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MIGRATION - Application for review of decision of the Refugee Review Tribunal - no available grounds for review - application dismissed.

WAHR v Minister for Immigration [2002] FMCA 245 (9 October 2002)

WAHR v Minister for Immigration [2002] FMCA 245 (9 October 2002)
Last Updated: 17 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAHR v MINISTER FOR IMMIGRATION
[2002] FMCA 245



MIGRATION - Application for review of decision of the Refugee Review Tribunal - no available grounds for review - application dismissed.



Migration Act 1958 (Cth), s.474

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

Zahid v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 1108

SBAU v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 1076

Applicant:
WAHR



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 182 of 2002



Delivered on:


9 October 2002



Delivered at:


Sydney



Hearing Date:


9 October 2002 (via videolink to Perth)



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



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 in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


WZ 182 of 2002

WAHR


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a Sri Lankan national who arrived in Australia on

12 January 2002. He was taken in to Immigration custody upon arrival and remains there. He is of Tamil ethnicity. On 23 January 2002 he lodged an application for a protection visa with the Department of Immigration, Multicultural and Indigenous Affairs, this application was refused on 1 May 2002. He sought a review of that decision from the Refugee Review Tribunal. This took place on 13 June 2002. The Tribunal came to its decision 27 June 2002, it agreed to uphold the decision of the Minister's delegate.

2. The Tribunal accepted that the applicant is a Tamil and that he has subjective fear that he faces persecution should he return to Sri Lanka. The Tribunal does not accept that he was detained and tortured in 1997 or 2000 as claimed. The Tribunal analysed the applicant's claims against certain country information between pages 153 and 163 of the Court Book. It is not the prerogative of this Court to debate with the Tribunal its reasons for decision. It is not the prerogative of this Court to substitute for the Tribunal's views of the evidence before it, the Court's views.

3. The Court is concerned with whether or not the Tribunal in coming to its decision exercised the jurisdiction given to it. In this case the applicant in his submissions, both written and oral, stressed the veracity of those matters which he had put to the Tribunal. He did not address in any way the method by which the Tribunal came to its conclusions, but concentrated his attack on the conclusions themselves. This is understandable. It would be very difficult to explain to a person who does not have either a fluent knowledge of the English language, nor a degree in law the complexities of the Migration Act.

4. Since the decision in NAAV v MIMIA [2002] FCAFC 228 as comprehensively explained by Sackville J in Zahid v MIMIA [2002] FCA 1108, it is clear that s.474 of the Migration Act 1958 (Cth) has so widened the powers of the Tribunal, that relevantly only a failure to exercise its decision-making powers in a bona fide manner now provides grounds for review. Mansfield J discussed the nature of lack of bona fides in SBAU v MIMIA [2002] FCA 1076, in particular, at [25], [31] and [32].

5. I have read this decision of the Tribunal and listened to the submissions of the applicant with these matters in mind. I can find nothing which I have seen on the papers or have heard from the applicant that would indicate that the Tribunal has pre-judged any issues, or entered upon its decision with a closed mind. The applicant in his submissions referred to three particular matters. He argues that the peace process which is currently being undertaken in Sri Lanka is of a very fragile nature. He argues that militant groups of either side are likely to conscript him if he returned.

6. Finally, he argued that the payment of bribes was a common factor in Sri Lankan society and it was quite easy for him to have paid bribes for the purposes of obtaining a passport out of the country. These matters were all considered by the Tribunal. The first between the [CB 163] to [CB 168], the second at [CB 171] and the third at [CB 160]. The language of the Tribunal is moderate and bears no indication that the Tribunal did not give all of the submissions of the applicant appropriate consideration.

7. In all the circumstances, I am unable to find that any grounds for review, as currently permitted by the legislation and the decision of the Full Bench of the Federal Court, exist and I must dismiss the application and order that the applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's 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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