Ahmed, Misbal Aydid v Minister for Immigration & Multicultural Affairs [1998] FCA 1732

FEDERAL COURT OF AUSTRALIA

MIGRATION – refusal of protection visa – challenge to facts found by Refugee Review Tribunal – procedures in connection with fact finding – existence of particular fact – no error of law or other ground of review made out Migration Act 1958 ss 420(2)(b) and 476 (1)(a), (e) and (g)

MISBAL AYDID AHMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 309 OF 1998

WHITLAM J 17 DECEMBER 1998 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 309 of 1998

BETWEEN: misbal aydid ahmed

AND: minister for immigration

and multicultural affairs JUDGE: WHITLAM J

DATE OF ORDER: 17 december 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 309 of 1998

BETWEEN: misbal aydid ahmed

AND: minister for immigration

and multicultural affairs

JUDGE: WHITLAM J

DATE: 17 december 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT Introduction The applicant is a citizen of Somalia. She left that country in December 1990. From 1991 she lived with her children and extended family in India where, at least from 8 April 1992, they were recognised as refugees by the United Nations High Commissioner for Refugees ("the UNHCR"). On 1 August 1997 she arrived in Australia, apparently without her children or other family members, and on 25 August 1997 she applied to the respondent for a protection visa. That application was refused and she applied for a review by the Refugee Review Tribunal ("the Tribunal"). The Tribunal held a hearing on 11 February 1998, and on 16 March 1998 it affirmed the decision refusing to grant her a protection visa. That decision is the subject of the present application. The grounds of review on which the applicant relies are those provided by pars 476(1)(a), (e) and (g) of the Migration Act 1958 (the Act). The applicant's submissions purport to rely extensively on what was said by the majority in Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300. For the reasons given by the Full Court of this Court in Calado v Minister of State for Immigration & Multicultural Affairs [1998] FCA 1532, the most satisfactory approach is to follow that majority view notwithstanding my own misgivings about its correctness. In addition to the reasons for decision of the Tribunal, there has been received in evidence a transcript of the Tribunal hearing on 11 February 1998, the Tribunal file and the file of the Department of Immigration and Multicultural Affairs ("DIMA"). Three affidavits, by Isnino Hajo Mohamed, Hawa Sheekh Omar and Awil Saleh, were also admitted subject to relevance.