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MIGRATION - Protection visa - application of s.474 of Migration Act - no basis for judicial review - application dismissed.

COSTS - No order - change in circumstances of country of origin of applicant arrival in Australia - whether costs punishment or economic barrier to future claim.

WAFU v Minister for Immigration [2002] FMCA 325 (18 February 2003)

WAFU v Minister for Immigration [2002] FMCA 325 (18 February 2003)
Last Updated: 21 February 2003


[2002] FMCA 325

MIGRATION - Protection visa - application of s.474 of Migration Act - no basis for judicial review - application dismissed.

COSTS - No order - change in circumstances of country of origin of applicant arrival in Australia - whether costs punishment or economic barrier to future claim.

Migration Act 1958, s.474

Migration Regulations 1994, Sch 4, cl 4004

VABQ v MIMIA [2002] FMCA 209

VDAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1071 delivered 29 August 2002

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1022

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

Ohn v Walton (1995) 36 NSW LR 77

Latoudis v Casey (1990) 170 CLR 534

Ruddock v Vadarlis (2001) FCA 1865

Oshlachv Richmond River Council (1998) 193 CLR 72

Hollier v Australian Maritime Safety Authority (1998) FCA 975

Yilan v Minister for Immigration & Multicultural Affairs (1999) FCA 1212

Donald Campbell & Co Ltd v Pollak (1927) AC 732

Harold v Smith (1860) 5 H&N 381

Gundry v Sainsbury (1910) 1 KB645

Anstee v Jennings (1935) VLR 144

Cilli v Abbot (1981) 53 FLR 108




File No:

WZ163 of 2002

Delivered on:

14 November 2002

18 February 2003 (costs)

Delivered at:


Hearing Date:

13 November 2002

Judgment of:

McInnis FM



In person with interpreter

Counsel for the Respondent:

Mr A Jenshel

Solicitors for the Respondent:

Australian Government Solicitor


The Application be dismissed with no order as to costs.




WZ163 of 2002







(Revised from transcript)

1. This is an application by the applicant in relation to a decision by the Refugee Review Tribunal (the RRT) which was delivered on 5 March 2002. In that decision the RRT had affirmed a decision not to grant to the applicant a protection visa. The background to the application is adequately set out in the Tribunal's reasons for decision which appear in the court book.

2. The applicant claims to be a citizen of Afghanistan and arrived in Australia on 22 August 2001. On 26 September 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 ("the Act").

3. An applicant for a visa of a particular class, it is noted from the Tribunal's reasons, is entitled to be considered against the criteria for all the subclasses within that class. On 12 December 2001 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection (class XA) visa and on 13 December 2001 the applicant applied for review of that decision.

4. I do not need for the purposes of this judgment to set out the relevant legislation as that has already been adequately set out in the RRT's reasons for decision. It is appropriate to note, however, that in the present case the applicant appeared in person on this application assisted by an interpreter. It is also appropriate to note that when the matter was heard on 13 November 2002 I then indicated due to time constraints that I was unable to deliver my extempore judgment as I had intended at the end of the hearing, but rather deferred doing so to

3 pm this day. Hence, this is effectively an ex tempore decision delivered, however, in the absence of the applicant.

5. It is to be noted that I had announced that the matter would be the subject of judgment at 3 pm this day. That announcement was made in the presence of a person I understand to be an officer of the respondent who I am told today was informed that the matter would be the subject of judgment this day, but nevertheless for reasons of which I am not aware, the applicant is now not present in this court. In those circumstances, I have decided to deliver the judgment, to direct that a transcript be provided of that judgment and, upon review, a copy forwarded to both parties. To that extent, it is expected that the applicant will have an opportunity to at least consider the reasons for judgment in this matter.

6. The personal details of the applicant again are set out in the Tribunal's reasons where it is stated that according to the applicant, he arrived in Australia with no identifying documentation. He was born in 1976 and lived all his life in a village Shara, Ulqu in Sharestan, Urezgan in Afghanistan, and the applicant is of Hazara ethnicity and is a Shi'a Muslim. The applicant is unmarried. The applicant's mother and siblings live in Shara. The applicant claims to be illiterate.

