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MIGRATION - Application for review of decision of the Refugee Review Tribunal - application not specifying any reviewable grounds - no grounds for review identified - no error of law identified.

WAGS v Minister for Immigration [2002] FMCA 180 (23 August 2002)

WAGS v Minister for Immigration [2002] FMCA 180 (23 August 2002)
Last Updated: 30 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAGS v MINISTER FOR IMMIGRATION
[2002] FMCA 180



MIGRATION - Application for review of decision of the Refugee Review Tribunal - application not specifying any reviewable grounds - no grounds for review identified - no error of law identified.



Migration Act 1958 (Cth) s.474

NAAV v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 228

Applicant:
WAGS



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 119 of 2002



Delivered on:


23 August 2002



Delivered at:


Perth



Hearing Date:


20 August 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr M Ritter



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $3,750.00

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 119 of 2002

WAGS


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is an Afghani citizen who arrived in Australia on

6 January 2000 along with his wife, an Indonesian national. On

24 January 2001 they lodged an application for protection (class A sub class 785) protection visa. On 27 April 2001 a delegate of the Minister refused to grant the visa and the applicant sought a merits review from the Refugee Review Tribunal. Such review was given but on appeal to the Federal Court the matter was remitted to the Tribunal differently constituted to determine in accordance with law. That determination took place and a further decision affirming the decision of the delegate was handed down on 24 April 2002. It is that latter decision which is the subject of this application for review. The applicant is unrepresented. He completed the forms himself. Not surprisingly they do not set out in proper form the basis of his application. At the directions hearing orders were made for an amended application to be filed but that did not occur. The grounds as they presently stand state:

"I still have persecution in Afghanistan, my wife is very sick,

I would like to come to the hearing with my wife."

2. The Tribunal accepted that the applicant was an Hazara and a Shiite Muslim, that he came from Parwan Province and that he had suffered as claimed at the hands of the Taliban. The Tribunal explained that its duty was to consider whether those claims gave rise to a well founded fear that the applicant would be persecuted for Convention reasons if he were to return to Afghanistan in the reasonably foreseeable future. This involved a consideration of the extent to which any fears which he had previously expressed and which were accepted were allayed by the fact that the Taliban were no longer in control of Afghanistan which was being administered by a western influenced government of national unity.

3. The applicant had claimed that he did not believe he would be safe if he returned to his former home as there was still ethnic rivalry in Afghanistan, particularly against Hazaras. He did not believe he would be safe on the journey from Kabul to his village. The Tribunal took these matters in to account and measured them against detailed country information which it had available to it. The Tribunal came to the conclusion that any problems that the applicant would suffer if he did return to Afghanistan would not be suffered for Convention reasons. The analysis by the Tribunal of the situation in Afghanistan proceeds between [CB 247-252] and is written in a measured and reasonable tone.

4. The respondent had provided to the court some helpful written submissions which were translated to the applicant in my presence prior to the applicant being asked to explain why he believed the Tribunal had made an error of law in the way in which it came to its conclusions. The submissions dealt with the effect of s.474(1) of the Migration Act 1958 (Cth) and of the recent decision of the Full Bench of the Federal Court in NAAV v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 228.

5. The applicant made the following submissions:

"(a) My wife has been sick. Her weight has reduced to 38 kilograms. She is on medication (for tuberculosis). She has to continue on this medication for eight months to one year and to have medical checkups every few months. The medical infrastructure in Afghanistan is not suitable for her care.

(b) I did not intend to appeal. I thought that I might go back to Afghanistan as it is quieter now. However, with the assistance of MIMIA I telephoned a friend in Afghanistan and I asked him about my family. He told me that the Wahdad Party had killed my father and the rest of my family had escaped. That is why I have decided to come to the Federal Court and seek review.

(c) My continued incarceration is unfair. I was wrongly misidentified by the first Tribunal because of my appearance and I remained incarcerated when others in the same situation as I was were given visas.

(d) The Tribunal did not address the problem of my wife's sickness and it was not able to address the recent information I have obtained about the death of my father and the disappearance of my family."

6. It will be clear from the matters recited above that the applicant is not making any challenge to the decision of the Tribunal based upon any of the three exceptions to the Hickman principles which, subject to the additional grounds discussed by the Chief Justice in NAAV at [15] and labelled "an inviolable limitation" constitute the only available grounds for review of migration decisions. The condition of the applicant's wife is obviously a matter which the Minister might take into account on receipt of a request for sympathetic consideration of an application made on humanitarian grounds as would be the situation regarding the applicant's family. However, the former is not a matter to take into account when considering a well founded fear of persecution for Convention reasons and the latter information only came to the attention of the applicant after the Tribunal had handed down its decision and is therefore not a matter which would go to a review of that decision.

7. The applicant has not demonstrated any ground for review of this decision and I must therefore dismiss the application and order that he pays the respondent's costs which I assess in the sum of $3,750.00 pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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