Minister for Immigration & Multicultural Affairs v Al-Sallal, Mohamad Abdulah [1999] FCA 1332

Minister for Immigration & Multicultural Affairs v Al-Sallal, Mohamad Abdulah [1999] FCA 1332

The Full Court held that Article 33(1) does not require the third country to be a party to the Refugees Convention before Australia may rely on that country as affording effective protection. The decisive question is one of practical reality and fact: whether there is a real chance that the asylum seeker will lack effective protection in the third country against refoulement to a place where he may suffer Convention persecution. The Tribunal had evidence on which it could find that Jordan would permit the respondent to enter, reside and re-enter and would not refoule him to Kuwait or Iraq, applied the correct real chance approach, and considered his individual circumstances. The primary...

Jurisdiction
Australia
Judgment Date
29 October 1999
Procedural Posture
Immigration Appeal Concerning Refusal of Protection Visa and Refugee Review Tribunal Decision / Full Court Appeal From Orders Setting Aside the Refugee Review Tribunal Decision
Outcome
Appeal allowed; orders of the primary judge set aside; respondent's application dismissed; respondent ordered to pay costs.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'non Refoulement' 'effective Protection' 'safe Third Country' 'stateless Bedoon' 'judicial Review Error of Law']
['immigration Law' 'refugee Law' 'administrative Law'] ['protection Visa' 'refugee Review Tribunal' 'non Refoulement' 'effective Protection' 'safe Third Country' 'stateless Bedoon' 'judicial Review Error of Law']

Case Brief

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Procedural Posture

Immigration Appeal Concerning Refusal of Protection Visa and Refugee Review Tribunal Decision / Full Court Appeal From Orders Setting Aside the Refugee Review Tribunal Decision

Legal Issues

  1. 1 ["Whether Australia's obligations under Article 33(1) of the Refugees Convention in a case of refoulement to a third country can be satisfied where the third country is not a party to the Convention." 'Whether it was open to the Refugee Review Tribunal to find that Jordan afforded the respondent effective protection against refoulement to Iraq or Kuwait.' 'Whether the Refugee Review Tribunal applied the real chance test.' "Whether the Refugee Review Tribunal considered the respondent's particular circumstances."]

Ratio Decidendi

The Full Court held that Article 33(1) does not require the third country to be a party to the Refugees Convention before Australia may rely on that country as affording effective protection. The decisive question is one of practical reality and fact: whether there is a real chance that the asylum seeker will lack effective protection in the third country against refoulement to a place where he may suffer Convention persecution. The Tribunal had evidence on which it could find that Jordan would permit the respondent to enter, reside and re-enter and would not refoule him to Kuwait or Iraq, applied the correct real chance approach, and considered his individual circumstances. The primary...

Court Disposition

Appeal allowed; orders of the primary judge set aside; respondent's application dismissed; respondent ordered to pay costs.

Orders

  • ['Appeal is allowed.' 'Orders made on 8 April 1999 are set aside.' "The respondent's application is dismissed." "The respondent pay the appellant's costs at first instance and on the appeal, including reserved costs."]