Minister for Immigration & Multicultural Affairs v Kobayashi, Hiromi & Anor [1998] FCA 722

Minister for Immigration & Multicultural Affairs v Kobayashi, Hiromi & Anor [1998] FCA 722

The Tribunal's decision was affected by error because it failed to clearly identify and properly apply the Convention concept of membership of a particular social group, and the evidence did not reasonably support findings that unwed single mothers in Japan constitute a persecuted social group, that Ms Kobayashi was persecuted for that reason, or that Japan was unable or unwilling to provide effective protection. The decision therefore had to be set aside and remitted for rehearing.

Jurisdiction
Australia
Judgment Date
29 May 1998
Procedural Posture
Application Pursuant to S 476 of the Migration Act 1958 (cth) for Review of a Refugee Review Tribunal Decision / Appeal From Decision of the Refugee Review Tribunal
Outcome
Appeal upheld; Tribunal decision set aside and matter remitted to the Refugee Review Tribunal for rehearing and determination according to law; no order as to costs.
Legal Topics
['refugee Status' 'membership of a Particular Social Group' 'women in Japan' 'unwed Single Mothers in Japan' 'persecution for a Convention Reason' 'state Protection' 'no Evidence Ground of Review' 'error of Law']
['immigration' 'administrative Law' 'refugee Law'] ['refugee Status' 'membership of a Particular Social Group' 'women in Japan' 'unwed Single Mothers in Japan' 'persecution for a Convention Reason' 'state Protection' 'no Evidence Ground of Review' 'error of Law']

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Procedural Posture

Application Pursuant to S 476 of the Migration Act 1958 (cth) for Review of a Refugee Review Tribunal Decision / Appeal From Decision of the Refugee Review Tribunal

Legal Issues

  1. 1 ['Whether the Refugee Review Tribunal erred in finding that the respondents satisfied the refugee criterion under the Convention and Protocol.' 'Whether the first respondent was a member of a particular social group, including whether women in Japan or unwed single mothers in Japan constituted a relevant social group.' 'Whether there was evidence to support a finding that unwed single mothers in Japan are a persecuted social group.' 'Whether there was evidence to support a finding that the first respondent suffered persecution for reason of membership of a relevant social group.' 'Whether the Japanese Government would offer effective protection to the respondents.' "Whether the second respondent's status should be considered separately."]

Ratio Decidendi

The Tribunal's decision was affected by error because it failed to clearly identify and properly apply the Convention concept of membership of a particular social group, and the evidence did not reasonably support findings that unwed single mothers in Japan constitute a persecuted social group, that Ms Kobayashi was persecuted for that reason, or that Japan was unable or unwilling to provide effective protection. The decision therefore had to be set aside and remitted for rehearing.

Court Disposition

Appeal upheld; Tribunal decision set aside and matter remitted to the Refugee Review Tribunal for rehearing and determination according to law; no order as to costs.

Orders

  • ['The decision appealed from be set aside.' 'The matter be remitted to the Refugee Review Tribunal for rehearing and determination according to law.']