WAES v Minister for Immigration
[2003] FMCA 11
•23 January 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAES v MINISTER FOR IMMIGRATION | [2003] FMCA 11 |
| MIGRATION – Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa – applicant claiming to be from Afghanistan – decision of Refugee Review Tribunal affirmed. Migration Act 1958, ss.474, 474(1) NAAV V Minister for Immigration & Multicultural & Indigenous Affairs and the Refugee Review Tribunal of the Commonwealth of Australia [2002] FCAFC 228 |
| Applicant: | WAES |
| Respondent: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
| File No: | WZ 89 of 2002 |
| Delivered on: | 23 January 2003 |
| Delivered at: | Perth (via video link) |
| Hearing Date: | 1 July 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Applicant appeared in person |
| Solicitors for the Applicant: | Applicant appeared in person |
| Counsel for the Respondent: | Mr A Jenshel |
| Solicitors for the Respondent: | Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH (via video link) |
WZ 89 of 2002
| WAES |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant arrived in Australia by boat as an unlawful non-citizen on 21 March 2001. He was initially interviewed by an officer of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") on 23 March 2001. In that interview the applicant claimed to be of Hazara ethnicity and a follower of the Shia branch of Islam who is a citizen of Afghanistan, born in Ghurghchi in Jaghori District in Ghazni Province and to have lived in Sang-e-mash. He claims to have left Afghanistan because the Taliban were rounding people up. He maintained that he had not had any contact with the Taliban.
On 29 July 2001 the applicant lodged an application for a protection visa with the Department pursuant to the provisions of the Migration Act 1958 (Cth) ("the Migration Act"). The application was accompanied by a statutory declaration in which the applicant declared that the Taliban came frequently to his home, that he would like to remain in Australia because there was starvation and poverty in Afghanistan and he believed he would be killed if he returned to Afghanistan.
The applicant was interviewed by a delegate of the respondent on
28 July 2001 and again on 31 July 2001. On 29 October 2001 the delegate made a decision refusing to grant a protection visa to the applicant. The delegate found that the applicant was a citizen of Pakistan who was outside his country of nationality but does not have a fear of persecution in relation to it.
The applicant then made an application to the Refugee Review Tribunal ("the Tribunal") seeking a review of the delegate's decision. The applicant gave evidence at the Tribunal hearing and his advisers provided submissions to the Tribunal in four separate letters. On
21 January 2002 the Tribunal made a decision affirming the delegate's decision refusing to grant a protection visa to the applicant. In arriving at its decision the Tribunal concluded that the applicant is a national of Pakistan who had in his possession a Pakistan passport in his own name which was good for the travel between Pakistan and Indonesia at least once. The applicant made no claims of persecution against any country other than Afghanistan and there was consequently no basis to determine that he had a well founded fear of persecution in Pakistan which the Tribunal found was his country of nationality.
The applicant then lodged an application for review of the Tribunal's decision together with an application, on the Federal Court's general form of application. On 19 March 2002 the Federal Court of Australia ordered that the Migration Act application be consolidated with the review application and ordered that the application be transferred to the Federal Magistrates Court pursuant to s.32AB of the Federal Court of Australia Act for hearing.
The Law
The jurisdiction which the Federal Magistrates Court exercises is subject to s.474 of the Migration Act. Section 474(1) restricts the review by the Courts of administrative decisions of the Minister for Immigration and Multicultural and Indigenous Affairs, his delegates and the merits review tribunals (notably the Migration Review Tribunal and the Refugee Review Tribunal) in migration matters. The "privitive clause" introduced in October 2001 is contained in s.474 of the Act and reads:
A privitive clause decision:
(a)is final and conclusive;
(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 or on any count.
In NAAV v Minister for Immigration and Multicultural and Indigenous Affairs and the Refugee Review Tribunal of the Commonwealth of Australia [2002] ("NAAV") the Full Court of the Federal Court of Australia upheld the validity of the privitive clause.
However the words of s.474 have effect subject to the exceptions set out in the judgment of Dixon J in Hickman; Ex parte Fox v Clinton (1935) 70 CLR 598 where the High Court held that a privitive clause expanded the power of the relevant decision making in such a way that the lawfulness of any decision made is beyond question, provided:
the decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.
In addition to the three exceptions referred to, a fourth was then identified:
Thus in Hickman, Dixon J seemed to acknowledge that there is another limitation or condition to the validating effect of a privitive clause, in addition to the three provided as earlier mentioned in his judgment. A purported exercise of power by the decision maker must not be one that contravenes an "inviolable limitation upon the powers, duties and functions" of the decision maker
per von Doussa J in NAAV, par 619.
Thus the following propositions may be extracted from the Full Court in NAAV:
1)A privitive clause such as that contained in s.474(1) operates to limit the available grounds of review by altering the substantive law in relation to the extent of the decision maker's powers (so that a decision made in breach of a statutory requirement may nevertheless be valid, lawful and within jurisdiction).
2)Such provision will not generally be construed so as to authorise decisions: -
a)that are not a bona fide attempt to exercise power;
b)that do not relate to the subject matter of the legislation or are not capable of reference to the power given to the decision maker;
c)that infringe "inviolable limitations or restraints" on the powers of the Tribunal - that is common limitations and requirements which are properly construed as being essential preconditions to the valid exercise of the power, notwithstanding the existence elsewhere in the relevant statute of a privitive clause; or
d)that are beyond any constitutional limits on the Tribunal's power.
