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MIGRATION - appeal from a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicant's fear of persecution was not well founded - "What if I am wrong?" test

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

WABS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 73 (10 May 2002)
Last Updated: 26 June 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WABS v MIMIA
[2002] FMCA 73



MIGRATION - appeal from a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicant's fear of persecution was not well founded - "What if I am wrong?" test



Migration Act 1958 (Cth) ss.474, 483A

Judiciary Act 1903 (Cth) s.39B

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719

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

Applicant:
WABS



Respondent:


MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS



File No:


WZ 68 of 2002



Delivered on:


10 May 2002



Delivered at:


Sydney



Hearing Date:


30 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 68 of 2002

WABS


Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND 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 Kenneth Northwood made on 31 October 2001 affirming a decision not to grant a protection visa under Class XA Sub Class 785 or 866.

2. The applicant entered Australia on 11 October 2000 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).

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

"1. As a Palestinian residing in Syria without any kind of protection or assistance.

2. I left Syria because I don't feel free or safe not even protected."

4. The form of application continues:

"B. Claim for Interlocutory Relief

AND the applicant claims by way of interlocutory relief:

1. I have never received any protection or assistance from UNRWA.

2. I cannot go back to Syria because I have real fear of persecution."

5. The matter came before the Registrar of the Federal Court on 27 November 2001. The Registrar made orders including the following:

"2. The applicant to file and serve on or before 4 January 2002:

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

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

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

6. The matter was transferred to the Federal Magistrates Court by order of RD Nicholson J dated 11 April 2002.

7. No documents as required by the order of the Registrar were filed by the date ordered or by the date of the hearing. The reason for this may have been that although RD Nicholson J determined pursuant to Order 80, Sub-Rule 4(1) of the Federal Court Rules that it is in the interests of the administration of justice that the applicant be referred for legal assistance under Order 80, no pro bono assistance could be found in Western Australia.

8. The applicant claimed to be (and it was found that he was) a Palestinian born and raised in Syria. He lived at the Alyarmouk Camp in Damascus. In the form which the applicant completed for the unauthorised arrivals interview his response to the question "Why did you leave your country of nationality (country of residence)?" was as follows:

"Socially it was difficult to deal with people. They are not simple and easy to mix with not like before. If you are upset with them you cannot live with them. I do not feel comfortable. Secondly, economic, there is not enough employment opportunity like before. High unemployment. The government is getting harder with the people. They serve their interest not that of the people. If I want to apply for anything I have to bribe otherwise my job will not be accomplished no other reason."

9. In response to the question "Do you have any reasons for not wishing to return to your country of nationality (residence)?":

"Yes I am not going back. Psychologically I am not settled there. I do not feel comfortable, it is impossible for me to go back. I would hate to do that. There is a lot of discrimination there. Government officials discriminate between Syrians and Palestinians."

10. In the same form the applicant advised that he was a PLO fighter against Israel and had worked for the Palestinian People's Front within the PLO as a militia member. In a statement prepared by a firm of solicitors for the purposes of the hearing by the Minister's delegate the applicant stated, under the heading "Why I left my country":

"I was a clerk in the office of the Palestinian General Command in Damascus in 1992 until March 2000. They then sent me on a mission to Lebanon to work in the office there. I was cautious about this because it often meant terrorist activities would also be involved. I agree with the Palestinian cause but do not agree or want to be involved with methods they use like terrorism.

I went to Lebanon and worked in the office for 3 days then I left my duties and disappeared. They searched for me for about 7 months in Lebanon. During this time I organised my travel to get to Australia. It was very dangerous for me to stay in either Lebanon or Syria. If I went back to Syria there was an agreement between the Syrian government that if I was caught by the General Command they would hand me to the Palestinian authorities in Syria."

11. Under the heading "What I fear might happen if I go back to my country":

"If I went back to Syria they would hand me to the Palestinian General Command and I would be imprisoned and maybe be executed."

12. These representations by the applicant were not accepted by the Minister's delegate and the applicant's application for a protection visa was declined. The applicant appealed to the Refugee Review Tribunal. The applicant was assisted before the Tribunal by the same firm of solicitors who provided a detailed letter of submission. This letter provided the Tribunal with information concerning the return of Palestinians to Syria in a variety of circumstances, for example, where they had departed legally or illegally, where they were of interest to the Syrian authorities or not. The letter also brought to the attention of the Tribunal other Tribunal decisions which indicated that members of the Tribunal had concerns about the return of undocumented Palestinians to Syria.

13. All these matters were considered by the Tribunal which, after a lengthy exposition of the claims made by the applicant and the discussions between the applicant and the Tribunal, came to the view that it did not accept the applicant's evidence. In particular, although the Tribunal accepted that the applicant was a trained member of the PFLP General Command, that he was not sent on a secret mission to Lebanon which had terrorist possibilities and from which he escaped after three days. The Tribunal came to the conclusion that it did not believe the applicant's story that he had departed Syria illegally. Because the Tribunal came to these conclusions it followed that the applicant did not have a well founded fear of persecution and the applicant was not likely to be endangered upon his return to Syria. The views expressed by the Tribunal brook of no uncertainty. In MIMA v Rajalingam [1999] FCA 719 the Sackville J with whom North J agreed said at [67]:

"In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt" (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. ...Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution."

14. I do not believe that the decision of the Tribunal can be impugned by a failure to apply the so-called "What if I am wrong?" test.

15. The discussion by the Tribunal of the reasons for coming to its unfavourable views of the applicant's claims appears to be 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.

16. 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.

17. 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.

18. 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."

19. 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."

20. 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."

21. 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 Syria.

22. 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."

23. 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.

24. 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-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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