7. The application that is before the court claims that the court should review the decision of the respondent; that is, of the RRT, which had affirmed a decision to refuse to grant the applicant's protection visa. The grounds stated in the application are as follows:

"The applicant seeks relief under section 39B of the Judiciary Act 1903 (Cth) on the grounds that the first respondent:

(a) exceeded jurisdiction in making the decision to affirm the second respondent's decision not to grant the applicant a protection visa; and

(b) erred in law in arriving at the decision to affirm the second respondent's decision not to grant the applicant a protection visa."

8. The applicant had also indicated in his application that he was a citizen of Afghanistan and if he is deported to Afghanistan he will be at risk of suffering persecution within the meaning of the 1951 convention relating to the status of refugees and the 1967 protocol relating to the status of refugees.

9. I should also indicate that in this matter orders were made during the course of directions by the court prior to the matter being transferred to this court - namely, that:

"2. The applicant file and serve on or before 14 June 2002:

(a) an amended application giving particulars of any grounds founding relief under the Judiciary Act 1903 or a statement setting out why he considers the decision of the Tribunal should be overturned; and

(b) any affidavits upon which he intends to rely at the hearing of this matter."

10. Those orders having been made, when the application commenced before this court I asked the self-represented applicant whether he had any further material upon which he sought to rely. He indicated that he had forwarded to the court some weeks ago additional documents.

I then invited him to consider whether he was able to proceed with the matter or would be content to address the court in relation to those additional matters which had been the subject of the document or documents which neither the court nor the respondent had received.

11. In the circumstances, the applicant indicated through the interpreter that he wished to proceed with the matter and then was able to raise issues before this court in support of his application over and above the material which is already before the court in the court book. Essentially therefore the court permitted the applicant to raise a number of issues which had not been the subject of further documentary material and that course was followed without objection by the representatives of the respondent.

12. It seemed clear to me that the main thrust of the applicant's complaint was that the RRT had failed to either have regard or proper regard to a reason for the applicant leaving Afghanistan together with the reason which he asserts now to be the reason why he is unable to return to Afghanistan and in those circumstances he claims that he should be able to rely upon that reason in order to overturn the decision of the Tribunal and to persuade this court to reverse the decision of the RRT and effectively permit the applicant to remain and to make a finding that he is a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugees protocol.

13. The reason given, it is now said by the applicant, is that whilst there had been reference in the RRT reasoning based upon a statutory declaration which had been completed by the applicant to an individual whose name is `Arif'. Reference had been made to that person, as I indicated, both in the statutory declaration and to the extent that the Tribunal recited that statutory declaration in its reasons and elsewhere. It was claimed by the applicant that in fact arising from conflict with that person and the conduct of that person in Afghanistan and information that the applicant had received about that person in recent times, namely that that person is now in a position of authority in the region from where the applicant had travelled, was now the cause and reason why the applicant seeks refugee status and does not wish to return to Afghanistan.

14. It is appropriate for the purposes of this decision to read the relevant paragraphs from the statutory declaration to which I have referred - that is, a declaration declared 20 September 2001, which provides as follows in paragraphs 5 and 6:

"5. The Taliban came to our area three years ago after the fall of Bamyan, our people surrendered themselves without fighting. At this time, Afgari was the local commander of the Hazaras, he was good to his people but was assassinated by another person and his brother took his position named Arif. However, he was completely different, at this time the Taliban used to come to the village ask people for weapons, beat up people and a lot of people disappeared. One and a half years ago a group of Taliban came to our house asked my father for any weapons, and my father told them there was not any, they beat him up there, so we tried to stop them from beating him, they pulled him by his arm, took him outside in the field, we tried to intervene but they used to hit us with the butt of their pistols and guns. When we eventually got to him, we found they had slit his throat and he was dead.

