Mire v Minister for Immigration & Multicultural Affairs [2000] FCA 1149 (22 August 2000)

Last Updated: 23 August 2000

FEDERAL COURT OF AUSTRALIA

Mire v Minister for Immigration & Multicultural Affairs [2000] FCA 1149

MIGRATION - review of decision of the Refugee Review Tribunal affirming decision of a delegate of respondent refusing applicant's protection visa application - whether, by failing to properly consider the question whether the applicant could effectively exercise his pre - existing right to return to South Africa where he had been granted asylum or the question of whether the applicant would suffer state sponsored persecution upon his return to South Africa, the Refugee Review Tribunal committed an error of law within the meaning of ss430(1)(c) and 476(1)(e) of the Migration Act 1958 (Cth) - whether the Refugee Review Tribunal failed to properly consider the concept of "effective protection" - whether the Refugee Review Tribunal failed to set out its findings on a material question of fact

Migration Act 1958 (Cth) ss 48B, 430(1)(c), 476(1)(a), 476(1)(e)

Dalpatadu v Minister for Immigration & Multicultural Affairs [2000] FCA 697 referred to

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 applied

Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 applied

Najarian v Minister for Immigration & Multicultural Affairs [2000] FCA 933 followed

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 referred to

Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695 applied

Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681 followed

Abebe v Commonwealth (1999) 197 CLR 510, [1999] HCA 14 referred to

AHMED ALI MIRE v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 333 of 1999

MARSHALL J

MELBOURNE

22 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 333 of 1999

BETWEEN:	AHMED ALI MIRE APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	22 AUGUST 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal ("RRT") of 27 May 1999 be set aside.

2. The applicant's application for a protection visa be remitted to a differently constituted RRT for hearing and determination.

3. The respondent pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 333 of 1999

BETWEEN:	AHMED ALI MIRE APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	22 AUGUST 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application by Mr Ahmed Ali Mire under Part 8 of the Migration Act 1958 (Cth) ("the Act") for judicial review of a decision of the Refugee Review Tribunal ("the RRT") made on 27 May 1999. The decision of the RRT affirmed a decision of a delegate of the respondent to refuse to grant Mr Mire a protection visa.

Factual background

2 Mr Mire is a Somali citizen. He left Somalia in late 1995 and from early 1996 until January 1998, he resided in South Africa. Mr Mire had been employed in Somalia as a truck driver and as a motor mechanic. In South Africa, he worked as a hawker, selling clothing and footwear. On 18 June 1997, Mr Mire was granted refugee status in South Africa and was subsequently issued with a travel document by the South African Department of Home Affairs ("the Home Affairs Department"). The expiry date of the travel document was 17 June 1999.

3 In the Home Affairs Department letter of 18 June 1997 which notified Mr Mire of his refugee status, the following was said:

"... the onus rests on you to contact the Department for the reviewal (sic) of your refugee status or to otherwise legalize your continued stay in the R.S.A before the expiry date of your Certificate. Failure to do so may render you liable to prosecution in terms of the provisions of the Aliens Control Act, 1991 (Act 96 of 1991)."

4 A document entitled "CERTIFICATE OF EXEMPTION" was sent with the letter of 18 June 1997. The period of its operation was from "18 JUNE 1997 TO 17 JUNE 1999". For practical purposes, that document was the written acknowledgment by the South African authorities of Mr Mire's refugee status in South Africa.

5 In about August 1997, Mr Mire decided to leave South Africa. This was due to his perception of the indigenous population's treatment of refugees from other parts of Africa. When working as a hawker, Mr Mire had been robbed by criminals. In proceedings before the RRT, Mr Mire claimed that Somalis are discriminated against in South Africa in that they do not receive the same protection against criminals as that received by South African nationals. He also claimed that the South African police persecute Somali refugees.

6 Mr Mire applied for a protection visa on 11 February 1998 after entering Australia on 14 January 1998. In his application, when asked to provide details of "your current travel document", Mr Mire wrote:

"S African Document for Travel Purposes 7211026168266 ... ."

