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MIGRATION - Refugees - Iraqi Kurd claiming protection against refoulment to independent Northern Iraq and Central Iraq - Tribunal decision based on finding of lack of "well founded fear" in Northern Iraq - no consideration of applicant's problems in Central Iraq - "Htun" type error found - error not reviewable - error did not establish lack of bona fides - claim that Tribunal made "Muin" errors not accepted on the evidence - application dismissed.

WAEM v Minister for Immigration [2002] FMCA 259 (8 November 2002)

WAEM v Minister for Immigration [2002] FMCA 259 (8 November 2002)
Last Updated: 11 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAEM v MINISTER FOR IMMIGRATION
[2002] FMCA 259



MIGRATION - Refugees - Iraqi Kurd claiming protection against refoulment to independent Northern Iraq and Central Iraq - Tribunal decision based on finding of lack of "well founded fear" in Northern Iraq - no consideration of applicant's problems in Central Iraq - "Htun" type error found - error not reviewable - error did not establish lack of bona fides - claim that Tribunal made "Muin" errors not accepted on the evidence - application dismissed.



Judiciary Act 1903 (Cth) s.39B

Migration Act 1958 (Cth) ss.414, 415, 418(2), 425, 474, 474(1)

Htun v Minister for Immigration and Multicultural Affairs [2002] FCA 1802

W/396/01 v The Minister [2002] FCA FC 103

NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713

SBBK v The Minister [2002] FCA 565

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA FC 228

NAGT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA FC 319

Diahatsu Australia Pty Limited v SCT (2001) 184 ALR 576

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002)

HCA 30

NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA FC 293

NAAD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA FC 275

Applicant:
WAEM



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 123 of 2002



Delivered on:


8 November 2002



Delivered at:


Sydney



Hearing Dates:


28 June 2002, 29 October 2002 in Sydney via videolink to Perth



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr H Christie



Counsel for the Respondent:


Mr J D Allanson



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs assessed pursuant to Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $5,500.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 123 of 2002

WAEM


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) for prerogative and injunctive relief in respect of the decision of the Refugee Review Tribunal made on 31 January 2002 confirming a decision of the respondent through his delegate not to grant the applicant a protection visa. The applicant proceeds on an amended application filed in court on 21 June 2002 by consent.

2. There is set out below from the applicant's outline of submissions a short history of the applicant.

The applicant is an Iraqi citizen, a Kurdish Sorani born in Bash Tapa, Makhmor, Mosul, Iraq and was 23 years of age. (Makhmor is in that part of Iraq, fully under the control of Iraqi central government (hereinafter called "Central Iraq".) The applicant and his family fled from Makhmor to Arbil in Northern Iraq in 1995 following the arrest of the Applicant's brother. The applicant remained in Arbil, although the other members of the family returned to Makhmor with the brother following his release.

The applicant purchased a shop in 1998 and sometimes travelled to Mosul in Central Iraq for trading purposes with colleagues Ahmed and Rezgar. These men traded in Jiwa (mercury?) the liquid used in thermometers and used to make explosions. This trade was illegal and Ahmed and Rezgar were arrested by the Iraqi authorities. The Iraqi authorities suspected the applicant of involvement and a warrant was issued for the applicant's arrest and served on the applicant's brother. The family again left Makhmor and came back to Arbil.

In March 2002, an official of the KDP, one Mam Ali sought to take over the shop that the applicant had purchased. The applicant sought protection from the KDP Internal Security Service, but was refused because of Mam Ali's position within the KDP. Man Ali's son Hussain had attempted to take over the shop and in order to force the applicant to leave the shop Hussain started to wreck the shop. A struggle occurred. The applicant's brother struck Hussein with an object variously described as a metal bar and a neon tube. Hussain died as a result of his injuries. The applicant fled to Sulaimaniya and his brother to Charman. Hussain's family wanted revenge. The applicant's family pretended that the applicant had struck the blow so that the revenge would be directed towards the applicant (the applicant was single, whilst the brother had a family).

The applicant fled Northern Iraq on 2 April 2002 and travelled via Iran, Malaysia and Indonesia to Australia.

The applicant fears that if he returns to Iraq he will be killed, he is wanted by the Iraqi Government under a warrant of arrest and in Northern Iraq he is wanted by the family of Hussain which had strong political connections with the KDP.

