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MIGRATION - Review of RRT decision - protection visa - determination of nationality of applicant based on linguistic evidence - whether there was a well-founded fear of persecution - weight given to linguistic report - whether a court can impugn a decision of the Tribunal made on the basis of a linguistic report - whether the applicant is entitled to make another application - no reviewable error found.

WAHN v Minister for Immigration [2002] FMCA 336 (23 December 2002)

WAHN v Minister for Immigration [2002] FMCA 336 (23 December 2002)
Last Updated: 28 January 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAHN v MINISTER FOR IMMIGRATION
[2002] FMCA 336



MIGRATION - Review of RRT decision - protection visa - determination of nationality of applicant based on linguistic evidence - whether there was a well-founded fear of persecution - weight given to linguistic report - whether a court can impugn a decision of the Tribunal made on the basis of a linguistic report - whether the applicant is entitled to make another application - no reviewable error found.



Migration Act 1958 (Cth) s.48B

Odhiambo v Minister for Immigration [2001] FCA 1092

WACN v Minister for Immigration [2001] FCA 504

SCAS v Minister for Immigration [2002] FCA 598

Hussain v Minister for Immigration [2002] FCA 793

Applicant:
WAHN



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 192 of 2002



Delivered on:


23 December 2002



Delivered at:


Sydney



Hearing Date:


16 December 2002 in Sydney

via videolink to Perth



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr R Hooker



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 192 of 2002

WAHN


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant, who claims to be a citizen of Algeria, arrived in Australia on 16 August 2001 by sea. On 11 September 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 28 March 2002 a delegate of the Minister refused to grant a protection visa. The applicant sought review of that decision on 2 April 2002. The review was carried out by the Refugee Review Tribunal, which on 24 June 2002 affirmed the decision of the delegate.

2. The Tribunal's decision is found at [CB 189-205]. At [204] the Tribunal states:

"I find that the applicant is not Algerian as claimed by him, but is most reasonably - based on the linguistic evidence - from Morocco. He has made no claims against that country. Having made that finding it is not necessary for me to consider his claims relating to Algeria.

Even if I was to accept that he is from Algeria, it is apparent to me, having considered his claims that he would not fall within the Convention definition of a refugee. Clearly on his evidence he was able to depart Algeria without any difficulty, nothing ever happened to him in Algeria and the matters, which caused him concern, happened to other persons who happen to be members of his family. He was never arrested, his sisters-in-law were not arrested and none of his uncles were arrested."

3. The importance of the finding as to nationality is that it precludes any consideration of an applicant's claim as to a well-founded fear of persecution for convention reasons in another country. In this case, the Tribunal has sought to add an additional limb to its findings by arguing that even if the applicant was Algerian, which it denies, Australia would not have any obligation to provide him with protection. This strikes me as an odd way of approaching the Tribunal's decision- making powers. The Tribunal would be aware that the court can not impugn a decision made by it on the basis of a linguistic report, whatever a court may feel about the evidentiary value of such a document. This principle has been confirmed in the following cases; Odhiambo v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1092, WACN v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 504, SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 598 and most notably in Hussain v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 793 where Mansfield J held that the complaint about the use of a language analysis report is merely an attempt to revisit the merits of the Tribunal's decision and since the Tribunal is not bound by rules of evidence, it would not amount to an improper exercise of the Tribunal's power in circumstances where there is a question of weight should be given to the report.

4. Absent bad faith on the part of the Tribunal which was not alleged, the decision is unchallengeable. The effect of the additional findings is to raise concern that the Tribunal itself was not totally convinced of the value of the linguistic evidence.

5. The applicant states that he has in his possession papers would which prove that he is Algerian. These were not before the Tribunal. They cannot be the subject of a review.

6. Section 48B of the Migration Act 1958 (Cth) allows the applicant to seek to make another application in circumstances where the Minister thinks its is in the public interest to do so. One would expect that if the Department was faced with such a request and proof that the applicant was indeed of a nationality that he claims, it would allow him a rehearing so that his allegations of a fear of persecution for convention reasons in that country can be tested in an atmosphere where his credibility on an issue fundamental to the decision maker's responsibilities is not in issue.

7. I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000.00 pursuant to Part 21, Rule 21.02(2)(a) 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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