Suleyman v MIMA

[2000] FCA 610

FEDERAL COURT OF AUSTRALIA

Suleyman v Minister for Immigration & Multicultural Affairs [2000] FCA 610

MIGRATION – application for review of a decision of the Refugee Review Tribunal – the Tribunal cancelled applicant’s protection visa – whether the matter before the Tribunal was an “action concerning children” which would invoke a legitimate expectation that the best interests of the child be a primary consideration – there is a spectrum of “actions concerning children” depending on the impact on the child – whether the Tribunal treated the best interests of the applicant’s child as a primary consideration – a legitimate expectation raises procedural ratheer than substantive obligations and failing to comply is not reviewable by the Federal Court under s 476(2) of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth) ss 101, 107, 108, 109 and 476
Migration Regulations 1994 reg 2.41
United Nations Convention on the Rights of the Child Art 3 and Art 9

Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 followed
Minister for Immigration and Multicultural Affairs v Baker (1997) 73 FCR 187 referred to
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981) 149 CLR 337 referred to

ZAKARIYA HARUN SULEYMAN (FARAH) v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 32 of 2000

MATHEWS J
12 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 32 OF 2000

BETWEEN:	ZAKARIYA HARUN SULEYMAN (FARAH) APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MATHEWS J
DATE OF ORDER:	12 MAY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the respondents costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 32 OF 2000

BETWEEN:	ZAKARIYA HARUN SULEYMAN (FARAH) APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MATHEWS J
DATE:	12 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Background

1. The applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of the respondent’s delegate to cancel the applicant’s protection visa pursuant to s 109 of the Migration Act 1958 (Cth) (“the Act”).

2. The factual circumstances giving rise to this application are quite unusual.  The applicant first arrived in Australia on 20 February 1993 under the name Abdi-Rashid Hassan Farah.  He gave his date of birth as 30 December 1970 and his country of citizenship as Kenya.  On 14 December 1993 he applied for refugee status (later treated as an application for a protection visa) under that name, claiming that, as an ethnic Somali living in Kenya, he had a well-founded fear of persecution in that country.  On 26 October 1994 the application was rejected by the Minister’s delegate, who was not satisfied that the applicant’s claims were sufficient to establish a well-founded fear of persecution in Kenya for a Convention reason.  On 1 November…