W284 and W285 v Minister for Immigration and MuIticulturaI Affairs

[2002] FCA 44

FEDERAL COURT OF AUSTRALIA

W284 and W285 v Minister for Immigration and MuIticulturaI Affairs 120021

FCA 44

MIGRATION - review of decision of Refugee Review Tribunal - ground of review made out - discretion to award relief - applicant's claims based on fear of persecution by Taliban - destruction of Taliban regime - whether matter should be remitted to Tribunal - submissions by both applicant and respondent that remitter appropriate - matter remitted to Tribunal for reconsideration according to law

Migration Act 1958 (Cth) "

W284 and W285 v MINISTER FOR IMMIGRATION AND MULTICULTURAL

AFFAIRS

W284 of 2001 W285 of 2001

FRENCH J

1 FEBRUARY 2002

PERTH

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W284 OF 2001

BETWEEN:

W284

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL

AFFAIRS

RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

14 JANUARY 2002

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

BETWEEN:

W285

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL

AFFAIRS

RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

14 JANUARY 2002

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1. The decision of the Tribunal is set aside and the matter remitted to the Tribunal to

.I be reconsidered according to law.

2 . The respondent is to pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT	W284 OF 2001
REGISTRY

BETWEEN:

W284 and W285

APPLICANT

AND:

MINISTER FOR IMNIIGRATION AND MULTICULTURAL

AFFAIRS

RESPONDENT

JUDGE:

FRENCH J

DATE:

1 FEBRUARY 2002

PLACE:

PERTH

REASONS FOR JUDGMENT ON FINAL ORDERS

1

On 12 December 2001, I published reasons for judgment in relation to the applications of the above applicants who are husband and wife. The first applicant is a citizen of Indonesia and is married to the second applicant who is a national of Afghanistan. Both were seeking review of decisions of the Refugee Review Tribunal ("the Tribunal") which affirmed decisions of the delegate of the Minister for Immigration and Multicultural Affairs refusing to grant protection visas. The first applicant's application was not pressed and was dismissed. As to the second applicant, I found procedural failure on the part of the Tribunal related to the inadequacy of interpretation before the Tribunal. There was however. in my opinion, a question whether, in light of the changed circumstances in Afghanistan, the relief sought, namely a remitter of the matter to the Tribunal, would be useful.

2 The second applicant's claim for a protection visa was based upon fear of persecution by the Taliban regime if returned to Afghanistan. At the time of delivering judgment on 13 December 2001, it was notorious that the Taliban had effectively been destroyed as a force in Afghanistan by military action on the part of the United States. I entertained submissions on the question of the usefulness of setting aside the Tribunal's decision and remitting it for reconsideration. In the event both applicant and respondent submitted that the matter ought to go back to the Tribunal. The respondent argued that an applicant might wish to raise new

1	-	factual issues and/or present new or additional material in a rehearing before the Tribunal
I	which could possibly give rise to different result. If the Court were to exercise its discretion
I
l
to decline to remit the matter back to the Tribunal because, on the basis of the claims previously made and evidence and material previously presented by an applicant, the
~
l	Tribunal would necessarily have to reach the same decision, the Court would be foreclosing the possibility that an applicant might wish to raise new factual issues in support of his or her
i	claim to have a well-founded fear of persecution for a Convention reason if returned to the
~
!	country of nationality. The second applicant had indicated in his supplementary outline of submissions dated 10 January 2002 that at any further hearing by the Tribunal he would wish to make submissions that he continues to have a well-founded fear of persecution as a Hazara despite the destruction of the Taliban.

3 I accept the joint position put to me in the applicant's and respondent's submissions in this respect and accept that the final factual resolution is a matter for the Tribunal. I made orders giving effect to that on 14 January 2002 and indicated that I would publish short reasons subsequently.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French J. ?

Counsel for the Applicant:	Mr HNH Christie
Solicitor for the Applicant:	Christie & Strbac
Counsel for the Respondent:	Mr P MacLiver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 1 January 2002
Date of Orders	14 January 2002
Date Reasons Published:	1 February 2002