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MIGRATION - Appeal from a decision of the Refugee Review Tribunal - applicant claiming fear of persecution based on political activities - jurisdictional error - whether Tribunal made jurisdictional error in not accepting the applicant's explanations - privative clause - decision of Refugee Review Tribunal confirmed.

WAAM v Minister for Immigration [2002] FMCA 151 (24 July 2002)

WAAM v Minister for Immigration [2002] FMCA 151 (24 July 2002)
Last Updated: 26 July 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAAM v MINISTER FOR IMMIGRATION
[2002] FMCA 151



MIGRATION - Appeal from a decision of the Refugee Review Tribunal - applicant claiming fear of persecution based on political activities - jurisdictional error - whether Tribunal made jurisdictional error in not accepting the applicant's explanations - privative clause - decision of Refugee Review Tribunal confirmed.



Migration Act 1958 (Cth) s.474

Judiciary Act 1903 (Cth) s.39B

Migration Legislation Amendment (Judicial Review) Act 2001

Federal Magistrates Court Rules 2001

Randhawa v MILGEA (1994) 124 ALR 265

Velathaur Selvadurai v MIEA (1994) VG 114

R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598

SAAD v MIMIA (2002) FCA 206

SBAE v MIMIA (2002) FCA 479

VAAC and MIMA (2002) FCA 573

NABL and MIMA (2002) FCA 102

Turcan and MIMIA (2002) FCA 397

Craig v South Australia (1995) 184 CLR 163

Applicant:
WAAM



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ99 of 2002



Delivered on:


24 July 2002



Delivered at:


Melbourne



Hearing Date:


8 July 2002



Judgment of:


Hartnett FM



REPRESENTATION

Counsel for the Applicant:


Ms Susan Richardson



Solicitors for the Applicant:


Applicant in person

C/- Curtin RIPC

PO Box 96

DERBY WA 6728



Counsel for the Respondent:


Mr Ari Jenshel



Solicitors for the Respondent:


Australian Government Solicitor

Level 19, Exchange Plaza

2 The Esplanade

PERTH WA 6000




ORDERS

(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs pursuant to the Federal Magistrates Court Rules, Part 21, rule 21.10.

IT IS CERTIFIED:

(3) That pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


WZ99 of 2002

WAAM


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. Pursuant to O.82, rule 7 of the Federal Court Rules and by order of Nicholson J made on 15 May 2002, these proceedings were transferred from the Federal Court of Australia, Western Australia District Registry, to the Federal Magistrates Court of Australia and proceeded before me for hearing by way of videolink between the Court in Melbourne, Counsel in Perth, and the applicant who attended a video conference centre in Derby. The applicant was assisted by an interpreter who was physically present in Perth.

2. The applicant was born on 20 December 1973 and is a citizen of Iran. He arrived in Australia by boat on 20 December 2000. On 16/3/2001 he made application for a protection visa (class XA) under the Migration Act 1958. The application was lodged on 4 June 2001. On 29 June 2001 a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant a protection visa and the applicant subsequently applied for a review of that decision by the Refugee Review Tribunal ("the RRT"). On 19 September 2001 the RRT affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant. The applicant filed an application for review of the Tribunal's decision with the Federal Court of Australia, Western Australia District Registry on 5 October 2001. That application was amended and is dated 4 July 2002. The applicant relied upon the amended application. The relief sought by the applicant includes an order that this Court make a declaration that the decision of the RRT is invalid and of no effect.

3. The grounds stated in the application are:

a) The RRT exceeded its jurisdiction and/or constructively failed to exercise its jurisdiction because in reaching its decision the Tribunal took account of irrelevant considerations;

b) The RRT exceeded its jurisdiction and/or constructively failed to exercise its jurisdiction because there was no evidence or other material to justify its decision;

c) In the alternative, and in the event that ss.474, 475A and part 8A of the Migration Act 1958 (Cth) were found to be unconstitutional and part 8A of the Act in unamended form is preserved, then:

i) the RRT did not have jurisdiction to make the decision;

ii) the decision was not authorised by the Migration Act 1958 (Cth) or the regulations; or

iii) the decision involved an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the RRT.

