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MIGRATION - Protection visa - no jurisdictional error - different finding by Refugee Review Tribunal of similar case not a basis for review - no costs order.

WAIN v Minister for Immigration [2003] FMCA 74 (21 March 2003)

WAIN v Minister for Immigration [2003] FMCA 74 (21 March 2003)
Last Updated: 28 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAIN v MINISTER FOR IMMIGRATION
[2003] FMCA 74



MIGRATION - Protection visa - no jurisdictional error - different finding by Refugee Review Tribunal of similar case not a basis for review - no costs order.



Migration Act 1958, s.474

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 228

Plaintiff S 157/2002 v The Commonwealth of Australia (2003) HCA 2

(4 February 2003)

WAFU v Minister for Immigration [2002] FMCA 325

Applicant:
WAIN



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 217 of 2002



Delivered on:


21 March 2003



Delivered at:


Melbourne



Hearing Date:


11 February 2003



Judgment of:


McInnis FM



REPRESENTATION

Applicant:


In person



Counsel for the Respondent:


Mr A Jenshel



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The application is dismissed.

(2) There be no order as to costs.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


WZ217 of 2002

WAIN


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal ("Refugee Review Tribunal") made on 22 August 2002 ("the RRT decision"). The RRT decision affirmed a decision of a delegate of the respondent who on 14 June 2002 had refused to grant a protection visa to the applicant.

2. The applicant who had claimed to be a citizen of Afghanistan arrived in Australia on 22 August 2001. He lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 ("the Act"). It is accepted that an applicant for a protection (Class XA) visa is entitled to be considered against the criteria for each of its sub-classes: 785 (Temporary Protection) and 866 (Protection).

3. The application was filed originally in the Federal Court of Australia on 27 August 2002. In the application the applicant states that he was aggrieved by the decision of the RRT because:

"The member of the RRT did not found [sic] any persecution in my country."

4. In the application the grounds of the application were stated by the applicant to be that,

"The member of the Refugee Review Tribunal cannot find any persecution in my country (Afghanistan) but I still have persecution in my country."

5. The application was transferred to the Federal Magistrates Court by order of the Federal Court on 11 October 2002. It will be evident from the nature of the application and the grounds referred to that in matters of this kind there is a considerable disadvantage to applicants both in terms of understanding the basis of judicial review in matters of this kind which has recently attracted a great deal of superior court attention and in understanding in general terms legal practice and procedure.

6. In that context the pro bono scheme of the Federal Magistrates Court is the subject of an application for pro bono assessments. A referral certificate was duly executed on 21 November 2002 and at least at one stage it would appear that the South Australian Refugee Advocacy Service was prepared to assist the applicant. In part as a result of the uncertainty concerning pro bono assistance and concern regarding the applicant's health, the application which had been listed on

25 November 2002 was adjourned for hearing on 6 January 2003. It was further adjourned at the request of the applicant to 31 January 2003 with orders being made that the Advocacy Service to which I have referred and a barrister who has communicated with the Court be served with a copy of the order. Regrettably, attempts to obtain pro bono assistance have failed. The application was then further adjourned for hearing by video link on 11 February 2003. At that time, although the assistance of an interpreter was provided it was extremely difficult for the applicant to provide appropriate submissions. He was permitted to rely upon a type-written document forwarded to the Court by facsimile which apparently had been prepared in English by a friend and forwarded to the Court on 29 January 2003. The respondent not having been served with a copy of that written document conceded that the applicant ought to be allowed to reply upon that document to the extent that it was relevant in the application.

7. The respondent relied upon written submissions and made further oral submissions. It will be evident that from the date when the application was filed the role of the Court in judicial review of decision of this kind has been considered in some detail by the Full Court of the Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 228 and more recently the High Court decision in the matter of Plaintiff S 157/2002 v The Commonwealth of Australia (2003) HCA 2 (4 February 2003).

8. For reasons which will become apparent it is not necessary in my view, to analyse in detail the two cases to which I have referred, though it is noted that s.474 of the Migration Act would be invalid if it attempts to oust the jurisdiction conferred on the High Court by s.75(v) of the Constitution.

