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MIGRATION - appeal from a decision of the Refugee Review Tribunal - applicant claiming fear of persecution based on political activities - whether the Tribunal erred in finding that the applicant's fear of persecution was ot well founded - multiple parties in migration litigation - who may commence proceedings - definition of "family"

WACQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

WACQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 78 (10 May 2002)
Last Updated: 26 June 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WACQ v MIMIA
[2002] FMCA 78



MIGRATION - appeal from a decision of the Refugee Review Tribunal - applicant claiming fear of persecution based on political activities - whether the Tribunal erred in finding that the applicant's fear of persecution was ot well founded - multiple parties in migration litigation - who may commence proceedings - definition of "family"



Migration Act 1958 (Cth) ss. 36(2), 65(1), 474, 477, 483A, 486B, 486C

Migration Regulations 1994

Judiciary Act 1903 (Cth) s.39B

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

SAAD v Minister for Immigration and Multicultural Affairs [2002] FCA 206

SBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 479

Turkan v Minister for Immigration and Multicultural Affairs [2002] FCA 397

Applicant:
WACQ



Respondent:


THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS



File No:


WZ 58 of 2002



Delivered on:


10 May 2002



Delivered at:


Sydney



Hearing Date:


29 April 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:
Ms L Price

Solicitors for the Respondent:
Australian Government Solicitor



ORDERS

(1) The application be dismissed.

(2) The applicant pay the respondent's costs pursuant to Part 21.10 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


WZ 58 of 2002

WACQ


Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. In this matter the applicant is a nineteen year old Iranian of the Sabian Mandaean minority who seeks a review of the decision of the Refugee Review Tribunal in her own regard and on behalf of her mother and three siblings. The decision of the Tribunal was made on 21 November 2001 and affirmed a decision not to grant a protection visa under Class XA Sub-Class 785 or 866. The applicant (by which term is included her mother and siblings) entered Australia as an unauthorised boat arrival and was not immigration cleared. She is therefore unable to meet the requirements for the grant of a permanent Sub-Class 866 (Protection Visa). She was assessed in accordance with the criteria set out in the Migration Regulations for the grant of a visa of Sub-Class 785 (Temporary Protection). The applicant filed her application for an order for review on 30 November 2001. The application states that the applicant is aggrieved by the Tribunal's decision because:

"I can't go back."

The grounds of her application are set out as follows:

"Iranian."

2. The matter came before the Registrar for directions on 8 January 2002. The Registrar made orders, including the following:

"1. The applicant file and serve on or before 4 February 2002:

(a) An amended application giving particulars of any grounds of review under the Judiciary Act 1903; or

(b) A written statement setting out the reasons why she considers the decision of the Refugee Review Tribunal as wrong; and

(c) Any affidavits upon which she intends to rely at the hearing of this matter.

3. No such documents were filed by the date ordered or by 26 April 2002. The reason for this may have been that the applicant was unable to afford legal representation and although she was granted a certificate for pro bono representation pursuant to Order 80 Rule 4(3) of the Federal Court Rules by Nicholson J no representation could be found for her.

4. The applicant is a member of the Sabean Religion. Her family lived in Ahwaz in Iran where most of the estimated five to ten thousand Sabeans, also known as Mandeans, lived. Her mother was married but claims that her husband brought the marriage to an end because two of their children had developmental problems.

5. The applicant was studying at a pre-university prior to leaving Iran. She claimed that she was involved in political activities and that she faces detention and ill treatment because of this upon her return. No additional claim is made in respect of the other children. The mother claims that she and her children are at risk of physical harm at the hands of her estranged husband and that the authorities will not protect them because they are Mandeans.

6. The applicants were represented before the Refugee Review Tribunal by a firm of lawyers in Perth. In a letter dated 29 October 2001 to the Presiding Member of the Refugee Review Tribunal the firm said:

"There does appear to be significant evidence that the conditions in Ahwaz as a result of religious persecution are becoming intolerable for an increasing number of the Mandean community and they are attempting to flee Iran as a result. It would seem certain that recent world events can only worsen their situation and America's bombing campaign in Afghanistan, whether or not it is successful in achieving the aims for America and the coalition against terrorism, will fuel the current dislike and nastiness already routinely practised against the Mandean community in Ahwaz by a significant number of Muslim hardliners into a greater and more dangerous hatred...

Accordingly I would again emphasise that whatever doubts that you may have with regard to the individual claims made by this family, there is substantial evidence that the Mandeans suffer long term persecution in Ahwaz by reason of their religion which some are able to tolerate but an increasing number find intolerable and that situation is likely to worsen rather than improve and that these applicants meet the test of well founded fear of persecution on this basis alone.

