WAAB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 357 (12 November 2002)

Last Updated: 15 November 2002

FEDERAL COURT OF AUSTRALIA

WAAB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 357

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) Pt 8 ss 36(2), 474

APPELLANT WAAB OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W210 of 2002

WILCOX, RD NICHOLSON and DOWNES JJ

12 NOVEMBER 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W210 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WAAB OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX, RD NICHOLSON and DOWNES JJ
DATE OF ORDER:	12 NOVEMBER 2002
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	W210 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WAAB OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX, RD NICHOLSON and DOWNES JJ
DATE:	12 NOVEMBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1 This appeal is from the judgment of French J given on 19 June 2002 in which he dismissed the appellant's application for judicial review of an adverse decision of the Refugee Review Tribunal ("the Tribunal") made on 28 September 2001. The Tribunal affirmed the decision of a delegate of the respondent not to grant to the appellant a protection visa on the ground that he did not satisfy the criteria set out in s 36(2) of the Migration Act 1958 (Cth) ("the Act").

2 The appellant claimed to be fleeing from Afghanistan. He claimed to fear persecution both on the ground of his Shi'a religion and his Hazara ethnicity. He feared such persecution from the Taliban. Three matters were relied upon by the Tribunal in reaching its conclusion adverse to the appellant. The first was that the language analysis was said to indicate he was not from Afghanistan. Secondly, there was evidence of what was said to be his lack of appropriate cultural knowledge in relation to Afghanistan and, thirdly, there was evidence which raised doubts as to whether he had recently lived in Afghanistan. The essence of the Tribunal's reasoning in relation to these factors was summarised in the following passage in its reasons, which appear on page 9 of those reasons:

"The onus on the applicant is not to prove his credibility beyond reasonable doubt. Rather, the Tribunal has to be satisfied, and where doubt exists, to give the applicant the benefit of the doubt. The Tribunal notes too that the applicant claimed that his life experiences were limited in Afghanistan. On balance, after considering all the evidence with a critical eye, the factors which raise a serious doubt in the Tribunal's mind as to whether or not the applicant comes from Afghanistan, rather than Pakistan, are as follows: The language report; the applicant's inconsistencies, including as to how his house was heated, and the applicant's relative lack of knowledge in the Departmental interview of factors such as the drought in this claimed home area of Afghanistan. Having considered the whole of the evidence, including these factors, the Tribunal considers that the applicant has fabricated his claim to have lived in Afghanistan. After considering all the evidence, the Tribunal is not satisfied that the applicant is a credible witness, nor that he is a national of Afghanistan. The Tribunal notes that the applicant has not made Convention related claims against any other country.

After considering all the evidence, the Tribunal is not satisfied that the applicant is a person in need of protection under the Convention."

The application for the visa was lodged by the appellant on 7 April 2001. It was in consequence heard and determined pursuant to the provisions of the Act as they stood at that time and necessarily prior to their amendment with effect from 2 October 2001. The application for review was filed on 2 October 2001, the day on which the amended provisions of Pt 8 of the Act, including the privative clause provisions in s 474, came into operation. The notice of appeal does not itself disclose any grounds of review which might be permissible under the provisions of Pt 8, as effective from 2 October 2001 or indeed under the former Pt 8. In the notice of appeal before this Court the appellant expressed his dissatisfaction with the decision of the primary judge and he sought to have a fair decision substituted but nothing further was stated.

3 Before the primary judge (French J) the appellant similarly did not rely on an application which itself disclosed any grounds, nor did he identify to that court any such permissible grounds of review. The primary judge reviewed the Tribunal's reasons at some length. He did so because he was concerned by the language used in different parts of the reasons in expressing the nature of the Tribunal's conclusions about the appellant's claims and specifically whether the Tribunal had relied upon reasoning of the delegate of the respondent. Having carried out his review the primary judge concluded that notwithstanding his concerns and some infelicities in the language of the Tribunal, it had not had regard to the delegate's own conclusions but rather had relied on the apparent inconsistencies between what the appellant said to the delegate and the detail which the appellant subsequently provided to the Tribunal. The primary judge considered that no ground of review was exposed which would support the relief sought under Pt 8 as it stood prior to 2 October 2001 or pursuant to s 39B of the Judiciary Act (1903) (Cth), on whatever view may then have been taken of the scope and limits imposed by the new s 474 of the Act on and after 2 October 2001. The primary judge therefore dismissed the application.

4 Before us, the appellant raised two principal matters orally. The first concerned the particulars referred to in the reasons of the Tribunal in relation to his family. The appellant said, firstly, that his father's name was not that which was put to him in questions at the initial interview and consequently he considered there had been a mix up in the forms between the persons who had been interviewing him. He also referred to the description of his siblings in the record of such interview, which was not that according with the facts in relation to his family. The correct position is that the appellant said he has a mother, three brothers and one sister. That is precisely the position as recorded in the reasons of the Tribunal. It is apparent then that the matters to which the appellant referred in these respects concerning his family played no part in the reasoning of the Tribunal.

5 Secondly, the appellant said his contention that there had been a mix-up in the forms being dealt with in relation to his claim was further borne out by the fact that he would not have used the word "chodha". That was a reference to matters recorded in the linguistic analysis. It was there stated that "chodha saal" translated as "14 years". He claimed he had made no reference to 14 years in the course of his interview with the delegate so that he must be suffering the blame, as it were, for what other persons had said.

6 The records in the appeal book before us and the appellant's unsworn statement to us make clear, however, that the audiotape on which the linguistic analysis was based was forwarded to the representatives of the appellant and to the appellant. He had received and listened to it and confirms it was his voice on the tape. At best, if any mistake was made in the translation from the tape, an error of fact may have been disclosed but that would not be supportive of the review which the appellant sought of the Tribunal reasons because it is not a ground of review open either to the primary judge or this Court on the law as established by the Parliament of Australia.

7 Therefore, the position is that we also do not consider the reasoning of the Tribunal - considered in the light of the matters raised orally by the appellant as well as the requirements of the law - exposes any ground of permissible review. Accordingly, we are of the same mind as the primary judge and we do not consider the primary judge was in error of law.

8 Our conclusion therefore is that, in accordance with the law, the appeal must be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, RD Nicholson and Downes.

Associate:

Dated: 15 November 2002

The Appellant represented himself
Counsel for the Respondent:	M/s LB Price
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 November 2002
Date of Judgment:	12 November 2002