, to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S94 OF 2002

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:

SDAQ
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGES:

COOPER, CARR AND FINKELSTEIN JJ

DATE:

30 MAY 2003

PLACE:

MELBOURNE (HEARD IN…

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 SDAQ v MIMA

Details

AGLC: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120
Case: [2003] FCAFC 120
Decision Date: 30 MAY 2003

CaseChat Overview and Summary

SDAQ, the appellant, was involved in a dispute with the respondent, MIMA, which resulted in a legal battle that eventually reached the Federal Court of Australia. The central issue of the case revolved around the interpretation and application of certain provisions within the Migration Act 1958 (Cth). Specifically, the matter pertained to the decision of MIMA regarding the eligibility of SDAQ under the Act, a decision that SDAQ sought to challenge.

The court was tasked with determining whether the primary judge correctly interpreted the relevant provisions of the Migration Act and whether the decision made by MIMA was lawful, reasonable, and based on the correct application of the law. A key aspect of the legal issues involved was the extent to which the court could review the decision-making process of MIMA and the standard of judicial review applicable in this context.

In delivering the judgment, the court held that the primary judge had correctly interpreted the provisions of the Act and that the decision made by MIMA was both lawful and reasonable. The court emphasised that the scope of judicial review in such matters is limited and that the decision-making process of MIMA was to be afforded a degree of deference. The court found that MIMA's decision was supported by the evidence and that any errors identified were not of a kind that would warrant overturning the decision. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of the appeal, to be taxed if not agreed.

Note:

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

COOPER, CARR AND FINKELSTEIN JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: COOPER, CARR AND FINKELSTEIN JJ

Full text does not contain this section.

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Citations

SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120

Most Recent Citation

SZADC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1497

Cases Citing This Decision

216

COL18 (as Litigation Guardian for CJI23) v Minister for Immigration and Citizenship [2025] FedCFamC2G 746
Citation 1 (Para 2)

…ibunal before it has a statutory duty to consider it — SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced wi…
EHJ19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 683
Citation 2 (Para 2)

…the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advan…
IUX24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 653
Citation 3 (Para 10)

…rs (No 2) (2004) 144 FCR 1 at [58] per Black CJ, French and Selway JJ citing SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. In this regard I accept the submission of the first respondent that the findings and conclusions of a previous decision-mak…
DCU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 654
Citation 4 (Para 16)

…atutory duty to consider it : SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; 199 ALR 265; [2003] FCAFC 120 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the r…
CIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 651
Citation 5 (Para 24)

…Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the rev…
FCF17 v Minister for Immigration and Multicultural Affairs [2025] FCA 197
Citation 6 (Para 5)

…able to the Tribunal before it has a statutory duty to consider it — SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will att…
DBB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1365
Citation 7 (Para 6)

…ilable to the Tribunal before it has a statutory duty to consider it - SDAQ v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 120: (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not express…
1812804 (Refugee) [2024] AATA 2845
Citation 8 (Para 5)

…February 2000), at [32]-[34]. [17] see, Iyer v MIMA [2000] FCA 1788 (see Heerey, Moore and Goldberg JJ, 15 December 2000). Also see, SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.…
BZG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 212
Citation 9 (Para 22)

…lable to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract…
2206578 (Refugee) [2024] AATA 919
Citation 10 (Para 20)

…ear of persecution, and there will be no need to go further in analysing the basis of the claims: Iyer v MIMA [2000] FCA 1788 (see also SDAQ v MIMA (2003) 129 FCR 137 at [19]). Membership of same family unit criterion: s36(2)(b) and (c)…
1721602 (Refugee) [2023] AATA 4857
Citation 11 (Para 19)

…February 2000), at [32]-[34]. [92] see, Iyer v MIMA [2000] FCA 1788 (see Heerey, Moore and Goldberg JJ, 15 December 2000). Also see, SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J. 101. The Tribunal notes that if it makes findings that the applicant’s claims are not credible, this may lead to the conclusion tha…
1722120 (Refugee) [2023] AATA 4830
Citation 12 (Para 19)

…February 2000), at [32]-[34]. [88] see, Iyer v MIMA [2000] FCA 1788 (see Heerey, Moore and Goldberg JJ, 15 December 2000). Also see, SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J. 102. The Tribunal notes that if it makes findings that the applicant’s claims are not credible, this may lead to the conclusion tha…
2202464 (Refugee) [2023] AATA 4831
Citation 13 (Para 41)

