Minister for Immigration & Multicultural Affairs v Kabail [1999] FCA 344

Minister for Immigration & Multicultural Affairs v Kabail [1999] FCA 344

The Tribunal did not err in law. Article 33 consideration is activated by evidence showing an opportunity to attain refugee status or effective protection in a third country, not by a rigid significant connection test. On the material before the Tribunal, its finding that the respondents did not reside in Italy and did not seek or obtain protection there was to be understood as a conclusion that there was no evidence of an opportunity sufficient to raise the applicability of Art 33. Because there was no material suggesting a right to return to or re-enter Italy, the Tribunal was not obliged to consider re-entry further.

Jurisdiction
Australia
Judgment Date
31 March 1999
Procedural Posture
Application for Review of a Refugee Review Tribunal Decision Concerning Protection Visas / Federal Court Judgment on Application for Review
Outcome
Application for review dismissed; Refugee Review Tribunal decision affirmed.
Legal Topics
['protection Visa' 'non Refoulement' 'safe Third Country' 'effective Protection' 'error of Law' 'refugee Review Tribunal Review']
['immigration' 'refugee Law' 'administrative Law'] ['protection Visa' 'non Refoulement' 'safe Third Country' 'effective Protection' 'error of Law' 'refugee Review Tribunal Review']

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Procedural Posture

Application for Review of a Refugee Review Tribunal Decision Concerning Protection Visas / Federal Court Judgment on Application for Review

Legal Issues

  1. 1 ['Whether the Refugee Review Tribunal erred in law by failing to address whether Australia had protection obligations where the respondents had entered Italy.' 'Whether the Refugee Review Tribunal erred in law by failing to consider and ascertain whether the respondents would be permitted to re-enter Italy, at least temporarily, so their claims to refugee status could be considered there.' 'Whether Art 33 of the Refugees Convention applies only where a third country has already recognised refugee status or also where there is evidence of an opportunity to attain refugee status in a third country.']

Ratio Decidendi

The Tribunal did not err in law. Article 33 consideration is activated by evidence showing an opportunity to attain refugee status or effective protection in a third country, not by a rigid significant connection test. On the material before the Tribunal, its finding that the respondents did not reside in Italy and did not seek or obtain protection there was to be understood as a conclusion that there was no evidence of an opportunity sufficient to raise the applicability of Art 33. Because there was no material suggesting a right to return to or re-enter Italy, the Tribunal was not obliged to consider re-entry further.

Court Disposition

Application for review dismissed; Refugee Review Tribunal decision affirmed.

Orders

  • ['The application for review be dismissed.' 'The decision of the Refugee Review Tribunal made on 15 December 1998 be affirmed.' "The applicant pay the respondents' costs of the application for review."]