Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - appeal from a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding applicant's fear of persecution was not well founded

WAAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

WAAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 77 (10 May 2002)
Last Updated: 26 June 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAAZ V MIMIA
[2002] FMCA 77



MIGRATION - appeal from a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding applicant's fear of persecution was not well founded



Migration Act 1958 (Cth)

Judiciary Act 1903 (Cth) s.39B

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

SAAD v Minister for Immigration & Multicultural Affairs [2002] FCA 206

SBAE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 479

Turkan v Minister for Immigration & Multicultural Affairs [2002] FCA 397

Raza v Minister for Immigration & Multicultural Affairs [2002] FCA 350

Applicant:
WAAZ



Respondent:


THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 60 of 2002



Delivered on:


10 May 2002



Delivered at:


Sydney



Hearing Date:


29 April 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Ms L Price



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The application be dismissed.

(2) The applicant pay the respondent's costs pursuant to Part 21.10 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


WZ 60 of 2002

WAAZ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. In this matter the applicant seeks a review of the decision of the Refugee Review Tribunal constituted by Roger Gibson made on 10 October 2001 affirming a decision not to grant a protection visa under class XA sub-class 785 or 866.

2. The applicant entered Australia as an unauthorised boat arrival and was not immigration cleared. He is therefore unable to meet the requirements for the grant of a permanent sub-class 866 (protection visa). He was assessed in accordance with the criteria set out in the Migration Regulations for the grant of a visa of sub-class 785 (temporary protection). The application states that the applicant is aggrieved by the Tribunal's decision because

"I believe that my fear of persecution is well founded."

3. The grounds of his application are set out as follows

"I am not satisfied with the decision of the Tribunal because first of all I was persecuted in these different countries as I said.

Therefore I can't go back nor to Syria nor to Kuwait or to Sudan because my fear of persecution is well founded."

4. The matter came before the Registrar on 2 November 2001. The Registrar made orders including the following

"2. The applicant to file and serve on or before 30 November 2001;

(a) an amended application giving particulars of any groundsof review; or

(a) a written statement setting out the reasons why he considers the decision of the Refugee Tribunal is wrong; and

(b) any affidavit upon which he intends to rely at the hearing of this matter."

5. No such documents were filed by the date ordered or by the date of the hearing. The reason for this may have been that the applicant was unable to afford legal representation.

6. The applicant claims to be a Kuwaiti born Sudanese citizen who left Kuwait in 1992 because the Kuwaitis believed he had been an Iraqi sympathiser during the occupation. He says that he went to live in the Sudan for a period of approximately nine months and in 1993 left that country on an illegally obtained Chad passport and went to live in Syria. His reason for leaving the Sudan was that he was about to be conscripted and did not wish to join the fighting in the south where, it was suggested, he may have had some relatives.

7. The applicant remained in Syria from the time of his arrival in 1993 until he left the country to travel to Australia in mid 2000. He left Syria on a Sudanese passport which he obtained through a friend. It was claimed that once he had obtained that passport he was actively sought out by the Sudanese embassy in Syria and he feared that he would be returned to the Sudan as a deserter.

8. The applicant claimed that he could not return to Kuwait because he believed the military forces and the government were after him after he had escaped from detention in that country in about March 1992. He claimed he could not return to the Sudan because of his fear of being labelled a deserter and sent to combat in the south of the country and he could not return to Syria as he had entered that country on a false passport and had not been given any continuing residence beyond the time that he left the country.

9. In order to satisfy the Tribunal that he is entitled to a protection visa the applicant must satisfy the decision maker that the prescribed criteria for the visa have been satisfied (s.65(1) of the Migration Act 1958). The relevant criteria in this case is set out in s.36(2) of the Migration Act. This provides that a criteria for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol. Article 1A(2) of the Convention defines a refugee as any person who:

"Owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or politically opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

10. In this case the applicant claims a well founded fear of persecution in respect of both his alleged country of origin (Sudan) and his two countries of abode.

11. The Refugee Review Tribunal considered at some length the evidence presented to it by the applicant in his interviews with the Department, in the conduct of his application before the Minister's Delegate and in the hearing before the Tribunal. It also received some assistance from a firm of solicitors who represented the applicant for a period. The Tribunal came to adverse conclusions about the veracity of the applicant in respect of information which he gave about his reasons for leaving all of the three countries with which he has connection. In respect of his leaving of Kuwait after he had been detained the Tribunal said at [129]:

"The applicant's evidence was implausible and unconvincing".

At [131]:

"The applicant's account appears to shift and change as he was confronted with and tried to explain implausibility's and contradictions."

At [133]:

"Like so much of the applicant's evidence, it lacked precise details, it was general and vague, and smacked of fabrication and elaboration."

At [134]:

"I am unable to accept that the applicant was arrested, detained, escaped from detention, and hid from the authorities until leaving Kuwait some time later. I am of the view that it is a fabrication to enhance his claims of being a refugee."

12. In regard to the applicant's problems in Sudan the Tribunal said at [148]:

"The applicant's evidence of his arrival and stay in Sudan was inconsistent, contradictory, implausible and unconvincing. I am unable to accept that the applicant ever entered and lived in Sudan. As to his claims of being called up for military service, I am unable to accept them as his evidence in this regard was also inconsistent, contradictory, implausible and unconvincing... I am of the view that the applicant's claims with regard to Sudan were fabrications to enhance his claim of refugee status.