7 There was evidence before the RRT that Mr Mire destroyed the original of the document referred to immediately above. However, Mr Mire photocopied relevant extracts of that document. The extracts consisted of a covering page with a Republic of South Africa heading and South African coat of arms which was entitled "DOCUMENT FOR TRAVEL PURPOSES". The other photocopied page was, it appears, the actual travel document, somewhat misleadingly described thereon as "PASSPORT". It contained a photograph of Mr Mire, his full name, his nationality, his sex, his date of birth, a date of issue and date of expiry, a number (the same as that referred to above) and a reference to the Home Affairs Department.

8 On 14 October 1998, a delegate of the respondent rejected Mr Mire's application for a protection visa. In his reasons for that rejection, the delegate said, under the heading "Right of re-entry", as follows:

"Prior to his departure from South Africa, the applicant held temporary residence in that country. I am of the opinion that there is no legal impediment to the applicant applying for and being granted a travel document for travel and re-entry to South Africa. Upon arrival in South Africa, I consider, as stated in the preceding paragraphs, that he will enjoy the effective protection of South Africa.

The applicant's capacity to access South Africa's effective protection is necessarily predicated upon his ability to re-enter that country. I have not sought to obtain categorical assurances from the Republic of South Africa that the applicant will be granted re-entry to that country as I consider that, based on practical experience, consular authorities are reluctant or unable to provide categorical responses to hypothetical queries about whether they will allow re-entry. Nevertheless, on the basis of current compliance practice, I consider that the applicant will be permitted to re-enter South Africa.

Should travel to South Africa and consequent access to effective protection not prove available to the applicant, this situation will have generated circumstances different to those to which I believe, based on current compliance practice and procedures, to be in existence at the time of making my decision. These new circumstances may constitute grounds for the applicant to consider submitting a fresh Protection Visa application under Section 48(B) of the Migration Act. However, based on the present circumstances, as I am aware of them at the time of making my decision, the applicant will be permitted to re-enter South Africa to regularise his status in that country, free from the possibility of refoulement. I consider that, in the wake of the relevant judicial approach outlined in the preceding paragraphs, the test of `effective protection' in South Africa has been satisfied."

9 On 20 October 1998, Mr Mire applied to the RRT for a review of the decision of the delegate. A formal hearing of the application was arranged for 23 February 1999. Mr Mire was represented at the hearing by Mr Clutterbuck of the Refugee and Immigration Legal Centre Inc. The member hearing the application was Mr G Brewer. Mr Mire was also assisted by an interpreter.

The hearing before the RRT

10 In the hearing before the RRT, Mr Mire said that he had paid for "the legal document I had in South Africa". Mr Clutterbuck expressed concern to Mr Brewer about whether Mr Mire would experience any practical difficulty in returning to South Africa given that his original travel document had been destroyed. Mr Clutterbuck suggested that the RRT make appropriate inquiries with the South African High Commission.

11 During the hearing, Mr Clutterbuck said (at t/s p10):

"Well, we would say that if the South African authorities were able to respond and say, "Well, yes, we issued this person a travel document to go back to South Africa before 17 June 1999 and yes, it was issued validly ..." well, that would clarify the issue."

12 Later, Mr Clutterbuck referred to the number on the travel document and said (at t/s p12):

"I imagine the South African authorities have computerised systems and they should be able to tell from that number whether or not the document was validly issued. We would submit that might be a simple quick query that might be able to be made, just to clarify the issue."

13 Mr Clutterbuck also submitted (at t/s p13) that:

"... the applicant still needs to have a document to re-enter South Africa, and the question would be whether the South African authorities would re-issue him with one."

14 Mr Brewer observed (at t/s p13) that:

"... on the face of it, it appears that the applicant has got a right to return to South Africa - but what happens if he gets to the border and then they say, "Well, sorry, you actually haven't got a right of return after all" ... he's got to be issued with a document on which he can enter."

15 Mr Brewer observed to the effect that an alternative approach would be to do as the delegate suggested and say that there appears to be a right of return to South Africa but if that is wrong, s48B of the Act could be sought to be invoked so that a fresh application could be made for refugee status.