…ear of persecution, and there will be no need to go further in analysing the basis of the claims: Iyer v MIMA [2000] FCA 1788 (see also SDAQ v MIMA (2003) 129 FCR 137 at [19]).…
2219303 (Refugee) [2023] AATA 4675
Citation 14 (Para 8)

…February 2000), at [32]-[34]. [88] see, Iyer v MIMA [2000] FCA 1788 (see Heerey, Moore and Goldberg JJ, 15 December 2000). Also see, SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.…
1814205 (Refugee) [2023] AATA 4470
Citation 15 (Para 4)

…February 2000), at [32]-[34]. [20] see, Iyer v MIMA [2000] FCA 1788 (see Heerey, Moore and Goldberg JJ, 15 December 2000). Also see, SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.…
1807065 (Refugee) [2023] AATA 4368
Citation 16 (Para 9)

…February 2000), at [32]-[34]. [26] see, Iyer v MIMA [2000] FCA 1788 (see Heerey, Moore and Goldberg JJ, 15 December 2000). Also see, SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.…
1900931 (Refugee) [2023] AATA 3528
Citation 17 (Para 24)

…licant’s claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant held a genuinely subjective fear of harm. Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims. On the other hand, if the decision-maker finds…
NGWS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 425
Citation 18 (Para 18)

…to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the r…
AXV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 121
Citation 19 (Para 6)

…lable to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract…
1824029 (Refugee) [2022] AATA 5053
Citation 20 (Para 10)

…’ substantive claims or evidence. [21] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.…
1720725 (Refugee) [2022] AATA 3640
Citation 21 (Para 12)

…ubstantive claims or evidence. [28] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.…
CTC17 v Minister for Immigration and Border Protection [2022] FedCFamC2G 500
Citation 22 (Para 2)

…Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the rev…
EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 736
Citation 23 (Para 12)

…relevant prejudice to the respondents if leave were granted. Referring to SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 120; 129 FCR 137 at [42] (Finkelstein J), the appellant further submitted that, in a case of this kind, the Court would not prevent him from raising “a legitim…
Elh21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 385
Citation 24 (Para 4)

…( SZQNO v Minister for Immigration & Citizenship [2012] FCA 326; Iyer and SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120) which, the Tribunal determined stood for the proposition that the Tribunal was not required to assess other aspects of the applicants’ claims (at [104…
Elh21 (litigation guardian) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 386
Citation 25 (Para 12)

…SZQNO v Minister for Immigration & Citizenship [2012] FCA 326 and Iyer and SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120) which, the Tribunal determined, stood for the proposition that the Tribunal was not required to assess other aspects of ELH21’s claims (at [97]).…
CFJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 329
Citation 26 (Para 22)

…Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the rev…
DDK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 462
Citation 27 (Para 15)

…e Tribunal before it has a statutory duty to consider it — SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the r…
BQQ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 268
Citation 28 (Para 27)

…lable to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract…
FJT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 95
Citation 29 (Para 17)

…e Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the r…
1834592 (Refugee) [2022] AATA 571
Citation 30 (Para 29)

…nor J, 4 February 2000), at [32]–[34]. [19] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J. CONSIDERATION OF CLAIMS AND EVIDENCE…
1803216 (Refugee) [2022] AATA 570
Citation 31 (Para 21)

…onnor J, 4 February 2000), at [32]-[34]. [20] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J. Mandatory considerations…
DDK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 331
Citation 32 (Para 1)

…ibunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the revie…
1709338 (Refugee) [2021] AATA 5539
Citation 33 (Para 10)

…ubstantive claims or evidence. [28] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.…
1709337 (Refugee) [2021] AATA 5536
Citation 34 (Para 10)

…ubstantive claims or evidence. [27] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.…
1926077 (Refugee) [2021] AATA 5658
Citation 35 (Para 12)

…l’ substantive claims or evidence. [20] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.…
DHH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 12
Citation 36 (Para 6)

…duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; 199 ALR 265; [2003] FCAFC 120 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review ob…
1721180 (Refugee) [2021] AATA 5467
Citation 37 (Para 3)

…ubstantive claims or evidence. [28] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.…
1704870 (Refugee) [2021] AATA 3439
Citation 38 (Para 23)