4. The applicant also relied upon an outline of submissions dated 5 July 2002. The respondent filed the Court Book on 29 October 2001 and relies upon submissions filed 5 July 2002.

Background

5. The applicant is a 28-year-old single man who was living in Ahwaz in Iran. His family continue to reside in Iran. He departed Iran on

7 November 2000 in an aircraft and on a passport issued in his own name. He travelled from Iran to Australia via Malaysia and Indonesia. The applicant claimed he was raised in a family who were not in favour of the Islamic Republic regime. He claimed that in 1984 the applicant's uncle, who was a political activist against the Islamic Republic, was arrested and some months later found dead - that the family were not allowed to have a funeral for him, nor show any grief for the loss of him.

6. The applicant studied Management at the Azad University between 1992 and 1997. He claimed that during his time at university he was warned by the Islamic Council of the university not to talk about his opposition to the Islamic regime in Iran and that he was required to sign an undertaking not to engage in activities in opposition to the Islamic regime.

7. After graduating from the university in 1997 with a Bachelor Degree in Management, the applicant completed two years of compulsory military service in Mahabad, a city in the Azarbijan. As part of his military activities, during the city's elections, the applicant claimed as follows:

* That he was instructed to supervise an election box and to persuade soldiers to vote for a particular candidate on the promise of extra leave. When the election box was given to the applicant before the commencement of voting, it already contained a substantial number of votes. The applicant complained about these voting practices. As a consequence, the applicant was interrogated by the Etalaat on several occasions and subsequently was required to:

(1) sign an undertaking not to engage in such activity again;

(2) undertake an extra 30 days of military service; and

(3) forego any leave during the remainder of his military service.

8. On leaving the army in September 1999, the applicant obtained a job in marketing. He claimed to have formed a group with three other like-minded friends with the aim of disclosing and commenting on the "wrongdoings" of the Islamic regime in pamphlets printed and distributed by the group. Over a period of about twelve months he claimed the group published about six pamphlets.

9. On 3 November 2000, the applicant claimed one of the members of the group was arrested and material in connection with the group's activities was seized by the authorities. The applicant, in fear for his own safety, immediately made plans to leave Iran and did so on 7 November 2000 using his own passport. Although unsure whether his name had yet been placed on the authorities' blacklist, a bribe was paid by the applicant's uncle to help ensure his departure from Iran.

10. Shortly after the departure from Iran, the applicant claimed the Iranian authorities raided the applicant's family home looking for him. The applicant's father was taken into detention for about five days.

11. The applicant told firstly, the Delegate and then the RRT that he had a well-founded fear of persecution by reason of his political opinions arising out of his involvement in the printing and distribution of anti-regime literature in Iran.

12. The Delegate referred to a liberal approach to be generally adopted when considering the credibility of refugee claims. Nevertheless, the Delegate referred to the observation of Beaumont J in Randhawa v MILGEA (1994) 124 ALR 265 that a liberal attitude concerning proof of persecution in the context of an application for refugee status "should not ... lead to an incritical acceptance of any and all allegations made by suppliants." (6:16). Furthermore, the Delegate is not required to have rebutting evidence before he can lawfully hold that a particular factual assertion has not been made out by the applicant (see Velathaur Selvadurai v MIEA (1994) VG 114). The Delegate considered in the context of the legal framework each of the matters claimed by the applicant, including the matters put by the applicant in the entry interview conducted with him, together with other evidence as referred to in the Delegate's decision.

The RRT decision

13. On review, and in order to satisfy the RRT that he was entitled to a protection visa, the applicant had to satisfy the decision maker that the prescribed criteria for the visa had been satisfied [s.65(1) of the Migration Act 1958 ("the Act")]. The relevant criteria in this case is set out in s.36(2) of the Act. This provides that a criteria for a protection visa is that the applicant for a visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Australia is a party to the Refugees Convention and the Refugees Protocol and has protection obligations to people who are refugees as defined in them. Article 1A(2) of the Convention defines a refugee as any person who:

"... owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

14. The RRT dismissed the applicant's several claims saying:

"The Tribunal considers the applicant's account of his political activities to be implausible such that the Tribunal does not accept that the applicant was involved in political activities and is now wanted by the Iranian authorities because of this political activity."