16 Mr Clutterbuck was not attracted to the alternative approach because it concerned the respondent's exercise of a non-compellable discretion.

17 Mr Brewer concluded this aspect of the discussion at the hearing by saying (at t/s p18) as follows:

"Well, what I propose is that we not take the matter any further at least today, but it does seem to me the crux of the matter is whether you have got a right of return to South Africa ... If in considering that matter further I have any doubts about it or there's any evidence from the South African authorities that you have no right of return there then what we will need to do is have a hearing and I'll hear your claims about Somalia."

Post hearing inquiries and submissions

18 On 4 March 1999, the Assistant Director, Melbourne Research, of the RRT wrote to the Information Officer at the South African High Commission in the following terms:

"Dear Mrs Marcelino,

I write to seek your assistance in regard to information required pursuant to an application for refugee status from a national of Somalia. (Our reference ZAF21941) Copies of the documents containing his personal particulars are attached for your information. (Attachment 1)

The Presiding Member has requested if you could provide information on whether any or all of the documentation

1. Gives a right to return to South Africa?

2. Indicates a right to apply for an extension of the period for which asylum has been granted?

3. Any other comments?

The applicant has consented for the Tribunal to seek information concerning his personal affairs from you. If you have any enquiries, please do not hesitate to contact me or Mr John Kimberley on ... .

Yours sincerely,

David Corrigan

Assistant Director

Melbourne Research"

19 A response was provided by the Home Affairs Department which included the following:

"Mr Razak has been granted refugee status in South Africa which may be extended on expiry upon application. Refugee status in South Africa confers upon the holder thereof the right to apply for a South African travel document. Such travel document entitles the holder thereof to travel out of South Africa and back."

20 The RRT sought clarification of that response in light of the erroneous reference to a Mr Razak. In response to that request, the Home Affairs Department provided the following "MESSAGE" about Mr Mire:

"1. May return before expiry of Exemption Certificate (before 18 June 1999) and Travel Document (before 17 June 1999)

2. Renewal of Exemption Certificate and Travel Document is not automatic. An application has to be lodged and the asylum claim be reviewd. (sic)

3. It is clear that Mr Mire and others apply for asylum in South Africa only to acquire South African Travel Documents, to grant them entry into developed countries which would bar them if they used own passports (e.g. Somalia/Ethiopia/Nigeria etc)"

21 On the afternoon immediately following the hearing, prior to the abovementioned information being obtained from South Africa, Mr Clutterbuck provided the RRT with some relevant material from the Home Affairs Department. Part of that material dealt with the question:

"To whom are Republic of South Africa travel documents issued?"

22 The answer was:

"Travel Documents may also be issued to asylum seekers who have been granted refugee status. In case of a lost document special care must be taken of the bona fides of the applicant, where doubt exists the application must be referred to Passport section head office."

23 On 10 May 1999, Mr Clutterbuck wrote to the RRT and said inter alia that:

"We have now discussed the matter with the applicant and he agrees that the information makes it clear that he does have the right to return to South Africa, conditional of course upon South African authorities issuing him with a new travel document as he has destroyed his old one."

24 On 11 May 1999, the RRT replied to Mr Clutterbuck as follows:

"The Member reviewing this case has asked me to advise you as follows.

The question of harm the applicant may face in South Africa was canvassed at the hearing and in previous submissions (refer to statutory declaration of 12 February 1998). The offer of a new hearing was made on the basis that inquiries of the South African authorities may show no right of return etc. in which case the applicants claims regarding Somalia would need to be canvassed. The Tribunal does not intend to hold another hearing, but will provide seven days from the date of this letter for any further submissions regarding persecution in South Africa and/or the effectiveness of protection in South Africa."

25 On 20 May 1999, Mr Clutterbuck sent detailed written submissions to the RRT. Those submissions included the following:

"The applicant has the right to re-enter South Africa, but does not have "effective protection" in South Africa. A finding of "effective protection" involves not only the right to re-enter the country and the right to temporary residence, but protection against refoulment (sic) and protection of basic human rights in the "host country"."

