Minister for Immigration & Multicultural Affairs v Tas [2000] FCA 1657

BEAUMONT J:

INTRODUCTION 1 This is an application by the Minister for Immigration and Multicultural Affairs ("the Minister") for an order of judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 28 June 2000, whereby the Tribunal (a) set aside the Minister's decision (see below) relating to the respondent (who was the applicant before the Tribunal); and (b) remitted the matter for reconsideration, with a direction that the respondent is a person to whom Australia has protection obligations under the Refugee Convention. 2 Central to the arguments before the Tribunal, and before the Court, are the provisions of Art 33(1) of the Convention Relating to the Status of Refugees ("the Convention") providing for a prohibition of expulsion or return ("refoulement") of a "refugee", as follows: "1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." 3 The question sought to be raised in the proceedings is concerned with the construction of the Convention. Because the Convention definition of "refugee" has been imported into Australian statute law, this is a domestic legal question justiciable in this Court (see, e.g., Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 per Gummow J at par 136). 4 The grounds of the Minister's application are that: "1. 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. PARTICULARS (i) It was not open to the Tribunal to find that the applicant did not have the right to return to Germany and accordingly to be protected from refoulement. (ii) The Tribunal considered that Germany was unable to protect foreigners, refugees and asylum-seekers because the protection mechanisms have 'failed on certain occasions'. This is not the correct test under the Refugee Convention and Protocol. (iii) It was not open to the Tribunal to find that Article 33 operated to preclude the respondent from being returned to Germany." 5 The Minister contends that each of these grounds constituted a reviewable error of law within the meaning of s 476(1)(e) of the Immigration Act 1958 (Cth).