Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18

The Tribunal did not commit jurisdictional error and made findings supported by the evidence, namely that the attacks on the respondent were individual and random acts by private persons, not condoned, tolerated or orchestrated by the state, and that Ukraine provided an appropriate level of protection. There was no evidence justifying a finding that Ukraine was unable or unwilling to offer protection at the level required by international standards, and therefore no well-founded fear of persecution was made out. The appeal is allowed and the Full Court's decision is set aside.

Parties
Appellant: Minister for Immigration and Multicultural Affairs; Respondents: Respondents S152/2003
Jurisdiction
Australia
Judgment Date
21 April 2004
Procedural Posture
Appeal / High Court Appeal From Full Court of the Federal Court of Australia
Outcome
Appeal allowed
Legal Topics
Protection Visas, Refugee Status, Persecution by Non State Actors, Failure of State Protection, Jurisdictional Error, Interpretation of the Refugees Convention
Immigration Law International Law Administrative Law Protection Visas Refugee Status Persecution by Non State Actors Failure of State Protection Jurisdictional Error +1 more

Case Brief

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Parties

Minister for Immigration and Multicultural Affairs

Appellant

Respondents S152/2003

Respondents

Procedural Posture

Appeal / High Court Appeal From Full Court of the Federal Court of Australia

Legal Issues

  1. 1 Did the Tribunal fail to consider whether the Ukrainian government was practically able to protect against future harm to the respondent for a Convention reason?
  2. 2 Is harm by non-state actors, without state encouragement or tolerance, sufficient to establish a claim to refugee status?
  3. 3 What is the proper test for 'persecution' and 'well-founded fear' under the Refugees Convention and Migration Act 1958 (Cth)?

Ratio Decidendi

The Tribunal did not commit jurisdictional error and made findings supported by the evidence, namely that the attacks on the respondent were individual and random acts by private persons, not condoned, tolerated or orchestrated by the state, and that Ukraine provided an appropriate level of protection. There was no evidence justifying a finding that Ukraine was unable or unwilling to offer protection at the level required by international standards, and therefore no well-founded fear of persecution was made out. The appeal is allowed and the Full Court's decision is set aside.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed.
  • Set aside orders 1, 2 and 3 made by the Full Court of the Federal Court on 23 May 2002 and, in lieu thereof, order that the appeal to the Full Court of the Federal Court be dismissed.