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MIGRATION -- Application for review of Refugee Review Tribunal's decision -- no jurisdictional error -- application dismissed.

WADY v Minister for Immigration [2003] FMCA 110 (9 April 2003)

WADY v Minister for Immigration [2003] FMCA 110 (9 April 2003)
Last Updated: 17 April 2003


[2003] FMCA 110

MIGRATION -- Application for review of Refugee Review Tribunal's decision -- no jurisdictional error -- application dismissed.




File No:

WZ 87 of 2002

Delivered on:

9 April 2003

Delivered at:


Hearing date:

18 June 2002

Judgment of:

Walters FM


Counsel for the Applicant:

In person

Solicitors for the Applicant:

Counsel for the Respondent:

Ms Price

Solicitors for the Respondent:

Blake Dawson Waldron Lawyers


(1) The application be dismissed.




WZ 87 of 2002







1. The applicant is a national of Afghanistan who arrived in Australia in March 2001. He arrived without a passport or any other documentary evidence of his nationality. He was interviewed by a departmental officer on 25 March 2001. On 26 July 2001 he lodged an application for a protection (class XA) visa. On 21 December 2001 a delegate of the respondent made a decision refusing to grant the visa.

2. On 26 September 2001 the applicant applied to the Refugee Review Tribunal ("the RRT") for a review of the delegate's decision.

3. In its decision dated 17 December 2001, the RRT affirmed the delegate's decision not to grant the applicant a protection visa.

4. On 10 January 2002 the applicant applied to the Federal Court for review of the RRT's decision. Those proceedings were transferred to this Court by order dated 30 April 2002.

5. In his application the applicant complains of a number of matters. The application was supplemented by letters received by the Federal Court on 8 and 21 March 2002. These letters appear to be identical.

6. In essence, the applicant complains of certain alleged errors of fact made by the RRT. The grounds of the application did not progress beyond a general assertion that the RRT's decision was wrong.

7. Counsel for the respondent prepared written submissions, which were provided to the court on 17 June 2002. The hearing took place on 18 June 2002. The general background facts, the evidence and claims made before the RRT and various preliminary matters are accurately set out in paragraphs 1 to 11 of those submissions. I adopt those paragraphs and incorporate them into this judgment as follows:

Background to the proceedings

1. The applicant is an Afghani national who arrived in Australia in March 2001. An officer of the Department of Immigration and Multicultural Affairs ("DIMA") interviewed the applicant on 25 March 2001. The applicant applied to DIMA for a protection (class XA) visa on 26 July 2001. On 21 September 2001 a delegate of the respondent made a decision refusing to grant a protection visa to the applicant.

2. On 26 September 2001 an application was made to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision. At the Tribunal stage the applicant was represented by a solicitor. At a hearing of the Tribunal on 6 December 2001 the applicant gave oral evidence. The Tribunal' s decision affirming the delegate's decision not to grant the applicant's protection (class XA) visa was made on 17 December 2001.

3. Upon reviewing the delegate's decision the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention and thus did not meet the criterion under 5.36 of the Act for the grant of a protection visa.

4. In the Tribunal's reasons for decision; the Tribunal states that the applicant claimed:-

(a) he fears persecution by the Taliban for reasons of religion, the Taliban are Sunni Muslims and the applicant is Shi'a Muslim, and before departing Afghanistan the Taliban had searched the applicant's home looking for him. They had been there 8 or 9 times. His brother-in-law had been taken by the Taliban and killed. He hid in the mountains or the village for 4 months before leaving Afghanistan.

(b) he is a Pashtun from the Hasan Khel tribe and is from Ghunday in Paktia Province where there are 35 Mangal households who are Sunni Muslims and 25 households that are Hasan Khel and Shi'a Muslim. There was tension between the two groups because the mangal did not like the Shi' a religion.

(c) since the destruction of the Taliban as a political and military force he is afraid that Tajiks, Uzbeks and Hazaras "Would persecute him because they will identify Pashtuns with the Taliban.

5. The Tribunal found the applicant is a national of Afghanistan and a Shi'a Muslim. The Tribunal did not accept the Taliban persecuted the applicant for any Convention reason stating the applicant's evidence on the impact of the Taliban on his life was rehearsed and unconvincing. Although the Tribunal accepted that the Taliban killed the applicant: s brother-in-law, it stated that the applicant had not claimed that this had occurred for any Convention reason.