6. Arif was a Hazara as well, he was using a person called Akbari to collect information of how many people lived in which houses, that is how many young male persons lived in respective homes. Arif had my name, and he called me, I went to him and he told me that if I would like to go to the front line. I could not say no, as I would have had my head decapitated. He told me that after a week I would be sent to the front line, so I went back home, told my mother and brother, they decided that I had to leave. They sent me to a house in Chaprasak, which is another village, in the house of Ishaq, my late father's friend. I remained there 30 to 40 days when my brother became able to arrange the smuggler and money. Then he paid the smuggler $US3500.00, named Abas to get me out of the country to Pakistan."

15. That extract from the statutory declaration formed part of the material which was clearly quoted by the Tribunal and it appears at page 86 of the court book under the heading, "Refugee Claims". It should be noted that in the decision that the RRT had to consider a decision of the delegate refusing to grant the protection visa on 12 December 2001.

I do note, in passing, that the delegate had relied upon some linguistic evidence and other material and in fact did not find that the applicant was born in Afghanistan.

16. This is perhaps to be contrasted with the findings of the RRT and the RRT in fact, in its reasoning, after weighing up all the evidence, decided to give less weight to the linguistics expert's findings in regard to the fact that the applicant's language background, with considerable certainty, can be said to originate from Pakistan, Baluchistan, and gives greater weight to the other evidence cited in its reasons. It found that the applicant is from Afghanistan and is an ethnic Hazara as he claimed. The RRT was satisfied that the applicant is an Afghan national, as a consequence of his knowledge of the local area he claims to be from, his plausible account in regard to his travel and the independent evidence which supports his claims.

17. Hence it was clear that what the RRT then had to further consider was other claims and findings which are relevant in these applications, in particular the issue of claims against the Taliban and findings and in that sense the RRT also found and accepted that the applicant had incurred the enmity of the Taliban by reason of an imputed political opinion against the Taliban and that he feared forcible conscription into the Taliban forces. The RRT further accepted that the applicant feared persecution by the Taliban by reason of his ethnicity and his religion and goes on to make further findings.

18. I have mentioned those findings just by way of illustrating that there had been a number of issues agitated before the RRT which were clearly given consideration and which then resulted in certain findings. What is now said by the applicant on his own behalf is that the RRT either failed to place sufficient weight on what is now characterised as either a new or an additional basis upon which the applicant seeks consideration by this court of review of the decision by the RRT. It is claimed that the RRT failed to have regard to that factor in the reasons to which I have already referred.

19. In an outline of submissions filed with the court on 12 November 2002 and in oral submissions made on behalf of the respondent, it was submitted that in this case, even if there was some criticism to be made of the RRT in failing to either take account of the more recently stated reason given by the applicant for leaving Afghanistan and the basis of his fear for returning, that of itself would not be sufficient to impugn the decision of the Tribunal, nor would this court have power, in the circumstances, to review that decision.

20. This court has had to consider its powers in other cases in recent times and has done so in the light of the now often quoted authority of the Full Court of the Federal Court of NAAV v MIMIA (2002) FCFCA 228. In a decision delivered by this court on 5 September 2002, in matter VABQ v MIMIA [2002] FMCA 209, I had cause to consider the Full Court's decision in the NAAV case and in particular I had also been referred to decisions since that case and in particular a decision of Heerey J in the matter of VDAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1071, delivered

29 August 2002

21. In VDAA the court referred to the current state of the law which I was invited to accept on that previous occasion. I did accept the statement of Heerey J in that case where at paragraph 27 he says:

"In any event, the judgments of the majority in NAAV make it clear that `jurisdictional' or `structural' or `inviolable' factors or elements are matters which arise at the initiation or activation of the decision-making process; see per von Doussa J at [625]. likewise Black CJ (at [37]), in relation to the Wang appeal, thought that the particular area of decision-making had to be `enlivened', and `enlivened only by a notice having a particular quality.'"

22. In paragraph 28 Heerey J says:

"By contrast, the decision which the Tribunal made as to the non- satisfaction of the applicant's answering the definition of refugee came at the end of the process. The Tribunal had embarked on its task lawfully. It was empowered by the Act to do so. Section 474 has the effect that the way it went about its task is protected from judicial review."

