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MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.

WAIA v Minister for Immigration [2002] FMCA 365 (12 December 2002)

WAIA v Minister for Immigration [2002] FMCA 365 (12 December 2002)
Last Updated: 13 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAIA & MINISTER FOR IMMIGRATION
[2002] FMCA 365



MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.



Migration Act 1958 (Cth), s.474

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228

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

Zahid v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1108

Applicant:
WAIA



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 215 of 2002



Delivered on:


12 December 2002



Delivered at:


Perth



Hearing Date:


12 December 2002



Judgment of:


Hartnett FM

Ex tempore



REPRESENTATION

Applicant:


In person



Counsel for the Respondent:


Mr Hooker



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

THE COURT ORDERS THAT:

(1) The application be dismissed.

(2) The applicant pay the respondent's costs fixed in the sum of $4000.

IT IS CERTIFIED THAT:

(3) Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ215 of 2002

WAIA


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of Afghanistan who arrived in Australia on or about August 2001. On 14 November 2001 he lodged an application for a protection visa. On 9 May 2002 a delegate of the respondent refused to grant that protection visa and on 14 May 2002 the applicant applied for a review of that decision by the Refugee Review Tribunal. On 28 June 2002 the Refugee Review Tribunal delivered a decision affirming the earlier decision of the delegate not to grant a protection visa.

2. By application dated 14 July 2002 the applicant filed an application for an order for review of a decision of the Refugee Review Tribunal. The specified grounds of that application are in terms repetitive to some extent of the factual matters upon which his claim for refugee status was based, namely that the applicant had a well-founded fear of persecution were he to return to Afghanistan by reason of him being persecuted by the Taliban for reasons of his race and religion, being a Hazara and Shiite Muslim. Further the applicant referred to a fear of persecution at the hands of the Pashtuns under the new government.

3. By order of Carr J the applicant's application was transferred into this Court on 2 October 2002. On 16 August 2002 various procedural orders were made requiring the applicant to file an amended application and any affidavits on which he sought to rely together with submissions. There has been no compliance by the applicant with these procedural orders but that is not a matter that weighs in my considerations unduly. I accept it is very difficult for the applicant, given his lack of knowledge of the English language and lack of easy access to legal resources to have complied with the procedural orders. The applicant was afforded the opportunity to make submissions to the Court this day but the real crux of those submissions is that the applicant seeks that this Court act as a merits review Court, which it simply cannot do.

4. The Refugee Review Tribunal accepted the evidence of the applicant that he was from Afghanistan, that he was Hazara and that he was a Shiite Muslim. The Tribunal also accepted that at the time of his initial application the applicant had a well founded fear of being persecuted because the Taliban previously persecuted Hazaras for reason of their race, religion and political opinion. This significant finding appears at p.84 of the Court Book.

5. The Tribunal also considered in some detail the independent country information as to the current situation in Afghanistan. That consideration is set out at pp.86-95 of the Court Book. Following on from that consideration the Tribunal found that the political circumstances in Afghanistan had changed substantially since the applicant had left there and that the Taliban had been effectively eliminated as a political and military force in that country. The Tribunal found at a more specific level that there was no real chance that the applicant would be persecuted by Pashtuns in his local area or in any area of Ghazni province. These findings are contained at p.97 of the Court Book. The Tribunal found the applicant to be a credible witness who genuinely feared being persecuted by the Pashtuns in Afghanistan because of his race and religion as contained at p.96 of the Court Book. However, the Tribunal at p.98 noted that it was unable to find evidence to support the applicant's assertions that there had been the kind of fighting in Qarabagh between the bodies referred to by the applicant and nor was there any evidence found by the Tribunal that people had been killed in Ghazni province in fighting between Hazaras and Pashtuns in the lead up to the Loiarjurga. The Tribunal further went on to say that even if it accepted that those specific incidents did occur it did not accept them as sufficient to outweigh the more broadly based evidence accepted by the Tribunal showing that the applicant did not face a real chance of being persecuted by Pashtuns in Ghazni province.

6. Since the decision in NAAV v MIMIA (2002) FCAFC 228 it is clear that s.474 of the Migration Act 1958 operates to expand the effective jurisdiction of the Tribunal in respect of privative clause decisions. The accepted construction of a privative clause is set out in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 614 to 616 and has not been disturbed by the judgment of NAAV. The Court in NAAV also considered that a decision by the Tribunal may be impinged by the Federal Magistrates Court or the Federal Court where the Tribunal has acted in breach of an inviolable limitation upon its power.

7. There is no material before me in the documents filed nor in the submission heard on behalf of the applicant to suggest that the Tribunal did not make a bona fide attempt to exercise the jurisdiction given to it. I can find no lack of bona fides on the part of the decision maker. In answer to the question whether the decision related to the subject matter of the legislation and was reasonably capable of reference to the power given by the Migration Act to the Tribunal, the answer is clearly in the affirmative. The applicant does not argue and nor do I find that there has been a breach of an inviolable limitation upon the exercise of the Tribunal's power.

8. In all the circumstances of this application I am unable to find any matter that would allow the applicant's application to succeed. I must therefore dismiss that application. I shall order that the applicant pay the respondent's costs which I assess in the sum of $4000 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:

Date:
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