And further, the Tribunal concluded:

"... that the applicant's claimed involvement in a political group and in the printing and handing out of leaflets to be fabricated."

15. The applicant claimed he became politically active upon the completion of his military service in September 1999. He stated that with three other friends he formed a group called Shonad. The purpose of the group was to expose the government and the corruption of the government. The applicant stated that the group planned to do this by informing the people of the evil of the government by distributing a newsletter. The applicant stated that the group put out five to six issues over a period of about one year on an irregular basis. One issue that was covered was the Berlin Conference in the April 2000 issue. The applicant stated that they printed some 200 newsletters in relation to this issue.

16. The Tribunal considered the applicant's account of his political activities to be implausible. The Tribunal found it to be incongruent that the applicant formed his own group consisting of four persons who distributed pamphlets at night to alert persons to the government's corruption and urging people to act, and yet he himself did not participate in demonstrations such as the Abadan demonstrations or the anniversary student demonstrations which were demonstrations organised with the precise aim of demanding reform from the government. These were topics covered in the leaflets the applicant stated had been published by his group.

17. The Tribunal also considered the applicant's level of political knowledge to be inconsistent with his claimed level of political activism, such that the Tribunal found it implausible that he was involved in political activities in Iran as claimed.

18. The Tribunal also considered the applicant's inability to answer questions, such as the names of some of the major political parties in Iran, indicated that he did not possess what might be characterised as a rudimentary level of knowledge. The Tribunal considered the applicant's level of political knowledge to be inconsistent with his claimed political activism in Iran. The applicant failed to mention at the entry interview his involvement in a political group. It was put to the Tribunal this was because he had feared that the information would be passed on to the Iranian authorities. The Tribunal found that to be inconsistent given that according to the applicant the Iranian authorities had already discovered his involvement in a political group. The Tribunal did not accept that the Iranian authorities arrested a friend of the applicant belonging to the same political group as the applicant, nor that the Iranian authorities detained the applicant's father and that the family home was raided after the applicant departed Iran.

19. The Tribunal found that individually each of the claims made by the applicant may not have been sufficient to draw a conclusion that the applicant had fabricated his claim but that considered collectively they led the Tribunal to conclude that the applicant's claimed involvement in a political group and in the printing and handing out of leaflets to be fabricated.

20. Finally, the Tribunal found that the applicant was able to leave Iran on a passport issued in his own name. Despite the applicant's claim that he departed Iran before the authorities were able to place his name on the black list, or alternatively by his paying a bribe at the airport to ensure safe passage (which the Tribunal did not accept because the country information from both DFAT Country Profile of Iran of March 1996 and from the UK Home Office Country Assessment Iran (October 2000) indicates that it is not possible to use bribery to depart Iran if you are in fact blacklisted) was all indicative of the fact the applicant was not wanted by the Iranian authorities at the time of his departure from Iran and that as he had departed Iran legally on a passport issued in his own name, he does not face persecution for a convention reason on his return to Iran.

21. Accordingly, the Tribunal was not satisfied both on the evidence of the applicant (which in part was rejected) and because of independent country information that the applicant had a well founded fear of persecution on his return to Iran. Thus it affirmed the decision not to grant him a protection visa.

Jurisdiction

22. The jurisdiction of the Federal Magistrates Court is set out in s.483(A) of the Migration Act 1958 (Cth).

23. The errors identified by the applicant in the decision of the RRT must be such as to attract relief under s.39B of the Judiciary Act 1903 (Cth.) The enquiry required of the court is whether the approach adopted by the Tribunal was such as to render its decision invalid. That question requires the court to identify the scope within which the Tribunal is empowered to operate pursuant to the terms of the Migration Act 1958 including s.474.

24. Section 474 of the Act is contained in the new Part 8 of the Migration Act consequent upon the enactment of the Migration Legislation Amendment (Judicial Review) Act 2001. The provisions of the new Part 8 apply in respect of judicial review of any decision made under the Migration Act where the application for review was not lodged before the commencement of schedule 1 to the Migration Legislation Amendment (Judicial Review) Act. The application before me was lodged after the commencement of the schedule and is therefore subject to the new regime.