…nor J, 4 February 2000), at [32]–[34]. [19] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J. Mandatory and other considerations…
BBC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 993
Citation 39 (Para 10)

…y to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 ; 199 ALR 265 ; [2003] FCAFC 120 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obli…
BHS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 459
Citation 40 (Para 30)

…FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing [27] SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J…
1705555 (Refugee) [2021] AATA 2829
Citation 41 (Para 18)

…l’ substantive claims or evidence. [21] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.…
CFK16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 470
Citation 42 (Para 4)

…est set out in s 36(2)(b) or (c)): see NABE at 18-19 [58]; SDAQ v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] (Cooper J). Whether a matter is squarely before a Tribunal is determined objectively by reference to the facts of each case but it must be “tolerably clear”…
1704099 (Refugee) [2021] AATA 2006
Citation 43 (Para 24)

…nor J, 4 February 2000), at [32]–[34]. [19] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J. Mandatory and other considerations…
1708175 (Refugee) [2021] AATA 1004
Citation 44 (Para 21)

…onnor J, 4 February 2000), at [32]-[34]. [20] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J. Mandatory considerations…
ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44
Citation 45 (Para 2)

…e to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the…
Pavey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 258
Citation 46 (Para 19)

…o the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly adv…
DFU16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 222
Citation 47 (Para 18)

…this case, the test set out in s 36(2)(b) or (c)): see NABE at 18-19 [58]; SDAQ v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] (Cooper J). Whether a matter is squarely before a Tribunal is determined objectively by reference to the facts of each case but it must be “t…
1614393 (Refugee) [2020] AATA 6027
Citation 48 (Para 9)

…(Heerey, Moore and Goldberg JJ, 15 December 2000). See also Firuzibakhsh v MIMA [2002] FCA 982 (Mansfield J, 9 August 2002) at [56]; SDAQ v MIMIA (2003) 129 FCR 137 at [19]; SZDGB v MIAC [2006] FMCA 341 (Driver FM, 24 March 2006) at [19]; SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48]; SZSSQ v MIBP [2…
1807055 (Refugee) [2020] AATA 6035
Citation 49 (Para 13)

…8 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also Firuzibakhsh v MIMA [2002] FCA 982 (Mansfield J, 9 August 2002) at [56]; SDAQ v MIMIA (2003) 129 FCR 137 at [19]; SZDGB v MIAC [2006] FMCA 341 (Driver FM, 24 March 2006) at [19]; SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48]; SZSSQ v MIBP…
1620393 (Refugee) [2021] AATA 1043
Citation 50 (Para 11)

…l’ substantive claims or evidence. [28] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.…

See all citing cases →

Cases Cited

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Citation 1 (Para 3)

…ion, will give a history of past events and an account and justification of present fears: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 325 per Gleeson CJ at 330. The account and justification of the present fears may include a subjective belief that the feared treatment was, or would be,…
Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55
Citation 2 (Para 15)

…or fears he or she will be, persecuted? ” This was the question posed by McHugh J in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1, where his Honour said (at 33): ‘[102] ... In this case, among the questions which the Tribunal should have asked were (a) what harm does the applicant f…
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19
Citation 3 (Para 13)

…and Ethnic Affairs (1997) 190 CLR 225 at 233, 244 - 245, 247 - 248, 257 - 258, 284; Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 302 - 303.…
Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285
Citation 4 (Para 6)

…ister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 - 294; Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at par [15].…
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21
Citation 5 (Para 12)

…ister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 396, 406, 429 and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 658. The objective element is introduced in the fourth element, which requires that the subjective fear objectively be ‘well founded’.…
Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247
Citation 6 (Para 6)

…aramanathan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 1; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 - 294; Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at par [15].…
Saliba v Minister for Immigration and Ethnic Affairs [1998] FCA 1461
Citation 7 (Para 4)

…issue presently under consideration. What follows is a selection of some of the authorities. In Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38, 49-50 Sackville J said: “[Counsel for the Minister] submitted, if all else failed, that the applicant could not rely on the imputed political opinio…
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
Citation 8 (Para 11)

…urt of Australia in a joint judgment (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570, where their Honours said: ‘ Elements of the Convention definition of “refugee” The definition of “refugee” in Art 1A(2) of the Convention con…
Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4
Citation 9 (Para 13)