23. Further reference was made to the decision of von Doussa J in the matter of SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1022 26 August 2002, and in that case his Honour said:

"For the reasons that I gave in my judgment in NAAV at [639], I am unable to agree with the conclusion that the RRT's decision was not validated by s 474(1) ..."

24. Significantly the decision of Allsop J in the matter of NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 provides the following reference:

"A Full Court of this court has, by a majority, held in NAAV that section 474(1) of the act has the effect of widening the authority and powers of the RRT in such a way that the lawfulness of any decision it makes is beyond question provided that the three provisos are fulfilled, so long as its discretion is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the powers given to the body."

25. In the present case, it was submitted for and on behalf of the respondent that the principles to be applied following NAAV now provide the basis upon which it could be suggested that there is any error which the court may entertain. It is said:

"The following principles are now common ground among the five judgments in NAAV: (a) subsection 474(1) is to be interpreted in accordance with the principles enunciated by Dixon J in Hickman and thereafter consistently applied by the High Court; subsection 474(1) does not affect the scope of the court's jurisdiction and hence does not affect the availability of relief against invalid decisions; subsection 474(1) affects the substantive law as to what decisions are valid, altering and giving force and effect to what would otherwise be unlawfulness in the decision-making process.

In the language of Dixon J in Hickman and subject to three provisos set out below, a privative clause `is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its act within the limits laid down by the instruments giving it authority'.

The three provisos are that the decision must be a bona fide attempt to exercise its power related to the subject matter of the legislation and be reasonably capable of reference to the power given to the body."

26. In the present case, a proper reading of the application and consideration of the submissions made on behalf of the applicant would direct the court's attention primarily to the issue of whether there has been a bona fide attempt to exercise power. To that extent, some passing reference was made by the applicant to a suggestion that when he sought to provide further explanation in relation to the person referred to in his statutory declaration as `Arif', he was told that he did not need to continue with those submissions by the RRT. That, together with the suggestion that the matter was not either given appropriate weight or properly considered at all as the primary reason upon which the applicant bases his application, may at least potentially raise the issue of a failure to exercise power in good faith.

27. It is submitted, however, on behalf of the respondent that in the present case, the court should have regard to the fact that the more recent information that has come into the possession of the applicant concerning the individual named in his statutory declaration; that is, information concerning the person Arif is information that could not possibly have been before the RRT and, in those circumstances, it is difficult to then suggest that the RRT did not act in good faith when the information about the current position of power held by Arif, as alleged by the applicant from the bar table, was not information then available to the Tribunal. In any event, it is submitted that I should not permit new evidence in that manner to be provided to the court when there are other avenues which could be pursued by the applicant if he chose to do so.

28. In my view, in any event, the material now sought to be relied upon by the applicant was substantially before the RRT and was considered amongst all the other material which the Tribunal considered. I am satisfied, applying the appropriate authorities to which I have referred in relation to the application of s.474, that in the present case the principles which I should apply, adopting what was said by the majority in NAAV, allow me to make a finding that the task performed by the Tribunal was a task within its power and it was a task, in my view, which in this particular case could not be said to be conducted in a manner which could be regarded as not being in good faith.

29. When one looks properly at the reasoning of the Tribunal, it is clear that it went through a number of matters which had previously been the subject of adverse decision by the delegate against the applicant; namely, the question of the applicant's background, and indeed the Tribunal, in my view, quite properly analysed that material and in particular quite properly weighed up and carefully considered the linguistic analysis which had otherwise been relied upon to reach an adverse decision against the applicant. The RRT also took into account the statutory declaration material which clearly demonstrates that there are difficulties or were difficulties at the time. I accept, however, the submission made for and on behalf of the respondent that in any event in the context in which the person Arif has been referred to, it was clearly a context of Taliban control and direction of that person's activities.