3. In its reasons for decision the Tribunal accepted that the applicant was Kurd and an Iraqi citizen. It accepted that the applicant owned a profitable shop in Arbil and had encountered problems with Mam Ali who was an official in the KDP. The Tribunal accepted the intimidation by Mam Ali, the wrecking of the shop by Mam Ali's son and that Mam Ali's son was killed accidentally by the applicant's brother.

4. The Tribunal was not satisfied that the harm feared by the applicant in relation to the events outlined above was motivated by a convention ground. The Tribunal did not accept that the shop had been targeted for political reasons. It was the Tribunal's view that what had attracted Mam Ali to the shop was its profitability. The Tribunal stated:

"While I accept that an official of the ruling party, would, like his counterparts anywhere in the world, been able to throw his weight around in pursuit of his interests, I am not satisfied that this would have allowed him to unlawfully seize property at will. The country information given above (PP4-6) shows that respect for individual liberties and rule of law exist in places such as Arbil and that democratic rights are observed by the ruling party. I am not satisfied that the applicant would not have been able to avail himself of the protection of authorities in Arbil in relation to the ownership of his shop: I consider that he has either invented the claim of the authorities refusing to help him, or has twisted their comment that it was a private feud, in order to make it appear to the Tribunal that he had been refused all assistance in Arbil."

5. The finding and reasons for the decision continue with a paragraph expressing the Tribunal's views as to why the applicant may have left Northern Iraq and ended with a paragraph expressing its lack of satisfaction that the applicant had a well founded fear of persecution in Kurdish Iraq such that Australia is obliged to give him protection under the Convention.

6. At CB 91 the Tribunal stated:

"The findings below in this decision are focused on the applicant's ability to live safe from persecution in the Kurdish area. The claim fears involving Iraq are not germane to that issue. He is not being required to relocate to Iraqi territory to travel there. There is no country information that suggests that the Kurdish authorities would send the applicant to Iraq over the matters detailed above."

7. Both the applicant and the respondent were represented before me.

8. At the hearing it was conceded by the respondent that the Tribunal's reasons for decision did not indicate that the Tribunal had given any consideration whatsoever to whether sending this applicant back to Kurdish Iraq would be in breach of its non-refoulment obligations because the only way the applicant could reach Northern Iraq would be through Central Iraq where the applicant claimed he would be arrested. He held a well founded fear of persecution for a Convention reason as a result.

9. In Htun v Minister for Immigration and Multicultural Affairs [2002] FCA 1802 the Full Bench of the Federal Court held that a failure to deal with a claim made by an applicant was a failure to comply with the Tribunal's obligations to review a decision under s 414 of the Act. Their Honours distinguished between failure to address a piece of evidence or failure to find a relevant fact and a failure to deal with a whole issue. The court felt that this failure constituted a jurisdictional error (see also W396/01 v The Minister [2002] FCA FC 103).

10. In NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 Allsop J who formed part of the Full Bench in Htun considered the effect of the new privative clause s.474(2) of the Migration Act on that decision. At [57] His Honour said:

"In examining cases such as Htun, supra, and W396/0, supra, and the failure of the Tribunal in those cases to complete the task statutorily mandated by the Act, and in particular by ss 414 and 415, care must be taken not to transpose the reasoning in those cases without due regard being paid to s 474 and its effect. Those cases stand for the proposition that (at least absent s474) the mandated task of the Tribunal is to look at all integers of the applicant's claim and to ask and answer the correct question as to whether a well-founded fear of persecution was present on the basis of all the material before the Tribunal and with the degree of speculation required by the Act: the essential task of the review. However, a privative clause may protect against a refusal or failure to exercise power as much as an excess of jurisdiction: Darling Casino v New South Wales Casino, supra, at 630-31 per Gaudron J and Gummow J, where their Honours said:

"In that situation it treats the refusal or failure as if there were no obligation to exercise the power in question. And by withdrawing the jurisdiction of the Court's to review, it operates to reduce the scope of the decision-maker's duty. In both situations the privative clause operates in effect to recast the legislative provisions which confer the power in question and which condition its exercise."

11. And at [59] His Honour said:

For either of these approaches to remain a valid basis for a jurisdictional attack on a decision of the Tribunal with s 474 in the Act, it must appear, or be able to be characterised, as the failure of the Tribunal to undertake an essential component of its task which it is obligated under the statute to undertake, taking into account the effect of s 474. For my part, I cannot so construe ss 414, 415 and 474, if there has been displayed, as I think there has been here, a bona fide attempt (albeit inadequate) to undertake the task given by ss 414 and 415. In those circumstances, I do not see that a failure of the Tribunal to undertake the task in the manner provided for by Htun, supra or W396/01, supra, is inviolable in the sense discussed in R v Coldham, supra.&quo;
t;

12. His Honour's view was not shared by Tamberlin J in SBBK v The Minister [2002] FCA 565.

13. In view of the state of the authorities and in the knowledge that a five member Full Bench of the Federal Court had sat and considered, inter alia, the matters raised in the decision cited it was agreed that I would adjourn this matter for further hearing after the Judgment had been delivered.