26 The submissions also stated that:

"The applicant fears persecution in South Africa on account of his race or nationality as a Somali. Available country information highlights widespread persecution of asylum seekers and refugees in South Africa. Such persons are targeted both by South African law enforcement officials, as well as by xenophobic South African civilians."

27 Later, the submissions noted that:

"It is accepted that, based on the advice of the South African Department of Home Affairs, the applicant has been accorded temporary status in South Africa until mid June 1999 and has the right to re-enter South Africa before that time. This is of course conditional upon South African authorities re-issuing the applicant with a new South African Travel Document as he has destroyed his former travel document. Although the applicant destroyed his previous South African travel document, he has not hidden its existence. In fact he has provided the Department (and the Tribunal) with a photocopy of that document."

28 Detailed submissions were also made under the heading "State sanctioned violence". The content of those submissions was as follows:

"Persecution of asylum seekers and refugees in South Africa comes from state employees, most notably police officers, as well as ordinary citizens. Human Rights Watch report that:

The police and Home Affairs officials have shared this antagonism towards foreigners. The generally negative attitude towards foreigners encourages and condones abuses by police, army and Home Affairs officials not only against those suspected of being undocumented migrants, but also against non-South Africans who are lawfully in the country, who can expect little or no help from the police when they themselves are victims of crime, including violent assault and theft.(emphasis added)

Documented treatment of asylum seekers and refugees by South African police include harassment, assault, theft, racist abuse, sexual harassment, arbitrary arrest, unwarranted invasion of privacy, even death in custody.

This is not surprising considering the prevalence of inflammatory rhetoric against refugees and migrants from some South African public officials:

As in many western countries, some politicians in South Africa are exploiting the issue of undocumented migration for their own political gain, increasing levels of xenophobia by making unfounded and explosive statements about the cost of undocumented migration and its effects on various social services and crime. The mainstream debate around illegal immigration in South Africa, focusing on the economic impact and the impact on crime of undocumented migration, has been alarmist and ill-informed."

The reasoning of the RRT on issues relevant to this proceeding

29 The RRT found that Mr Mire had been declared to be a refugee in South Africa and had been granted temporary residence in South Africa. It then said as follows:

"In the present case the applicant has been declared a refugee in South Africa and has been granted temporary residence there. He has a right to apply for an extension of time in South Africa as a refugee in accordance with the provisions of the Refugees Convention to which South Africa has been a signatory since 12 January 1996 (see UNHCR Refworld). He has in general the same rights that are accorded to nationals of South Africa. He has been issued with travel documentation by the South African authorities in accordance with Article 28 of the Refugees Convention and is able to return to South Africa on those documents. He has a "right to reside, enter and re-enter" South Africa."

30 On the issues raised by Mr Clutterbuck concerning persecution of Somali refugees in South Africa, the RRT made the following salient points:

* xenophobia is prevalent; and

* there have been occasional incidents of crime directed at asylum seekers.

31 The RRT then said as follows:

"In a report of an incident alleging police abuse against refugees in a shelter it is observed that the complainant reported the case to the South African Human Rights Commission which asked the Independent Complaints Directorate of the South African Police Service to investigate the matter (see, Human Rights Watch, op. cit, pp.119-120). The same report (pp.120-121) also notes incidents of verbal abuse by police and, much more seriously, allegations of assault in incidents involving a Nigerian trader, and a Burundian asylum-seeker who died, apparently as a result of an assault on him. While also noting commentary in a UNHCR Press Statement of 14 June 1997 concerning serious adverse treatment of some asylum-seekers the material before the Tribunal, even in the report of Human Rights Watch to which it was specifically referred, does not indicate that the authorities generally fail to afford effective protection to Somali or other refugees."

32 Later, the RRT said:

"The Tribunal accepts that the applicant may face discrimination and occasional harassment in South Africa. It also accepts that there were violent clashes in August 1997 involving asylum-seekers and South African nationals whose territory for street-trading was under threat, and that crime in South Africa is rampant. Some violent crime has been directed against foreigners, including asylum-seekers, apparently mainly because they are seen as depriving others of scarce employment opportunities. The motivation for those occasional attacks appears to be economic rather than racial. In considering the available information in the context of the number of asylum-seekers, the prospect that the applicant would be a victim of serious crime or encounter persecution, as opposed to discrimination, for a Convention reason is remote. Additionally, there is no evidence of a generalized failure of State protection such as to lead to a conclusion that the applicant would not be able to access effective protection if he should need to do so."

