V856/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 1018

FEDERAL COURT OF AUSTRALIA

V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018 MIGRATION – application for order of review of decision of Refugee Review Tribunal to affirm decision of delegate of Minister not to grant a protection visa – Iraqi national having spent time in Syria – finding that effective protection was and is available in Syria – finding that no risk of refoulement to Iraq – finding that no risk of persecution in Syria – finding that a capacity to re-enter Syria – 'right to enter and reside' in s 36(3) of Migration Act 1958 – nature of 'right' – capacity to bring about entry is not a right to enter – but a 'legally enforceable' right not required – s 36(3) does not affect continuing operation of s 36(2) of Act and Article 33 of Refugees Convention – finding of availability of effective protection in third country Syria including finding of capacity to bring about entry into Syria means Australia has no protection obligations under s 36(2) MIGRATION – practice and procedure – powers of Federal Court in making of orders under s 481(1) of Migration Act 1958 – power to decline relief notwithstanding error in law in approach of Tribunal in setting framework of fact finding – where findings made permit of only one outcome under correct approach MIGRATION – Refugees Convention 1951 – Article 33 – history and interpretation Migration Act 1958 (Cth) s36, s91M Border Protection Legislation Amendment Act 1999 (Cth) Convention relating to the Status of Refugees 1951 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 – referred to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 – referred to Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549 – considered and followed Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 – considered and followed Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526 – considered and followed Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 – considered and followed in part S115/005A v Minister for Immigration and Multicultural Affairs [2001] FCA 540 – considered and followed in part Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630 – considered and followed in part Bitani v Minister for Immigration and Multicultural Affairs [2001] FCA 631 – considered and followed in part W228 v Minister for Immigration and Multicultural Affairs [2001] FCA 860 – considered and followed Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 – applied Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 – applied Tharmalingam v Minister for Immigration and Multicultural Affairs [1999] FCA 1180 – considered and not followed Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1 – considered Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443; (1999) 58 ALD 663 – considered and followed Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554 – considered and distinguished Sale v Haitian Centers Council (1993) 509 US 155, 125 L Ed 2d 128 – considered Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 – referred to Minister for Immigration and Multicultural Affairs v Mohammed (2000) 98 FCR 405 – referred to Danian v Secretary of State (2000) Imm AR 96 – referred to Omar v Minister for Immigration and Multicultural Affairs [2000] FCA 1430 – referred to Minister for Immigration and Multicultural Affairs v Farahanipour [2001] FCA 82 – referred to Somaghi v Minister for Immigration and Multicultural Affairs (1991) 31 FCR 100 – referred to Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 – referred to Morales vMinister for Immigration and Ethnic Affairs (1995) 60 FCR 550 – referred to Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 – referred to Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301 – referred to Santa Sabina College v Minister for Education (1985) 58 ALR 527 – referred to Yuk Shan Cheung v Minister for Immigration and Ethnic Affairs (1997) 49 ALD 609 – referred to Ranatora v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 693 – referred to Stone, The Province and Function of Law, 1950 Robinson, Convention Relating to the Status of Refugees; Its History, Contents and Interpretation – A Commentary, 1953 Weis (ed) The Refugee Convention 1951 Goodwin-Gill, The Refugee in International Law (2nd ed) Hansard, Senate, 25 November 1999 V856/00A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V856 of 2000 ALLSOP J SYDNEY 3 AUGUST 2001