Sameh v Minister for Immigration & Multicultural Affairs [1999] FCA 875

Sameh v Minister for Immigration & Multicultural Affairs [1999] FCA 875

The Tribunal erred in law by accepting that Jordan (and possibly Iraq) was a 'safe third country' for the applicant despite evidence (or lack thereof) regarding their status as parties to the Refugee Convention, contrary to the requirement that only a Convention party can be considered a safe third country for these purposes. This reviewable error under the Migration Act warranted setting aside the Tribunal's decision.

Parties
Applicant: Attalah Ali Mohammad Jaber Sameh; Respondent: Minister for Immigration & Multicultural Affairs
Jurisdiction
Australia
Judgment Date
30 June 1999
Procedural Posture
Judicial Review / Federal Court, First Instance
Outcome
Tribunal decision set aside and matter remitted for further consideration; costs awarded to applicant.
Legal Topics
Protection Visas, Refugee Status Determination, Safe Third Country, Judicial Review of Refugee Review Tribunal Decisions
Migration Law Administrative Law Protection Visas Refugee Status Determination Safe Third Country Judicial Review of Refugee Review Tribunal Decisions

Case Brief

Summary, issues, holding and outcome

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Parties

Attalah Ali Mohammad Jaber Sameh

Applicant

Minister for Immigration & Multicultural Affairs

Respondent

Procedural Posture

Judicial Review / Federal Court, First Instance

Legal Issues

  1. 1 Whether the applicant has 'effective protection' in a third country for purposes of a protection visa under s 36 of the Migration Act 1958 (Cth)
  2. 2 Whether it is necessary for the third country to be a party to the Refugee Convention to provide 'effective protection'
  3. 3 Whether the Tribunal failed to set out required findings regarding Iraq's status under the Convention

Ratio Decidendi

The Tribunal erred in law by accepting that Jordan (and possibly Iraq) was a 'safe third country' for the applicant despite evidence (or lack thereof) regarding their status as parties to the Refugee Convention, contrary to the requirement that only a Convention party can be considered a safe third country for these purposes. This reviewable error under the Migration Act warranted setting aside the Tribunal's decision.

Court Disposition

Tribunal decision set aside and matter remitted for further consideration; costs awarded to applicant.

Orders

  • The decision of the Refugee Review Tribunal dated 12 February 1999 be set aside and the matter to which the decision related be referred to the Tribunal for further consideration.
  • The respondent pay the applicant's costs of the proceeding.