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MIGRATION - Application for Review of Decision of Refugee Review Tribunal - no reviewable error - privative clause decision - application dismissed

WADU v Minister for Immigration [2002] FMCA 295 (28 November 2002)

WADU v Minister for Immigration [2002] FMCA 295 (28 November 2002)
Last Updated: 5 November 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WADU v MINISTER FOR IMMIGRATION
[2002] FMCA 295



MIGRATION - Application for Review of Decision of Refugee Review Tribunal - no reviewable error - privative clause decision - application dismissed



Judiciary Act 1903

Migration Act 1958

Migration Legislation Amendment (Judicial Review) Act 2001

NABM of 2001 v MIMIA [2002] FCAFC 294

NAAV v MIMIA [2002] FCAFC 228

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

Zahid v MIMIA [2002] FCA 1108

Craig v South Australia (1995) 184 CLR 163

MIMIA v Yusuf (2001) 180 ALR 1

Re The Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham (2000) 168 ALR 467

SCAA v MIMIA [2002] FCA 668

NAHL v MIMIA [2002] FMCA 230

NADR v MIMIA [2002] FCAFC 293

NAAG of 2002 v MIMIA [2002] FCA 713

SBBS v MIMIA [2002] FCAFC 361

Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) 184 ALR 576

Applicant:
WADU



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFAIRS



File No:


WZ133 of 2002



Delivered on:


28 November 2002



Delivered at:


Sydney



Hearing Date:


25 October 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr R Hooker



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


WZ133 of 2002

WADU


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The Proceedings

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 24 December 2001 and sent to the applicant on 28 December 2001 to affirm a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.

2. The applicant applied to the Federal Court on 8 January 2002. The matter was transferred to this Court on 27 June 2002 by Lee J. When the matter came on for hearing on 23 August 2002 the Court was advised that legal representation was being sought for the applicant. The hearing was adjourned to 25 October 2002 to enable representation to be provided if possible. However, no legal representation was provided to the applicant who represented himself at the hearing.

3. In his application the applicant claimed that there was no evidence or other material to justify the finding that he did not have a well-founded fear of persecution by reason of his political opinion, real or imputed and his ethnicity if he returned to Iran within the reasonably foreseeable future and that the decision involved an error of law involving the incorrect interpretation of the applicable law or the incorrect application of the law to the facts, or both.

4. Despite the absence of any reference to section 39B of the Judiciary Act 1903 I am satisfied, on the principles identified by the Full Court of the Federal Court in NABM of 2001 v MIMIA [2002] FCAFC 294 that it is appropriate to consider this matter on the basis that the jurisdiction of the Court is properly invoked. The application identifies the decision under challenge, it was filed within the period specified in section 477 of the Migration Act 1958 (the Act) by a self-represented applicant from a non-English speaking background and while he was in a detention centre.

Background

5. The applicant is an Arab citizen of Iran who arrived in Australia on 1 September 2000 and lodged an application for a protection visa on

16 March 2001. The application was refused by a delegate of the respondent. The applicant sought review by the Tribunal.

6. In a departmental interview conducted on 6 October 2000 the applicant made claims that he was discriminated against by the Iranian Government because of his Arab ethnicity. He complained of general restrictions on freedom in Iran and restrictions on him in his work as a driver - such as not being allowed to park his vehicle in front of his house.

7. In his application for a protection visa the applicant claimed to fear that if he returned to Iran he would be interrogated, tortured and executed on the charge of being a traitor to the country because of his involvement in the Arab Nationalist Party (Khalq-e-Arab). He also claimed that Arabs were being persecuted and discriminated against in the province of Khuzistan where he had lived. He made detailed claims of having provided assistance to the Khalq-e-Arab and of involvement in an Arab truck drivers protest for which he claimed to have been arrested and sentenced. He also claimed to have engaged in activities for Khalq-e-Arab involving delivery of parcels to and from the Iran/Iraq border and filming border check-points for over a year. He said that after an altercation with a guard, a number of Ettala'at guards had taken his truck which contained parcels he had received from the Iran/Iraq border and a camera containing film of the border. He claimed that this incident led to him leaving Iran using a false Iraqi passport. He claimed that he believed that if he returned to Iran he would be arrested, interrogated, tortured and executed on charge of being a traitor against the country.