14. The relevant decision was that of NAAV v MIMIA [2002] FCA FC 228.

15. Before the further hearing took place the applicant filed a Notice of Motion seeking to amend his original application to claim three supplementary grounds of appeal. Those grounds were as follows:

"m) The Tribunal failed to accord the Applicant natural justice in making the said Decision.

n) The Tribunal did not receive from DIMIA and consider the documents referred to in Part B of the Delegate's decision dated 22 November 2001, nevertheless by letter dated 29 November 2001, the Tribunal undertook to the Applicant to look at such documents, together with other documents on the Applicant's file, when determining the Applicant's claims. Further, by letter dated 14 December 1999, the Tribunal subsequently informed the Applicant that it had looked at all the material relating to the Application. The Applicant was thereby misled. If the Tribunal had not misinformed the Applicant, the Applicant would have obtained such material from DIMIA and would then have brought to the attention of the Tribunal, material in the delegate's decision, which was favourable to the Applicant. At least the material contained in item B4 "CX1119: Iraq question and answer period. February 2000" was highly favourable to the Applicant's case.

o) The Tribunal did not bring to the Applicant's attention, and give him an opportunity to respond, country material, on which it relied and which was adverse to the Applicant's claims. The said material is detailed in Paragraph immediately under the Heading "Relevant Country Information" at page 87 of the Court Book. Of such information only the first item mentioned namely "CX54577 Report from fact finding mission to Iraq" had been brought to the Applicant's attention by the Delegate."

The applicant also prepared a notice of a constitutional matter pursuant to s.78B of the Judiciary Act 1903. This notice was later withdrawn.

16. The hearing of the Motion for Leave was also the hearing of the case put forward by the applicant in support of his further grounds and I noted his formal submission to me that NAAV had been wrongly decided by the Full Bench. The constitutional question concerned the constitutional validity of s.474 of the Migration Act which was a matter that the High Court considered in September of this year and upon which judgment is awaited. It seemed to me there was very little point in raising as a constitutional issue in this court a matter which had already been considered by the High Court.

17. I gave leave to the applicant to amend his application and was assisted by written submissions from Mr Christie and Mr Allanson in relation thereto.

18. All five Judges of the Full Bench of the Federal Court in NAAV accepted the constitutional validity of s.474. Until a different decision is made by the High Court NAAV represents the law and I am bound by it.

19. Von Doussa J in NAAV at [637] expressed general agreement with the views of Allsop J in NAAG (supra) and at [639] discussed SBBK (supra). His Honour said:

"I share the difficulty expressed by Allsop J in NAAG of 2002 at [59] -[50] about Tamberlin J's conclusion that an error of law in failing to identify the right question to be addressed in the applicant's claim constitutes a failure to comply with the condition that is essential to the exercise of the jurisdiction of the RRT."

20. The views of Von Doussa J were supported by Black CJ and Beaumont J who formed the majority of the court. I am bound by their view that this failure on the part of the Tribunal to exercise its jurisdiction does not provide a ground for review.

21. Mr Christie submitted that the failure of the Tribunal to consider the situation if the applicant was returned to Central Iraq constituted a decision made with a lack of bona fides. He claimed that as a substantial matter such as this had not been considered by the Tribunal it could not be said to have made a bona fide attempt to exercise the jurisdiction given to it. The meaning of bona fide in these circumstances was considered by a Full Bench of the Federal Court in NAGT of 2002 v MIMIA [2002] FCA FC 319. Their Honours quoted from a judgment of Sackville J in WU v MIMIA [2002] FCA 1242 with approval:

"[59] The touchstone that emerges from the judgment in NAAV is that a decision of the MRT will satisfy the first Hickman condition if it is the consequence of an honest attempt to act in pursuance of the powers of the Tribunal. There may be cases where the disregard of statutory requirements or, indeed, of the evidence, is so blatant (to use Von Doussa J's words) that an inference can be drawn that the decision maker has not honestly attempted to exercise the relevant statutory power. There may also be cases where the decision maker has knowingly exercised a power for an improper purpose: Diahatsu Australia Pty Limited v SCT (2001) 184 ALR 576 at 587 per Finn J. But the fact that the Tribunal has misconstrued the legislation or committed procedural errors will not, on itself, ordinarily establish that it has not honestly attempted to exercise its power: Diahatsu v SCT at 590."