Decisions of the kind described in the paragraph above, will generally involve an excess of jurisdiction, which is amenable to relief by way of prohibition, mandamus and/or certiorari. Section 474 operates to expand the decision maker's jurisdiction to make a valid and lawful decision.
Section 474 is quite capable of "curing" the kind of errors which would otherwise have amounted to jurisdictional error under the principles discussed in Craig v South Australia (1995) 184 CLR 163-179 and Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 180 ALR 1 at par 39-44.
The basis for the Tribunal's decision
The basis of the Tribunal's decision was that the Tribunal did not believe the applicant's claims to be a citizen of Afghanistan and found that he was a citizen of Pakistan. The Tribunal noted a number of inconsistencies regarding the claims of the applicant. A language analysis was undertaken and indicated that the applicant's language originated from Pakistan. However, the Tribunal did not consider that the language analysis was determinate of nationality and gave it little weight in the consideration of the applicant's claims. The Tribunal noted that the applicant had claimed his passport was fraudulently obtained through a people smuggler but was concerned that the applicant’s passport was issued to him as a Pakistani national.
The matters the Tribunal took into account in not accepting the claims of the applicant were as follows:
(a)The Tribunal rejected the applicant's claim that for about five or six months before he left Afghanistan the Taliban came looking for him and his brother and accused him of having weapons and of being involved in the Mazhad party. The applicant claimed he managed to avoid them by going into hiding in the nearby mountains and said that they came six or seven times and searched for weapons and went away. The Tribunal was not able to accept that the Taliban focussed on the applicant and his brother as he claimed, because of any perceived association with the Mazhad party and found there had been no such accusation for well over two years since the Taliban took over the area.
(b)The Tribunal also found unconvincing the applicant's evidence that he was able to avoid the Taliban every time by going into the mountains. The Tribunal found that the applicant's evidence indicated that the Taliban's interest in him and his brother was concentrated over a short period and in this context it was hard to see that they repeatedly came to the house, asked after the applicant and his brother, searched the house and went away without taking stronger or more concerted action to find the people they were after. The Tribunal thus rejected the applicant's account of his experiences under the Taliban.
(c)The Tribunal rejected the applicant's evidence about how he spent his days by working around the home collecting firewood and gardening vegetables and meeting with other villagers. The Tribunal noted the applicant was 38 and had developed the capacity necessary for him to make his way to Australia by a complex and arduous route. The Tribunal found it was difficult to see that he was not engaged more fully in work either on the land or for an employer.
(d)The Tribunal noted that how the applicant came to be in Australia had little direct bearing on the main question which the Tribunal is required to address, namely whether he or she has a well founded fear of persecution if they return to their country. The Tribunal noted, however, that it can have a bearing on the Tribunal's assessment of the applicant's general credibility.
Although the applicant initially told the delegate how he had left Afghanistan and travelled to Indonesia (and then to Australia), he subsequently admitted to the delegate that this was his second attempt to leave and that he had previously been detained in Indonesia and deported to Pakistan. The applicant revealed the detail of his detention in Indonesia, deportation to Pakistan and return to Indonesia, this time being successfully able to leave for Australia, only after the delegate (mistakenly) advised him of the passport which he had said had his photograph in it including information to this effect. In fact the passport he used did not show his earlier departure from Pakistan: the relevant page in the passport had been placed on the file in error and is not a page in the applicant's passport. The Tribunal noted that it was a coincidence that the applicant's amended story about his journey to Australia, provided in response to the delegate's misunderstanding, but before she had managed to advise the applicant of the mistake, correlated so exactly with what the page in another passport revealed, but there was no evidence to support his amended evidence that he was detained in Indonesia.
(e)The Tribunal also did not accept the applicant's evidence that his return and departure from Pakistan and his re-entry to Indonesia was facilitated at every border point by the people smugglers in just the right places and the right time. The Tribunal found this unlikely and whilst accepting the applicant may have been detained in Indonesia was unable to be satisfied that the applicant had given a truthful account of what followed before he arrived in Australia.
In rejecting the evidence of the applicant, the Tribunal took into account the difficulty asylum seekers can face in putting their claims to be recognised as a refugee, the fact that they are in a foreign country and the fact that the applicant was told by the people smuggler who arranged his passage to Australia to say things which were not true. The Tribunal noted that he had been faced with a succession of procedures which might be bewildering for him and found himself in immigration detention since his arrival.
Whilst initially being doubtful about the claims of the applicant to the effect that Jaghori was not the name of the town but only the district, the Tribunal made further enquiries and accepted this part of the applicant's evidence.
The applicant's contentions
The applicant was unrepresented. He simply argued that the Tribunal and the delegate ought to have accepted his evidence and that the facts that he had put forward were truthful.
No matter was put forward which would fall within the Hickman exceptions. In particular no attack on the bona fides of the Tribunal was made.
I am mindful of the fact that the High Court is seized of the constitutional validity of s.474 however there does not appear to me to be any jurisdictional error of the type described in Craig v State of South Australia (1995) 184 CLR 163 which would entitle the applicant to have the matter reviewed under s.39B of the Judiciary Act, even absent s.474. I therefore dismiss the application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 17 January 2003
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