The Tribunal Decision

8. The Tribunal considered a number of inconsistencies between the accounts given by the applicant in his initial interview and in his subsequent protection visa application and the applicant's explanation for such inconsistencies. The inconsistencies were made the subject of a letter under section 424A of the Migration Act 1958 (the Act) inviting comment. The Tribunal also pointed out the inconsistencies to the applicant at the hearing.

9. The Tribunal found that the differences between the inconsistent claims made by the applicant on arrival and subsequently were not capable of being reconciled. The applicant's explanation for the inconsistencies did not satisfy the Tribunal. It found that the differences between the two set of claims could not be reconciled by saying that a reference to dissatisfaction and unspecified discrimination (as in his claims on arrival) was consistent with the subsequent claim of being a member of a political movement and taking actions which led to discovery by the authorities and consequential risk of harm. Despite his claimed lack of knowledge about the criteria for a protection visa, on arrival the applicant was asked unambiguous questions relating only to his own experiences. The Tribunal found that in these circumstances it reasonably expected he would provide answers indicating the basis for his fear and what motivated him to leave Iran. It found that his motivation for leaving Iran was as he claimed when he first arrived in Australia, that is, that he did not like the social restrictions in Iran or the traffic laws in Ahvaz and that he believed the area he was living in to be underdeveloped. On arrival he had stated that he was not a member of any political organisation or group. He did not claim to have ever been involved in activities against any government or political group, merely that he had a problem with police who were not allowing him to work or park in front of his house. The Tribunal found that he did not do the acts that he had later claimed to have done. Nor was he a member of the political organisation Khalq-e-Arab. The applicant had not claimed to have been arrested or gaoled when first interviewed and the Tribunal similarly rejected this claim although it also noted that if it was wrong, such a claim was of a civil nature (being a brief sentence imposed for an illegal act of blocking a major thoroughfare) and not because the applicant was an Arab or because of his political opinion. As to the claims of the applicant to have carried material and filmed Iranian check-points the Tribunal found such claims to be implausible given his claims that he had been chosen by the organisation to carry out such activities shortly after he had come to the adverse attention of the authorities. The Tribunal found it implausible that he would be asked to film two check-points which were on a public road and a matter of public knowledge. It also found his claim of being discovered to have left parcels and films for Khalq-e-Arab in his vehicle to be implausible. The story of his escape was found to be unconvincing and, together with the rest of his account of having carried out clandestine work for the Khalq-e-Arab, fabricated for the sole purpose of enhancing an otherwise weak set of claims for a protection visa.

10. In support of his application the applicant had provided the Tribunal with a letter from the Ahwazian Arab Peoples Democratic Popular Front in London dated 17 July 2001 which confirmed that he was an Arab political activist in Khuzistan and was well-known by some members of the organisation as such an activist. The Tribunal noted that this separatist Arab group which was calling for Arab autonomy was small and politically unimportant. It did not accept that the applicant was a member of Khalq-e-Arab or the group named on the letterhead of the letter. It found that the letter, while it may genuinely have been provided by an organisation in London, had been provided to support the applicant's fabricated account and not because he was a member of the organisation or that he had carried out work for the group.

11. The Tribunal relied on advice from DFAT in relation to the situation of Arabs in Khuzistan and found that the applicant was able to earn a living through his Arabic father's business and that he did not face a real chance of discrimination amounting to persecution in Iran. Since it was not accepted that the applicant was a member of a political group or that he was politically active or of interest to the authorities in that regard, the Tribunal found any fears he may hold in regard to persecution for his race or political opinion were not well founded. Finally as to his claim to have left Iran using a fraudulent passport the Tribunal indicated that it was of the opinion that this had not occurred, but if it was wrong it found that any consequences would not bring the matter within the ambit of the Refugees Convention since there was no basis for any penalty other than for the illegal act of departing using a false passport.

Contentions

12. The respondent submitted that it was open to the Tribunal to reach the findings of fact which it made, that there was nothing in its reasoning that disclosed any basis for judicial review pursuant to section 39B of the Judiciary Act 1903, that the Court may not substitute its own view for the Tribunal's view or review the process of fact finding undertaken by the Tribunal and that even if there had been an error of law by the Tribunal the privative clause in section 474 of the Act would validate the decision.

