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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - unparticularised grounds of review - no reviewable error found.

WAJL v Minister for Immigration [2003] FMCA 195 (22 May 2003)

WAJL v Minister for Immigration [2003] FMCA 195 (22 May 2003)
Last Updated: 19 June 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAJL v MINISTER FOR IMMIGRATION
[2003] FMCA 195



MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - unparticularised grounds of review - no reviewable error found.



Migration Act 1958 (Cth), s.474

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

WAJU v Minister for Immigration [2003] FMCA 199

Applicant:
WAJL



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ51 of 2003



Delivered on:


22 May 2003



Delivered at:


Sydney, via videolink to Perth and Port Hedland



Hearing date:


22 May 2003



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person






Counsel for the Respondent:


Ms L B Price



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


WZ51 of 2003

WAJL


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 23 January 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant applied in the Federal Court on 31 January 2003 to review the RRT decision.

2. The grounds set out in the application are first that the RRT failed to apply the correct test and principles of relevant law. It is asserted that the RRT took into account irrelevant considerations and failed to take into account relevant considerations. Secondly, the application asserts that the RRT fell into error in its interpretation of the expression "well founded fear". Thirdly, the application asserts that the RRT did not understand the applicant's claims and that the RRT did not comply with statutory rules. It is further asserted that the RRT did not accord procedural fairness in the sense set out in the High Court decisions in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30.

3. It seems that the application was prepared with the assistance of another person. I note that the grounds of the application are the same as those set out in the matter of WAJU v Minister for Immigration [2003] FMCA 199 which I dealt with yesterday. On 7 March 2003 the Federal Court ordered the applicant to provide particulars of the grounds of review. Those particulars were required by 4 April 2003. No particulars have been provided and the applicant explained the omission to me on the basis of language difficulties. Both parties were also ordered to provide an outline of submissions prior to the hearing. Written submissions were filed on 20 May 2003 by the solicitors for the respondent.

4. The applicant also prepared written submissions in the Singhalese language in a handwritten document. Because they were in a foreign language and were received without any identification in English of what they were they were simply placed in the correspondence file in the court file. Today at trial I had the applicant read his written submissions to me with the assistance of an interpreter. The applicant relied upon his application and written submissions and also made oral submissions to me.

5. The applicant's written and oral submissions went to the merits of the RRT decision. I explained to him that the Court could not review the merits of the RRT decision and could not decide whether or not he should receive a visa. Nevertheless, the applicant was concerned to take issue with the findings of fact and conclusions on credibility made by the RRT. He directed his attention to attempt to give me a more plausible account of his claims of persecution than he was apparently able to give the RRT. The applicant did not expand upon the grounds of review set out in his application.

6. In his closing submissions, the applicant did say to me that there had been problems of interpretation at the RRT hearing. He said that he had difficulty understanding questions put to him by the presiding member because the interpreter used English words. He invited me to listen to the tape recording of the RRT hearing. I have decided not to do so. The allegation of communication problems at the RRT hearing was not part of the applicant's grounds of review. It was raised for the first time at the end of the hearing before me today. This is not satisfactory and I did not consider that there was likely to be any substance in the applicant's claim.

7. I am satisfied that the statement of background facts set out in paragraphs 1 to 4 of the written submissions prepared by Ms Price, for the Minister, is accurate. I adopt that statement of background facts for the purposes of this decision. I also adopt the statement of the RRT's decision contained in paragraphs 5 to 10 of Ms Price's submissions.

8. The decision of the RRT was on three bases. First, the RRT did not find credible the applicant's claims of his political activity in Sri Lanka; secondly, the RRT found that even if the applicant had been a member of the United National Party as he had claimed, he did not suffer the threats that he had asserted were targeted at him. The applicant contests these findings by the RRT, but those findings on credibility were reasonably open to the RRT on the material before it. Thirdly, the RRT found that the harm which the applicant asserts he fears is not State based and is not condoned or supported by the State. The RRT found that effective State protection against political violence is available, even though the State is plainly unable to prevent all political violence. I can find no legal error on the face of the record of the RRT decision. Neither is there any apparent unfairness in the proceedings before the RRT. The Hickman provisos to the privative clause in s.474 of the Migration Act 1958 (Cth) are satisfied.

9. In her written submissions, Ms Price makes submissions about the proper interpretation of the privative clause. These are the same submissions as she made in WAJU v Minister for Immigration.

I commented on those submissions in that case, and it is unnecessary to make any further comment in these proceedings. The decision of the RRT in this matter was clearly a privative clause decision. No legal error was made by the RRT, let alone any error of law going to jurisdiction.

10. Accordingly, I will dismiss the application.

11. Ms Price has sought an order for costs in the sum of $3,000. The applicant has indicated that he could not pay a costs order because he is in immigration detention. Inability to pay is not a reason not to make a costs order. I am satisfied that the Minister should receive an order for costs in his favour. I am satisfied that the amount sought is appropriate. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 6 June 2003
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