Ovcharuk, Igor v Minister for Immigration & Multicultural Affairs [1998] FCA 1314

Ovcharuk, Igor v Minister for Immigration & Multicultural Affairs [1998] FCA 1314

The Full Court held that Dhayakpa was correctly decided and that Article 1F(b) is not confined to fugitives from foreign justice, nor excluded because the crime was continuing in Australia or punished in Australia. On the ordinary meaning of Article 1F(b), read in context and in light of its protective purpose, serious extraterritorial conduct amounting to an Australian crime may constitute a serious non-political crime outside the country of refuge. The AAT had material on which it could find serious reasons for considering that the appellant conspired in Russia to import a large quantity of heroin into Australia. No error of law was shown.

Jurisdiction
Australia
Judgment Date
16 October 1998
Procedural Posture
Immigration Appeal and Application for Judicial Review Concerning Refusal of a Protection Visa / Full Court Appeal From Orders of Marshall J Dismissing an Appeal From the Administrative Appeals Tribunal and an Application Under S 476 of the Migration Act 1958 (cth)
Outcome
Appeals dismissed with costs.
Legal Topics
['protection Visa' 'article 1 F(b) of the Refugees Convention' 'serious Non Political Crime' 'drug Importation' 'exclusion From Refugee Protection' 'vienna Convention Treaty Interpretation']
['immigration' 'refugee Law' 'treaty Interpretation' 'criminal Law'] ['protection Visa' 'article 1 F(b) of the Refugees Convention' 'serious Non Political Crime' 'drug Importation' 'exclusion From Refugee Protection' 'vienna Convention Treaty Interpretation']

Case Brief

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Procedural Posture

Immigration Appeal and Application for Judicial Review Concerning Refusal of a Protection Visa / Full Court Appeal From Orders of Marshall J Dismissing an Appeal From the Administrative Appeals Tribunal and an Application Under S 476 of the Migration Act 1958 (cth)

Legal Issues

  1. 1 ['Whether Article 1F(b) of the Refugees Convention applies only to fugitives from justice.' 'Whether Article 1F(b) applies to a crime committed at least in part, or continued, in the country of refuge.' 'Whether Article 1F(b) applies to a crime that could be or has been adjudicated in the country of refuge.' 'Whether Article 1F(b) applies only to conduct rendered criminal by the law of the place where it was committed.' 'Whether the respondent relying on Article 1F(b) must identify with precision and particularity the relevant serious non-political crime committed outside Australia.' 'Whether the appellant was excluded from protection visa entitlement because there were serious reasons for considering that he committed a serious non-political crime outside Australia before admission as a refugee.']

Ratio Decidendi

The Full Court held that Dhayakpa was correctly decided and that Article 1F(b) is not confined to fugitives from foreign justice, nor excluded because the crime was continuing in Australia or punished in Australia. On the ordinary meaning of Article 1F(b), read in context and in light of its protective purpose, serious extraterritorial conduct amounting to an Australian crime may constitute a serious non-political crime outside the country of refuge. The AAT had material on which it could find serious reasons for considering that the appellant conspired in Russia to import a large quantity of heroin into Australia. No error of law was shown.

Court Disposition

Appeals dismissed with costs.

Orders

  • ['The appeals are dismissed.' "The appellant pay the respondent's costs."]