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MIGRATION - Application for review of decision of the Refugee Review Tribunal - decision failed to refer to applicant's grounds for seeking refugee status - decision made on the basis that application was not an Iraqi Kurd as claimed - where identity is not established failure to indicate consideration of claims which have no evidentiary value in establishing identity does not amount to an error of law.

WAFI v Minister for Immigration [2002] FMCA 179 (23 August 2002)

WAFI v Minister for Immigration [2002] FMCA 179 (23 August 2002)
Last Updated: 30 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAFI v MINISTER FOR IMMIGRATION
[2002] FMCA 179



MIGRATION - Application for review of decision of the Refugee Review Tribunal - decision failed to refer to applicant's grounds for seeking refugee status - decision made on the basis that application was not an Iraqi Kurd as claimed - where identity is not established failure to indicate consideration of claims which have no evidentiary value in establishing identity does not amount to an error of law.



Migration Act 1958 (Cth) s.474

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

H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348

SAAG v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 547

NAAG of 2002 v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 713

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SCAA v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 668

Applicant:
WAFI



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 117 of 2002



Delivered on:


23 August 2002



Delivered at:


Perth



Hearing Date:


19 August 2002



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr J Gibson appearing pro bono



Solicitor for the Applicant:


Ms Jill Vidler



Counsel for the Respondent:


Mr J Allanson



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $3,750.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 117 of 2002

WAFI


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter made an unauthorised boat arrival in Australia on 22 August 2001. On 31 October 2001 he lodged an application for a protection (class XA) visa and was entitled to consideration under sub-class 785 by the Department of Immigration, Multicultural & Indigenous Affairs. On 5 December 2001 a delegate of the Minister refused to grant a protection visa and on 11 December 2001 the applicant applied for a review of that decision. The review was carried out by the Refugee Review Tribunal which delivered its decision on 6 March 2002.

2. In the applicant's arrival interview he stated that he was a Shia Muslim of the Kurdish/Fali ethnic group and that he had been born in Baghdad. He claimed to have been taken to Iran at the age of five and adopted by a professional Iranian family who treated him as a servant, did not send him to school and at the age of 20 administered a beating to him with a brass belt buckle. He claimed to have been assisted to leave Iran by his foster father's business partner and to have been made to give up his "green card" at the airport and promise not to return to Iran.

3. The papers which were before the delegate indicate that the applicant did not wish to be returned to Iraq. In his type-written statement [CB 44] he said:

"I cannot go to Iraq because the authorities deported me in 1980 and from what I understand I have no citizenship rights there now."

4. When the matter was before the delegate his claims in relation to a well-founded fear of persecution in respect of his being returned to Iraq were expressed in the following form [CB 59]:

"The applicant claims ... that he is stateless, has no right of re-entry to Iran and fears persecution of (sic) sent to Iraq."

The delegate considered that a discovery of the applicant's true country of citizenship was central to determining the outcome of the case. He found as a fact that the applicant was not a national of Iraq as claimed and then said that there was no need to consider whether the harm of mistreatment feared by the claimant involved serious harm, systematic and discriminatory conduct so as to constitute persecution. This decision and the papers used by the delegate were available to the Tribunal.

5. The applicant before the Tribunal had the assistance of a migration agent who made representations to the Tribunal. These representations are found at [CB 81-86]. The representations dealt in general terms with the fears that an Iraqi might face if he was refouled to that country based upon previous decisions of the Tribunal and general publications of the type used by the tribunal itself in considering these matters. The main thrust of the representations was (not unnaturally) an attempt to refute the finding that the applicant was not an Iraqi by birth.

6. The decision of the Tribunal is found at [CB 96-104]. It notes in the opening paragraph that the applicant claims to be from Iraq and repeats this under the heading "
;Claims and Evidence&
quot; at [CB 99]. It then deals with the applicant's history in Iran and discussions between the Tribunal and the applicant upon the matters which the applicant brought to the attention of the Tribunal. At [CB 102] the decision continues under the heading "Findings and Reasons" in which it concludes at [CB 104]:

"I am not satisfied that the applicant is an Iraqi Kurd who was expelled from Iraq in 1980 and raised by an Iranian family from the age of 4 or 5. ... I believe that the applicant is an Iranian citizen. There is not evidence before me which suggests that he fears persecution for a Convention reason in Iran. I am therefore not satisfied that he has a well-founded fear of persecution for a Convention reason in his country of nationality."

