Tesfamichael v Minister for Immigration & multicultural Affairs [1999] FCA 1661

FEDERAL COURT OF AUSTRALIA

Tesfamichael v Minister for Immigration & Multicultural Affairs [1999] FCA 1661 MIGRATION – application for review under s 476(1)(e) of the Migration Act 1958 (Cth) – Ethiopian citizen feared expulsion to Eritrea by reason of Eritrean ethnicity – Tribunal found 'reasonable to believe' that cease-fire may occur and expulsion policy terminate – whether proper application of "real chance" test – whether Tribunal should have asked: 'What if I am wrong?' MIGRATION – application for review under s 476(1)(g) – finding that only Ethiopians in a mixed Ethiopian/Eritrean marriage may be persecuted in Ethiopia – finding that applicant as an Eritrean would be perceived as Ethiopian by Ethiopians – finding that there was an imminent cease-fire in Ethiopian/Eritrean conflict – whether particular findings of fact which were links in chain of reasoning to conclude there was no real chance of persecution – whether the particular facts did not exist. MIGRATION – application for review under s 476(1)(a) – requirement to give reasons under s 430 – whether the Tribunal failed to give reasons for not taking account of particular significant evidence supporting opposite finding – whether Tribunal obliged to give reasons for preferring certain cogent evidence over other cogent evidence. MIGRATION –meaning of persecution under the Refugees' Convention – Ethiopian of Eritrean ethnicity – whether the real chance of expulsion to Eritrea may constitute persecution under the Convention. MIGRATION – whether the Tribunal failed to determine whether the applicant had a subjective fear of being persecuted if he returned.

Migration Act 1958 (Cth)ss 414(1), 425, 426, 427, 428, 430, 476(1)(a), 476(1)(g), 476(4)(a) and 476(4)(b) Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(h) Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B) Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 considered Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 considered Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 applied Ratnayake v Minister for Immigration and Ethnic Affairs (1997) 74 FCR 542 applied Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 602 applied Han v Minister for Immigration and Multicultural Affairs [1999] FCA 376 applied Voitenko v Minister for Immigration and Multicultural Affairs (Moore J, 27 August 1998, unreported) applied Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1234 applied Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 followed Borsa v Minister for Immigration and Multicultural Affairs [1999] FCA 348 considered Baljit Kaur Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1126 considered Yue v Minister for Immigration and Multicultural Affairs [1999] FCA 1404 considered Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 applied Calado v Minister for Immigration and Multicultural Affairs (Full Court, 2 December 1998, unreported) applied Buljeta v Minister for Immigration and Multicultural Affairs (Katz J, 4 December 1998, unreported) applied Logenthiran v Minister for Immigration and Multicultural Affairs (Full Court, 21 December 1998, unreported) applied