In addition they have the risk that if returned they will come to the adverse attention of the Iranian authorities by reason of their departure in seeking asylum in Australia and the efforts of the applicant's husband who at the very least will be claiming that his children were taken from Iran without his permission. There is clearly a risk that the authorities will treat Mandean asylum seekers more harshly than returned Muslim asylum seekers and will consider that the Mandeans are disloyal to Iran. Torture and other serious mistreatment and sexual abuse are documented human rights abuses that commonly occur to persons who come to the adverse attention of the Iranian authorities."

7. In order to satisfy the Tribunal that she is entitled to a protection visa the applicant must satisfy the decision maker that the prescribed criteria for the visa have 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. 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 politically 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."

8. In this case the applicant claims a well founded fear of persecution arising out of her university activities and in respect of her mother arising out of the violent relationship with her former husband. It is alleged that because the family is a member of the Sabian-Mandaean minority it will not receive the protection normally given to Iranian citizens who have concerns about domestic violence. In the case of the applicant herself it is alleged that she would be unable to continue her tertiary studies.

9. The respondent provided the court with some helpful written submissions running to approximately nine pages that were received on the Friday before the hearing which took place on Monday. I was advised that copies of these submissions were sent to the applicant by fax at her detention centre. The applicant does not speak English and there was no available interpreter on the premises so that when she came to court she was not aware of the content of those submissions. For that reason I requested Ms Price, who appeared on behalf of the Minister, to speak to the submissions so that they could be interpreted for the applicant. This was done.

10. The respondent submitted that the decision which the Tribunal had made on the facts was that religious persecution of this minority could not exist to the extent that they would be protected under the convention. The Tribunal did not accept that the situation with regard to the mother was as serious as had been suggested or could give rise as to convention protection. The Tribunal did not accept that the applicant herself would be denied tertiary eduction as a result of her beliefs nor did it accept her claims that she had a well founded fear of persecution as a result of her political activities.

11. After the respondent had explained the nature of its submissions I asked the applicant whether she had anything to say which would assist me to decide whether or not the Tribunal had erred in law in coming to the decision which it had come to. I set out in detail below the notes which I made of the applicant's response:

"It doesn't matter now what the court will say, someone who is dead can she talk?

I have been here for two years, I am a dead person, I cannot express myself.

My mother is suffering from anxiety and twice tried to commit suicide. My siblings are also suffering from anxiety. No-one is listening to us. I don't see why I should talk.

I cannot tolerate this anymore. I will end my life. If I am dead I will be better off. I don't have anything more to say. I have decided to die. It doesn't matter anymore.

My family is dying in front of my eyes."

12. By this stage the applicant was in a highly distressed state. Eventually someone from the detention centre came to comfort her.

13. There was some further discussion between myself and Ms Price concerning the appropriateness of the applicant bringing these proceedings.

14. Section 486B of the Migration Act is in the following form:

[s 486B] Multiple parties in migration litigation

Application of section

486B (1) This section applies to all proceedings (migration proceedings) in the High Court, the Federal Court or the Federal Magistrates Court that raise an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of unlawful non-citizens...

Other joint proceedings etc

(4) The following are not permitted in or by a migration proceeding:

(a) representative or class actions;...

(b) joinder of plaintiffs or applications or

addition of parties;

(c) a person in any other way (but not

including as a result of consolidation under subsection (2)) being a party to the proceeding jointly with, on behalf of, for the benefit of, or representing, one or more other persons, however this is described.

Relationship with other laws

(5) This section has effect despite any other law, including in particular:

(a) Part IVA of the Federal court of Australia Act

1976; and

(b) any Rules of Court.

Exceptions to general rules

(7) This section does not prevent the following persons from being involved in a migration proceeding:

(a) the applicants in the proceeding and any persons they represent, if:

(i) the regulations set out a definition of

family for the purposes of this paragraph;

and

(ii) all of those applicants and other persons

are members of the same family as so

defined;

Section 486C of the Act is in the following form:

[s 486C] Persons who may commence or continue proceedings in the Federal Court or Federal Magistrates Court

486C (1) Only the persons mentioned in this section may

commence or continue a proceeding in the Federal

Court or the Federal Magistrates Court that raises

an issue:

(a) in connection with visas (including if a visa is

not granted or has been cancelled,

deportation, or removal of unlawful non-

citizens; and

(b) that relates to the validity, interpretation or

effect of a provision of this Act or the

regulations;

(whether or not the proceeding raises any other issue).


(2) Those persons:

(a) a party to a review mentioned in section 479;

or;

(b)...

(c)...

(d)...


(3) This section applies to proceedings in the Federal Court's jurisdiction under Part 8 of this Act, section 39B or 44 of the Judiciary Act 1903, section 39 of the Federal Magistrates Act 1999 or any other law.

