WAEF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1121

FEDERAL COURT OF AUSTRALIA

WAEF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1121

MIGRATION – protection visa – judicial review – alleged breaches of procedural fairness – reliance upon linguistic analyses – apparent bias – jurisdictional error in assessment of credibility – grounds not made out – grounds precluded by operation of privative clause.

Migration Act 1958 (Cth) s 474

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 applied

SBBK v Minister for Immigration &Multicultural & Indigenous Affairs [2002] FCA 265 cited

APPLICANT WAEF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W27 OF 2002

FRENCH J

10 SEPTEMBER 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W27 OF 2002

BETWEEN: WAEF

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 10 SEPTEMBER 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application.

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 W27 OF 2002

BETWEEN: WAEF

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 10 SEPTEMBER 2002

PLACE: PERTH

REASONS FOR JUDGMENT

Introduction 1 The applicant arrived in Australia by boat from Indonesia without lawful authority in March 2001. According to the record of an interview with an officer of the Department of Immigration and Multicultural and Indigenous Affairs shortly after his arrival, he claimed to be 16 years of age and to be a citizen of Afghanistan. He said he was of Hazara ethnicity and a Shi'a Muslim. His father and mother and his five siblings were all said to be living in Afghanistan. At his initial interview, he claimed to have left Afghanistan because of the war. If he remained he would be required to grow a beard and to pray, as required by the Taliban, with his hands crossed on his chest. His father had told him his life was in danger. The claims as recorded were fairly unspecific and incoherent. 2 On 31 July 2001, the applicant applied for a protection visa. That application was refused on 15 October 2001. On 18 October 2001, he applied to the Refugee Review Tribunal ("the Tribunal") for review of the decision refusing the grant of the visa. On 24 December 2001, the Tribunal affirmed the decision not to grant a visa. 3 On 17 January 2002, the applicant lodged two applications for review of the decision. The first was little more than a blank pro forma application with virtually no content apart from the name of the applicant. In the event, that was dismissed without any contest on 22 May 2002. The other application which did proceed was entitled "Application for an Order for Review of a Decision of the Refugee Review Tribunal". It disclosed no grounds for review. It contained a statement that the applicant was not satisfied with the Tribunal decision. The application came on for hearing on 2 May 2002 and was adjourned part-heard to 22 May 2002. Judgment was then reserved to 25 June 2002 with liberty to make further submissions in relation to a linguistic analysis relied upon by the Tribunal, a transcript of proceedings before the Tribunal and the pending Full Court decision on the operation of s 474 of the Migration Act 1958 (Cth) which seeks to restrict judicial review. In the event judgment was deferred until today, the decision of the Full Court in relation to s 474 not being handed down until 15 August 2002. No further submissions have been received in respect of that decision. However supplementary submissions were lodged on 15 July 2002 by the respondent in relation to the Tribunal's use of a linguistic analysis and an allegation of bias based on comments said to have been made by the Tribunal member during the hearing.