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MIGRATION - Protection visa - no jurisdictional error - different finding by Refugee Review Tribunal of similar case not a basis for review - no costs order.

WAEY v Minister for Immigration [2003] FMCA 73 (21 March 2003)

WAEY v Minister for Immigration [2003] FMCA 73 (21 March 2003)
Last Updated: 10 April 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAEY v MINISTER FOR IMMIGRATION
[2003] FMCA 73



MIGRATION - Protection visa - no jurisdictional error - different finding by Refugee Review Tribunal of similar case not a basis for review - no costs order.



Migration Act 1958, s.474

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

SDAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 812

Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 2 (4 February 2003)

WAFU v Minister for Immigration [2002] FMCA 325

Applicant:
WAEY



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 88 of 2002



Delivered on:


21 March 2003



Delivered at:


Melbourne



Hearing Date:


27 May 2002



Judgment of:


McInnis FM



REPRESENTATION

Applicant:


In person



Counsel for the Respondent:


Mr J Allanson



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The application be dismissed.

(2) There be no order as to costs.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 88 of 2002

WAEY


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the RRT) which had confirmed a decision of the Respondent not to grant the Applicant a protection visa under the Migration Act 1958 (the Act). The Application was filed in the Federal Court of Australia on 18 February 2002. It was transferred to the Federal Magistrates Court by Order of the Federal Court on 3 May 2002.

2. The background in this matter is set out in submissions of the Respondent filed 23 May 2002. In those submissions the procedural history includes that the Applicant arrived in Australia on 15 June 2001. The personal information provided by the Applicant is that he was born in 1982 and is a citizen of Afghanistan. He is a Shi'ite Muslim and ethnically Hazar. He spoke the Dari language. In the initial interview the Applicant claimed that he had left Afghanistan because of the Taliban. He made application for a protection (class XA) visa dated 3 July 2001. He was assisted by a lawyer at that stage. In support of the application he provided two statutory declarations dated 3 July 2001. A language analysis was conducted which concluded that the Applicant's pronunciation of certain words indicated that he had been living in Pakistan for a long time. In a decision dated 12 October 2001 the delegate for the Minister refused the Applicant's application for a protection visa. The delegate accepted the language analysis and found that while the Applicant was an ethnic Hazar of Shi'ite faith and may have been born in Afghanistan he had not recently lived in Afghanistan and had spent a considerable period of his life in Pakistan. The delegate found other features of the Applicant's account that raised doubts about credibility of that account.

3. The Applicant lodged an application to review the decision of the delegate and that application was received on 17 October 2001. He was then assisted by a firm of solicitors. By letter dated 14 December 2001 the RRT contacted the Applicant and his advisers drawing attention to the issue of "the extent of changed circumstances in Afghanistan such that a fear of persecution by the Taliban may no longer be well founded". The Applicant was then invited to address that issue in a written submission prior to the hearing date. Written submissions were received and dated 17 January 2002 and a variety of issues then raised. The RRT in its decision dated 1 February 2002 affirmed the decision of the delegate not to grant a protection visa. The RRT however did accept that the Applicant was a national of Afghanistan of Hazar ethnicity and that he was resident in Afghanistan under Taliban rule. The key issue in this application however is that the RRT had regard to the changed circumstances in Afghanistan and as a consequence of the demise of the Taliban concluded that the Applicant would not face a real chance of persecution from the Taliban on return to Afghanistan. The RRT also considered the issue of whether there had been other material such as the historical marginalisation of Hazar and conflict with other ethnic groups which might lead to some suggestion of ongoing persecution of the Applicant.

4. It is submitted on behalf of the Respondent that in the circumstance of this case the decision is final and conclusive and cannot be challenged, appealed against, quashed, called into question in any Court and not subject to prohibition, mandamus or certiorari injunction, declaration in any Court on any account and reliance was placed on s.474 of the Migration Act.

5. It is clear since the hearing of this matter that further reliance is placed in written submissions by the Respondent on the Full Court of the Federal Court decision of NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFCA 228.

6. When the matter was before the Court on 27 May 2002 the Applicant sought to rely upon a decision which he asserted was in relation to similar circumstances to the circumstances of the Applicant namely the decision dated 27 February 2002 by the RRT reference number 01/40451. In that decision there was some confusion as to the outcome as the copy of the decision obtained by the Court refers to the RRT remitting the matter for reconsideration with the direction that the Applicant is a person to whom Australia has protection obligations under the Refugee Convention yet the front sheet of the decision states that, "The Tribunal affirms the decision not to grant a protection visa". In any event it is clear from the body of that decision that the RRT had accepted that the Applicant in that case was a person who had a well founded fear of being persecuted for reasons of ethnicity and religion with respect to Afghanistan as a whole. The Applicant in that case was also a person of similar ethnicity and religious beliefs to the Applicant in the present case. It was on the basis of that decision referred to by the Applicant that the Court decided to allow both parties to make further written submissions and the Court indicated it wished to have time to consider the submissions made and to then consider that other decision of the RRT and to the extent that it may be relevant take that into account in reaching its conclusion in the present application. Subsequently, the Respondent has submitted that a claim of an inconsistent decision by the RRT does not provide a ground for judicial review (see SDAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 812 at paragraph 23).

7. In my view it is clear having regard to the authority of the Full Court of the Federal Court of Australia in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs that there is no basis upon which the Court can properly exercise a discretion to allow the application for review. I am satisfied in the present case that there has not been a jurisdictional error or breach of an inviolable right. Hence even with the opportunity to consider jurisdictional error arising from the recent High Court decision in Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 2 (4 February 2003) I am satisfied there is no basis upon which it could be said that the Court should allow the application for judicial review. It has not been necessary in the circumstances to therefore invite the parties to make further submissions in the light of the recent High Court decision to which I have just referred. I am further satisfied that it cannot be suggested in the present case that the decision made was beyond the power of the RRT or that the RRT as constituted in this particular did not act in good faith. It is clear that it acted within the powers granted by Parliament.

8. The only issue of real concern was the apparent inconsistency between decisions of two differently constituted Refugee Review Tribunals. Whilst is it clear on the material before me that there do appear to be different outcomes and different conclusions reached where the circumstances of each Applicant appear at least to me to be very similar that as a matter of law that does not provide a basis for judicial review. It does provide a basis for some concern and the lack of consistency understandably would lead to the Applicant in the present case pursuing this application.

9. Applying reasons which I have delivered in the matter of WAFU v Minister for Immigration [2002] FMCA 325 and adding to those the existence of what is an apparently inconsistent decision by the RRT, it would be appropriate in my view in the exercise of my discretion to make no order as to costs.

10. Accordingly the only order to be made in this matter is that the application be dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 21 March 2003
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