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MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant's claims were not accepted by the Tribunal - applicant did not agree with the reasons of the Tribunal - jurisdictional error not found - no lack of bona fides found.

WAHP v Minister for Immigration [2002] FMCA 234 (25 October 2002)

WAHP v Minister for Immigration [2002] FMCA 234 (25 October 2002)
Last Updated: 30 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAHP v MINISTER FOR IMMIGRATION
[2002] FMCA 234



MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant's claims were not accepted by the Tribunal - applicant did not agree with the reasons of the Tribunal - jurisdictional error not found - no lack of bona fides found.



Migration Act 1958 (Cth) s.474

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

Zahid v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 1108

SBAU v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 1076

Applicant:
WAHP



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 178 of 2002



Delivered on:


25 October 2002



Delivered at:


Sydney



Hearing Date:


8 October 2002 via videolink to Perth



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr A Jenshel



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 178 of 2002

WAHP


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This applicant who the Tribunal found was an Afghan citizen arrived in Australia on 6 January 2001. On 27 January 2001 he lodged an application for a protection visa (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958. On 14 March 2001 a delegate of the Minister refused to grant him a protection visa and on 16 March 2001 he applied for a review of that decision. On 6 June 2001 the Tribunal affirmed the delegate's decision. The applicant sought review of the Tribunal's decision by the Federal Court and on 10 April 2002 the court set aside the decision and remitted the matter back to the Tribunal differently constituted to be determined according to law. The second hearing before the Tribunal took place in June 2002 and the Tribunal handed down its decision on 13 June 2002. The decision of the second Tribunal was to uphold the decision not to grant the applicant a protection visa.

2. The applicant's claim to have a well-founded fear of persecution for convention reasons arose out of his military service in Afghanistan with a Mujahideen Commander Faqir. This activity caused him to fear reprisals from the Taliban if he had fallen into their control. But he had an additional problem. The applicant claimed:

"When the Northern Alliance entered Kabul the Commander for whom the applicant used to work had come to the house looking for him. He had spoken to the applicant's brother and said that he was looking for the applicant because he (the applicant) had given the Commander's car to the Taliban. The Commander said that he believed that the applicant was collaborating with the Taliban because when everyone else escaped to the north, the applicant had stayed behind. The Commander further accused the applicant's family of co-operating with the Communists when Najibullah was in power. He called the applicant's family infidels and said they did not deserve his assistance because they had let him down. After searching the house the Commander and his militia took the applicant's brother away. His corpse was later found dumped in the market in front of the Mosque. The applicant's mother warned the applicant not to return to Afghanistan because his wife was in danger [CB 173]. "

3. These matters were advised to the Tribunal by the applicant and supported by a letter from his mother. They were not accepted by the Tribunal. It said at [CB 179]:

"The Tribunal does not accept that the Commander for whom the applicant formerly worked has acted in the way the applicant has claimed. As discussed with the applicant at the hearing it is implausible that the Commander would now accuse the applicant's family of supporting communism when this was not raised as an issue during the five years the applicant worked for the Commander. The Tribunal does not accept that the Commander would accuse the applicant of remaining behind to collaborate with the Taliban when the applicant had spent two years living in Bamiyan Province in an area under the control of Jamiat-i-Islami. The Tribunal does not accept that the Commander would not have been able to ascertain the applicant's whereabouts if he had wished to do so or that he would accuse the applicant of having collaborated with the Taliban when he clearly did not. The Tribunal does not accept the fact that the applicant did not accompany the Commander when he left Kabul provides sufficient motivation for the Commander to persecute the applicant or any member of his family. The Tribunal does not accept that after six years the whereabouts of a car would be a matter of concern to the Commander. The applicant has described his family as known and active supporters of Jamiat-i-Islami who were persecuted by the Taliban for their ethnicity and their political opinion. In view of the political profile of the applicant's family, the Tribunal does not accept that the Commander would kill the applicant's brother, who had been paralysed as a result of injuries inflicted on him by the Taliban, simply because he was unable to locate the applicant.

The Tribunal finds that the letter purportedly from the applicant's mother has been fabricated to provide with the applicant with claims for refugee status in light of the changed situation in Afghanistan which would otherwise indicate that it was safe for him to return there."

4. When the matter came on before me the applicant requested an adjournment. He claimed that he had sought legal advice and was to be provided with it. The respondent indicated that it would not object to an adjournment provided that there was some firm indication that the applicant would be represented by a known firm of solicitors or refugee assistance group and that the matter could have a date fixed for hearing. After discussion with the applicant through the interpreter it appeared that he had merely contacted RASSA, a refugee legal assistance group in South Australia. I caused a telephone call to be made to that organisation which advised that the applicant had made no direct approach to it although they were aware of his claims. Like all organisations in this field they do not grant legal assistance to all applicants. Each case is considered on its merits. They would require authority from the applicant to proceed and to look at the procedures before the Tribunal.

5. I came to the view that it was in the best interests of the administration of justice if no adjournment was granted in these circumstances. The applicant had not yet sought legal assistance and for the reasons which are contained in this decision I felt it was unlikely that even if he did such assistance would be given.

6. I requested that the applicant make his submissions and although I informed him of the very restricted nature of the right of review since the insertion into the Migration Act 1958 (Cth) of s.474 and the decision of the Full Bench in NAAV v MIMIA [2002] FCAFC 228 his submissions were addressed to the reasons for decision of the Tribunal. He did not agree with these and asserted that the Tribunal was wrong not to have believed his mother's letter or his own story concerning the problems which he faced if he returned to Afghanistan.

7. Since the decision in NAAV v MIMIA as comprehensively explained by Sackville J in Zahid v MIMIA [2002] FCA 1108 it is clear that s 474 of the Migration Act has so widened the powers of the Tribunal that, relevantly, only a failure to exercise its decision making powers in a bona fide manner now provides grounds for review. Mansfield J discussed the nature of lack of bona fides in SBAU v MIMIA [2002] FCA 1076, in particular at [25], [31] and [32]. I have read this decision of the Tribunal and listened to the submissions of the applicant with these matters in mind. I can find nothing which I have seen on the papers or have heard from the applicant that would indicate that the Tribunal has prejudged any issues or entered upon its decision with a closed mind. The Tribunal's decision not to accept the evidence of the applicant and to hold that his mother's letter was fabricated has been explained in the passage from the decision set out at paragraph 3 in these reasons. I am not permitted to substitute my views of that letter for those of the Tribunal, that is a review as to merits and not a review of the legal basis for the decision.

8. Since the hearing of this matter I have received a facsimile from the applicant which essentially reiterated what he had submitted to me at the hearing. I have found nothing in these submissions which would alter my findings.

9. I would therefore dismiss the application and I would order that the applicant pay the respondent's costs which I assess in the sum of $4,000.00 pursuant to Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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