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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether the applicant had a well-founded fear of persecution in Afghanistan - whether the RRT erred in rejecting evidence indicating an objective basis for such fear - no reviewable error found.

WAHU v Minister for Immigration [2003] FMCA 149 (16 April 2003)

WAHU v Minister for Immigration [2003] FMCA 149 (16 April 2003)
Last Updated: 7 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAHU v MINISTER FOR IMMIGRATION
[2003] FMCA 149



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether the applicant had a well-founded fear of persecution in Afghanistan - whether the RRT erred in rejecting evidence indicating an objective basis for such fear - no reviewable error found.



Migration Act 1958 (Cth), s.474

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

Applicant:
WAHU



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ191 of 2002



Delivered on:


16 April 2003



Delivered at:


Sydney, via videolink to Perth



Hearing date:


16 April 2003



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person

Counsel for the Respondent:


Mr J D Allanson



Solicitors for the Respondent:


Australian Government Solicitor



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

PERTH


WZ191 of 2002

WAHU


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 26 June 2002 and communicated to the applicant by letter the following day. The RRT affirmed a decision for the delegate of the Minister not to grant the applicant a protection visa. The applicant filed an application for review of that decision in the Federal Court and on 2 September 2002 His Honour Lee J transferred the proceedings to this Court. The applicant relies upon his application, a statement filed on 13 September 2002 and written submissions filed on 14 April 2002. In addition, the applicant made oral submissions to me today. The applicant was assisted in Court today by Mr Arndt, who assisted as a McKenzie friend. Mr Allanson, who appeared for the Minister, relied upon his written submissions filed on 14 April 2003 and also made oral submissions.

2. The relevant background information is set out in Mr Allanson's written submissions at paragraphs 1 to 4. I accept that statement as an accurate statement of the background facts and I adopt it for the purposes of this judgment. The decision of the RRT is also accurately summarised in paragraphs 5 to 8 of Mr Allanson's written submissions. I also adopt that statement for the purposes of this judgment.

3. The applicant's statement filed on 13 September 2002 was apparently not served on the lawyers for the Minister. In that statement the applicant reviews the history of his protection visa application. He restates what he told the RRT in support of his protection visa application. He takes issue with findings of fact made by the RRT. He also identifies by name four decisions of the RRT which he says are inconsistent with the decision in his case. He attaches a number of documents to his statement. These do not include copies of the decisions referred to. That statement and the applicant's oral submissions to me were essentially an invitation to this Court to review the merits of the RRT decision. As I explained to the applicant, this Court cannot review a decision of the RRT on its merits.

4. The function of the Court is to consider and decide whether the RRT made an error of law going to its jurisdiction. In the case of Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2, the High Court made clear that a decision of the RRT can be overturned if it is vitiated by an error of jurisdiction. However, it is also clear from the High Court decision that not every error of law amounts to an error of jurisdiction. It is necessary for the Court to consider whether any apparent errors made by the RRT went to the jurisdiction of the RRT. It is also necessary for the Court to have regard to the privative clause in s.474 of the Migration Act 1958 (Cth) ("the Migration Act").

5. In this matter the applicant, apart from taking issue with the merits of the RRT decision, which I cannot review, has raised one specific issue in relation to the validity of the RRT decision. The applicant sought to rely upon a facsimile transmission said to be from an uncle in the Netherlands (court book, page 83). The document states that an uncle and a brother of the applicant had been taken by a Commander Haji Zafar and had been found dead. The document goes on to say that the applicant's life is in danger in Afghanistan and that Commander Haji Zafar is still looking for him. The document is relevant to the applicant's claim that he faces persecution in Afghanistan because of political opinion through his family relationship with his father.

6. The applicant gave evidence, which the RRT accepted in part, about his father's activities in Afghanistan. The presiding member stated that he was prepared to accept that the applicant's father fought for a period with the Jamiat-e-Islami (court book, page 115). The RRT accepted that the applicant's father was wounded six or seven years previously in an incident which involved a battle between members of the Jamiat-e-Islami and the Hezb-e-Islami parties. In relation to the fax purporting to come from an uncle in the Netherlands, the presiding member said this (court book at page 115):

I note the applicant has obtained a fax from an uncle in the Netherlands. I accept that it was sent from the Netherlands. I do not accept as true however the content of the fax. I do not accept that a person could find out this information from a remote village in Afghanistan. I find that the content of the fax is fabricated.

7. In his written submissions, the applicant mistakenly identifies this fax as a different fax appearing in the court book at page 93. In fact the information in the document at page 93 appears to relate to a part of the applicant's case that was accepted by the RRT. Leaving that matter aside, the applicant submits that the presiding member did not make appropriate enquiries as to the truthfulness and accuracy to the contents of the fax appearing at page 83.

8. I reject that submission. The fax is, on its face, dubious. It is unsigned and undated. In addition, the information in it is hard to reconcile with earlier information provided by the applicant to the RRT about the fate of his uncle and brother. That information appears in the court book at pages 29 and 30. The earlier information was that the uncle and brother had been taken by the Taliban and that their fate was unknown. The fax purported to come from the uncle in the Netherlands provides information that the uncle and brother were probably killed by a local warlord following the fall of the Taliban. The RRT was entitled to form a view on the credibility of the fax from the Netherlands. The finding on the credibility of that evidence was one that was reasonably open to the RRT.

9. The other findings made by the RRT on the claims made by the applicant were also findings that the RRT was entitled to make on the information before it. The RRT dealt with the various elements of the claims put forward by the applicant. The RRT did not misunderstand the nature of its jurisdiction, or misconceive its duty, or fail to apply itself to the question which the Migration Act requires the RRT to apply itself to. The RRT did not misunderstand the nature of the opinion which it was to form. It appears that the proceedings before the RRT were fair. Nothing has been advanced before me that establishes that any legal error was made by the RRT, let alone an error of law going to jurisdiction.

10. The applicant has referred at length to the risk of harm that he would face should he return to the Paktia province in Afghanistan. The RRT itself noted that there were humanitarian considerations applying in this case. The Government must, in due course, decide whether it is safe for the applicant to be returned to Afghanistan. There is banditry and lawlessness in much of Afghanistan. The province of Paktia is an area of significant trouble and the amount of Government control in the province is minimal. Media reports since the RRT made its decision indicate that, if anything, the security situation in the province has deteriorated.

11. It may well be that it is unsafe for the applicant to return to the province. He could well be harmed but in order to establish that he is a refugee it must be established that he would be harmed for a Convention reason. The RRT found that the applicant would not face harm for a Convention reason in Afghanistan. No basis has been made out for me to interfere with that decision of the RRT. It is for the Government to decide whether or not and if so, when, the applicant should be returned to Afghanistan. I will dismiss the application.

12. On the question of costs, Mr Allanson, for the Minister, has sought an order for costs and has submitted that an order in the sum of $4,000 would be appropriate, including counsel's fees. The Minister has been wholly successful in these proceedings and I am satisfied that he is entitled to an order for costs. The Minister was appropriately represented by counsel today and a reasonable amount of preparation was necessary, including the preparation of the court book. However, this matter is one of only average difficulty or complexity. In such matters in recent times I have commonly awarded costs in the range of $2,500 to $3,500. In my view, an order in the sum of $3,000 would be adequate on a party party basis.

13. I will therefore order that the application is dismissed. The applicant is to 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 thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 28 April 2003
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