WAGN v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAGN v MINISTER FOR IMMIGRATION [2002] FMCA 138

MIGRATION – Review of decision of Refugee Review Tribunal – no grounds for review shown.

R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598 at 616
Boakye–Deanquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438
Kwan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 498
SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101
Awan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 594

Migration Act 1958, ss. 475A, 476, 474

Applicant: WAGN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: WZ 111 of 2002

Delivered on: 12 July 2002

Delivered at: Perth

Hearing Date: 9 July 2002

Judgment of: Phipps FM

REPRESENTATION

Solicitors for the Applicant: In Person

Counsel for the Respondent: Mr Allanson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. THAT the application is dismissed.

2. THAT the Applicant pay the Respondents costs fixed at $4,300.00

3. THAT the court certifies that it was reasonable to employ an advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 111 of 2002

WAGN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. Application is made to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 April 2002 affirming the decision not to grant a protection visa to the applicant.

2. The applicant arrived in Australia in August 2001.  His arrival was not authorised.

3. By application dated 2 March 2002 the applicant sought a protection visa on the basis of a well founded fear of persecution in Afghanistan.  The applicant claimed:

   a)To be a Shi’a Muslim and ethnically a Hazara;

   b)To have left Afghanistan because of the persecution of the Hazara by the Taliban;

   c)About three or four years ago to have been stabbed by a member of the Taliban.

4. The delegate of the minister refused that application and the applicant lodged an application with the Tribunal to review that decision. 

5. The applicant was invited to attend the hearing of the Tribunal on 20 March 2002.  By letter to the applicant’s adviser dated 8 March 2002 the Tribunal drew attention to the changed circumstances in Afghanistan, and the affect of that change on the applicant’s fear of persecution by the Taliban.

6. On 19 March 2002 the applicant’s advisers lodged a written submission addressing in detail the change of circumstances together with a hand written statement on behalf of the applicant.  Not withstanding the changed circumstances the applicant claimed to fear persecution on account of his religion and ethnicity on the basis;

   a)the treatment of the Hazara people by the Pashtoon who formed the majority in the interim government and were in control of the applicant’s home province;

   b)that it was impossible to predict future events in Afghanistan in its state of political turmoil;

   c)the threat that the Taliban would return.

7. The Tribunal’s reasons set out the relevant legislation and the definition…