30. As indicated by the RRT, of course, the events since September 11 2001 have altered significantly the facts and circumstances in Afghanistan. Hence, this is yet another case where a person has arrived in Australia seeking to obtain a protection visa but the events since arrival have altered to such an extent that what might otherwise have been an application which would have received a somewhat more sympathetic response cannot, as a matter of principle receive the same response.

31. It is not for this court, however, to revisit the facts and circumstances but to simply note that that seems to be the chronology of events in this case which is not uncommon in relation to applications from persons who have fled Afghanistan. In all the circumstances, and applying the law to which I have been referred, it is my view that there is no error that has been made by the RRT in this application which this court could review as a matter of judicial review.

32. I should add for the sake of completeness and having considered the material carefully, even if s.474 of the Act did not have the application and interpretation given to it by the Full Court in NAAV and even if I were minded and able on judicial review to consider this application upon the normal principles of administrative law, there is nothing in the decision which in my view would justify allowing judicial review of the decision in any event. For those reasons it follows that the application should be dismissed.

33. The orders are as follows:

(1) That the application be dismissed.

34. It is directed that the respondent shall file and serve an application for costs, if any, together with supporting submissions, on or before 21 November 2002:

(1) It is directed that the respondent shall file and serve any written submissions in relation to the issue of costs on or before

30 November 2002.

(2) Upon receipt of the submissions the court will then decide the issue of costs.


35. In this matter as indicated I had made directions for the filing and serving of submissions in relation to the issue of costs. I have decided that it would be appropriate to incorporate the reasons for decision on the issue of costs with the reasons given in relation to the substantive application which had been delivered on 14 November 2002. Pursuant to the directions of the Court submissions in writing were provided by the Respondent and filed on 22 November 2002. A Notice of Motion was likewise filed though the Respondent was advised that this was unnecessary in the circumstances where a direction had been made by the Court. The Applicant has not filed any submissions on the issue of costs though it is noted that there has been an appeal filed on 1 January 2003 despite the fact that the orders have not been formally entered in this matter pending the outcome of my decision on the issue of costs.

36. In any event it was submitted on behalf of the Respondent that costs should follow the event. The costs are not to be regarded as a punishment inflicted on an unsuccessful party and that the purpose of costs is to indemnify the successful party against the legal costs associated with the vindication of their position (See Ohn v Walton (1995) 36 NSW LR 77 at 79, Latoudis v Casey (1990) 170 CLR 534 at 543 and Ruddock v Vadarlis (2001) FCA 1865 at paragraphs 12-13 and 45). The absence of blameworthy conduct on the party of an unsuccessful party is no basis for the refusal of costs according to the Respondent. The fact that the Respondent is a public body is not a disqualifying consideration. Having successfully defended the application brought by the Applicant in a private capacity, it is submitted there is no reason why the taxpayer should have to bear the costs. (See Oshlachv Richmond River Council (1998) 193 CLR 72, Hollier v Australian Maritime Safety Authority (1998) FCA 975). It is submitted on behalf of the Respondent that there is no feature in the present case which could be said to be a public interest element leading to the exercise of a discretion not to make an order for costs.

37. The inability of the Applicant to meet any costs order is not a basis for declining to make such an order and it is submitted that over the course of the years it has become conventional to apply the usual rule as to costs in such cases (See Yilan v Minister for Immigration & Multicultural Affairs (1999) FCA 1212 at paragraph 5). The pursuit of costs it is submitted is not a matter that could be regarded as "taking advantage of a claimant without the resources to litigate a legitimate claim."

38. It is clear that in an application of this kind the Court has a discretion in relation to the issue of costs. I accept the submissions on behalf of the Respondent based upon the authorities to which I have referred that costs are not a punishment inflicted on the unsuccessful party.

I otherwise accept the submissions made by the Respondent that there is not a public interest element in this case which would justify departure from the usual rule that costs follow the event. Likewise impecuniosity or inability to pay costs is not a factor relevant in considering the issue of whether to make an award of costs.

39. The fundamental principle and rationale for the order of costs is well established in the decision of Latoudis v Casey (1990) 170 CLR 534 at 566-7. The rationale in simple terms according to that authority is that it is just and reasonable that the party who caused the other party to incur the cost of litigation should reimburse that party for the liability incurred. That principle applies in general to all cases including those arising out of the Migration Act.