9. In the present case the applicant, both in oral submissions and the document in writing to which I have referred, seeks to challenge the decision of the RRT. He expressed concern that the RRT decision had focused on complaints concerning the Taliban when it is said by the applicant that he had complained about other matters. During the course of the oral submissions it became evident that the other matters to which he had referred were substantially in similar form to issues raised in a handwritten letter attached to a letter dated 21 June 2002 from the then solicitors acting for the applicant addressed to the RRT. The handwritten letter was allegedly received on 12 June 2002 and at that time the contents were not apparently conveyed to the applicant although the letter from an Australian citizen who knows the applicant makes suggestions that the younger brother of the applicant had been kidnapped by a commander of a certain group in Afghanistan and that the applicant was also wanted by this group. He then sets out further details which do not need to be recited in this judgment. It is sufficient however to note that this issue was addressed and dealt with by the RRT in its decision and the conclusion reached that these matters could not be matters which would be regarded as constituting Convention reasons but rather the threats referred to in correspondence relate to money and property entrusted to the applicant's father.

10. That matter, in my view, is a matter which was open to the Tribunal to consider and even applying normal principles of judicial review in an application of this kind without regard to the restrictions of s.474 of the Migration Act would not constitute a sufficient basis to enable the applicant to succeed on this application.

11. The applicant further referred to other matters including being given wrong advice by the smuggler which appeared to be a relatively new complaint. Understandably the respondent submitted that in the circumstances the applicant should not be permitted to rely upon this new information. In my view, that is correct in the present circumstances and in any event, even if I was to allow the applicant to rely upon the new information he has not provided a sufficient basis for judicial review of the RRT decision.

12. The applicant was further concerned another applicant had been successful in an application for a protection visa and the circumstances in that case were similar to the circumstances of the applicant. Counsel for the respondent submitted that in the context of this case the success or otherwise of other applicants is irrelevant and, in my view, that is clearly correct though understandably this would be a difficult matter for the applicant to appreciate. As a matter of law, however, in my view it is not relevant that a differently constituted Tribunal or even indeed the same Tribunal may allow one application and refuse another. In undertaking judicial review there would need to be some more evidence regarding both application and, in any event, in the absence of any suggestion of a lack of good faith there would not be, in my view, a sufficient basis upon which to permit judicial review of the RRT decision on that ground.

13. Other complaints by the applicant related to the quality of the interpreter and the opportunity to be heard. Having reviewed the material it is clear that from the Court book there was an opportunity for the applicant to make representation through his then solicitors and I am further satisfied that in the circumstances the summary of the background material by the RRT demonstrates clearly that the representations for and on behalf of the applicant was sufficient to properly convey to the RRT all relevant matters which the applicant then relied upon. I cannot see any basis upon which it could be said that there was a failure to permit the applicant to make appropriate representations through his then solicitors. I should add for the sake of completeness that had I accepted the respondent's submissions that there was no specific point referred to by the applicant where it could be said the RRT misinterpreted what had been said for and on behalf of the applicant at the hearing.

14. A further matter of concern to the applicant was what he described as misinterpretation by the RRT of the issue of ethnicity. The Tribunal clearly refers to the applicant's Pashtun ethnicity and found that the applicant did not face a real chance upon return of persecution by reason of that ethnicity. At the hearing the applicant sought to indicate that the respondent counsel referred to the Court book where in a number of instances the applicant was asked to indicate the ethnic group to which he belonged and language he referred to Pashtun as the ethnic group and "Pashtu" as the language he speaks (Court book p.24). At p.36 of the Court book in his statutory declaration the applicant states,

"I am a Pashtun and a Muslim Sunni."

15. The Applicant repeats the same phrase in a second statutory declaration declared on 18 February 2002 which appears at p.44 of the Court book. In the circumstances I am satisfied that there was no error in relation to that issue of a kind which would permit judicial review of the RRT decision.

16. In general terms I accept that the vast majority of the complaints by the applicant are in the nature of complaints concerning the merits of the RRT decision and further accept that the applicant quite understandably would prefer the RRT to have made a different decision. However, in considering the RRT decision and the power this Court has in relation to judicial review even as I have indicated if it were to be unfettered by the operation of s.474 of the Migration Act and having regard to the more recent High Court decision it is my concluded view that there is no basis upon which the application can succeed.

17. Accordingly the application should be dismissed.

Costs

18. The respondent has sought costs in this application. This matter as with a number of matters regarding applicants from Afghanistan arises where the applicant had arrived in Australia on 22 August 2001 and that even at around the time of his application being lodged on

26 September 2001 the situation in Afghanistan in relation to the Taliban was not clear. Hence this case is similar to other matters that I have decided which have a similar chronology of events and for the reasons given in WAFU v Minister for Immigration [2002] FMCA 325 it is my view that there should be no order as to costs in this application.

19. Accordingly the orders are as follows.

(1) The Application be dismissed.

(2) There be no order as to costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 21 March 2003
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