6. The Tribunal accepted BBC reports of the flight of the Taliban from Paktia and that the loss of control of Kandahar meant the end of the Taliban rule of Afghanistan. The Tribunal declared it was not satisfied that there is an objective basis for the applicant to fear harm from the Taliban on return to Afghanistan now or in the future.

7. The Tribunal did not accept that the applicant has faced persecution from the Mangal tribe in the past because of his adherence to the Shi'a religion stating that his evidence was vague and unconvincing and inconsistent with his evidence that life had been peaceful and that Shi'as were free to practise their religion before the Taliban.

8. The Tribunal considered the applicant had given incongruous evidence on his fear of persecution in Afghanistan following the demise of the Taliban. He lived in a pushtun region and he had not claimed to have experienced difficulties with Tajiks, Uzbeks and Hazaras in the past. The Tribunal did not accept that Pushtuns would be identified with the Taliban or be seen as giving imputed political support to the Taliban and was not satisfied that the applicant genuinely fears persecution for those reasons.

9. Having considered BBC reports and found that Paktia Province is now controlled by a local Pushtun who had participated in the talks resulting in the Provisional Arrangements for Afghanistan and having considered material on Convention based mistreatment of Pushtuns in Afghanistan, the Tribunal was not satisfied there is more than a remote chance that the applicant would be persecuted by an ethnic group for a Convention reason if he were to return to Paktia province.

10. On 10 January 2002 the applicant filed with the Court an application for review of the Tribunal's decision ("the application"). The application has apparently been prepared without legal assistance and claims that the Tribunal has ignored the applicant's fear that as a member of the Shi'a Muslim minority in Afghanistan he will be persecuted by the Sunni Muslim majority in Afghanistan. A claim in these terms was not made to the Tribunal.

11. The applicant has not filed and served a statement in support of his application. On 30 April 2002 the Federal Court transferred the application to the Federal Magistrates Court under s.32AB of the Federal Court of Australia Act 1976.

8. It is clear beyond argument that a valid decision of the RRT is a privative clause decision attracting the application of s.474 of the Migration Act 1958. The operation of that section must now be read in light of its construction by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and Re: Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte applicants S134/2002 (2003) 195 ALR 1.

9. The respondent submits that section 474 of the Migration Act applies to the decision of the RRT in this case because the RRT made no error of law going to its jurisdiction. In addition, it is submitted that the so called Hickman conditions have been satisfied in this case. The submission is as follows:

The application does not identify or allege a "Hickman" exception. Nor does the application identify any requirement or limitation on the exercise of power by the RRT that it has not complied with and which, notwithstanding, the terms and effect of s. 474, is essential to a valid decision. The RRT has honestly dealt with the subject matter given to it under the Act, and acted in pursuance to its powers.

10. It is apparent from an examination of the decision of the RRT (commencing on page 97 of the Court Book) that the RRT gave careful consideration to the applicant's assertions and concerns. The applicant is a self represented litigant, and he did not seem to fully understand that the role of this is not to review the merits of the RRT decision.

11. I have re-read the RRT decision carefully -- and somewhat anxiously, having regard to the period of time and developments in the law since this matter came before me. I am unable to identify any basis upon which the RRT's decision can be interfered with. The RRT acted in good faith, its decision is reasonably capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any relevant constitutional limits were exceeded. In my opinion, there could be no suggestion of bias (whether actual or apprehended). Further, there is no apparent breach of procedural fairness which could amount to jurisdictional error. The applicant gave oral evidence before the RRT and was represented by a solicitor. An interpreter was present and it was not suggested that the applicant did not understand the proceedings in which he was involved. The RRT clearly understood the applicant's case, and although it made certain comments regarding his credibility (for example that "...the scant evidence he provided in response to being questioned about the impact of the Taliban on his life was rehearsed and generally unconvincing" and that his evidence regarding his assertion that he faced prosecution from the Mangal tribe because of his adherence to the Shi'a religion was "vague and unconvincing"), the fact of the matter is that the RRT did not reject any of the primary factual matters advanced by him.

12. In my view, the findings of fact contained within the RRT's decision, and the conclusions drawn from those facts, were reasonably open to it.

13. For the preceding reasons, the grounds for review (to the extent that they can be identified from the material now before the Court) must fail, and the application must be dismissed with costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate: Paul O'Halloran

Date: 4 April 2003
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