40. It is also clear that the Court nevertheless retains a discretion to consider whether costs should follow the event or indeed whether there may be special circumstances whereby a successful litigant should be deprived of his costs. (See Donald Campbell & Co Ltd v Pollak (1927) AC 732 at 809, 811).

41. It is also relevant to note that in the case of Donald Campbell & Co Ltd v Pollak Viscount Cave LC stated at page 811 the following:

"But (a successful party) has no right to costs unless and until the Court awards them to him, and the Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially and the Judge ought not to exercise it against the successful party, except for some reason connected with the case."

42. The authorities permit departure from the general rule that costs follow the event where it might be said there are special circumstances. There are two matters which in my view may be said to constitute special circumstances in cases of the present kind. The first is that when one examines the chronology of events namely arrival by the Applicant in Australia on 22 August 2001 with the lodging of an application for a protection visa on 26 September 2001. The Applicant who has been found to be a citizen of Afghanistan, at the time of departure and indeed it may be argued even at the time of lodging his application had not become aware of the significant and dramatic changes in circumstances which effectively meant with the subsequent demise of the Taliban the substantive argument which otherwise would have been advanced by the Applicant with a high degree of success was no longer applicable. Hence this matter as with other matters regarding applicants from Afghanistan who fled prior to the fall of the Taliban may be regarded as somewhat different to other applications under the Migration Act as it is only the effluxion of time and dramatic change of circumstances since departure and lodging of the application which have considerably weakened the prospects of success of the Applicant's claim for a protection visa. The pursuit of rights by way of judicial review though unsuccessful in the present case for reasons set out in my judgment may well be understandable given that the Applicant like many others has undertaken at significant personal sacrifice a journey which at least at the time of his departure was arguably justified and consistent with those principles which apply to refugees.

43. The second matter of concern to the Court is that in matters of this kind given the particular circumstance of this application it is clear that whilst recovery of the costs is unlikely that those costs may be regarded as a debt to the commonwealth and used as an effective bar to the Applicant making further application at some future date to migrate to Australia.

44. It is understood that s.215 of the Migration Act applies to enable the Commonwealth to recover any costs payable by the Applicant to the Commonwealth as a debt due to the Commonwealth in a Court of competent jurisdiction.

45. It is noted that a debt to the Commonwealth may then become an issue if the person subsequently makes application to return to Australia. It is said to be part of the public interest criteria imposed by Schedule 4 of the Migration Regulations on all visa applications (except bridging and protection visas) that "the Applicant does not have any outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment". (See Migration Regulations 1994 Schedule 4 clause 4004). Hence, in the ordinary course of events if the Applicant returns to Afghanistan and then seeks to apply for a visa other than a bridging or protection visa the debt to the Commonwealth may be used as an economic barrier to any such application.

46. It is correct to say that costs between a party and party are given as an indemnity to the person entitled to them and they are not imposed to punish the party who pays them (See Harold v Smith (1860) 5 H&N 381 at 385; Gundry v Sainsbury (1910) 1 KB645 at 649, Anstee v Jennings (1935) VLR 144 at 148; Cilli v Abbot (1981) 53 FLR 108 and Latourids v Casey (1990) 170 CLR 534.

47. In my view in the particular circumstance of this case having regard to the chronology of events to which I have referred the award of costs may well be seen as effectively punishment to the extent that it would provide what might be regarded as an insurmountable economic barrier to any future application which may be lodged by this Applicant who I accept in the present case may well have had more success with his claim for a protection visa had it not been for the change of circumstances which occurred after his departure from Afghanistan.

48. In the circumstances it is my view that the chronology and the effective punishment which would be imposed upon this Applicant constitutes sufficient special circumstances which would entitle me in the proper exercise of my discretion to refuse to award costs.

49. Accordingly the order of the Court will be that the Application be dismissed with no order as to costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of McInnis FM


Date: 18 February 2003
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