WACF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1385

FEDERAL COURT OF AUSTRALIA

WACF v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1385

WACF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W190 of 2003 CARR J 28 NOVEMBER 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W190 OF 2003

BETWEEN: WACF

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CARR J

DATE OF ORDER: 28 NOVEMBER 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. Leave is granted to the applicant WACF to file and serve within 14 days a notice of appeal from the judgment of the Federal Magistrate's Court, given on 29 May 2002, dismissing his application to review a decision of the Refugee Review Tribunal. 2. Costs of the application to extend time to appeal be costs in 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 W190 OF 2003

BETWEEN: WACF

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CARR J

DATE: 28 NOVEMBER 2003

PLACE: PERTH

REASONS FOR JUDGMENT

INTRODUCTION 1 This is an application for an extension of time in which to file and serve a notice of appeal from a judgment of a Federal Magistrate given on 29 May 2002. The learned Magistrate dismissed the applicant's application for review of a decision by the Refugee Review Tribunal delivered on 16 November 2001. The Tribunal affirmed the decision of a delegate of the respondent to refuse to grant to the applicant a protection visa.

factual and procedural background 2 The applicant arrived in Australia on 5 July 2001. On 6 July 2001 he applied for a protection visa. 3 The applicant's claims were as follows. He was a citizen of Afghanistan, having been born in Ghazni, and was then aged about 20 years. He was of Hazara ethnicity. He worked as a servant in a mosque, had not gone to school and could not read or write. The Taliban had come to his village about three years before his arrival in Australia and had taken his uncle who never came back. The Taliban would not let people pray the Shi'a way. One day his father had told him he would be sent to a foreign country. He left with smugglers who took him to Pakistan, then to another country, said to be Indonesia, before coming to Australia. He feared that he would be taken by the Taliban, put in gaol and forced to work or be killed, if he were returned to Afghanistan, because he was a Hazara. 4 An interview of the applicant on 12 July 2001 was tape-recorded. In a letter dated 31 August 2001 from the respondent's Department to the applicant and his advisers, they were informed of a linguistic analysis of the taped interview and the findings of that analysis. Those findings included a comment that the applicant seemed to pretend illiteracy, that while his language background was Afghanistan, his pronunciation of some words indicated that he had lived a long time in other countries, most likely Pakistan, and that he was probably literate. 5 The applicant was later informed that responses to questions at the interview raised doubts about his claim to be a national of Afghanistan. He was invited to comment. Both his advisers and the applicant commented in response to those matters before the respondent's delegate made his decision. 6 The applicant was invited to attend the hearing before the Tribunal. He did so. His advisers also provided written submissions. Those submissions included submissions relating to questions about the applicant's lack of documentation, the issue of the language analysis, the applicant's literacy, findings made by the delegate on the applicant's credibility and the risk of persecution faced by him as an Hazara person and Shi'a Muslim in Afghanistan.