WAFP v Minister for Immigration - [2003] FMCA 215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAFP v MINISTER FOR IMMIGRATION

[2003] FMCA 215

MIGRATION – Review of decision of the Refugee Review Tribunal – application for a protection visa – whether the applicant has a well-founded fear of persecution for political reasons – where the matter had already been remitted to the Tribunal for reconsideration previously – whether the second Tribunal made a jurisdictional error – whether the applicant was denied procedural fairness – whether there is a duty to make further enquiries – whether there is an obligation for the Tribunal to put to applicant his own previous inconsistent statements – whether the Tribunal has an obligation to put all adverse country material to the applicant – whether the Tribunal was guilty of apprehended bias or actual bias.

Migration Act 1958 (Cth) ss.48A, 430

Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553
Re Minister for Immigration; Ex parte A [2002] 185 ALR 489
Re Minister for Immigration; Ex parte Cassim (2000) 74 ALJR 1404
Azzi v Minister for Immigration [2002] FCA 24
NACC v Minister for Immigration [2002] FCA 333
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
H v Minister for Immigration (2000) 63 ALD 43
WAGH v Minister for Immigration [2003] FCA 8

Applicant:

WAFP

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

WZ 79 of 2002

Delivered on:

10 June 2003

Delivered at:

Sydney

Hearing date:

29 May 2003 at Sydney via videolink to Perth

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr J Hawkins

Counsel for the Respondent:

Mr P Macliver

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 79 of 2002

WAFP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant, whose claim to be of Sudanese nationality was accepted by the Refugee Review Tribunal, arrived in Australia on 25 July 1997. He was taken into immigration detention and on 22 September 1997 lodged an application for a protection (Class XA) visa. His application was refused on 27 October 1997 and that decision was affirmed by the Refugee Review Tribunal on 23 December 1997. The applicant lodged a second application for a protection visa on 22 April 1998 pursuant to a decision to allow a second application made by the Minister for Immigration under s.48A. That application was refused by a delegate on 20 August 1998 and the decision was confirmed by the Refugee Review Tribunal on 3 November 1998.
This second decision of the Tribunal was reviewed by the Federal Court (Lee J, 29 June 1999) and the Full Federal Court (2 May 2000). The decision of the Tribunal was held to be invalid and the Minister, after considering an appeal to the High Court, allowed the matter to be discontinued and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FMCA 215
Decision Date: 10 June 2003

CaseChat Overview and Summary

In the case of WAFP v Minister for Immigration, the applicant, who had been denied a visa by the Minister, sought judicial review of that decision. The Federal Court of Australia was tasked with determining whether the decision was lawful and if the applicant's rights were respected throughout the process. The central issue was whether the Tribunal exhibited bias or acted in a manner that breached natural justice by failing to afford the applicant procedural fairness.

The court examined the arguments presented regarding the Tribunal's questioning of the applicant and the Tribunal member's attitude towards both the applicant and his solicitor. The applicant contended that the Tribunal's manner of questioning and certain remarks made during the proceedings indicated bias or unfairness. However, the court found that the Tribunal's questioning was appropriate given the circumstances and that the exchanges between the Tribunal, the applicant, and his solicitor did not indicate any actual or apprehended bias. The court considered the High Court's guidance on the matter, ultimately concluding that the Tribunal's comments were part of vigorous exchanges rather than evidence of bias.

In light of the findings, the court dismissed the application and ordered the applicant to pay the respondent's costs amounting to $4,250.00.

Orders

Orders of the court

Application dismissed.

Applicant to pay respondent’s costs in the sum of $4,250.00.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

1.10There was no evidence that the Government had announced a call up for military service before the applicant returned to his country in 1990…There was evidence about this. It was given by Mr Fadlalla. It was also in the country information previously quoted. It was my understanding that the applicant’s Counsel did not press this matter. 1.11The Tribunal member’s lack of good faith alternatively bias is further made apparent by(a)the method and manner of questioning the applicant as to his nationality and right to return to Iraq, Jordan and Malaysia when the applicant’s nationality was not an issue [CB 384-390, 425] and the member was of the opinion that the applicant had no right to return to Iraq, Jordan or Malaysia [9analogous to SCAN v MIMIA 11 March 2003 where the Tribunal had misled the applicant to believe that the Tribunal considered a document to be genuine, and later stating that they had always had concerns over the genuineness of the document – found to be failure to afford procedural fairness, loss of opportunity to put forward other evidence)]; [the Tribunal Member’s attitude towards the applicant as evidence by the exchanges on pages 388, 389, 393, 396 (transcript) and the finding that the applicant is ‘prone to embellishing and concocting’ (decision page 453);] and(b)the Tribunal member’s attitude towards the solicitor who appeared for the applicant, as evidenced by the exchanges at [CB 396, 402, 403, 410, 429, 430 and the finding at 446 that the applicant “may have told his current adviser” that he renewed his passport illegally.In respect of the complaint at (a) I am satisfied from considering the transcript that the Tribunal properly questioned the applicant in relation to his nationality and his rights of return to other countries. It is quite clear that what then happened was that the Tribunal became convinced that the applicant could not return to other countries and was a citizen of the Sudan and eventually so stated. Neither the questioning nor the conclusions reached by the Tribunal open up any suggestion of actual or apprehended bias. I have also looked at the references made to the transcript of proceedings. The applicant alleges that these show apprehended bias or unfairness on the part of the Tribunal. I am mindful of what the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 has said in regard to these vices. I am not however satisfied that the remarks referred to are more than vigorous exchanges between the Tribunal, the applicant and his representative. I also note that in H v Minister for Immigration (2000) 63 ALD 43 at [12] the court referred to a comment made by Hely J where the Tribunal member exhibited a degree of scepticism and impatience with the story which was being told to him:"It is probably a fair comment to say that the transcript reveals that the presiding member exhibited a degree of scepticism and impatience with the story which was being told to him. At some points in the transcript, the presiding member indicated that he did not find what was being put to him by the applicant in the least bit convincing, and that he believed that the applicant was lying. ... It would have been better if some of the statements made by the member had been left unsaid. But I am not satisfied that the member came to the hearing with his mind made up such that he was not open to persuasion."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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