Mr Mire's contentions

33 Counsel for Mr Mire, Mr Gibson, identified two errors of law which he submitted had been made by the RRT. The first was that referred to in the "Grounds" set out in the amended application at paragraph 1(a)(iii). It was as follows:

"(T)he Tribunal failed to correctly apply the test of effective protection by reason of its failure to consider whether the Applicant's destroyed travel document would be re-issued or renewed either prior to or after the expiry of his temporary residence permit so as to enable him in practice to exercise his right of re entry to South Africa."

34 The crux of this submission was that the RRT was obliged to examine and consider the issue whether Mr Mire was effectively able to exercise his right to return to South Africa. It was put that the RRT did not address "whether he could return to South Africa in the comfortable knowledge that he would be admitted there".

35 Mr Gibson said that the RRT's failure to address that issue resulted in it making an error of law within the meaning of s476(1)(e) of the Act by failing to properly consider the concept of "effective protection". He also referred to s430(1)(c) of the Act and contended that the RRT had failed to set out its findings on this issue, being a material question of fact. In so doing, Mr Gibson relied on the identification of a material question of fact by the Full Court in Dalpatadu v Minister for Immigration & Multicultural Affairs [2000] FCA 697 (at [14] per Kiefel, North and Mansfield JJ) as:

"... one which is:

*a substantial issue on which the case turns;

*a key element of the applicant's case;

*the foundation of the applicant's contention;

*a matter central to the application;

*a matter having obvious relevance to the question whether the applicant has a fear of persecution;

*a matter capable of supporting in a significant way the claim of the applicant."

36 The second contention raised by Mr Gibson was that the RRT failed to make a finding on Mr Mire's allegation that state sponsored persecution of refugees occurred in South Africa and that there was a real chance that Mr Mire would suffer at the hands of persecutory police and military personnel should he return to South Africa. It was submitted that the RRT did not make it clear whether or not it accepted the material put to it by Mr Clutterbuck about state sponsored persecution. Mr Gibson conceded that the RRT was not obliged to give a line by line refutation of the material about state sponsored persecution but submitted that it must state whether it accepted or failed to accept the material. Mr Gibson submitted that the RRT didn't reject the material but "just seems not to have taken it into account". He said that it must be at least implicit in the RRT's reasoning that it rejected that material as being inconsistent with other material that it did act on. See Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 at [61] per Black CJ, Sundberg, Katz and Hely JJ.

37 Mr Gibson submitted to the following effect: the RRT referred to police abuse against refugees in its decision but it concluded the discussion by saying that the material before it "does not indicate that the authorities generally fail to afford effective protection to Somali or other refugees". Mr Gibson submitted that the question of effective protection from the authorities arose in the context of persecution by civilians and not in the context of persecution by authorities. Consequently, it was put that there was no finding made by the RRT on a material question of fact before it, which amounted to an implicit rejection of material concerning state sponsored persecution without the RRT saying why it rejected that material.

38 Mr Gibson referred the Court to the following passage in the judgment of the Full Court in Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 (at [54] per Mathews, Tamberlin and Mansfield JJ):

