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MIGRATION - Review of decision of Refugee Review Tribunal - no grounds for review shown.

WAGA v Minister for Immigration [2002] FMCA 137 (12 July 2002)

WAGA v Minister for Immigration [2002] FMCA 137 (12 July 2002)
Last Updated: 19 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAGA v MINISTER FOR IMMIGRATION
[2002] FMCA 137



MIGRATION - Review of decision of Refugee Review Tribunal - no grounds for review shown.



Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at 32

R v Hickman: ex-parte Fox and Clinton (1945) 70 CLR 598 at 616

Migration Act 1958, ss.425, 430C, 441A, 474(2), 475A, 476

Applicant:
WAGA



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 108 of 2002



Delivered on:


12 July 2002



Delivered at:


Perth



Hearing Date:


9 July 2002



Judgment of:


Phipps FM



REPRESENTATION

Solicitors for the Applicant:


In Person



Counsel for the Respondent:


Mr Allanson



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) THAT the Application is dismissed.

(2) THAT the applicant pay the respondents costs fixed at $4,300.00

(3) THAT the court certifies that it was reasonable to employ an advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 108 of 2002

WAGA


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. Application is made to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 28 March 2002. By that decision the Tribunal affirmed the decision of the delegate of the respondent not to grant a protection visa.

2. The Applicant claims to be a citizen of Afghanistan. The Tribunal accepted that he was. The Applicant claimed refugee status. He claimed to fear:

a) persecution and possible death from the Taliban if returned to Afghanistan due to his ethic and religious background as a Tajik (through his father):

b) that he was at risk from the Northern Alliance because he was Pashtun (through his mother).

3. The Applicant claimed that the Taliban killed his father and one of his brothers was missing. During the course of the hearing he said, that although his uncle had told him that his father was killed by the Taliban in Northern Afghanistan he claimed that he did not think this was so and thought that a Mujahideen leader, Haji Qadir, or supporter's of Qadir had killed his father for failing to make one of his sons join the fighting. Haji Qadir was the former, and now current, governor of the applicant's home province.

4. In its finding, as already stated, the Tribunal accepted the Applicant's claims as to his nationality, expressing some doubt but proceeding on the assumption that he was a national of Afghanistan. The Tribunal considered the applicant's claim of fear of persecution by the Taliban because of his Tajik association and from the Northern Alliance because of his Pashtun association. The Tribunal was satisfied that with the defeat of the Taliban the applicant did not have a well founded fear of persecution by the Taliban by reason of imputed political opinion, Tajik ethnicity of otherwise.

5. The Tribunal did not accept that the applicant had a well founded fear of retribution from Qadir (the governor of his province), or of persecution from the interim authority governing Afghanistan on the basis of his ethnic background, imputed political opinion or any other convention reason. The Tribunal found that the risk of ethnic violence against Tajik by Pashtuns to be remote. Consequently, the Tribunal found that the applicant did not come within the definition of refugee contained in article 1A (2) of the 1951 Convention relating to the status of refugees.

6. The application, filed in the Federal Court of Australia on 2 April 2002 and then transferred to this Court, identifies no grounds for review. It repeats the applicant's claim of fear of persecution arising from his duel ethnicity. The application does claim the use of a Dari interpreter meant the interpreter was "not capable to express my deep concerns regarding my fear of persecution upon deportation."

7. From his application and submissions to the court three potential grounds of review emerged,-

i) During the hearing before the Tribunal the interpreter, for the Dari language, said that he was having difficulty understanding the applicant.

ii) The applicant was advised by a migration agent for the application to the Tribunal. A further written submission was sent by the migration agent and received after the Tribunal had made its decision. Consequently, that written submission was not considered by the Tribunal.

iii) The applicant complained that the Tribunal member kept telling him to keep quiet and to answer questions and the applicant therefore could not tell him what he wanted to say.

8. In addition, the applicant said that he would be killed if returned to Afghanistan. He said that there should be the same treatment for all Afghan people in Australia. That is, if some were granted protection visas all should be granted protection visas.