13. In respect of the applicant's claims in respect of his leaving Syria the Tribunal stated at [158]:

"In the light of his various accounts of the various identity documents that the applicant has claimed to have had, the several and inconsistent accounts of the passports he has claimed to have, and his various and several inconsistent accounts of how he lived in Syria, I am unable to accept [the] veracity of any of the accounts of how the applicant came to, lived in and departed from Syria. Whilst I am satisfied that the applicant has lived in Syria at one time in his life, and for some time, I am not satisfied that the applicant entered, lived in and had to depart the country because of the problems he has claimed. I am of the view that the applicant's claims with regard to Syria were fabrications to enhance his claim of refugee status."

14. The discussion by the Tribunal of the reasons for coming to these unfavourable views of the applicant is in all three cases thorough and properly based on the evidence which the Tribunal says was before it. There has been no suggestion from the applicant that this was not the case. The only area in which a court might have some reason for concern is the evidence which was provided by a so called independent linguistic analysis report. In an appropriate case the validity of this type of evidence given by an anonymous analyst whose qualifications (other than his or her place of origin) are unspecified may well be questioned. But they were not questioned by the applicant here, save to the extent that the analysis doubts his Sudanese origin. As the Tribunal accepted [118] that the language analysis corroborates some of the applicant's claims that he lived much of his life in Kuwait and Syria the decision that was made by the Tribunal cannot be seen on its face to have been prejudicially affected by this evidence.

15. The jurisdiction of the Federal Magistrates Court in these matters is imposed by s.483(A) of the Migration Act. The jurisdiction which the court exercises is subject to s.474 of the Act which is found in Part 8 dealing with judicial review. Section 474 is the section which places into the Act the privative clause in the following form:

474 Decisions under Act are final

i) A privative clause decision;

a) is final and conclusive; and

b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

16. This clause was interpreted by the High Court in R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598 and the implications of such a clause to decisions under the Migration Act have been the subject of several decisions in the Federal Court. There have also been decisions in this court.

17. Mansfield J in SAAD v Minister for Immigration and Multicultural Affairs [2002] FCA 206 and SBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 479 dealt with two cases in which the application for review before the court did not identify any grounds upon which the application was brought. He considered those cases on the basis that he would look first to see whether or not there was any matters which would give rise to relief under s.39B of the Judiciary Act 1903 (Cth). He said in SBEA at [17]:

"The assessment of the merits of the applicant's claims is fundamentally the function of the Tribunal. The court is not empowered to revisit findings made by the Tribunal, and to substitute its view of appropriate findings for those made by the Tribunal. That is not to indicate that, in this instance I have found different views about matters of fact upon which the Tribunal has made findings. I have not done so. That is not the court's function. It is to indicate that, without error of the kind which would enliven a court's powers under s.39B of the Judiciary Act, the sort of matters to which the applicant has referred as noted above do not entitle the court simply to revisit the determination of the Tribunal or set it aside."

18. His Honour would only consider the effect of s.474 of the Migration Act if he found there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B. When he was unable to find such an issue in SAAD his Honour said at [23]:

"Consequently, in my view, it is not necessary to address the application of s.474 in the particular circumstances."

19. This approach is not universal. In Turkan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 Heery J said at [46]:

"In my view, the correct approach is to first consider whether s.474 applies. If it does, the court need not. Indeed it should not, go any further. The court should not assess the case as if 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in its terms goes to the court's jurisdiction and is to be applied at the threshold."

20. This dichotomy will doubtless be resolved shortly by a Full Bench of the Federal Court but in the meantime I would propose to follow the approach adopted by Mansfield J because in his cases, like the present one before me, the applicant was not represented and did not articulate his grounds for the appeal other than by re-asserting the matters which he brought to the attention of the Tribunal and the fears which he expressed about his safety if he were returned to any of the three countries.

21. In SBAE Mansfield J noted at [22]:

The applicant appeared in person at the hearing, but his submissions did not extend beyond asserting factual error on the part of the Tribunal. I have also independently reviewed the Tribunal's reasons, having regard to the applicant's circumstances, to discern whether they disclose error on its part such as would warrant the court's intervention under s.39B of the Judiciary Act. In my judgment no such error on the part of the Tribunal is apparent."

22. I have adopted the approach taken by Mansfield J in relation to this applicant. I am unable to find in the Tribunal's reasons any matter which would disclose error under s.39B of the Judiciary Act and I have not been assisted in doing so by any of the representations made by the applicant to me at the oral hearing of this application. I have also taken into consideration the decision of the Full Bench in Raza v Minister for Immigration & Multicultural Affairs [2002] FCA 350 which dealt extensively with the obligations of the Tribunal where no finding of nationality is made. That case does not provide any assistance to the applicant.

23. Accordingly, I consider that the application must be dismissed. I so order. I see no reason why the ordinary rule of costs should not apply. I order that the applicant pay to the respondent its costs of the application pursuant to Part 21.10 of the Federal Magistrates Court Rules. I certify that it was reasonable for the Respondent to employ an advocate pursuant to Part 21.15.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia