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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.

WAGX v Minister for Immigration [2002] FMCA 358 (11 December 2002)

WAGX v Minister for Immigration [2002] FMCA 358 (11 December 2002)
Last Updated: 17 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAGX v MINISTER FOR IMMIGRATION
[2002] FMCA 358



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 Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA FC228

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

Zahid v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1108

Craig v South Australia (1995) 184 CLR 168

NABM of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 294

C v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1332

Applicant:
WAGX



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ140 of 2002



Delivered on:


11 December 2002



Delivered at:


Perth



Hearing Date:


11 December 2002



Judgment of:


Hartnett FM

Ex tempore



REPRESENTATION

Counsel for the Applicant:


Mr Hooker



Counsel for the Respondent:


Mr Tsaknis



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

THE COURT ORDERS THAT:

(1) The application is dismissed.

(2) The applicant pay the respondents costs pursuant to the Federal Magistrates Court Rules 2001, Part 21, Rule 21.10.

IT IS CERTIFIED THAT:

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

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ140 of 2002

WAGX


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The matter proceeds in this Court following an order that it be transferred into the Federal Magistrates Court of Australia, that order being made on 8 July 2002 by Lee J. The applicant filed his application on 28 May 2002. In that application and as a ground for founding it the applicant claimed the Refugee Review Tribunal had found him to be a national of Pakistan instead of a national of Afghanistan. Amended grounds were filed by counsel acting in a pro bono capacity on 4 December 2002. The Court is appreciative of counsel for acting in such a capacity and acknowledges its appreciation in these reasons. On 9 December 2002 the applicant filed an affidavit on which he sought to rely. Both these documents were relied on and admitted into evidence this day.

2. The applicant arrived in Australia by boat from Pakistan via Malaysia. He was taken into Immigration custody and remains at Port Hedland Detention Centre. He is a single man aged 24 years in this year. He is of Hazara ethnicity. On 3 July 2001, the applicant completed an application for a protection (Class XA) visa which was received by the Department of Immigration and Multicultural and Indigenous Affairs on 6 July 2002. The applicant resided in Pakistan before his departure from that country in June 2001. In his application for a protection visa the applicant claimed his status in Pakistan to be that of a temporary resident. Before the Tribunal he described his status as an illegal refugee. He claimed to have not lived in Afghanistan since 1992. He sought that he not be returned to Pakistan, Iran or Afghanistan, all being places in which he had previously resided.

3. On 3 December 2001 the applicant's application for a protection visa was refused. The applicant sought a review of that decision to the Refugee Review Tribunal. That review hearing took place on

20 March 2002 with further submissions being invited from the applicant as contained in a letter from the Refugee Review Tribunal to the applicant of 10 April 2002. These further submissions were made by the applicant's legal advisers on instruction from the applicant. There was at that time no suggestion that the applicant had any incapacity to provide those instructions. On 15 May 2002 the Tribunal delivered its decision affirming the decision of the Minister's delegate not to grant a protection visa.

4. The Tribunal accepted that the applicant is Hazara and on the basis that the applicant had a valid Pakistan passport the Tribunal found that the applicant was a national of Pakistan and not an illegal refugee in Pakistan as he claimed. The Tribunal found further that the applicant attended school in Pakistan; was employed in Pakistan; attended private English lessons in Pakistan; and that his family haad resided in Pakistan for many years and are currently residing in Pakistan. The Tribunal did not accept that the applicant was considered to be a communist by the Akand and because of that faced harm from them. The Tribunal took into account the various medical material pertaining to the applicant's psychiatric condition and in relation to which an earlier adjournment of the hearing had been requested and granted. No further adjournment was sought. The Tribunal considered the applicant's claims to be so lacking in substance in matters as referred to in the decision as to be unbelievable.

5. The Tribunal analysed the applicant's claims against country information at Court book 150 to 153 and against information received from the International Organisation for Migration (IOM) office in Jakarta, in particular the procedures the IOM follow in returning a person to a country. The applicant stated at the hearing that he had been returned from Indonesia to Pakistan in 2000 with the assistance of the IOM. The procedures of the IOM include verification of a passport's validity before returning a person. (See case book 153).

6. The Tribunal found the applicant to be a national of Pakistan and was not satisfied that he had a well founded fear of persecution on his return to Pakistan.

7. The Tribunal also considered whether the applicant was also an Afghani national but determined it unnecessary to decide that question because of the Tribunal finding that the applicant had not taken all possible steps to avail himself of a right to enter and reside in Pakistan, a country of which the Tribunal found he was a national, and in which he was safe from persecution and refoulement.