22. I do not believe that the fact that the Tribunal did not consider an important element of the applicant's case demonstrates either bias or lack of good faith without more evidence. The Tribunal appears on the face of the documentation to have attempted to discharge its functions honestly and it has not been suggested that it attempted to exercise its powers for any improper purpose.

23. The final matters which I have to consider are the two additional grounds based upon the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) HCA 30. In both Muin and the case before me there were two elements of the lack of procedural fairness claim. The first was that the applicants in both cases received letters complying with s.418(2) of the Migration Act and the applicants had received letters from the Tribunal pursuant to s 425 of the Act indicating that it had looked at all of the material relating to their applications.

24. In Muin the court found that the Tribunal had not received or considered all of the documents before the Delegate. But more importantly, the court was bound by the agreed facts that if Mr Muin had known this he would have taken steps to rectify the situation and would have brought matters to the attention of the Tribunal that were favourable to him. There are no similar agreed facts in this case. Mr Christie argues that an inference can be drawn from the nature of the material which was referred to by the advisor briefly at [8], [11] and [12] of the Court Book. He argued that the applicant could have expected the Tribunal to have this information as it was before the Delegate and the applicant would have made more of it if he knew that the information was not before the Delegate. The decision in Muin is considered and explained in some detail in NADR v MIMIA [2002] FCA FC 293. At [22] Kiefel J explained the importance of the agreed facts in Muin and at 24 said:

"Muin does not establish, as the submissions for the appellant implied, that the effects of sending a letter in those terms will amount to a denial of procedural fairness in circumstances where the Tribunal has not referred to the Part B documents in its later decision. Rather it holds there is a want of procedural fairness where an applicant before a Tribunal is misled into thinking that the Tribunal has considered particular relevant information and, as a result, did not ensure that such information was placed before it. Whether it is necessary to infer that the Tribunal was not likely to have considered the material, or whether it is sufficient that it may not have done so, is perhaps moot. It is also of importance that a conclusion that the plaintiff was misled was rendered possible largely because of the agreed facts."

25. There were no agreed facts in NADR and the court was not prepared to make the inferences which were contained in the agreed facts in Muin.

26. I accept that the submissions made by Mr Christie cannot be upheld in the absence of the type of evidence which was produced in Muin (NAAD of 2001 v MIMIA [2002] FCA FC 275). I am not prepared to draw the inferences he requests of me from the existence of references to certain important and favourable documents in the Delegate's decision.

27. The second Muin point is that the High Court came to the view that procedural fairness had not been granted to the appellant because he had not been given the opportunity to make representations on certain material which was unfavourable to his position which was used by the Tribunal in coming to its conclusion. In the instant case Mr Christie argues that the Tribunal utilised certain information obtained from BBC Television programs to conclude that the situation in Northern Iraq was such that the applicant would be protected from persecution by a man who was accepted to be a member of the KDP (internal security service) because:

"The apparatus of a democratic state existed in the area of Kurdish Northern Iraq where Arbil was sited." [CB 90]

28. Mr Allanson argues that this country information, which was relied on by the Tribunal, was put to the applicant as indicated at [CB 90]. There is no evidence that the words used by the Tribunal were any different from those quoted above. To my mind the Tribunal having given such an indication of its thinking, the applicant, who was represented, should have put forward the contrary evidence in the strongest possible terms. The facts of this case are simply not as clear cut as those in Muin and I would be reluctant to make a finding of lack of procedural fairness on these grounds.

29. In any event as of the date of handing down this judgment the matter is moot as Keifel J said in NADR (supra) [29]:

"In my view the decision in Muin does not avail the appellant. Further, Muin was not a case decided in connection with a privative clause. It is not dispute that the decision here is a privative clause decision to which 474(1) of the Migration Act 1958 (Cth) applies. NAAV holds that, provided the conditions referred to in Hickman are observed, s 474(1) operates, in effect, to validate the jurisdictional errors, including a breach of the rules of natural justice...The terms were specific. The effect is to exclude the rules of procedural fairness (648)."

30. On the current state of the authorities I am bound to dismiss this application. I order that the applicant pay the respondent's costs. I have borne in mind the fact that there were two hearings of the matter in assessing those costs pursuant to Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $5,500.00.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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