MIMA v Respondents S152/2003

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MIMA v Respondents S152/2003
Coat of Arms of Australia.svg
Court High Court of Australia
Full case name Minister for Immigration and Multicultural Affairs v Respondents S152/2003
Decided2004
Citation222 CLR 1
Court membership
Judges sittingGleeson CJ, McHugh, Kirby, Hayne and Heydon JJ
Case opinions
appeal allowed
ConcurrenceGlesson CJ, Hayne, Heydon JJ
McHugh J
Kirby J

MIMA v Respondents S152/2003 is a decision of the High Court of Australia. [1]

Contents

The case is important to refugee law in Australia, primarily for its holdings regarding refugee claims where an applicant fears harm from a non-state actor.

S152 is the 27th most cited High Court case according to LawCite. [2] [3]

Facts

Pictured: Jehova witnesses in Lviv, the largest city in western Ukraine Jehova witnesses in Lvov.jpg
Pictured: Jehova witnesses in Lviv, the largest city in western Ukraine

A heterosexual couple from Ukraine applied for refugee visas in Australia. The male partner had suffered physical harm in his home country because of his involvement with the Jehovah's Witnesses. [4]

To be eligible for the refugee visa, the applicant needed to satisfy criteria under Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol, incorporated into Australian law by the Migration Act 1958 (Cth). [Note 1]

It was accepted that he possessed a fear. However the tribunal rejected that the fear was 'well founded', due to evidence led at the tribunal about the contemporary status of Jehovah's Witnesses in Ukraine. [5]

The couple then appealed at the Federal Court. The primary judge rejected their argument that the Ukraine government had condoned their mistreatment; writing: [6]

'[I]t seems a large jump to infer, from the reaction of one officer in one police station [about which the male applicant complained], that the government of the Ukraine, considering that entity as a whole, was unable or unwilling to protect Ukrainian citizens against assault arising out of their religious beliefs ...  I can understand the Tribunal's unwillingness to make a finding that the Ukrainian government was unwilling or unable to protect its citizens in the absence of evidence of ... other options having been tried [by the male applicant] and proved unsuccessful.'

On subsequent appeal the Full Court concluded that the Tribunal had erred. The Full Court held that the right question was 'whether, in a practical sense, the State was able to provide protection particularly in light of the pervasive pattern of harm'. It overturned the Tribunal's decision. [7]

The Minister then appealed to the High Court.

Judgement

The High Court unanimously upheld the Tribunal's original decision to refuse a refugee visa.

The majority reasoned that the Tribunal had made findings that the Ukrainian authorities were not responsible for the harm suffered, and that the government was willing and able to protect the applicant. Those findings made it reasonable to conclude that Ukraine would provide citizens in the applicant's position with a level of protection consistent with international standards. [8]

Because of that, the majority concluded he was not a victim of persecution in the relevant convention sense; and the couldn't justify his unwillingness to seek the protection of his country of nationality. [8]

Significance

S152 is referred to extensively within the Administrative Appeal Tribunal's own handbook on Refugee Law in Australia, particularly for its precedential value in cases where an applicant faces a real fear of harm from a non-state actor. [9]

See also

Notes

  1. ↑ Under that act, a refugee is regarded 'as a person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion'

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References

  1. ↑ "Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 - BarNet Jade". jade.io. Retrieved 30 May 2021.
  2. ↑ Note: LawCite citation statistics track the written judgements of courts, journal articles, and tribunals. (both in Australia and overseas) https://www.austlii.edu.au/cgi-bin/LawCite?cit=&party1=&party2=&court=High%2BCourt%2Bof%2BAustralia&juris=&article=&author=&year1=&year2=&synonyms=on&filter=on&cases-cited=&legis-cited=&section=&large-search-ok=1&sort-order=cited
  3. ↑ Note: data is as of September 2020
  4. ↑ Kirby J, at para [91]
  5. ↑ Kirby J, at para [95]
  6. ↑ Kirby J, at para [104]
  7. ↑ Kirby J, at para [114]
  8. 1 2 Gleeson, Hayne, and Heydon at [29]
  9. ↑ "Chapter 8: State Protection". Guide to Refugee Law in Australia (PDF). Australia: Administrative Appeals Tribunal. 2021.
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