RELEVANT JUDGMENTS IN RELATION TO PROTECTION VISAS
(prepared by John Gibson)
1. Definition
Chan Yee Kin v Minister for Immigration and Ethnic Affairs(1989)169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo(1997)191 CLR 559.
Suleiman v Minister for Immigration & Multicultural Affairs[2001] FCA 752 – subjective fears linked to ground
Puerta v MIMA [2001] FCA 309 (setting out the authorities)
Applicant A v MIEA(1997) 190 CLR 225
MIMA v Savvin (2000) 171 ALR 483, 61 ALD 107, 98 FCR 168 [2000] FCA 478 – fear of persecution required
Taiem v MIMA (2001) 186 ALR 361 ; [2001] FCA 611-assess against all countries
QAAE of 2002 v MIMIA [2002] FCA 1213
Voitenko v MIMA (1998)55 ALD 629 [1999] FCA 428
C & S v Minister [1999] FCA 1430; 94 FCR 366
Ramirez v MIMA [2000] FCA 1000
Zheng & Anor v MIMA [2000]FCA 670 (summary of law)
Welivita v Minister [1996] 989 FCA 1
Z v MIMA(1998) 90 FCR 51 – disproportionate punishment cf law of general application/prosecution
Omar v MIMA MIMA (2000) 179 ALR 525, 104 FCR 187; 62 ALD 342 [2000] FCA 1430)
Buultjens v MIMA [2001] FCA 1058; Peiris v MIMA (1999) 58 ALD 413 –political persons but no motivation
6. Multiple causes (and see s91r(2))
Chokov v Minister [1999] FCA 823
Jahazi v Minister(1995) 61 FCR 293
Chen Shi Hai v MIMA (2000) 170 ALR 553 ; 74 ALJR 775
MIMA v Zamora (1998) 85 FCR 458
Applicant A v Minister for Immigration and Ethnic Affairs(1997)190 CLR 225
VAM” v MIMA [2001] FCA 1809 Marshall J. (summary of authorities): affd in “VAM” v MIMA [2002] FCAFC 125 (10 May 2002) (Black CJ.Drummond and Kenny JJ.) Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565
MIMA v Applicant Z [2001] FCA 1823( 2001) 116 FCR 36
MIMA v Khawar (2002) 76 ALJR 667 187 ALR 574 67 ALD 577
[2002] HCA 14 (also persecution)
MIMA v Cali [2000] FCA 1026
SBBK v MIMIA [2002] FCA 565
c) Victims of crime
Dranichnikov v MIMA (2000) 60 ALD 482, [2000] FCA 63 at [34]
d) Family
Giraldo v MIMA [2001] FCA 113 (summary of authorities)
Minister for Immigration & Multicultural Affairs v Sarrazola(2001) 107 FCR 184, [2001] FCA 263 (but see s91S)
MIMA v Shtjefni [2001] FCA 1323 (but see s91S)
“Applicant LSLS” v MIMA [2000] FCA 211
Satinder Pal Singh v MIMA (2000)178 ALR 742 [2000] FCA 1704(summary of authorities)
Kabir v MIMA [2001] FCA 969 affd [2002] FCA 129
Woudneh v MILGEA, unreported , Gray J. G86 of 1988, 16 September 1988
MIMA v Zheng [2000] FCA 50 –system of regulation of church governance that was not persecutory
Cf Wang v MIMA (2000) 179 ALR 1, 105 FCR 548 ; 62 ALD 373; [2000] FCA 1599
Farajvand v MIMA [2001] FCA 795
Liu v MIMA [2001] FCA 257
MIMA v Jang (2000) 175 ALR 752; 63 ALD 661; [2000] FCA 1075 –enforcement of national law
Brandigampolage v MIMA [2000] FCA 1400
Chan
Applicant A
Roguinski v MIMA [2001] FCA 1327
Ariaee v MIMA [2001] FCA 1627 –discrimination /persecution
Chen Shi Hai
Z v Minister for Immigration and Multicultural Affairs(1998) 90 FCR 51
Wehiliye v MIMA [2001] FCA 1222
(See Now s91 R)
Gersten v MIMA [2000] FCA 855
MIMA v Kord [2002] FCA 334;[2002] FCAFC 77 (2002) 67 ALD 28.
