Hani, Quassim Ben Mohamed v Minister for Immigration & Multicultural Affairs [1998] FCA 1105

FEDERAL COURT OF AUSTRALIA MIGRATION - appeal from Refugee Review Tribunal ("RRT") decision refusing refugee status - whether RRT failed to observe procedures required by the Migration Act - whether RRT decision involved an incorrect application of the law to the facts as found – applicant's submissions directed to merits review – adverse findings were open to RRT to make

Migration Act 1958 (Cth), s 476(1)(a), 476(1)(e), 476(2)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, considered QUASSIM BEN MOHAMED HANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 661 of 1998 O'CONNOR J SYDNEY 8 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 661 of 1998

BETWEEN: QUASSIM BEN MOHAMED HANI

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: O'CONNOR J

DATE OF ORDER: 8 SEPTEMBER 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed with 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 NG 661 of 1998

BETWEEN: QUASSIM BEN MOHAMED HANI

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: O'CONNOR J

DATE: 8 SEPTEMBER 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT This is an application for the review of a decision of a member of the Refugee Review Tribunal ("the Tribunal") dated 20 April 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa. The grounds of the application as they appear in the handwritten document are: 1. That procedures that were required by the Migration Act 1958 (Cth) ("the Act") and the Migration Regulations to be observed in connection with the making of the decision were not observed. 2. That the decision involved errors of law. 3. Omissions or errors in date cannot be perfected. 4. The member failed to consider that being a member of a party doesn't mean one should know the entire history of that party. 5. The member failed to accept that the applicant has a well-founded fear of being killed if he is sent back to his country of origin. The applicant seeks an order that the decision under review be set aside and be remitted back to the Refugee Review Tribunal to be heard and determined according to law. Legislative Context The relevant provisions of the Act in respect of this application are as follows: "Application for review 476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; ... (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; ... (2) The following are not grounds upon which an application may be made under subsection (1): (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power." A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."