V872/00A, V900/00A, V854/00A, V856/00A, and V903/00A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 185

V872/00A, V900/00A, V854/00A, V856/00A, and V903/00A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 185

The appeals were dismissed because neither s 36(2) of the Migration Act 1958 (Cth) nor Article 33 of the Refugee Convention required the appellants to have a legally enforceable right to enter or re-enter Syria before Australia could rely on effective protection there. The Tribunal had found that, as a matter of practical reality and fact, the appellants could enter or re-enter Syria, reside there indefinitely, would not face a real chance of persecution there, and would not be refouled to Iraq. Earlier Full Court authority rejecting a strict legally enforceable right requirement was not plainly or clearly wrong and was followed.

Jurisdiction
Australia
Judgment Date
18 June 2002
Procedural Posture
Migration Appeal Concerning Protection Visas and Effective Protection in a Safe Third Country / Appeal to the Full Court From Judgments of a Single Judge Dismissing Applications for Judicial Review of Refugee Review Tribunal Decisions
Outcome
Appeals dismissed with costs.
Legal Topics
['protection Visas' 'article 33 of the Refugee Convention' 'non Refoulement' 'effective Protection in a Third Country' 'safe Third Country' 'legally Enforceable Right of Entry' 'full Court Precedent']
['migration Law' 'refugee Law' 'administrative Law' 'practice and Procedure'] ['protection Visas' 'article 33 of the Refugee Convention' 'non Refoulement' 'effective Protection in a Third Country' 'safe Third Country' 'legally Enforceable Right of Entry' 'full Court Precedent']

Case Brief

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Procedural Posture

Migration Appeal Concerning Protection Visas and Effective Protection in a Safe Third Country / Appeal to the Full Court From Judgments of a Single Judge Dismissing Applications for Judicial Review of Refugee Review Tribunal Decisions

Legal Issues

  1. 1 ['Whether Australia has protection obligations under s 36(2) of the Migration Act 1958 (Cth) to non-citizens who lack a legally enforceable right to enter a third country but are likely, as a matter of practical reality, to be admitted there and receive effective protection.' 'Whether effective protection in a safe third country requires an enforceable legal right of entry or re-entry at the time of determination.' 'Whether there must be an acceptance by the third country of an obligation to receive and protect the asylum seeker.' 'Whether the Full Court should decline to reconsider and instead follow earlier Full Court authority, including Al-Rahal v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 698.']

Ratio Decidendi

The appeals were dismissed because neither s 36(2) of the Migration Act 1958 (Cth) nor Article 33 of the Refugee Convention required the appellants to have a legally enforceable right to enter or re-enter Syria before Australia could rely on effective protection there. The Tribunal had found that, as a matter of practical reality and fact, the appellants could enter or re-enter Syria, reside there indefinitely, would not face a real chance of persecution there, and would not be refouled to Iraq. Earlier Full Court authority rejecting a strict legally enforceable right requirement was not plainly or clearly wrong and was followed.

Court Disposition

Appeals dismissed with costs.

Orders

  • ['The appeals be dismissed.' "The appellants pay the respondent's costs of the appeals."]