9. Independently of any matters to be considered by reason of the privative clause provisions contained in part 8 of The Migration Act 1958, there is no basis for review in any of these matters.

10. The Tribunal referred to the interpretation issue in its reasons. The Tribunal said this:

During the hearing the Dari interpreter indicated that the applicant's fluency in Dari was limited and that he spoke it with an accent, making it somewhat difficult to understand him. I asked the applicant to identify what was his first language - Dari or Pashtu. The applicant was initially evasive but stated that he spoke both, but that his Pashtu was better than his Dari and that he asked for a Dari interpreter for the hearing as a mark of respect to his father who is Tajik and speaks Dari. I put to the applicant that he had nominated Dari for the hearing because his Pashtu had previously been identified as the Pakistani version in the language analysis commissioned by the Department. The applicant responded and said that his accent was the result of working with his uncle who lived in Pakistan for eight years and because his area is close to Pakistan and shows some linguistic influence from that proximity. I put to the applicant that at the beginning of the hearing when I asked if he had any difficulty in understanding the interpreter that he had replied that he did not, and asked whether he now had difficulty. The applicant stated that he did not have any difficulty understanding the interpreter. On that basis I told the applicant that I would continue the hearing in Dari and would not adjourn for a later hearing in Pashtu.

11. The interview record conducted by an officer of the Department of Immigration & Multicultural Affairs on 2 September 2001 records that the interview is being conducted with the assistance of an interpreter in the Dari language. Initially, it appears that Pashtu was written in as the language and then crossed out and Dari inserted with a hand written note, "The client said that he preferred Dari for the interview."

12. By letter dated 15 March 2002 the applicant was invited to come to a hearing at the Tribunal to give oral evidence and to present arguments in support of his claims. The response to the hearing invitation was forwarded by the migration agent and signed by the applicant. In the response the applicant advised that he needed an interpreter and nominated as the language either Dari or Pashtu.

13. Section 425 of The Migration Act says that the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present argument relating to issues arising in relation to the decision under review. It is plain that in order to exercise the rights given by a provision such as this, an applicant who requires an interpreter must have adequate interpretation to and from the applicant's language. However, for there to be any basis for review any departure from a proper standard of interpretation must relate to matters which are significant in relation to the applicant's claims and significant in relation the reasoning of the Tribunal - Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 Goldberg J at 32.

14. The Tribunal by and large accepted as correct the matters of fact personal to the applicant which he asserted. The Tribunal was prepared to assume that he was a citizen of Afghanistan. The Tribunal's findings were based on an assumption that the applicant's family, and by association the applicant, incurred enmity of the Taliban by reason of an imputed political opinion against the Taliban because of his father's association with Jamiat prior to the overthrow of the Taliban. The Tribunal decided that this did not give rise to a well founded fear of persecution on the basis that it was clear from independent information that the Taliban forces had been defeated, the Taliban regime had been dispersed and its leadership eliminated from positions of power and influence in Afghanistan generally. Even if it was accepted that the applicant incurred the enmity of the Taliban as described the applicant's fear of harm by the Taliban was not well founded.

15. The Tribunal did not accept the applicant's claim that his father was killed by Qadir or by Quair's supporters. The Tribunal examined the evidence given by the applicant, in some detail. It is apparent that the Tribunal understood what it was that the applicant was saying about the death of his father. Any deficiency in interpretation has not effected this finding of fact.

16. The foundation for the Tribunal decision is not the applicant's evidence. That foundation is independent information about the circumstances in Afghanistan at the time the decision was made, that being the relevant time. The Taliban has been overthrown. There is now an Interim Authority dominated by Northern Alliance members. The Tribunal found that there was no well founded basis of fear of persecution by the applicant arising out of his Tajik and Pashtun background, his opposition to the Taliban or any enmity there might have been to him or his family by people or groups in Afghanistan other than the Taliban. The applicant's evidence was not significant to this finding. Any deficiency in interpretation was of no significance to the Tribunal's basis of reasoning.

