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MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant born in Iran and granted refugee protection in Germany - applicant claims fear of persecution for Convention reasons if returned to Germany - Tribunal not satisfied that the applicant had a well-founded fear of persecution - no error of law identified.

WAGQ v Minister for Immigration [2002] FMCA 178 (23 August 2002)

WAGQ v Minister for Immigration [2002] FMCA 178 (23 August 2002)
Last Updated: 30 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAGQ v MINISTER FOR IMMIGRATION
[2002] FMCA 178



MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant born in Iran and granted refugee protection in Germany - applicant claims fear of persecution for Convention reasons if returned to Germany - Tribunal not satisfied that the applicant had a well-founded fear of persecution - no error of law identified.



Migration Act 1958 (Cth) s.474

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

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Applicant:
WAGQ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS



File No:


WZ 141 of 2002



Delivered on:


23 August 2002



Delivered at:


Perth



Hearing Date:


19 August 2002



Judgment of:


Raphael FM



REPRESENTATION

Solicitor for the Applicant:


Mr M Taheri of Home Migration Services



Counsel for the Respondent:


Mr J Allanson



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 141 OF 2002

WAGQ


Applicant

And

MINISTER FOR IMMIGATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant and her son are stateless persons of Iranian extraction and of the Baha'i religion. They arrived in Australia from Germany on 24 July 2000. On 15 August 2000 an application for a protection (class XA visa sub class 866) was submitted and on 24 September 2002 the Minister's delegate refused to grant protection. On 12 October 2001 the applicant applied for a review of that decision. The delegate's decision was affirmed by the Refugee Review Tribunal and the decision was handed down on 28 March 2002. It is in respect of this decision that the applicant seeks review.

2. The applicant claims that she is stateless because, although born in Iran, she left that country as a refugee and settled in Pakistan. She was resettled from Pakistan to Germany where she was given refugee protection. She had lived in Germany since at least September 1987 and had married another Iranian from whom she was now separated. Her son was born in February 1988. The applicant travelled to Australia on a German travel document which was issued on 29 November 1999 and valid until 28 November 2001. These travel documents allow re-entry into Germany during their period of validity but that right ceases on the expiry.

3. The applicant claims that she has a well founded fear of persecution for convention reasons if she was returned to Germany. She gave to the Tribunal a history of being witness to a series of actions in Germany which put her in fear for her safety. One of her friends who was also a migrant was attacked, the houses of people who she knew were set on fire, her child was abused many times at school because of his nationality and at one time was hospitalised because of damage to his eye. She alleged that she was discriminated in employment because of her nationality. She was afraid of being beaten by Germans on the ground that she was a foreigner and she was concerned at the rise in anti foreigner activity in the form of neo nazi groups and other right wing elements. She informed the Tribunal that although her husband was resident in Germany she really had no ties with that country. She felt she could not return to Germany because her protection rights had expired and she would be refouled to Iran.

4. The Tribunal was not satisfied that the applicants had a well founded fear of persecution in Germany.

"The Tribunal accepts that the applicant son was the victim of a violent attack at school and that this was racially motivated. It is prepared to accept that the applicant herself was the victim of domestic abuse. As noted earlier, persecution within the meaning of the Convention means harm that is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. Availability of state protection does not require that the authorities provide a guarantee against harm. Based on the country information cited above, the Tribunal finds that the applicants can avail themselves of the protection of the German authorities against any serious harm...

The Tribunal is satisfied that the applicants have effective protection in Germany according to general principles. Accordingly, Australia does not owe protection obligations to the applicants. It is therefore unnecessary to undertake an assessment of the substantive merits of the applicants' claims for refugee status. However, the Tribunal accepts that the applicants are Bahai's, and (based on the information in the State Department report on religious freedom in Iran, cited above) that as Bahai's they still face a real chance of persecution in Iran, and cannot according to the Convention, be returned there."

5. The Tribunal found as a fact that although the applicant's right to return to Germany had expired with the expiry of her travel documents, in fact that the German authorities would renew them provided they were satisfied that the applicant had not effectively moved to another country.

6. The applicant who was represented at the hearing had prepared written submissions. These submissions were prepared before the Full Bench of the Federal Court had handed down its decision in NAAV v MIMIA [2002] FCAFC 228. The submissions relied substantially on alleged failings by the Tribunal in the manner in which it considered the evidence and which at best would constitute Craig v South Australia (1995) 184 CLR 163 or Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 errors.

7. The applicant sought to categorise the errors made by the Tribunal within the third limb of the exceptions set out by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.

"(c) The decision displays a constitutional statutory jurisdictional error on its face."

8. This "Hickman exemption" was actually described by Dixon J in slightly different terms. He said:

"(c) The decision must be reasonably capable of reference to the power given to the decision maker."

9. In Hickman the power given to the decision maker was a power in relation to the coal industry. It found that the operations of a road transport firm did not come within the purview of the specialist Tribunal. In the present case the privative clause has been placed in the Migration Act. There is no doubt that the Refugee Review Tribunal in considering the applicants' request for a merits review was acting within the scope of its jurisdiction.

10. The applicant submits that the Tribunal made an error of law in

"Determining whether primary facts fell within a statutory phrase. The Tribunal was to determine whether the evidence before it satisfied the definition of the Refugee's Convention. Having interpreted the statutory phrase, the decision of the Tribunal that the primary facts did not fall within the statutory phrase, was not a decision that could reasonably have been drawn on the evidence, and is therefore an error of law."

11. The interpretation of "a statutory phrase" was considered by the Full Bench of the Federal Court in Ratumaiwai v MIMIA which is one of the five decisions contained in [2002] FCAFC 228. At [651] von Doussa J said:

"Even if the Tribunal had committed errors of law of the kind contended for by Mr Ratumaiwai by misinterpreting the definition of "special needs relative" in the Migration Regulations, Reg 1.03, and by failing to consider whether Mr Ratumaiwai had provided to his brother financial assistance and emotional assistance, I consider that s.474 would nevertheless save the Tribunal's decision from invalidity."

12. The clear ratio of the Full Bench's decision is that Craig and Yusuf error is protected from review. (See Black CJ at [30] and [37] and Wilcox J [374]. See also Black CJ at [36] on the Ratumaiwai construction point).

13. In the respondent's submissions he noted that there was no allegation of lack of bona fides. This was not disputed by the applicant. The applicant in her reply said:

"The Tribunal has made some kind of error - there was an overlooking of information - insufficient weight was given to the evidence - irrelevant matters were taken into account. If the Tribunal had looked at the evidence it might have arrived at a different decision."

14. It seems to me that the applicant has been unable to put forward any ground upon which the Tribunal's decision can be reviewed given the current interpretation of s.474(1) of the Migration Act 1958 (Cth). I must dismiss the application. I order that the applicant pay 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 fourteen (fourteen) paragraphs are a true copy of the reasons for judgment of Kenneth Raphael FM

Associate:

Date:
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