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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

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

WADD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 74 (10 May 2002)
Last Updated: 26 June 2002


[2002] FMCA 74

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

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

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




File No:

WZ 61 of 2002

Delivered on:

10 May 2002

Delivered at:


Hearing Date:

30 April 2002

Judgment of:

Raphael FM


For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr M Ritter

Solicitors for the Respondent:

Australian Government Solicitor


(1) The application be dismissed.

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




WZ 61 of 2002







1. In this matter the applicant seeks a review of the decision of the Refugee Review Tribunal constituted by Mr Andrew Jacovides made on 14 December 2001 affirming a decision not to grant a protection visa under Class XA Sub Class 785 or 866.

2. The applicant arrived in Australia on 14 November 2000 as an unauthorised boat arrival and was not immigration cleared. He is therefore unable to meet the requirements for 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 applicant filed two applications numbered W578 and W579 of 2001 in the Federal Court. Both applications appeared to seek review of the decision referred to above.

3. On 15 January 2002 Deputy District Registrar Rayney ordered that the proceedings be consolidated and thereafter referred to as W578 of 2001. On 10 April 2002 RD Nicholson J transferred the application to the Federal Magistrates Court.

4. The application states that the applicant is aggrieved by the Tribunal's decision because:

"The RRT's decision is [illegible] [illegible] no justice was performed concerning my case there are some people (Afghanis) who are granted protection visa meanwhile but I am refused."

5. The grounds of the application are set out as follows:

"I am an Afghani asylum seeker in Australian Detention Centre. Because I was convicted talking with a woman on the street I was detained for 2 months and besides I [illegible] [illegible] and belonged to Tajike ethnic. I was under persecution at the time of Taliban regime and now my life is in danger because of my wealth.

6. The matter came before the Registrar of the Federal Court on 15 January 2002. The Registrar made orders including the following:

"2. The applicant to file and serve on or before 12 February 2002:

(a) An amended application giving particulars of any grounds founding relief under the Judiciary Act 1903 or a statement setting out why he considers the decision of the Tribunal should be overturned; and

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

7. No such documents were filed by the date ordered or by the date of the hearing. The reason for this may have been that although the applicant claims he requested pro bono assistance no record of that request could be found and no order under Order 80 of the Federal Court Rules was made. However, given that this is the fifth case which I have heard emanating from the Perth District Registry following transfer orders made by RD Nicholson J, I can be fairly confident that even if his Honour had made such an order no pro bono assistance would have been found.

8. The applicant made an application to the Federal Court under the former Part 8 of the Migration Act for judicial review of an earlier Tribunal decision upon him. On 28 September 2001 French J set aside the first Tribunal decision and remitted the matter to the Tribunal, differently constituted, to re-consider the application according to law.

9. The applicant is a citizen of Afghanistan who lived in Kabul and is of the Tajik ethnicity. He is a jeweller by profession.

10. The applicant claimed that prior to leaving Afghanistan he had been arrested by the Taliban after talking to a woman in the street and was detained for two months before his father secured his release by paying bribes. The applicant claims that his conduct was construed by the authorities as having committed adultery with the woman and he feared that he would be punished for committing adultery by death if he returned to Afghanistan.

11. The applicant also considered that as a member of the Tajik minority he and his family were targeted by the Taliban who had looted and robbed his father's business.

12. By the time the matter came before the Tribunal for the second time, political conditions in Afghanistan had changed substantially. In relation to the current position the applicant claimed that if he returned to Afghanistan he would be targeted by Hazaras, the Pashtuns, the Taliban and anyone who was not a Tajik. He believed that as a Tajik and as a jeweller he would be at risk of serious harm in Afghanistan. The applicant also claimed that even today the authorities in Afghanistan would enforce Sharia law which decreed the death penalty for adultery. He feared that if he returned to Afghanistan he would be arrested for adultery and incarcerated. He believed he would suffer the death penalty although this would not be carried out in public.

13. 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."

14. In this case the applicant claimed a well found fear of persecution in respect of his return to Afghanistan for the reasons stated above.

15. The applicant was assisted by a firm of solicitors at the hearing before the Tribunal. The solicitors also provided the Tribunal with some written submissions which were attached to a letter dated 29 November 2001 which provided information concerning the current situation in Afghanistan. This included an extract from an article in The Age newspaper dated 20 November 2001, which said, inter alia

"The United Nations says it will be at least two years before it considers downgrading the refugee status of Afghan boat people fleeing to countries such as Australia, irrespective of whether the Taliban regime is defeated.

The UN will continue to recognise the boat people's full legal rights to seek asylum during that time, even if a new government was installed in their country, a senior UN Human Rights Official said."

16. The representations also referred to the Tribunal decision NO1/40408 dated 28 November 2001 which dealt with the current situation in Afghanistan and which, the solicitors submitted, remitted the matter back for reconsideration by the Minister's delegate with the direction that the applicant was a person to whom Australia had protection obligations under the Refugees Convention notwithstanding that the applicant claimed persecution from the Taliban who no longer have effective control in Afghanistan.

17. The situation within Afghanistan was discussed with the applicant at some length by the Tribunal and referred to on page nine of the Tribunal's reasons. In any event it came to the conclusion that it did not accept the applicant's claim that he was at risk of persecution in Afghanistan by all of the ethnic groups other than Tajiks. The Tribunal also considered the submissions put by the applicant's adviser who appeared in person at the Tribunal hearing.

"The Tribunal acknowledges that there is political instability in Afghanistan, fighting continues, and there are many dangers associated with living there. However, the Tribunal has decided that the applicant is not at risk of suffering persecution in Afghanistan for a convention reason."

18. The Tribunal had also previously found that:

"The applicant's fear that he will be harmed by the Taliban's religious beliefs because he was suspected of having committed adultery is not well founded."

19. The Tribunal found that:

"The place to which the applicant will return, Kabul is under the administration of a Tajik member of the Northern Alliance. On that basis, the Tribunal has decided that the applicant's fear, that he will be harmed by the Taliban due to his race, political opinion, or any other convention reason, is not well founded as the Taliban are no longer in control of either Kabul or Afghanistan."

20. 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.

21. 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.

22. 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."

23. 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."

24. 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."

25. 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 Afghanistan.

26. 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."

27. I have adopted the approach taken by Mansfield J in relation to this applicant. I am satisfied that the reasons given by the Tribunal were based purely on evidence that was put before it and was made known to the applicant through his adviser. The conclusions which the Tribunal came to concerning the applicant's fear of persecution and the reference of that fear to a convention reason were conclusions which were open to the Tribunal upon the evidence. 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.

28. 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-eight (28) paragraphs are a true copy of the reasons for judgment of Raphael FM


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