13. The applicant claimed that his situation was the same as that of another applicant who had been accepted to be a refugee who also used an Iraqi passport to leave Iran. He suggested that he should have been questioned by the Department and the Tribunal about his departure on an Iraqi passport and that the failure to do so was a denial of natural justice. He also claimed that he had been filming where it had been banned and that the interpreter had incorrectly said that he had been filming in a public place. He submitted that the Tribunal should not have rejected the letter confirming his membership of the organisation based in England without further investigation. More generally he believed that the Tribunal had not checked his case thoroughly. He claimed that the Tribunal decision mistakenly recorded his schooling as having been for 13 rather than for 5 years and that considerable time in the hearing had been devoted to this matter. He claimed that the inconsistencies between the two accounts he gave were attributable to the fact that the interpreter on the first occasion had advised him to summarise and be brief. It was claimed to be unfair that his claims should be rejected for an error by the interpreter. He claimed that he should have legal representation. The lawyers who were to provide him with representation had advised him that they were not going to do so. He requested time to provide further submissions. This was allowed. After the hearing he provided two further written submissions. The first of these repeated his claim that he had been filming forbidden areas and trafficking to areas which needed permission and that he thought the interpreter had mistranslated this matter. He had provided a document from England but the Tribunal had said that it was forged and had not pursued the matter with the organisation or given any weight to the letter. He also repeated his complaints about the incorrect reference to 13 years of study and the fact that there was a discussion for nearly 17 minutes in relation to this matter during the Tribunal hearing. It was suggested that the Tribunal member had not studied his file and had a "pessimistic view" as to his case. It was also suggested that the Tribunal member had not considered the fact that he had departed Iran on an Iraqi forged passport. In a second letter he provided further submissions in relation to the inconsistent accounts he had provided. He submitted generally that a refugee who enters a foreign country and applies for refuge has the right not to trust those who interview him on arrival and not to say his main case to them because he does not know them. Further, if an applicant has been persecuted in his country this could cause him to lose his memory so that he may not be able to explain all of his problems completely. It was claimed that this cannot cause the refusal of his case. Finally, statements by the applicant could not be the cause of a refusal of his application even if they were untrue and false because an applicant who had been under torture and persecution might have lost his memory or his memory may not be working well.

14. The respondent submitted generally that to invite the Court to come to a different conclusion to that of the Tribunal was to invite the exercise of a power that it did not have. In relation to the supplementary submissions of the applicant the respondent submitted that these were largely additional invitations to the Court to review factual issues before the Tribunal. To the extent that it was asserted that the Tribunal failed to consider certain factual issues it was submitted that such factual issues were merely matters of evidence in relation to which merits review was sought and that in any event a ground of review was not open given the existence of the privative clause as construed by the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228. The second written submission of the applicant was said to be entirely of a factual nature. Whether the propositions in that submission were the subject of potential findings of fact in any given proceeding before the Tribunal would depend on the entirety of the material before the Tribunal and the particular circumstances of the case. It was claimed that whether the findings of fact should have been made in this case was entirely a matter for the Tribunal and could not give rise to any available ground of review on the basis of NAAV or otherwise.

Application of the Law

15. The Tribunal's decision is a privative clause decision within the meaning of section 474(2) of the Act and is thus subject to the limitations on judicial review prescribed by section 474(1) which were introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 as applicable to all applications made to the Court on and from 2 October 2001.

16. The proper construction of section 474 has been the subject of detailed consideration by the Full Court of the Federal Court in NAAV v MIMIA. All the members of the Full Court were in broad agreement that section 474(1) was properly construed as having the same effect as other such clauses considered in many decisions of the High Court, in particular R v Hickman; Ex parte Fox and Clinton [1945] 70 CLR 598. In that case Dixon J identified three conditions which, if met, would ordinarily mean that a decision which was the subject of a privative clause would be valid, namely:

a) The decision is a bona fide attempt to exercise the power conferred on the decision maker;

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

c) The decision is reasonably capable of reference to the power conferred on the decision maker.

17. There was also broad agreement in NAAV that the purported exercise of power by the decision maker must not be one that contravenes what was variously described as an "inviolable limitation or restraint" (Black CJ at [12]), a "final limitation upon the powers, duties and functions of the decision maker" (von Doussa J at [619]) or a "structural" element in the operation of the Act (Black CJ at [37]). As a matter of construction, the broad statement of legislative intention expressed in a privative clause may be displaced by a provision which makes clear Parliament's intention that the observance of some procedure or the proper consideration of some issue is to be a pre-condition for a valid decision. As outlined by Sackville J in Zahid v MIMIA [2002] FCA 1108, there is a difference between the approach taken by the majority (Black CJ, Beaumont and von Doussa JJ) and that of the minority (French and Wilcox JJ) in relation to the correct approach to such final and/or inviolable limitations on the decision maker's powers.

