Al-Zafiry v Minister for Immigration & Multicultural Affairs [1999] FCA 443

FEDERAL COURT OF AUSTRALIA

Al-Zafiry v Minister for Immigration &

Multicultural Affairs [1999] FCA 443

SALEH SAFAQ SAYAH AL-ZAFIRY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS NG 1330 OF 1998 EMMETT J 25 MARCH 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1330 OF 1998

BETWEEN: SALEH SAFAQ SAYAH AL-ZAFIRY

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: EMMETT J

DATE OF ORDER: 25 MARCH 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Application be 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 1330 OF 1998

BETWEEN: SALEH SAFAQ SAYAH AL-ZAFIRY

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: EMMETT J

DATE: 25 MARCH 1999

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant is a Bedoon from Kuwait who arrived in Australia on 7 July 1998. When he arrived he was carrying false papers. On 8 July 1998, he lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs. On 11 September 1998, a delegate of the Minister for Immigration & Multicultural Affairs refused to grant a protection visa and on 15 September 1998 the applicant sought review of that decision by the Refugee Review Tribunal. The Tribunal, constituted by Ms Danoo Kelleghan, conducted a hearing and on 20 December 1998 made a decision affirming the decision not to grant a protection visa. The applicant has now brought proceedings in this Court for review of that decision under the Migration Act 1958 ("the Act"). 2 Three paragraphs of section 476(1) of the Migration Act are relied on as grounds of review. The grounds of review are particularised in the amended application as follows: "1. The decision of the [tribunal] involved an error of law, that error being either a misapplication of the law to the facts as found by the Tribunal or a misinterpretation of the applicable law. Particulars 1.1 The [tribunal] misapplied or misinterpreted the concept of 'effective protection' in finding that it had been afforded to the applicant by Jordan. 2. In reaching its decision the Tribunal did not follow procedures prescribed [scilicet] by the Act. Namely, the Tribunal did not act justly and fairly, and according to the merits of the case. Particulars 2.1 The Tribunal failed to draw the attention of the applicant to, or afford the applicant an opportunity to respond to, communications which the Tribunal had with the United Nations High Commissioner for Refugees' Legal Officer in Canberra upon which the Tribunal relied in reaching its decision. 2.2 The Tribunal failed to make adequate inquiries as to whether or not the applicant could return to Jordan. 2.3 The Tribunal failed to make adequate inquiries as to the actual status of [the applicant] in Jordan. 3. The Tribunal had no evidence on which to base the decision. Namely, either the person who made the decision was required by law to reach a decision only if a particular matter was established and there was no evidence or other material from which the person could be reasonably satisfied that the matter was established, or the tribunal based its decision on a fact and that fact did not exist. Particulars 3.1 The Tribunal concluded that the applicant had a right to reside in Jordan." 3 In the course of argument, counsel for the applicant accepted that the third ground, based on section 476(1)(g) of the Act, does not really take the matter any further. If the applicant succeeds on the first ground, based on section 476(1)(e), then it is unnecessary to rely on the ground in section 476(1)(g). On the other hand, if the applicant fails in his first submission concerning the error or misapplication of law, then the question of evidence as raised by ground (3) does not arise. Accordingly, the argument was limited to the first two grounds. 4 In the second ground, as would be apparent, there are several sub-grounds. I shall deal with each of the grounds separately. Before doing so, however, I propose to say something about the decision and the reasons given by the Tribunal.