"In its laconic finding on the question, the Tribunal has set out its decision and its finding on the material questions of fact: s430(1)(a) and (c). It has referred to the material on which that finding was based: s430(1)(d). It is difficult to decide how in the circumstances, the legislation enabled that conclusion to be reached. The written submissions for the Minister sought to put Mr Sameh into the category of persons who have entered Jordan clandestinely, but that is not his current status. He will be returned to Jordan from Australia. Those submissions also appear to accept that Mr Sameh does not now have a valid passport. The Tribunal has made no findings about whether Mr Sameh still has either of the passports to which he referred in his evidence. It has not explained why it has rejected the views of the UNHCR that Mr Sameh would not now gain admission to Jordan without a valid passport, or at least one which previously was accepted by Jordan as a valid passport. In our judgment, the "one line" finding in the circumstances does not satisfy the requirements of s 430(1)(b) of the Act. To adopt the words used by McHugh J in Durairajasingham, the circumstances were such as to require the Tribunal to provide reasons for its decision by indicating that it has rejected evidence going to a material issue in the consideration of the claim for a protection visa. Such a judgment must be one of degree in all the circumstances. It must be made in the light of the issues relevant to determination of the claim, and the nature and substance of the material touching upon those issues. It will not require a "line-by-line" refutation of all the evidence, but here the Tribunal itself by its inquiries indicated the significance of the issue and of the material from the UNHCR touching upon that issue. But the object of such provisions as s430 is to enable the parties to understand why a particular decision has been made: see Pettit v Dunkley [1971] 1 NSWLR 376, Collins v Repatriation Commission (1980) 48 FLR 198 at 211-212; Dornan v Riordan (1990) 24 FCR 564 at 568; Davies v Australian Securities Commission (1995) 59 FCR 221; Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 327 (reversed on other grounds: (1994) 50 FCR 345)."

The respondent's response

39 Mr Gray, of counsel, appeared for the respondent. On the topic of state sponsored persecution, Mr Gray contended that the RRT accepted the UNHCR Press Statement of 14 June 1997 referred to in its reasons which stated that there has been "serious adverse treatment of some asylum seekers". He submitted to the effect that the "key" to the RRT's approach was its assessment that the material did not show that the authorities "generally fail to afford effective protection to Somali or other refugees". Mr Gray also referred to the fact that the RRT observed that the United States State Department Report for 1998 on Human Rights Practice did not refer to a problem with refugees in South Africa; thereby being probative of a lack of a generalised problem. Mr Gray said that "(t)hat leads on to a finding that there's only a (sic) insubstantial or remote risk of persecution for a convention reason".

40 On the travel documents question, Mr Gray submitted that a thorough analysis of all the material before the RRT shows that the fact that the original documentation was destroyed was not an issue which was ventilated in a serious way before the RRT by Mr Mire's representative so as to be a matter requiring determination by the RRT.

Consideration

(i) State sponsored persecution

41 In accordance with Art 33 of the Refugees Convention, the RRT was required to determine whether, if Mr Mire was returned to South Africa, he would be threatened on account of his race and nationality. The RRT considered whether such action would be likely to occur at the hands of South African civilians and found in the negative on that issue. However, the RRT made no finding concerning whether such action would be likely to occur at the hands of South African authorities. There is a world of difference between the concept of such authorities failing to afford effective protection and those authorities themselves being the cause of the relevant threats and persecution.

42 The material in the Human Rights Watch referred to by the RRT included the following:

"Documented treatment of asylum seekers and refugees by South African police include harassment, assault, theft, racist abuse, sexual harassment, arbitrary arrest, unwarranted invasion of privacy, even death in custody."

43 This material was not addressed by the RRT. It made no finding about it. Its findings about police protection were made in the context of police protecting refugees from civilians not police protecting refugees from police. As Merkel J said in Najarian v Minister for Immigration & Multicultural Affairs [2000] FCA 933 at [13], "the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make".

44 I agree with Mr Gibson that the RRT acted contrary to s430(1)(c) of the Act by failing to set out its findings on a material question of fact i.e. whether Mr Mire would suffer persecution at the hands of South African authorities if returned to South Africa. That question of fact was objectively material to the decision the RRT was required to make.

45 In Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, von Doussa J (with whom Moore and Sackville JJ agreed) said (at 562) that:

"The expression "effective protection" is used in the submissions of the Minister in the present appeal. In the context of the obligations arising under the Refugees Convention, the expression means protection which will effectively ensure that there is not a breach of Art 33 if the person happens to be a refugee."

