Constitutional Law (Cth)—Treaty—Convention relating to Status of Refugees—Commonwealth a party to Convention—Convention not implemented by Commonwealth legislation—Deportation order against illegal immigrant—Allegation of breach of rights conferred on immigrants by Convention. High Court—Practice—Preservation of subject matter of action—Illegal immigrant—Deportation order—Allegation of breach of rights conferred by Convention to &hich Australia party—Interlocutory injunction—Whether prima facie case required to be established.
Decision
March 10. STEPHEN J. delivered the following written judgment: - The applicant is a Turkish national who arrived in Australia from Turkey on 30 January 1981. He seeks interlocutory injunctive relief, designed both to ensure that he is not deported from Australia before the determination of an action which he has instituted in this Court and also to secure his release from custody. He claims that he is entitled to status as a refugee under the 1951 Geneva Convention relating to the Status of Refugees and the associated Protocol of 1967, to each of which Australia is now party. (at p637)
2. The applicant, although only twenty when he arrived in Australia, had had a troubled history in his own country which is relevant only because it is said to have been due to his political affiliations and activities and is relied on as giving rise to his status as a refugee. His experiences in Turkey included a serious assault on him by political opponents, another occasion when he was stabbed, his receipt of death threats and the bombing of the house where he lived in Ankara. He had at times carried a gun and had undertaken what he described as armed protective patrols of his village at night. In December 1978 he had been sentenced to twelve months' imprisonment on a charge of using a firearm. Some little time after his release from imprisonment he was charged and convicted by a military court of wounding with intent to kill. Both of these charges were apparently associated with his political activities. He was released on bail pending appeal and fled Turkey believing, he says, that he would not get a fair hearing of his appeal because of his political beliefs. (at p638)
3. The applicant arrived in Australia in January 1981 as a holder of a Turkish passport and was granted a three months' temporary entry permit. He at that time made no claim to refugee status. He overstayed the term of his permit and in May 1981 went through a form of marriage with an Australian woman in the hope that this would enable him to remain in Australia; he did not, however, cohabit with his wife at any stage. The day after his marriage he applied for residence status in Australia and was subsequently interviewed by officers of the Department of Immigration and Ethnic Affairs who learned that he had paid his wife $1,000 to marry him and who concluded correctly that the marriage was one of convenience only.…
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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AGLC
Simsek v Macphee [1982] HCA 7
Case
[1982] HCA 7
Decision Date
CaseChat Overview and Summary
In *Simsek v Macphee*, the High Court of Australia considered an appeal from a judgment of the Supreme Court of Victoria. The dispute concerned the interpretation and application of section 18 of the *Landlord and Tenant Act 1958* (Vic), which provided a statutory right to a tenant to obtain a new lease upon the termination of an existing one, subject to certain conditions. The appellant, Mr. Simsek, was the tenant, and the respondent, Mr. Macphee, was the landlord.
The central legal issue before the High Court was whether the landlord's refusal to grant a new lease was justified under section 18(5)(e) of the Act. This provision allowed a landlord to refuse a new lease if the tenant had been guilty of conduct which, in the opinion of the court, rendered him or her an unsuitable tenant. The court had to determine whether the tenant's conduct, specifically his failure to pay rent and his alleged damage to the premises, constituted such unsuitability.
Stephen J, delivering the judgment of the Court, reasoned that the "opinion of the court" referred to in section 18(5)(e) was not a subjective opinion of the landlord but an objective assessment by the court based on the evidence. His Honour held that while the tenant's default in rent payments was a serious matter, it did not, in itself, render him an unsuitable tenant for the purposes of the statutory provision, particularly given the tenant's subsequent efforts to remedy the default. Furthermore, the evidence regarding alleged damage to the premises was insufficient to establish that the tenant was unsuitable. The court therefore found that the landlord had not established grounds for refusal under the relevant section.