Thursday, June 15, 2017

Why judges cannot be trusted with asylum seeker issues-How Indian gangster Dawood Ibrahim's man was allowed to seek asylum in Australia

While Their Honours are likely to have reached their decision by application of legal skills of the highest order, readers are invited to decide the practical implications of their decision. It is assumed that readers are aware of Dawood Ibrahim and his activities, if not see 
Dawood Ibrahim for the Australia Council for the Arts :Appointment of the benevolent Muslim industrialist will be an inspired choice

NSW Police, AFP let loose jihadi financier: Dawood Ibrahim's Australian interests protected to win the Muslim vote?

And now the High Court's view:

  • Background
  • On 1 September 1999, the appellant, a citizen of India but not of Australia, entered Australia.

  • The appellant's application for a protection visa. On 30 September 1999, the appellant applied to the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") for the grant of a protection visa. He claimed to be a Muslim Tamil who had a well-founded fear of political persecution in India, and hence was a non-citizen to whom Australia owed protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. He therefore claimed that he fell within s 36(2) of the Migration Act 1958 (Cth) ("the Act").

  • The appellant advanced the following history. He was an active member of the Indian Union Muslim League and of a committee of the Jihad Movement. He was president of an organisation in his village in Tamil Nadu associated with a movement led by a benevolent Muslim industrialist, Dawood Ibrahimwhom he had met in Bombay. He was arrested with 30 other Muslims on 4 December 1998 and accused of planning to plant bombs. He was severely beaten before being released on 10 December 1998. He decided to flee India to save his life. He was arrested again some time after 11 January 1999 and beaten by the police, who unsuccessfully demanded his passport. He appeared to say that he had also been arrested on 15 April 1999, following the destruction of the local Hindu Temple, detained for two weeks, and tortured.

  • On 15 March 2000, pursuant to s 65 of the Act, an officer of the Department, acting under delegation from the first respondent ("the Minister"), refused the appellant's application for a protection visa. That delegate rejected the appellant's contentions that he had met Dawood Ibrahim in India, that he was involved with the Jihad Movement, and that he was involved with Dawood Ibrahim's movement.

  • The appellant's application for review of the delegate's decision. On 10 April 2000, the appellant applied to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision pursuant tos 412 of the Act.

  • ..............................
  • The discretion favours the grant of relief

  • Some of the considerations that are relevant to the question whether there has been an instance of procedural unfairness may overlap with the factors relevant to providing, or withholding, relief by way of a constitutional writ on discretionary grounds. A residual discretion exists in the provision of such writs and the other relief contemplated by s 39B of the Judiciary Act[57]. It is legitimate in such judicial review proceedings to consider withholding relief if the analysis of all relevant matters indicates that the requirements for relief are not established. The residual discretion permits a court to reconsider the matter globally and to review all of the relevant considerations, taken as a whole[58].

  • When the present case is examined for this purpose no sufficient ground is established to warrant refusal of relief. None of the arguments advanced by the Minister has that effect. No other or different considerations arise personal to the appellant or connected with such questions as delay and the timeliness of his proceedings[59]. On the contrary, the provision of relief upholds the commitment, imputed to the Parliament, in terms of the Act as it then stood, that vulnerable people in the position of the appellant will have their cases determined by the Tribunal fairly and as natural justice requires.

  • Thus, the considerations involved in upholding a law designed to give effect to Australia's international obligations; the protection of the human rights of the appellant; and the maintenance of the due administration of a law enacted by the Parliament all favour the grant of relief. The seventh and final argument of the Minister also fails.

  • As I would reject all of the Minister's arguments and otherwise uphold the appellant's complaint of procedural unfairness, I agree in the orders proposed by the joint reasons.

No comments:

Post a Comment