WACS v Minister for Immigration

[2002] FMCA 351

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WACS v MINISTER FOR IMMIGRATION [2002] FMCA 351

MIGRATION – Protection visa – application refused – application of s.474 of Migration Act – application otherwise fails to disclose grounds for judicial review.

Migration Act 1958, s.474

NAAV v Minister for Immigration and Indigenous Affairs (2002) FCAFC 228
VABQ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 209

Applicant: WACS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: WZ96 of 2002

Delivered on: 23 September 2002

Delivered at: Perth

Hearing Date: 23 September 2002

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Mr A J Goldfinch – pro bono Counsel

Counsel for the Respondent: Mr J D Allanson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant shall pay the respondent's costs.

3. Pursuant to Rule 21.15 of the Federal Magistrates Court Rules I certify that it was reasonable for the respondent to employ an advocate to appear in this proceeding.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ96 of 2002

WACS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application the applicant, who was the first-named applicant before an application for review in the Refugee Review Tribunal, (the RRT) seeks to review the Tribunal’s decision and has filed in the Federal Court of Australia an application dated 7 December 2001.  The application was duly transferred to this court and this court had made orders on a previous occasion allowing an adjournment of the application so that time would be given for consideration of the law which was then under consideration by the Full Court of the Federal Court. 

2. The  Full Court has now delivered its decision in the matter of NAAV v Minister for Immigration and Indigenous Affairs (2002) FCAFC 228. It is a decision which has then subsequently received further consideration by other Federal Court justices and indeed by this court in a matter in which I presided, VABQ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 209.

3. For the present purposes, though, it is unnecessary to consider in detail the law that is now currently applied as a result of the NAAV decision.  Rather it is my view that in the circumstances it is appropriate to look at the application filed on 7 December 2001.  In that application seeking to review the decision of the RRT which was delivered on 21 November 2001 the applicant states:

   “The applicant is aggrieved by the Tribunal's decision because,

   
   

   ‘I can't go back’.”

4. Under the heading of “The Grounds of the Application” the applicant states, “I am Iranian.” 

5. It is clear from the background material set out by the Tribunal that the applicant, and indeed his son, were both applicants before the RRT and they had both on 7 March 2001 lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  The brief background information is that both the current applicant and his son had arrived in Australia on 23 August 2000.  There is no dispute that his son is intellectually disabled and although included in the application before the RRT, he is not effectively included in the application before this court.

6. The claim that was before the RRT was that the applicant and his son would face persecution if they returned to Iran because they were followers of the Mandaean religion and Mandaeans being a small religious group are found mostly in the city of Ahwaz in Iran.  There appears in the RRT's decision some detailed consideration of the various factors that were referred to and relied upon by the applicants before the Tribunal but ultimately the Tribunal concluded that in all the circumstances the decision by the delegate to refuse a protection visa should be affirmed and that in the circumstances the Tribunal was not satisfied it was appropriate to permit the appeal that was then before that Tribunal.

7. In my view the application currently before this court is not an application which on the face of it reveals any proper grounds which would enable or entitle this court as a matter of judicial review to review the decision of the RRT.  It is clear that an application of this kind needs to do more than simply state, as has been stated in the grounds of the application, “I am an Iranian,” or in terms of the grievance to state, “I can't go back.”

8. It is submitted on behalf of the respondent that in the circumstances, putting to one side the issue of the application of section 474 of the Migration Act which received the attention that I referred to from the Full Court of the Federal Court in NAAV, I should in any event consider the application on the face of it and when doing so should conclude that that application does not provide to this court any error or irregularity which could possibly fall within the Hickman provisos. Indeed it is further submitted that a fair reading of the Tribunal's decision does not reveal any error in any event.

9. In my view, having considered all the material, it is clear that the submissions on the part of the respondent succeed. They succeed not simply by reason of the application of s.474 but also because I am satisfied that the application in its current form does not reveal or any proper basis upon which this court could conduct judicial review of the decision. For those reasons I make the following orders:

   (1)The application be dismissed. 

   (2)The applicant shall pay the respondent's costs.

   (3)

   Pursuant to Rule 21.15 of the Federal Magistrates Court Rules

   
   

   I certify that it was reasonable for the respondent to employ an advocate to appear in this proceeding.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  23 September 2002