Suleiman v Minister for Immigration & Multicultural Affairs [2001] FCA 752

FEDERAL COURT OF AUSTRALIA

Suleiman v Minister for Immigration & Multicultural Affairs [2001] FCA 752

MIGRATION – application for protection visa – no question of principle. Migration Act 1958 (Cth)ss 476(1)(a), (e), (g) and 430(1)(c) Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 considered Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 referred to Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 referred to

SULEIMAN OMAR SULEIMAN v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 214 of 2000 LEE, HILL AND EMMETT JJ 30 May 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 214 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

BETWEEN: SULEIMAN OMAR SULEIMAN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: LEE, HILL AND EMMETT JJ

DATE OF ORDER: 30 MAY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal 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

WESTERN AUSTRALIA DISTRICT REGISTRY W 214 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SULEIMAN OMAR SULEIMAN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: LEE, HILL AND EMMETT JJ

DATE: 30 MAY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT: 1 The appellant, Suleiman Omar Suleiman, appeals against the decision of a Judge of this Court, Nicholson J, dismissing his application for judicial review under s 476 of the Migration Act 1958 (Cth) ("the Act") of a decision of the Refugee Review Tribunal ("the Tribunal") which had affirmed a decision of the respondent, Minister for Immigration and Multicultural affairs, not to grant to him a protection visa. 2 The applicant at first instance sought to impugn the decision on two grounds. The first, based upon s 476(1)(a) of the Act, alleged that procedures required to be observed had not been observed by the Tribunal. The relevant procedure said to be prescribed by the Act was the failure of the Tribunal to make a finding or give reasons in respect of a material fact, namely, whether the appellant had a well-founded fear of persecution arising from his membership of a particular social group, that being coastal persons in Kenya. The second, not raised, however, by the appellant in his grounds of appeal before us, was based upon s 476(1)(g) of the Act. It is unnecessary to consider this second matter further. 3 Both grounds of review were rejected by the learned primary Judge. The appellant appeals the decision of the learned primary Judge in respect of the first ground but seeks also to raise a ground of appeal not raised before the primary Judge based on s 476(1)(e) of the Act, namely, that the Tribunal had made a mistake of law by applying the wrong test when considering whether the appellant had a well-founded fear of persecution for reason of political opinion. The wrong test was, it is said, that such a ground could not apply unless the person seeking to be found to be a "refugee" within the definition contained in the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (compendiously referred to as "the Convention"), was a "serious" political activist, when no such standard applied. 4 The second ground of appeal was, as we have said, not as such included in the grounds of review contained in the application filed in the Court as supplemented at the hearing at first instance. Accordingly, the appellant not only required leave to amend his grounds of appeal but also to amend his application for review. The Minister made no objection to leave being granted to amend the application and the grounds of appeal to permit the appellant to raise on appeal the submission that the Tribunal had made an error of law. The Court granted leave accordingly.