Gunaseelan v MIMA (1997) 49 ALD 594; [1997] 434 FCA (French J.).- positive discrimination
Capa v MIMA [2001] FCA 898 –threat of harm
U Win v MIMA [2001] FCA 132 –query
Oo v MIMA [2001] FCA 348
MIMA v Islam [2001] FCA 1681
Chen v Minister for Immigration and Ethnic Affairs(1995) 58 FCR 96
Prahastono v MIMA (1997) 77 FCR 260 at 267-8; [1997] 586 FCA
Korizad v MIMA [2002] FCA 487 (summary of authorities)
f) Question of fact
Arumugam v MIMA[1999] FCA 251 at [37] (on appeal,[1999] FCA 1285
Khawar
Ozmanian v MIMA [1997] 256 FCA
MIMA v Mohammed (2000) 98 FCR 405; 61 ALD 1 [2000] FCA 576
MIMA v Farahanipour (2001) 181 ALR 535;64 ALD 341; [2001] FCA 82)
13. Article 33; s36(3)(4)(5)
MIMA v Applicant C (2001) 116 FCR 154 66 ALD 1 [2001] FCA 1332
V872/00A, V900/00A, V854/00A, V856/00A and V903/00A v MIMA [2002] FCAFC 185 ;(2002) 190 ALR 268 - application for special leave and appeal referred to the Full Court
MIMA v WABQ [2002] FCAFC 329 (Hill, Moore and Tamberlin JJ.) allowing appeal from MIMA v Quiader [2001] FCA 1458 –Article 1 D
A v MIMA (1999) 53 ALD 545 [1999] FCA 116 (FFC) citing Prathapan v MIMA (1997) 47 ALD 41.
Mehmood v MIMA [2000] FCA 1799
Applicant A
Sowrimuthu v MIMA [2001] FCA 300
MIMA v Kandasamy [2000] FCA 67 –realistic choice of availing oneself of state protection
Ismail v Minister [2000] FCA 194 (summary of issues)
Aksahin v MIMA [2000] FCA 1570
Kesic v MIMA[2001] FCA 130
MIMA v Singh [2002] HCA 7;(2002) 186 ALR 393; 76 ALJR 514; 67 ALD 257
Applicant NADB of 2001 v MIMA [2002] FCAFC 326 (Madgwick, Merkel and Conti JJ.) dismissing appeal from [2002] FCA 200 ; (2002) 189 ALR 293 (Hely J.)
Rezaei v MIMA [2001] FCA 1294
Chan
Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001)179 ALR 238 ; 75 ALJR 889; [2001] HCA 22 per Gaudron J. at [68]:
Hathaway p199-204
(1)(2)
Note that much of sub-s (1) and (2) reflects jurisprudence as stated in Chan v MIEA (1989)169 CLR 379; 87 ALR 412, Chen Shi Hai v MIMA(2000) 200 CLR 293; 170 ALR 553 and MIMA v Haji Ibrahim (2000) 204 CLR 1; 175 ALR 585. Concepts of ‘serious harm’ and ‘systematic and discriminatory conduct’ were present in pre-amendment law. Definition of ‘serious harm’ is a non-exhaustive list of examples. Note that statutory position now consistent with pre-amendment law since MIMA v Kord [2002] FCA 334. Mental harm is not necessarily excluded. Reference to capacity to subsist novel concept. Requirement that there be ‘systematic and discriminatory conduct suggest comparative standard. Mc Hugh J. in Haji Ibrahim, referring to the endorsement of the concept in Chan, considered that in the context of persecution, systematic refers to non-random or intended conduct rather than habitual or methodical behaviour ( hence single incidents may constitute persecution). Requirement of essential and significant does not alter the principle that a Convention reason for persecution need not be the sole reason but arguably is a higher standard than before.
(3)
This is designed to overcome the effect of MIMA v Mohammed (2000) 98 FCR 405 which held that the Convention contained no requirement of ‘good faith’ and that the central question was whether or not the applicant had a wll-founded fear of persecution on return. Now it is necessary to examine the motivation of the applicant’s activities in Australia and disregard such conduct if it is for the purpose stated in sub-s (b), the burden being on the applicant to satisfy the decision-maker the conduct was engaged in for a purpose other than of advancing his claim to refugee status (quaere; this is the position as it was following Somaghi v MILGEA (1991) 31 FCR 100; 102 ALR 339.) There is now an issue whether a sole purpose test should be aplied pursuant to s91 R(3)(b) which would be consistent with Somaghi and could be implied. Future conduct in a person’s country of origin having its genesis in such ‘bad faith’ conduct may not come within the terms of the amendment.
A person who fears persecution because he is a relative of another person targeted for a non-Convention reason does not fall within the definition of a particular social group. MIMA v Sarrazola (2001) 107 FCR 184 is no longer good law in circumstances where the particular social group of family is relied upon based upon fears derived from the non-Convention related fears of a family member.
91T Non-political crime
The list of offences in s5 demonstrate that the emphasis of the amendment is primarily on the seriousness of the offence rather than on the intention and circumstances of the crime. The threshold for determining the degree of political motivation required for a criminal act to fall outside the article 1F(b) exclusion is raised and widens the class of people excluded from the Convention definition. It appears to modify the effect of the later decided MIMA v Singh [2002] HCA 7.
This emphasis on definition by the nature of the crime and its penalty goes beyond the more general approach of A v MIMA [199]FCA 227 of consideration of the context and circumstances of the crime, as well as the crime.