17. The next matter complained of is the handing down of the decision prior to the receipt of the written submission. That submission was a letter dated and sent on 28 March 2002 and received by the Tribunal after it had completed its decision.

18. The applicant was advised of the hearing on 27 March 2002 by letter dated 15 March 2002. Prior to that, a lengthy written submission dated 28 February 2002 had been submitted to the Tribunal by the migration agent. There was also a hand written letter on behalf of the applicant concerning a language analysis which had been carried out. Section 425 of the Migration Act states that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present argument relating to issues arising in relation to the decision under review. The Tribunal did this and conducted the hearing. Sections subsequent to Section 425 deal with procedural matters and the powers of the Tribunal in conducting the hearing. There is nothing to suggest that the Tribunal should recall a decision and reconsider it if a submission is received after the decision has been completed. It may be that the decision had not been notified (see sections 430C, 441A) and so perhaps the Tribunal was not functus afficio, and perhaps the decision could have been reconsidered. It is not necessary to decide this point.

19. No reason is put forward and none appears from anything in the court book, which suggest that the information contained in the letter could not have been put before the Tribunal at the time of the hearing. There is no basis for complaint.

20. The third matter is a complaint by the applicant that the Tribunal member kept telling him to keep quiet and answer questions, and that he was not able to tell the Tribunal what he wanted to say. No detail is given of this complaint. The applicant was assisted by a migration agent as adviser. The Tribunal's reasons show considerable detail about the applicant's personal and family circumstances and the basis for his stated fear of being killed if returned to Afghanistan. As I have already said, the Tribunal's findings in relation to the applicant's personal circumstances were largely favourable to him. The one possibly adverse finding was a finding that the Tribunal did not accept the applicant's statement that his father had been killed by Qadir or Qadirs' supporters. This does not demonstrate a failure to permit the applicant to put his case. The Tribunal accepted as more probable the applicant's earlier explanation that his father had been killed by the Taliban. The findings record the applicant's explanation to the Tribunal for the two versions. One he was told by his uncle. The other was his own belief. The Tribunal's reason shows that the applicant was permitted to say what he wanted to say about his father's death.

21. In the hearing before me, when asked if he wished to say anything in reply to the submissions by counsel for the respondent, the applicant repeated a number of the matters that he had already said. He included a statement that the court should listen to the tape of the hearing before the Tribunal and would then understand that the applicant was not able to say what he wanted to say. I do not consider that there is anything to be gained by listening to the tape. The applicant has given no details of what he was not permitted to say which he wanted to say. The Tribunal's findings suggest that he did say all that he wanted to say.

22. The applicant's statement that he would be killed if returned to Afghanistan, and that if Australian law permitted some Afghans to stay it should permit all are no basis for review. The fear of being killed is not sufficient for the definition of refugee. Each application for a visa is a separate application and must be dealt with on its own facts and circumstances. That one or more applications by a person from a particular country have been granted is not a reason why a separate application by another person should be granted.

23. The decision of the Tribunal is a "Privative clause decision" under Section 474(2) of The Migration Act 1958. The combination of Sections 475A & 476 limit the jurisdiction of the court.

24. In R v Hickman: ex-parte Fox and Clinton (1945) CLR 598 Dixon J stated at 616

Where the legislation confers authority subject to limitations, and at the same time enacts (the privative clause) it becomes a question of interpretation of the whole legislative instrument whether the transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power necessarily spells invalidity.

25. Dixon J stated three preconditions to the valid exercise of decision making power to which such a clause applies;

a) the decision maker is required to have made a bona fide attempt to exercise its power;

b) the decision relates to the subject matter of the legislation;

c) the decision is reasonable capable of reference to the power given to the decision maker.

26. None of the matters to which I have referred, for the reasons I have given, could constitute a basis for judicial review of the administrative decision of the Tribunal. It follows that there can be no basis for saying that the Tribunal's decision was not a bona fide attempt to exercise its power. There is no basis for saying that the decision does not relate to the subject matter of the legislation. There is no basis for saying that the decision is not reasonably capable of reference to the power given to the Tribunal.

27. Consequently, the application must be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date:
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