FEDERAL COURT OF AUSTRALIA

W401 v Minister for Immigration & Multicultural Affairs [2002] FCA 48

MIGRATION - review of decision of Refugee Review Tribunal - ground of review made out - discretion to award relief - applicant's claims based on fear of persecution by Taliban - destruction of Taliban regime - whether matter should be remitted to Tribunal - submissions by both applicant and respondent that remitter appropriate - matter remitted to Tribunal for reconsideration according to law

W401 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W401 OF 2001

FRENCH J

1 FEBRUARY 2002

PERTH

THE COURT ORDERS THAT:

1.         The decision of the Tribunal be set aside and the matter remitted to the Tribunal to be reconsidered according to law.

2.         The respondent is to pay the applicant's costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT ON FINAL ORDERS

1                     On 6 December 2001, I published reasons for judgment in relation to the application of the above applicant.  The applicant is a national of Afghanistan of Tajik ethnicity and a Sunni Muslim.  He sought review of a decision of the Refugee Review Tribunal ("the Tribunal"), which affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs refusing to grant him a protection visa.  I found that the Tribunal had committed a reviewable error of law in relation to its real chance assessment on the applicant's claim to be a refugee sur place.

2                     The applicant's claim for a protection visa was based upon fear of persecution by the Taliban regime if returned to Afghanistan.  At the time of delivering judgment on 6 December 2001 it was notorious that the Taliban had effectively been destroyed as a force in Afghanistan by military action on the part of the United States.  I entertained submissions on the question of the usefulness of setting aside the Tribunal's decision and remitting it for reconsideration.  In the event both the applicant and the respondent submitted that the matter ought to go back to the Tribunal.  The respondent observed that although the Taliban have been destroyed as an effective force in Afghanistan, the situation is far from settled.  It is possible that the applicant may still fear persecution by reason of his Tajik ethnicity and wish to make further claims to the Tribunal.  Accordingly it was said by the respondent in support of the applicant's position, that the Court ought not to exercise the discretion to refuse relief.

3                     I accept the position put to me in both the applicant's and the respondent's submissions in this respect and accept that the final factual resolution is a matter for the Tribunal.  I made orders giving effect to that view on 14 January 2002 and indicated that I would publish these short reasons subsequently.

Associate:

Dated:              1 February 2002

Date of Publication of Reasons:   1 February 2002