(3A) This section applies to proceedings in the Federal Magistrates Court's jurisdiction under Part 8 of this Act, section 44 of the Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 or any other law.

15. The definition of family is found in 5.43 of the Migration Regulations:

5.43 For paragraph 486B(7)(a) of the Act, family, of an applicant in a migration proceeding, means:

(a) the spouse of the applicant; and

(b) the dependent children of the applicant.

It would therefore appear that whilst the applicant is entitled to have commenced these proceedings and to have prosecuted them she cannot do so on behalf of her mother and sisters as they do not fall within the definition of her family for the purposes of the Regulations and therefore for the purposes of s.486B(7)(a). There is no competent application in respect of the mother and three siblings because no application was made to this court or the Federal Court on their behalf within twenty-eight days of the notification of the decision, contrary to the provisions of s.477(1A) of the Migration Act (which time may not be extended (s.477(2)).

16. The Refugee Review Tribunal considered at some length the evidence presented to it by the applicant and her family in their interviews with the Department, and the conduct of the application before the Minister's Delegate and in the hearing before the Tribunal. It also received some assistance from a solicitor and migration agent who represented the applicant and her family for a period. This assistance included responding to queries raised by the Tribunal after the hearing:

"Following the hearing I wrote to [the applicant's mother] and the applicant to ask for their comments on several matters which had not been adequately covered at the hearing. I again pointed out that the applicant's alleged involvement in politics and her alleged contact with Sepah had not been mentioned when she was first interviewed after arriving in Australia. I also noted that she had given differing explanations for this submission, telling the Delegate that she had not mentioned her political involvement because the interpreter had told her to be brief, while telling me that the people smuggler had advised her not to mention any thing about the problems she faced because of her religion."

17. In its decision the Tribunal stated:

"After considering all of the relevant evidence, I am not satisfied that either [the mother] or her children have a well founded fear of persecution for reasons of religion in Iran. I do not believe that the applicant was involved in politics in any way prior to her departure from Iran... I am not satisfied that she fears that she will be persecuted for reasons of her political opinion if she returns to Iran."

18. The Tribunal had also decided that it did not accept that the applicant would be unable to undertake tertiary studies if she returned to Iran.

19. The jurisdiction of the Federal Magistrates Court in these matters is imposed by s.483(A) of the Migration Act. The jurisdiction which the court exercises is subject to s.474 of the Act which is found in Part 8 dealing with judicial review. Section 474 is the section which places into the Act the privative clause in the following form:

474 Decisions under Act are final

i) A privative clause decision;

a) is final and conclusive; and

b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

20. This clause was interpreted by the High Court in R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598 and the implications of such a clause to decisions under the Migration Act have been the subject of several decisions in the Federal Court. There have also been decisions in this court.

21. Mansfield J in SAAD v Minister for Immigration and Multicultural Affairs [2002] FCA 206 and SBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 479 dealt with two cases in which the application for review before the court did not identify any grounds upon which the application was brought. He considered those cases on the basis that he would look first to see whether or not there was any matters which would give rise to relief under s.39B of the Judiciary Act 1903 (Cth). He said in SBAE at [17]:

"The assessment of the merits of the applicant's claims is fundamentally the function of the Tribunal. The court is not empowered 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 have 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 powers under s.39B of the Judiciary Act, the sort of matters to which the applicant has referred as noted above do not entitle the court simply to revisit the determination of the Tribunal or set it aside."

22. 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 [23]:

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

23. This approach is not universal. In Turkan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 Heery J said at [46]:

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

24. This dichotomy will doubtless be resolved shortly by a Full Bench of the Federal Court but in the meantime I would propose to follow the approach adopted by Mansfield J because in his cases, like the present one before me, the applicant was not represented and did not articulate her grounds for the appeal other than by re-asserting the matters which she brought to the attention of the Tribunal and the fears which she expressed about her safety if she were returned to Iran.

25. In SBAE Mansfield J noted at [22]:

The applicant appeared in person at the hearing, but his submissions did not extend beyond asserting factual error on the part of the Tribunal. I have also independently reviewed the Tribunal's reasons, having regard to the applicant's circumstances, to discern whether they disclose error on its part such as would warrant the court's intervention under s.39B of the Judiciary Act. In my judgment no such error on the part of the Tribunal is apparent."

26. I have adopted the approach taken by Mansfield J in relation to this applicant. Whilst the situation of the applicant which I saw when she made her submissions is desperate enough to touch the hardest of hearts it does not enable me to find error when none exists.

27. Accordingly I consider that the application must be dismissed. I so order. I order that the applicant pay to the respondent its costs of the application pursuant to Part 21.10 of the Federal Magistrates Court Rules. I certify that it was reasonable for the respondent to employ an advocate pursuant to Part 21.15.


I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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