7. The reasons for decision of the Tribunal do not set out the claims made by the applicant of a well-founded fear of persecution for Convention reasons in the country to which he is likely to be returned, namely, Iraq. It is alleged by his counsel that he would have such fears based upon:

a) His religion (Shia);

b) His ethnicity (Kurdish/Fali); and

c) His presumed political views arising from his ethnicity and religion and the fact that he has spent most of his life in Iran and is being returned from Australia.

8. The applicant submits that the failure of the Tribunal to set out the matters referred to above entitles the Court to infer a lack of bona fides on the part of the Tribunal sufficient to bring it within the first "Hickman" exception (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) and thus to be a reviewable decision notwithstanding s.474(1) of the Migration Act 1958 (Cth).

9. The applicant argues that the Tribunal never turned its mind to the claims that were made by the applicant. He submitted that it was as if the decision-maker did not bother to set out the claims because it never had in mind what it was properly to consider and as such the Tribunal already had a closed view of the claim and the Convention grounds that were put. The applicant argued that the failure to set out what Convention claims were being made by the applicant was exceptional and a fatal flaw. The applicant believed that the decision making process was dysfunctional and the findings and reasons were confirmatory of a view that already had been reached. (H v MIMA [2000] FCA 1348 at [26] - [30]).

10. The applicant relied heavily on the case of SAAG v MIMIA [2002] FCA 547 where his Honour opined that one was able to make a finding of objective bad faith without the need for personal fault on the part of the decision-maker. This approach was not accepted by Allsop J in NAAG of 2002 v MIMIA [2002] FCA 713 at [24].

11. In MIEA v Wu Shan Liang (1996) 185 CLR 259 at 271-272 the Court discussed the nature of the reasons for decision of administrative decision-makers. It found that those reasons were intended to be informative and warned against overzealous judicial review or turning a review of reasons for a decision-maker into a reconsideration of merits. Obviously the most important people to be informed are the applicants themselves.

12. In this case the Tribunal, through its decision informed the applicant that it did not believe that he was what he said he was. Having come to that view it did not believe it was necessary to consider any other matters. In particular (although unsaid), was the need to consider his claims of a well-founded fear of persecution for Convention reasons. If these fears related to being refouled to Iraq then they were not relevant if there was no likelihood of that occurring because the applicant was not an Iraqi.

13. It seems fairly clear that what the Tribunal did in this case was to consider the applicant's nationality as a "preliminary issue". The delegate also did this. It is true that the delegate stated that because of his finding he had no need to deal with any other claim and the Tribunal did not, but that does not to my mind indicate the type of closed mind approached which Mansfield J found in SAAG (supra) and which the applicant presses upon me in this case.

14. I join with those members of the Federal Court who have approved of Mansfield J's formulation. I am also sensible of the caution expressed by von Doussa J in SCAA v MIMIA [2002] FCA 668 at [38]:

"The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of pre-judgment of the issues that fell for a decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interest such as a hostile attitude throughout the hearing, or a failure to enquire into and to obtain readily available and important information relating to central matters for determination an inference of actual bias by pre-judgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias."

I am not able to hold that the fact of the adverse finding combined with the failure to set out the applicant's claims satisfies the criteria suggested by von Doussa J.

15. I would also point out that it is not easy in the Court Book to find any well-expressed claims on the part of the applicant. I have quoted those which do exist. The claims are much more articulately put by the applicant's counsel (as can be expected) but the Tribunal was not dealing with that formulation. It is not known what the Tribunal did think of the applicant's concerns about being returned to Iraq. It would not be appropriate to make guesses or assumptions. What can be said is that those claims, such as they were, did not shine any light on the preliminary question of the applicant's identity. Once that identity had been determined unfavourably and in a manner which was not open to review by virtue of s.474(1) of the Migration Act then that was the end of the matter and the Tribunal was required to affirm the decision of the delegate.

16. For the reasons given I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,750.00 pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules. This matter should not conclude without the Court expressing its gratitude to counsel for the applicant for his assistance on a pro bono basis. This assistance which aids both the administration of justice and the parties themselves is an important expression of the continuing acceptance of their social responsibilities by members of the legal profession.

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

Associate:

Date:
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