Waim v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAIM v MINISTER FOR IMMIGRATION [2004] FMCA 33

MIGRATION – Protection visa – time limits for filing application – whether jurisdictional error.

Migration Act 1958 (Cth), ss.36, 441A, 441C, 474(1), 474(2),477, 477(1), 477(2), 478, 486A

S157/2002 v Commonwealth of Australia [2003] 211 CLR 476; 195 ALR 24

Caritativo v MIMIA (2001) FCA 1873
Hong v MIMIA (1998) 153 ALR 327
Kucuk v MIMA (2001) FCA 535
Abidin v Minister for Immigration & Multicultural Affairs (2002) FCA 236
WAFE of 2002 v MIMA (2002) FCAFC 254
W281 v Minister for Immigration & Multicultural Affairs (2002) FCA 419
Salehi v MIMA (2001) FCA 995

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Nand v Minister for Immigration & Multicultural Affairs (2002) FCA 1521
Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

SAAD v Minister for Immigration and Multicultural Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003)
FCA 499
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129

Applicant: WAIM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: WZ256 of 2002

Delivered on: 5 February 2004

Delivered at: Perth

Hearing Date: 28 April 2003

Judgment of: McInnis FM

REPRESENTATION

Applicant: In person by video link (assisted by an interpreter)

Counsel for the Respondent: Mr J Allanson

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Application filed 21 August 2002 be dismissed.

2. The Applicant shall pay the Respondent’s costs fixed in the sum of $10,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 256 of 2002

WAIM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The Applicant seeks review of a decision by the Refugee Review Tribunal (the RRT) made on 22 July 2002 where it affirmed a decision not to grant the Applicant a protection visa.

2. The Applicant had arrived in Australia on 7 March 2001.  He sought a protection (class XA) visa on the basis of a claimed well-founded fear of persecution in Afghanistan.  His claim for a visa dated 7 April 2001 was supported by a statement of same date whereby the Applicant claimed:

   (a)he is Shi’a Muslim and ethnically a Hazara.  He came from the Ghanzi province in Afghanistan;

   (b)he left Afghanistan because of the persecution of the Hazara by the Taliban, including the sending of young Hazara to the front line to fight against Masood (the Northern Alliance), and to clear land mines;

   (c)the Taliban had wanted to take him, but his father had paid a bribe to have him released – he then fled Afghanistan.

3. A further statement made by the Applicant on 18 February 2002 addressed issues which had arisen in the context of the fall of the Taliban.  The Applicant claimed that:-

   (a)Hazara people had been persecuted…