WACR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 415 (15 November 2002)

Last Updated: 24 December 2002

FEDERAL COURT OF AUSTRALIA

WACR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 415

APPLICANT WACR OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W112 0F 2002

WILCOX, RD NICHOLSON AND DOWNES JJ

15 NOVEMBER 2002

PERT

HIN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W112 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WACR OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX, RD NICHOLSON AND DOWNES JJ
DATE OF ORDER:	15 NOVEMBER 2002
WHERE MADE:	PERTH

CORRIGENDUM

1. On the Cover Page of the Judgment of the Honourable Justices Wilcox, RD Nicholson and Downes delivered 15 November 2002, delete the file number "W137" and insert the file number "W112".

2. On the Orders Page of the Judgment of the Honourable Justices Wilcox, RD Nicholson and Downes delivered 15 November 2002, delete the file number "W137" and insert the file number "W112".

3. On the first page of the Reasons for Judgment of the Honourable Justices Wilcox, RD Nicholson and Downes delivered 15 November 2002, delete the file number "W137" and insert the file number "W112".

Associate

24 December 2002

FEDERAL COURT OF AUSTRALIA

WACR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 415

MIGRATION - appeal dismissed - application for judicial review dismissed - refugee - Refugee Review Tribunal - Migration Act 1958 (Cth) s 474 - privative clause - findings of fact challenged - no grounds for review - language analysis - explanation of inconsistencies in evidence

Migration Act 1958 (Cth) s 474

APPLICANT WACR OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W137 0F 2002

WILCOX, RD NICHOLSON AND DOWNES JJ

15 NOVEMBER 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W137 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WACR OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX, RD NICHOLSON AND DOWNES JJ
DATE OF ORDER:	15 NOVEMBER 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

Appeal dismissed with costs.

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	W137 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WACR OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX, RD NICHOLSON AND DOWNES JJ
DATE:	15 NOVEMBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1 The appellant claims to be a Hazara from Afghanistan who is a Shia Muslim. He says he comes from a village called Sangsolakh. He arrived in Australia on 25 March 2001 without prior permission. He applied for a protection visa. His application was refused. The Refugee Review Tribunal affirmed that decision on 12 November 2001. The appellant applied to this court for review of that decision on 6 December 2001. The application came before French J and was dismissed. From that decision the appellant has appealed to the Full Court.

2 The Tribunal did not uphold the decision to refuse a protection visa by reference to the situation of Afghani Hazaras. The Tribunal accepted that Afghani Hazaras were at risk of persecution in Taliban controlled areas. The Tribunal upheld the decision on the basis that although the appellant was both Hazara and Shiite, he was not from Afghanistan. It found that he was probably from Pakistan and, more particularly, from the Quetta region where no well-founded fear of persecution could exist.

3 The Tribunal based its conclusion on inconsistencies and inadequacies in the applicant's evidence about his alleged circumstances in Afghanistan and in his accounts of his alleged journey out of Afghanistan. The Tribunal also placed weight on a language analysis report which concluded "with considerable certainty" that he originated from the Quetta region.

4 In his oral submissions to the court this morning, the appellant has challenged these findings. He has attempted to explain the alleged inconsistencies. These related to the findings of the Tribunal, among other things, relating to his evidence as to the distance of his village from water and to the direction his house faced. The appellant also sought to explain an inconsistency which the tribunal had found in his evidence relating to the method by which he was paid for his work. The appellant also sought to explain the findings relating to language analysis, telling us that his accent does not show that he is Pakistani. However, all these matters relate to findings of fact made by the tribunal and nothing more.

5 The Parliament of the Commonwealth of Australia determines what jurisdiction this court has in connection with appeals relating to decisions made under the Migration Act 1958 (Cth). This appeal is governed by the "privative clause" in s 474 of the Act. Pursuant to that legislative provision the grounds of review available to this court are very narrow. We cannot reconsider findings of fact or reverse findings of fact made by the tribunal. The material put before us merely raises issues of fact. Not only are such matters not now capable of being raised before us, in the face of the privative clause, but they have never been capable of being raised on judicial review.

6 In addition to the matters raised by the appellant before us this morning, the notice of appeal filled out by him contains two further points. The notice of appeal seeks to explain the inconsistencies in the appellant's accounts by reference to his addiction to hashish and the effects of his being deprived of it. It seeks to explain the language analysis by reference to the free movement of Hazaras between Afghanistan, Pakistan and Iran. Neither of these matters could found an appeal.

7 The matters which the appellant has raised before us relating to the findings of fact of the tribunal may well be matters of significance and of substance. However, pursuant to the legislation governing appeals to this court, we cannot examine them. No valid ground of appeal has been raised before us and we have not in our own examination of the papers discerned any potential ground of appeal. Accordingly, the appeal must be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, RD Nicholson and Downes.

Associate:

Dated: 10 December 2002

The appellant appeared in person
Counsel for the Respondent	Mr J D Allanson
Solicitors for the Respondent	Blake Dawson Waldron
Date of Hearing:	15 November 2002
Date of Judgment:	15 November 2002