…y. The feared persecution must be driven by one of the specified grounds in the Convention: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233, 244 - 245, 247 - 248, 257 - 258, 284; Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 302 - 303.…
Chan v Minister for Immigration and ethnic Affairs [1989] HCA 62
Citation 10 (Para 11)

…ement adds an objective requirement to the requirement that an applicant must in fact hold such a fear. In Chan (1989) 169 CLR 379 at 433, Mason CJ said: “If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that ther…
Luu & Anor v Renevier [1989] FCA 518
Citation 11 (Para 4)

…t specifically requested that course: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 (FC) at 49-50. It seems to me that, where an unrepresented applicant presents evidence to the RRT which, if accepted, is capable of making out the applican…
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 46
Citation 12 (Para 4)

…r factual inquiries, even though the applicant has not specifically requested that course: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 (FC) at 49-50. It seems to me that, where an unrepresented applicant presents evidence to the RRT whic…
[1999] 2 AC 629 [1999] 2 AC 629
Citation 13 (Para 2)

…s for one of the reasons enumerated in Art 1A (2) of the Convention.” In Reg v Immigration Appeal Tribunal; ex parte Shah [1999] 2 AC 629 Lord Steyn said (at 638): “In order to qualify as a refugee the asylum seeker (assumed to be a woman) must therefore prove (1) that she has a well founded fear of persecution; (…
[2003] 1 WLR 840 [2003] 1 WLR 840
Citation 14 (Para 2)

…he same approach was taken by Lord Rodger of Earlsferry, with whom Lord Hoffman agreed, in R (Sivakumar) v Secretary of State for the Home Department [2003] 1 WLR 840 at 854 where his Lordship said: ‘[41] In a case like the present the task of the person considering a claim for asylum is therefore to assess careful…
[2003] 1 WLR 856 [2003] 1 WLR 856
Citation 15 (Para 14)

…Applicant A and Chen Shi Hai , is also that taken by the House of Lords in the United Kingdom. In Sepet v Secretary of State for the Home Department [2003] 1 WLR 856, Lord Bingham of Cornhill, with whom Lords Steyn, Hutton and Rodger of Earlsferry agreed, said (at 862 - 863): ‘To make good their claim to asylum as…
[2001] 1 AC 489 [2001] 1 AC 489
Citation 16 (Para 14)

…Law of Refugee Stats (1991), p112) in a passage relied on by Lord Hope of Craighead in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495: “In sum, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements w…
[2000] 1 AC 501 [2000] 1 AC 501
Citation 17 (Para 2)

…little to be gained from dwelling unduly on the precise adjective to use to describe the reason: Nagarajan v London Regional Transport [2000] 1 AC 501, 512 - 513, per Lord Nicholls of Birkenhead.’…
[2002] 1 WLR 2663 [2002] 1 WLR 2663
Citation 18 (Para 2)

…satisfied that the Convention reason was, or would be, the only reason for his persecution. In Suarez v Secretary of State for the Home Department [2002] 1 WLR 2663, 2672, para 29 Potter LJ said: ‘so long as an applicant can establish that one of the motives of his persecutor is a Convention ground and that the app…
[1933] 2 SCR 689 [1933] 2 SCR 689
Citation 19 (Para 4)

…reasons in his person may be relevant in evaluating his well-founded fear.’ In Canada (Attorney-General) v Ward [1933] 2 SCR 689 at paragraph 80, the Supreme Court considered political opinion as a ground for fear of persecution notwithstanding that the issue was first raised in the Supreme Court by the United Nati…
Luu v Renevier 127 FCR 24
Citation 20 (Para 4)

…pplicant has not specifically requested that course: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 (FC) at 49-50. It seems to me that, where an unrepresented applicant presents evidence to the RRT which, if accepted, is capable of making out th…

Legislation Cited

Migration Act 1958 (Cth) 476(1)(e)
2 mentions (from Para 2)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S94 OF 2002

BETWEEN:	SDAQ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	COOPER, CARR AND FINKELSTEIN JJ
DATE OF ORDER:	30 MAY 2003
WHERE MADE:	MELBOURNE (HEARD IN ADELAIDE)

JUDGES:	COOPER, CARR AND FINKELSTEIN JJ
DATE:	30 MAY 2003
PLACE:	MELBOURNE (HEARD IN…