25. The combination of sections 475A and 476 limit the jurisdiction of this court relevantly to that conferred by s.39B of the Judiciary Act 1903 (Cth). That provision includes jurisdiction in relation to any matter arising under any laws made by the Parliament, s.39B(1A)(c). The validity of a decision made by the Tribunal involves such a matter.

26. Section 474 places into the Migration Act a privative clause. Such a clause has been interpreted by the High Court in a line of authority in accordance with the principles of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 616. In his judgment in that case, Dixon J stated the three pre-conditions to the valid exercise of decision making powers to which such a clause applies:

a) The decision maker is required to have made "a bona fide attempt to exercise its power";

b) The decision "relates to the subject matter of the legislation"; and

c) The decision "is reasonably capable of reference to the power give to" the decision maker.

Thus, a decision maker's decision is protected by a privative clause for only so long as the decision maker does not exceed his or her jurisdiction in the breach of one of the Hickman conditions. In a number of decisions of the Federal Court of Australia, differing views have emerged as to how it is the court should approach the application of the law. The respondent submits that regardless of the approach taken by me, the applicant cannot succeed.

27. I was referred to two decisions of Mansfield J, namely SAAD v MIMIA (2002) FCA 206 and SBAE v MIMIA (2002) FCA 479. His Honour's approach in those matters before him was to look first to see whether or not there were any matters which would give rise to relief under s.39B of the Judiciary Act 1903 (Cth). In SBAE at (17) he said:

"The assessment of the merits of the applicant's claims is fundamentally the function of the Tribunal. The court is not entitled to revisit findings made by the Tribunal, and to substitute its view of appropriate findings for those made by the Tribunal. That is not to indicate that, in this instance, I found different views about matters of fact upon which the Tribunal has made findings. I have not done so. That is not the court's function. It is to indicate that, without error of the kind which would enliven a court's power under section 39B of the Judiciary Act, the sort of matters to which the applicant has referred as noted above do not entitle the court to simply revisit the determination of the Tribunal or set it aside."

28. His Honour would only consider the effect of s.474 of the Migration Act if he found there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B. When he was unable to find such an issue in SAAD, His Honour said (at p.23):

"Consequently, in my view it is not necessary to address the application of section 474 in the particular circumstances."

29. Whilst this approach has not been universally adopted, it has received the support of Marshall J in VAAC and MIMA (2002) FCA 573 and Allsop J in NABL and MIMA (2002) FCA 102. In other cases, a differing approach has been taken. In particular I refer to the decision of Heerey J in Turcan and MIMIA (2002) FCA 397 where His Honour stated (in para 46):

"In my view, the correct approach is to first consider whether section 474 applies. If it does, the court need not, indeed should not, go any further. The court should not assess the case as if section 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in terms goes to the court's jurisdiction and is to be applied at the threshold."

30. The Full Court of the Federal Court shall very shortly determine which approach is correct. I shall adopt, as counsel urged upon me, the "wider approach" of Mansfield J. Counsel for the applicant referred me to matters as set out in the applicant's short outline of submissions which were emphasised in oral submissions made. All of the matters raised in submissions were matters which had been raised with the RRT. Counsel for the applicant urged that the Tribunal had made a jurisdictional error in that it had reached a mistaken conclusion in determining that the applicant was not involved in political activities in Iran.

31. The question for the court is whether there are any matters raised by the applicant that individually or collectively establish jurisdictional error sufficient to satisfy review under s.39B of the Judiciary Act. The ability to grant such relief would then be subject to the provisions of s.474 of the Migration Act.

32. In Craig v South Australia (1995) 184 CLR 163 at 179, Brennan, Dean, Toohey and McHugh JJ said:

"If an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or power. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects."

33. I do not find that the Tribunal identified or addressed wrong issues or ignored relevant material or relied on irrelevant material. It appears to me that the Tribunal did address the applicant's claim and based its decision upon a proper consideration of material put before it by both the Department and the applicant. The applicant's complaint is effectively that the Tribunal did not accept his explanations and he seeks to dispute on the merits the conclusions which the Tribunal reached. That alone is not a basis for judicial review. It does not constitute jurisdictional error. Having addressed the matter in this manner as requested by both counsel, it is now unnecessary to proceed to consider s.474 of the Act in the circumstances of this case.

34. Accordingly, I dismiss the application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:

Date:
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