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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.

WAHJ v Minister for Immigration [2002] FMCA 360 (10 December 2002)

WAHJ v Minister for Immigration [2002] FMCA 360 (10 December 2002)
Last Updated: 17 February 2003


[2002] FMCA 360

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 MIMIA (2002) FCA FC228

R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598

Zahid v MIMIA (2002) FCA 1108




File No:

WZ166 of 2002

Delivered on:

10 December 2002

Delivered at:


Hearing Date:

10 December 2002

Judgment of:

Hartnett FM

Ex tempore


Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr Jenshel

Solicitors for the Respondent:

Australian Government Solicitor


(1) Application dismissed.

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


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




WZ166 of 2002








1. These proceedings were transferred to this Court for hearing by order of Carr J made the 22 July 2002 in the Federal Court of Australia, Western Australia District Registry. This is an ex tempore judgment.

2. The application is for an order for review of a decision of the Refugee Review Tribunal and the application was filed on 13 June 2002. The applicant's complaint, as disclosed in paragraph 4 of the application is effectively that the applicant does not agree with the decision of the Tribunal and claims that there has been an error of law in the Tribunal not finding that the applicant --

Still has persecution in Afghanistan.

No other particulars have been provided by the applicant and nor has there been any compliance by the applicant with procedural orders made on the 12 July 2002. I accept the applicant has no legal representation to assist him in this matter and that he is not fluent in the English language and accordingly I indicated to him that anything he wished to say could be contained in submissions made by him at the hearing. That included any amendments to his application and/or the inclusion of other factual material upon which he sought to rely. The applicant did not add anything of significance but in effect requested a reconsideration of the case on its merits.

3. The applicant is a citizen of Afghanistan. He is a single 23 year old male who arrived in Australia via Pakistan, Malaysia and, by boat from Indonesia. He arrived in Australia on 22 August 2001 and was taken into Immigration custody where he remains. He is presently in the Curtin Detention Centre. He is of Tajik ethnicity and his religion is Muslim Sunni.

4. On 14 November 2001 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. Such application was refused by a delegate of the Minister on 12 March 2002. On 18 March 2002 the applicant lodged an application for review of decision to refuse a protection visa which was heard by the Refugee Review Tribunal on

15 and 17 days of March 2002. The Tribunal determined on 30 May 2002 that the applicant's application was unsuccessful and affirmed the decision of the Minister's delegate not to grant a protection visa.

5. The Tribunal accepted that the applicant is a citizen of Afghanistan and of Tajik ethnicity. The applicant initially claimed he feared persecution at the hands of the Taliban but before the Tribunal based his claims on a fear of retribution by the Northern Alliance because his father, a military engineer, had deserted from the Northern Alliance in late 2000. He claimed that the Northern Alliance may persecute him as his father's eldest son.

6. The Tribunal accepted that the applicant's father was captured by the Taliban and quite likely killed by them. The Tribunal relied on Country Information to conclude that the applicant's personal fears about the Taliban had been overtaken by the extent and nature of the recent political changes in Afghanistan whereby the Taliban has been effectively eliminated as a political and military force. The Tribunal was not satisfied that the applicant would face a real chance of persecution from the Taliban or others associated with them on a return to Afghanistan.

7. The Tribunal was satisfied that the applicant was implicitly invited to consider his position in the changed political environment of Afghanistan and Kabul in particular. Against this background his failure to raise any concerns about the Northern Alliance suggested to the Tribunal that the issue did not present itself to him as a matter of great significance or concern.

8. The Tribunal also noted that the applicant had embellished his story since his first articulation about concerns he had for his safety from the Northern Alliance. The Tribunal did not accept that a witness called by the applicant gave truly independent evidence and did not accept the evidence of the applicant and the witness that elements of the Northern Alliance, and a "Commander Gaba" in particular were motivated to seek out the applicant's family and persecute them because of the applicant father's "desertion" as claimed. The Tribunal was not satisfied that the Northern Alliance would regard the applicant as politically suspect and therefore be motivated to harm him for a political reason.

9. It is not a matter for this Court to examine the merits of the decision nor to substitute for the Tribunal's view of the evidence before it the Court's view. The applicant is entitled to make the application that he has. No doubt he has little or no comprehension of the operation of s.474 of the Migration Act 1958 (Cth).

10. This Court's function is limited to determining whether or not the Tribunal exercised in a bona fides manner the jurisdiction given to it.

11. Since the decision in NAAV v MIMIA (2002) FCA FC228 it is clear that s.474 of the Migration Act 1958 (Cth) operates to expand the effective jurisdiction of the Tribunal in respect of privitive clause decisions. The accepted construction of a privitive clause is set out in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 614 to 616 and it has not been disturbed by the judgment in NAAV v MIMIA.

12. The ratio of NAAV v MIMIA was analysed and applied by Sackville J in Zahid v MIMIA (2002) FCA 1108. That analysis was approved and applied by the Full Court in NABN of 2001 v MIMIA (2002) FCA FC 294. In Zahid at (33) to (38), Sackville J set out the following as principles that were common ground among the judgments in NAAV v MIMIA:

(a) Section 474(1) is to be interpreted in accordance with the principles of constructions enunciated by Dixon J in Hickman's case and thereafter consistently applied by the High Court.

(b) Section 474(1) affects the substantive law as to what decisions are valid, altering (and giving force to) what would otherwise be unlawfulness in the decision making process. In the language of Dixon J in Hickman, and subject to the three provisos set out at par 15 above, a privative clause;

Is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it was not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its act within the limits laid down by the instruments giving it authority.

(c) There is a further limitation on the validating effect of s.474(1) namely the purported exercise of power must not be one which contravenes a final or inviolable limitation upon the powers, duties and functions of the decision maker.

13. Did the Tribunal act bona fide? A lack of bona fides is discussed by Mansfield J in SBAU v MIMIA (2002) FCA 1076. There is clearly no lack of bona fides on the part of the decision-maker.

14. Did the Tribunal's decision relate to the subject matter of the legislation and was it reasonably capable of reference to the power given to the Tribunal by the Act? Clearly it did.

15. The application does not identify a Hickman exception. Nor does the application identify any requirements or limitations on the exercise of power by the Tribunal that it has not complied with and which, notwithstanding the terms and effect of s.474, is essential to a valid decision.

16. The application is dismissed. I order the applicant pay the respondent's costs which are assessed pursuant to the Federal Magistrates Court Rules, Part 21, rule 21.10 and fixed in the sum of $4,000.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Hartnett FM


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