8. It is not for this Court to review the merits of the Tribunal's decision nor to substitute for the Tribunal the views of the evidence before it, this Court's views. This Court is to determine whether the Tribunal exercised the jurisdiction given to it and did so in a bona fides manner. I have read the Tribunal's decision and material filed in these proceedings and listened to the submissions of both parties. I can find nothing which I have seen in the papers or heard in submissions that would indicate that the Tribunal has prejudged any issue or entered upon the decision with a closed mind. Indeed a lack of bona fides is not argued by the applicant.

9. The Tribunal's decision is a "privitive clause decision" for the purposes of s.474(1) of the Migration Act 1958 (Cth).

10. The effect of s.474(1) was considered by a five member Full Court of the Federal Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 288. The effect of that decision was summarised by the Full Court of the Federal Court in NABM of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 294 unreported judgment delivered 18 September 2002 at (24) to (28) in the following terms:

In NAAV v MIMIA, von Doussa J (which on this point, Black CJ and Beaumont J agreed) stated (at (635)) that the Migration Act contained a hierarchy of provisions of which, in relation to privative clause decisions, s.474(1) was intended by Parliament to be the leading provision. His Honour held that "apparently inconsistent provisions of the Act" are to be construed as subject to the restrictions in s.474(1). Consequently, the effect of s.474(1) is to expand the jurisdiction of the relevant decision makers, including the Tribunal, so that a decision that is affected by irregularities that would, in the absence of s.474(1), amount to jurisdictional error will be within power, subject to satisfying the so-called Hickman conditions. The Hickman conditions require that the decision (1) be a bona fide attempt to exercise the power which the Migration Act reposes in the decision maker; (2) relate to the subject matter of the Migration Act; (3) be reasonably capable of reference to the power.

In addition, it follows from the reasons of the majority in NAAV v. MIMIA that a decision will not be protected from judicial review if it contravenes what is variously described as an "inviolable" condition, "jurisdictional factor" or "structural elements" founding the legislation; at (12), per Black CJ; at (619), per von Doussa J.

11. In this decision Their Honours also agreed with the analysis of Sackville J in Zahid v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1108.

12. The analysis of Sackville J in Zahid concluded that the so-called "inviolable condition, jurisdictional factor or structural element" were limited to the making of a valid visa application, consideration of that application and the valid constitution of the Tribunal. Procedural provisions such as s.424A and 425 of the Act which provide that information must be given do not constitute an inviolable limitation (at 77) nor does the failure of the Tribunal to ask the right questions (at 84). The effect of s.474(1) is that irregularities which would otherwise constitute jurisdiction errors of the type discussed in Craig v South Australia (1995) 184 CLR 168 to 179 do not result in the decision being invalid.

13. The applicant in his submissions relied upon the following assertions in particular;

(a) The Tribunal ought to have known that the applicant was unwell at the time of hearing and the hearing consequently ought not to have proceeded. The proceeding of the hearing contravened a "inviolable" limitation on the exercise of its powers. I have already referred to the Tribunal's consideration of the applicant's health and indeed the first adjournment was based upon a report as to the applicant's psychiatric functioning. This report followed earlier reports which commenced not long after the applicant's arrival in this country. No further adjournments were sought by the applicant nor his legal advisers. The transcript described a coherent exchange between the applicant and the Tribunal member. The Tribunal expressly considered the health of the applicant at p.154 of the Court book. Post-hearing instructions were provided, without qualification, by the applicant to his legal advisers and same were then forwarded to the Tribunal for its consideration. I do not find a contravention of an inviolable limitation on the Tribunal's exercise of its administrative power in this instance.

(b) That there was a contravention of an "inviolable" limitation on the exercise of its power because the Tribunal, whilst cognisant of s.36 of the Migration Act 1958, made no proper assessment of subsection 36(4) - that even if the applicant was a national of Pakistan he nonetheless had a well founded fear of persecution in that country which was not explored. I was referred by the applicant's counsel to C v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 1332. It was argued that this went to the heart of the operation of s.65 and s.36 of the Act. These matters were considered by the Tribunal member and findings made with respect thereto at p.154 to 155 of the Court book.

"A finding on the credibility of the applicant is the rightful function of the primary decision maker."

This argument of the applicant also fails.

14. The Tribunal's decision depended entirely on findings of fact which were within the province of the Tribunal to determine. The findings of fact made by the Tribunal made it inevitable that the applicant's claim for a protection visa would be rejected. I can find no error of the Tribunal encompassed within the Hickman principles nor any failure of the Tribunal to comply with an inviolable condition.

15. In the circumstances of this case s.474(1) of the Migration Act 1958 must be applied and the application is dismissed. The applicant is to pay the respondent's costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:

Date:
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