WAGN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 858

FEDERAL COURT OF AUSTRALIA

WAGN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 858 Migration Act 1958 (Cth) s 474 Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241 cited Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24 cited WAGN V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W237 of 2002 RD NICHOLSON J 19 AUGUST 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W237 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: WAGN

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 19 AUGUST 2003

WHERE MADE: 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 W237 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: WAGN

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 19 AUGUST 2003

PLACE: PERTH

REASONS FOR JUDGMENT 1 This matter arises by way of appeal from the judgment of Federal Magistrate Phipps on 12 July 2002. That judgment dismissed an application for review made by the appellant in relation to a decision of the Refugee Review Tribunal ('the Tribunal') made on 16 April 2002. In that decision the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection (class XA) visa to the appellant. 2 The appellant arrived in Australia on 1 August 2001. He claimed to be a citizen of Afghanistan. On 22 September 2001 he applied for a protection visa. On 12 December 2001 the delegate of the respondent refused the application. The delegate accepted that the appellant is an ethnic Hazara of the Shi'a faith and that his family may originate from Afghanistan. However, in reliance upon a language analysis and assessment of other aspects of his claims, the delegate found the appellant had not lived recently in Afghanistan and has spent the major of his life in Pakistan. Additionally, the delegate made no finding as to whether the appellant was the person he claimed to be in the absence of consideration of further valid documentary evidence of his identity. 3 The appellant sought review of the decision of the delegate by application dated 14 December 2001. On 8 March 2002 the Tribunal drew attention to changed circumstances in Afghanistan and the probable effect of that change on the application. On 19 March 2002 the appellant's advisors lodged written submissions addressing the change of circumstances together with a hand written statement on behalf of the appellant. A hearing was held before the Tribunal on 20 March 2002. On 16 April 2002 the Tribunal affirmed the decision of the delegate not to grant a protection visa to the appellant. Unlike the delegate, the Tribunal was satisfied that the appellant is a Hazara and Shi'a from Afghanistan. In doing so it preferred an alternative linguistic analysis. The ratio of its decision was the fundamental change in circumstances resulting from recent events in Afghanistan. 4 On 24 April 2002 the appellant sought review of the decision of the Tribunal. That application was transferred to the Federal Magistrates Court and resulted in the decision of the Federal Magistrate on 12 July 2002. 5 In his reasons his Honour stated that the appellant's basic claim was that the overthrow of the Taliban regime in Afghanistan by the Northern Alliance assisted by a foreign alliance had not changed the situation in Afghanistan. His claim was that most of the Taliban remained in Afghanistan, that the Taliban are Pashtoon, that power resided with the Pashtoon and that the Pashtoon hate Hazaras. The argument was that the security situation in Afghanistan was so tenuous and uncertain that persecution of particular people could not be prevented by the interim authorities. As the Federal Magistrate stated, the resolution of this question of fact was for the Tribunal. The finding of fact which the Tribunal had made was that: 'In short, the recent changes in Afghanistan constitute, for a person such as the applicant, such a fundamental change in circumstances that the tribunal is satisfied that he does not have a well founded fear of persecution for a convention reason if he were to return to Afghanistan. The tribunal does not accept that there is a real chance that the applicant would be persecuted now or in the reasonably foreseeable future by the Taliban or by the Pashtoon generally or by any other group whether by reason of his ethnicity or religion or any other convention reason.' He said that the fact that different findings had been made in relation to other Hazara people was not a basis for attacking the decision of the Tribunal. 6 His Honour also referred to the fact that the Tribunal had considered the appellant's further contention that if he returned a Pashtoon neighbour who had stabbed him would kill him or else other Pashtoon would accuse him of propagandising against the administration and kill him. Again the Tribunal had considered the evidence and found neither claim to be correct. As these were questions of fact within the province of the Tribunal, his Honour dismissed the application for review. 7 The notice of appeal was drafted by the appellant and generally expresses dissatisfaction with the decision of the Federal Magistrate without spelling out any particularised grounds in law. 8 In oral argument on the hearing of the appeal the appellant referred to a number of issues directed to his assertions that those who had examined his case had no idea about the circumstances in Afghanistan or about the circumstances pertaining to his stabbing incident. These are all issues of fact and the appellant sought to have this Court on appeal engage again in merits review. That is a function restricted to the Tribunal alone. 9 In the course of his oral presentation the appellant claimed he had requested to be removed to Afghanistan some six months ago and, despite that request, he was still being held in detention. The respondent undertook to make inquiries concerning this assertion. The result of the respondent's inquiries were that it was ascertained that the following is the position: (a) on 31 July 2002, the appellant applied for an Afghan passport; (b) on 16 January 2003, the appellant advised the Department of Immigration & Multicultural & Indigenous Affairs that he wanted to voluntarily return to Afghanistan; (c) between the period 16 January 2003 and 28 March 2003, the appellant was requested to provide further identification information either to the Embassy of Afghanistan in Canberra or direct to the Afghan Ministry of Interior in Kabul in order to enable travel documents to be issued. The appellant did not provide assistance in this regard; (d) on 17 January 2003, the appellant was offered the Afghan Reintegration package ('the Offer'); (e) on 14 February 2003, the appellant accepted the Offer; (f) on 28 March 2003, the appellant withdrew his request for voluntary removal; and (g) on 9 April 2003, the appellant withdrew his acceptance of the Offer. Given that the appellant has withdrawn both his request for voluntary removal and his acceptance of the Offer, the position is that the appellant cannot be removed while the current proceedings are on foot. He is, therefore, not in the position disclosed in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241 in that his appeal is yet to be determined and there is not a positive request by him to be removed from Australia. The facts so asserted are not contradicted by or on behalf of the appellant. 10 The decision of the Tribunal is a privative clause decision protected by s 474 of the Migration Act 1958 (Cth) unless the Tribunal is shown to have been in jurisdictional error: Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24. None of the matters raised by the appellant before the Federal Magistrate or on the hearing of the appeal support any conclusion that the Tribunal was in jurisdictional error. It follows that the Federal Magistrate was therefore not in error of law in dismissing the application for review. 11 For these reasons the appeal should be dismissed.