Daher, Toufic v Minister for Immigration & Ethnic Affairs [1997] FCA 729

FEDERAL COURT OF AUSTRALIA IMMIGRATION - Crimes against humanity - Whether Administrative Appeals Tribunal possessed jurisdiction to review decision of Refugee Review Tribunal where protection visa refused in reliance on Article 1F of the Convention relating to the Status of Refugees - Whether Refugee Review Tribunal possessed jurisdiction to consider issues arising under Article 1F - Whether decision of Refugee Review Tribunal should be declared void.

Migration Act 1958 (Cth) ss36, 411, 415, 500. TOUFIC DAHER v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS VG 739 of 1996 JUDGES: DAVIES, HILL & HEEREY JJ PLACE: MELBOURNE DATED: 5 AUGUST 1997 GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 739 of 1996 ) GENERAL DIVISION ) On appeal from a Judge of the Federal Court of Australia BETWEEN: TOUFIC DAHER Appellant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGES: DAVIES, HILL & HEEREY JJ PLACE: MELBOURNE DATED: 5 AUGUST 1997 MINUTES OF ORDER THE COURT DECLARES THAT: The decision of the Refugee Review Tribunal of 25 August 1995 was void ab initio insofar as it relied upon Article 1F of the Convention relating to the Status of Refugees. THE COURT ORDERS THAT: 1. Leave be granted to amend the notice of appeal. 2. The trial Judge's order as to costs be set aside and in substitution therefor it be ordered that the respondent pay the costs of the application to the Court. 3. The respondent pay the costs of the appeal. 4. The appeal otherwise be dismissed.

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

GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 739 of 1996 ) GENERAL DIVISION ) On appeal from a Judge of the Federal Court of Australia BETWEEN: TOUFIC DAHER Appellant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGES: DAVIES, HILL & HEEREY JJ PLACE: MELBOURNE DATED: 5 AUGUST 1997 REASONS FOR JUDGMENT THE COURT: Section 36 of the Migration Act 1958 (Cth) ("the Act") provides for a class of visas, known as "protection visas", a criterion for the grant of which is that the applicant is a non-citizen in Australia to whom Australia has obligations under the Refugees Convention as amended by the Refugee Protocol. The Convention is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The Protocol is a Protocol relating to the Status of Refugees done at New York on 31 January 1967. Article 1A(2) of the Convention and Protocol defines a refugee as a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country. ..." Clause F of Article 1 goes on to provide:- "F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations." The appellant, Mr Toufic Daher, applied for refugee status on 21 March 1994. The application was refused on 18 August 1994 by a delegate of the Minister for Immigration and Ethnic Affairs on the ground that Mr Daher was not a refugee as defined in art. 1A(2) of the Convention & Protocol. Part 7 of the Act establishes a review tribunal entitled the Refugee Review Tribunal. Section 411(1) provides, inter alia:- "411. (1) Subject to subsection (2), the following decisions are RRT-reviewable decisions: ... (c) a decision to refuse to grant a protection visa; ..." On such a review, the Refugee Review Tribunal has the powers which are specified in s.415 of the Act which provides:- "415. (1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision. (3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister. ..."