WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266
MIGRATION – application to review decision of Refugee Review Tribunal – meaning of “information” in s 424A(1) of Migration Act 1958 (Cth) – applicant provided “green card” to Tribunal in support of claim for refugee status – contents of green card at variance with evidence given by applicant – whether Tribunal obliged to provide particulars of discrepancies so that applicant may comment upon them – effect of s 424A(3)(b).
WORDS AND PHRASES – “information…that the applicant gave for the purpose of the application” – s 424A(3)(b).
Migration Act 1958 (Cth) ss 424(1), 424A(1) and 424A(3)(b)
WAGP OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W 131 OF 2002
MARSHALL, WEINBERG and JACOBSON JJ MELBOURNE (heard in Perth) 13 SEPTEMBER 2002
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 131 of 2002
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
WAGP OF 2002 APPELLANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:
MARSHALL, WEINBERG and JACOBSON JJ
DATE OF ORDER:
13 SEPTEMBER 2002
WHERE MADE:
MELBOURNE (heard in Perth)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 131 of 2002
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
WAGP OF 2002 APPELLANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:
MARSHALL, WEINBERG and JACOBSON JJ
DATE:
13 SEPTEMBER 2002
PLACE:
MELBOURNE (heard in Perth)
REASONS FOR JUDGMENT
THE COURT
This is an appeal from a judgment of R D Nicholson J in which his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (“the RRT”) made on 22 August 2001. The RRT affirmed a decision of a delegate of the respondent, on 27 June 2001, not to grant a protection visa to the appellant.
The legislation relevant to this appeal is the Migration Act 1958 (Cth) (“the Act”) in the form which it took prior to the amendments effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). Consequently, the appeal does not raise for consideration the “privative clause” provisions introduced with effect from 2 October 2001.
Factual Background
The appellant entered Australia on 2 November 2000.…
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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AGLC
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266
Case
[2002] FCAFC 266
Decision Date
CaseChat Overview and Summary
The case of WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs involved the appellant, a claimant for a protection visa, who contested the decision of the Refugee Review Tribunal (RRT) to deny his application. The central issue was whether the RRT failed to provide the appellant with an adequate opportunity to comment on specific information that was pertinent to the decision-making process. The appellant argued that the RRT did not give him a chance to address the authenticity of a photocopy identity card, which the RRT found to be inauthentic. This was critical as the card was central to the appellant's claim of being an Iraqi citizen rather than an Iranian one. The court was required to determine whether the RRT's failure to provide this information in a manner that allowed for proper submissions and understanding constituted a breach of the statutory obligations under the Migration Act 1958.
The court examined the statutory provisions of section 424A of the Migration Act, which outlines the obligations of the RRT to provide information to applicants and ensure they understand its relevance. The appellant's argument centred on the assertion that the RRT did not fulfill its duty to invite him to comment on the inauthenticity of the identity card, thereby denying him a fair opportunity to respond. The court assessed whether the RRT's actions fell within the exceptions specified in the statute, particularly focusing on whether the information was disclosable and relevant to the review process. Ultimately, the court concluded that the RRT's approach did not contravene the statutory requirements, as the appellant had already been given the opportunity to address the discrepancies in his account and the tribunal had not overlooked any critical information.
