WAAF v Minister for Immigration

[2003] FMCA 36

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAAF v MINISTER FOR IMMIGRATION [2003] FMCA 36

MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – nationality of the applicant – procedural fairness – whether the applicant given sufficient time to produce documents – whether the RRT breached legal professional privilege – whether the RRT took irrelevant material and failed to consider relevant material – no reviewable error found.

Federal Court Rules

Migration Act 1958 (Cth), s.474

Re Minister for Immigration; ex parte Lam [2003] HCA 6

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

Applicant: WAAF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: WZ36 of 2002

Delivered on: 16 April 2003

Delivered at: Sydney, via videolink to Perth

Hearing dates:

11 April 2002

18 February 2003

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Ms L B Price, appeared pro bono publico

Counsel for the Respondent: Mr P Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

THE COURT RECOMMENDS THAT

1. The Minister consider substituting a more favourable decision for the decision of the Refugee Review Tribunal.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ36 of 2003

WAAF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 21 September 2001 and notified to the applicant on the same day.  The RRT affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa.  The central issue in the case is the nationality of the applicant.  The applicant says that he is an Iraqi.  The RRT decided that he is Iranian. 

2. The matter was initially heard by me on 11 April 2002 in Perth.  At that time the applicant appeared by video on his own behalf from the Port Hedland Detention Centre.  At that time I became concerned that a photocopied document appeared on the court file which was not referred to in the decision of the RRT and which could have an impact on the resolution of the question of nationality.  The document was in Farsi and an oral translation by the interpreter at the hearing on 11 April 2002 established that it purported to be a letter from the Mayor of Ahwaz confirming the Iraqi nationality of the applicant.  I adjourned the hearing and ordered the applicant to provide the original of the letter and to produce a statutory declaration setting out when he first asked for a copy of the document, when he received it, whether he gave it to his legal advisers who represented him before the RRT and whether it was made available to the RRT.  I also made an order under Order 80 of the Federal Court Rules to facilitate the applicant obtaining legal representation for the purposes of proceedings in this Court.

3. The applicant prepared a statutory declaration in…