Weheliye v MIMA

Case [2001] FCA 1222

FEDERAL COURT OF AUSTRALIA

Weheliye v Minister for Immigration & Multicultural Affairs [2001] FCA 1222

MIGRATION – appeal from decision of Refugee Review Tribunal – refusal to grant protection visa – error of law - whether young Somali women particular social group – whether Shari’a law against adultery law of general application – whether law applied and administered in Somalia in discriminatory manner.

Migration Act 1958 (Cth): s 476(1)(e)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 referred to
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 considered
Minister for Immigration and Multicultural Affairs v Cali [2000] FCA 1026 considered
Z v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 51 applied
Minister for Immigration and Multicultural Affairs v Darboy (unreported, Moore J, 6 August 1998) referred to
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 referred to
Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309 considered

KHAALI HAASHIM WEHELIYE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V 370 of 2001

GOLDBERG J
31 AUGUST 2001
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 370 of 2001

BETWEEN:

KHAALI HAASHIM WEHELIYE
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

31 AUGUST 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The decision of the Refugee Review Tribunal on 14 May 2001 is set aside.

2.The applicant’s application for review of the decision of the delegate of the respondent to refuse to grant the applicant a protection visa is remitted to the Refugee Review Tribunal, differently constituted, for determination according to law.

3.        The respondent pay the applicant’s costs of the application.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 370 of 2001

BETWEEN:

KHAALI HAASHIM WEHELIYE
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

GOLDBERG J

DATE:

31 AUGUST 2001

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Introduction

  1. The applicant has applied pursuant to Pt 8 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 May 2001 affirming the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), on 28 February 2001 to refuse to grant the applicant a Subclass 866 (Protection) visa.

  2. The applicant, a citizen of Somalia, arrived in Australia on 19 January 2001. She was interviewed by immigration officers at Melbourne Airport, but was not willing to tell them on which airline she had entered Australia or under what name. She had no passport or any documents confirming her identity and she was taken into immigration detention where she has been held since. On 30 January 2001, the applicant lodged an application for a Subclass 866 (Protection) visa with the Department of Immigration and Multicultural Affairs.…

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Details
AGLC
Weheliye v MIMA [2001] FCA 1222
Case
[2001] FCA 1222
Decision Date

CaseChat Overview and Summary

The case of Weheliye v MIMA involved the applicant, Weheliye, seeking judicial review of a decision by the Refugee Review Tribunal (RRT) to dismiss their application for a protection visa. The dispute was heard and determined in the Federal Court of Australia. The applicant, a national and citizen of Somalia, claimed that they were a non-citizen for the purposes of the Migration Act 1958 (Cth) and was a person to whom Australia had protection obligations under the Refugees Convention and its Protocol. The dispute centred on whether the Tribunal had erred in its assessment of the applicant’s credibility and the weight given to certain evidence.

The central legal issues before the court were whether the RRT had failed to consider relevant material, whether there were errors in the assessment of the applicant's credibility, and whether the RRT had applied the correct legal principles in making its decision. The court was required to determine if the RRT’s decision was so flawed as to be unjust or if it had failed to properly consider the evidence provided by the applicant.

In its reasoning, the court found that the RRT had not given proper consideration to the applicant's evidence and had made errors in its assessment of credibility. The court held that the RRT had failed to adequately address the evidence of the applicant's past persecution and had not appropriately weighed the evidence. The decision of the RRT was set aside and the matter was remitted to a differently constituted Tribunal for re-determination. The court also ordered that the respondent pay the applicant’s costs of the application.

Orders

Orders of the court

1. The decision of the Refugee Review Tribunal on 14 May 2001 is set aside.

2. The applicant’s application for review of the decision of the delegate of the respondent to refuse to grant the applicant a protection visa is remitted to the Refugee Review Tribunal, differently constituted, for determination according to law.

3. The respondent pay the applicant’s costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GOLDBERG J

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Ratio Decidendi

Legal Principle Established

Established by: GOLDBERG J

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