Based on the court's reasoning, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. The court found that the RRT had adequately provided information and opportunities for the appellant to respond, and there was no procedural error that warranted overturning the RRT's decision.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
Background
Background to the litigation
The legislation relevant to this appeal is the Migration Act 1958 (Cth) (“the Act”) in the form which it took prior to the amendments effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). Consequently, the appeal does not raise for consideration the “privative clause” provisions introduced with effect from 2 October 2001.Factual Background The appellant entered Australia on 2 November 2000. In his initial interview, on 14 November 2000, he claimed to be an Iranian citizen born in the region of Khuzestan. He gave details of his education, work and military service in Iran and said that he spoke only Persian. He also said that his parents and eight siblings continued to reside in Iran. He claimed that he left Iran because his life was in danger. The reason was that several years earlier a person who had problems with the Iranian government had left a bag with him. After escaping to Iraq that person had returned to collect the bag. Some days later the appellant’s house was raided by members of the security forces and he was interrogated. Three days later, when one of his relatives left the home after a visit, carrying a similar bag, the appellant was shot at. In June 2001, approximately seven months after providing that information, the appellant lodged his application for a protection visa, accompanied by a statutory declaration. He now stated that he was a citizen of Iraq and a Shi’ite Muslim. He claimed to have been forced to leave Iraq in 1980, when around three or four years old. He said that his father had told him that the family had been forced to leave Iraq because they were Shi’ite Muslims, with no ancestors in Iraq, and that they had to return to Iran. However, he claimed that Iran did not recognise them as citizens. The appellant further claimed that all the members of his family, including himself, had been issued with green cards. He described the characteristics and use of those cards in detail. He claimed that the green card served the purpose of an identity card, and did not allow him to travel or live outside the designated area of Khuzestan. He also stated that, as an Iraqi, he had no rights in Iran and could not live a normal life. He was constantly in fear of being deported to Iraq. Whenever he had any contact with Iranian government authorities, or the national police, he was told to leave Iran and go back to Iraq. Additionally, the appellant acknowledged, at that stage, that the account which he had given in his initial interview about looking after a bag for a friend had been untrue.The decision of the RRT On 10 August 2001, the appellant attended a hearing of the RRT at which he gave evidence, and answered questions. He stated, in that hearing, that his reason for leaving Iran was that he was continually being given ultimatums to leave that country. He denied having any fears of harm apart from those arising from being an Iraqi living in Iran. Following the hearing, the RRT caused a letter to be sent to the appellant putting two matters to him that would constitute reasons for deciding that he was not entitled to a protection visa. These related to the differences between the account which he gave when first interviewed and the account which he gave some seven months later.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Additionally, the appellant acknowledged, at that stage, that the account which he had given in his initial interview about looking after a bag for a friend had been untrue.The decision of the RRT On 10 August 2001, the appellant attended a hearing of the RRT at which he gave evidence, and answered questions. He stated, in that hearing, that his reason for leaving Iran was that he was continually being given ultimatums to leave that country. He denied having any fears of harm apart from those arising from being an Iraqi living in Iran. Following the hearing, the RRT caused a letter to be sent to the appellant putting two matters to him that would constitute reasons for deciding that he was not entitled to a protection visa. These related to the differences between the account which he gave when first interviewed and the account which he gave some seven months later. In response, the solicitors for the appellant wrote to the RRT explaining that the initial interview had been extremely stressful, and that he had been frightened that if he revealed his real place of birth, and his background, he would be sent back to Iran. That was why he had lied about having been born in Iran. It was also why he had made up the story regarding the bag having been the main reason for his having left Iran, although he now claimed there had been an incident of some sort involving a bag. In support of his claim that he was an Iraqi citizen, the solicitors attached additional information, being translations of the green cards of the appellant and his father. The RRT made the following findings:· the appellant was a national of Iran, and not of Iraq; ·the photocopy identity card purporting to be a green card recording his birth in Iraq was not genuine;·his claim that he had received a warning that upon his return to Iran he would be deported to Iraq because of his possession of the bag was false.The Primary Judge’s Reasoning The appellant’s principal contention before his Honour was that the RRT had failed to afford him an opportunity to make submissions, and to be heard, regarding its finding that the photocopy identity card was not genuine. The obligation of the RRT to give information to an applicant is dealt with in s 424A of the Act. That section relevantly provides:“ (1) Subject to subsection (3), the Tribunal must: (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) …(3)This section does not apply to information:(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b)that the applicant gave for the purpose of the application; or(c)that is non-disclosable information.”