46 Consideration of what constitutes "effective protection" in any given case requires the exercise of great care and caution by the RRT. It is all the more important, in cases which raise the issue of effective protection, for the RRT to deal with material and submissions made to it on that topic which point to a real possibility that the alleged effective protection is in fact illusionary. The protection must truly be effective. See Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695 at 705 - 708 per Black CJ, Foster and Lehane JJ and Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681 at 698 per Finkelstein J.

47 The particular question whether Mr Mire may be the subject of state sponsored persecution if returned to South Africa was inextricably interwoven with his claimed fear of persecution and falls within the acceptable bounds of s430(1)(c) of the Act as discussed in Sameh.

48 As was said in Singh at [47]:

"If the RRT fails to make a finding on a fact which is in truth, as a Court subsequently determines, a material fact, then s430(1)(c) will not have been complied with, even though the RRT has recorded its findings in relation to the facts before it that it regarded as material."

49 In my view, the "ultimate conclusion" reached by the RRT required a finding on the issue of whether Mr Mire was at risk of state sponsored persecution for a convention based reason if he returned to South Africa. See Singh at [55].

50 Apart from the RRT's failure to comply with s430(1)(c) of the Act in the respect identified immediately above, in my view, in not properly addressing the question of "effective protection", the RRT also made an error of law within the meaning of s476(1)(e) of the Act in its approach to the determination of whether Mr Mire was entitled to a protection visa. The failure to comply with s430(1)(c) of the Act was a failure to observe procedures required by the Act to be observed in connection with the making of a decision and is a ground of review under s476(1)(a) of the Act. See Najarian at [13].

(ii) The travel documentation

51 The factual background set out earlier in these reasons deals fully with the manner in which the question of the travel documentation was dealt with by Mr Mire's representative and the RRT. This is a difficult question to determine.

52 In his detailed written submissions of 20 May 1999, Mr Clutterbuck continued to stress that Mr Mire's right to re-enter South Africa was "conditional upon South African authorities re-issuing the applicant with a new South African Travel Document as he has destroyed his former travel document". The inquiries undertaken by the RRT and the ensuing information from the Home Affairs Department did not squarely address this issue. Perhaps because it was taken for granted by the RRT that Mr Mire's possession of a photocopy of the document which clearly showed its correct number would not result in a problem concerning Mr Mire's re-entry into South Africa. Indeed, the very part of Mr Clutterbuck's submission quoted from above continues with the following words:

"Although the applicant destroyed his previous South African travel document, he has not hidden its existence. In fact he has provided the Department (and the Tribunal) with a photocopy of that document."

53 There was nothing to stop Mr Clutterbuck seeking specific clarification of this issue with the Home Affairs Department himself or asking the RRT to make a specific further request. No great issue was made in the 20 May 1999 submissions about the destruction of the original document. The point about re-issuing the document, in my view, when the submission is read as a whole, was in the nature of a "throw away line" rather than a seriously or strongly contended point in Mr Mire's favour. The RRT had described to the Home Affairs Department what documents Mr Mire had which were relevant to his re-entry. If there was a problem about re-entry with those documents, it would be expected that the Home Affairs Department would have raised it.

54 I agree with Mr Gray that a thorough analysis of all the material before the RRT shows that ultimately, the lack of an original travel document was not a matter of great concern. If it was so, one would have expected Mr Clutterbuck to request that the RRT make a further inquiry or make one himself in the context of the RRT proceedings allowing Mr Mire to advance "whatever evidence or argument (he) wishes to advance in support of (his) contention(s)". See Abebe v Commonwealth (1999) 197 CLR 510, [1999] HCA 14 at [187] per Gummow and Hayne JJ.

Order

55 Although the Court has rejected Mr Mire's ground of review concerning the lack of original travel documentation, the acceptance of his other ground of review concerning state sponsored persecution requires that the following order be made:

1. The decision of the Refugee Review Tribunal ("RRT") of 27 May 1999 be set aside.

2. The applicant's application for a protection visa be remitted to a differently constituted RRT for hearing and determination.

3. The respondent pay the applicant's costs of the application.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 22 August 2000

Counsel for the Applicant:	Mr J A Gibson
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondent:	Mr P R D Gray
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 July 2000
Date of Judgment:	22 August 2000