18. As the applicant was self-represented, in addition to the claims he has made, I have considered whether the Tribunal reasons for decision and other material before the Court reveal any reviewable error.

19. The applicant claimed that the Tribunal did not take into account his departure on an Iraqi forged passport. However the Tribunal mentioned this claim and indicated that it did not make findings in that regard. It correctly went on to indicate that if, contrary to its opinion, the applicant had left Iran on a fraudulent passport, he would face the consequences of an illegal act. As there was no suggestion of any basis for a penalty other than the illegal act of departing using a false passport the penalty would not bring his situation within the ambit of the Refugees Convention. This does not amount to a failure to take into account a relevant consideration. Nor is there anything to suggest that there has been a denial of natural justice by the Tribunal in failing to question the applicant or to make inquiries to the extent that he suggests was necessary in relation to this or any other issue. I have taken into account the fact that the Tribunal has a broad inquisitorial function. It may initiate inquiries (section 424 and section 472(1) of the Migration Act) but is not required to do so. The Tribunal cannot be in error in failing to come to a conclusion that is not supported by the material before it. The fact that someone else who claimed to have left Iran on a forged Iraqi passport may have been granted a protection visa is not determinative. If there was a failure to take into account a relevant consideration or a denial of procedural fairness as submitted then the decision would be "validated" by the privative clause. If a decision maker falls into a jurisdictional error in a sense annunciated by the High Court in Craig v South Australia (1995) 184 CLR 163 and MIMIA v Yusuf (2001) 180 ALR 1 in identifying a wrong issue, asking itself the wrong question, ignoring relevant material, relying on irrelevant material or, in some circumstances, making an erroneous finding or reaching a mistaken conclusion, then in accordance with the majority view in NAAV the decision would nonetheless be validated by section 474 (see Black CJ at [30], von Doussa J at [636]-[639] and Beaumont J at [277]). Furthermore NAAV has also established that the effect of the privative clause is in effect to validate jurisdictional errors involving a breach of the rules of natural justice. Procedural unfairness not rising to the level of a failure to deal with an application in good faith does not ground review (see von Doussa J at [628]-[638], Black CJ concurring at [4] and Beaumont J at [91] and following and also at [114]-[116]).

20. The applicant also complained that there had been an incorrect interpretation of what he had said in relation to where he had been filming border posts. There was no evidence before the Tribunal to support his claim of an incorrect interpretation. The Tribunal considered his evidence that before he left Iran he had filmed two inspection posts between Boston and Ahvaz and it was this film that was in his truck. It was these check-points that were described by the Tribunal member as being on a public road. The applicant has not established that there has been any breach of section 425(1). (See my discussion of the scope of section 425(1) in NAHL v MIMIA [2002] FMCA 230 at [22]-[24]). The alleged inadequacy of the interpreter is not such that it can be said that the applicant was not invited to give evidence in a meaningful way at the hearing or that his opportunity to give evidence was in any real measure frustrated. There is no evidence of any significant error in interpretation in the Tribunal hearing. Furthermore, on the authority of NAAV, if the decision did involve a breach of a procedural provision such as section 425 it would be validated by the privative clause (see von Doussa J at [633] and [672] and Black CJ at [4], [15]-[18], [30] and [37] and NAHL v MIMIA at [27]-[30] indicating that NAAV establishes that section 425 is not an inviolable limitation or restraint on the powers of the Tribunal.

21. As to the document from the Ahwazian Arab Peoples Democratic Popular Front in London, the Tribunal did not conclude, as submitted by the applicant, that the document was forged. Rather it concluded that its contents were not genuine. The Tribunal did not accept that the applicant was in fact a political activist. Hence it took the view that the fact that the letter may genuinely have been provided by an organisation in London did not establish that he was a member of Khalq-e-Arab. Insofar as it is claimed that this or any more general failure to investigate or check the claims of the applicant amounts to a failure to accord procedural fairness on the authority of NAAV the decision is validated by section 474. The material before the Court does not go so far as to establish that the treatment of this letter by the Tribunal indicated bad faith, actual bias or otherwise constitutes a lack of a bona fide attempt to exercise power or breach of any inviolable limitation on the power of the Tribunal (see NADR v MIMIA [2002] FCAFC 293 discussed below in [25]). This is not a case where there has been no attempt or no genuine attempt to undertake the task of review. As Allsop J said in NAAG of 2002 v MIMIA [2002] FCA 713 at [24] "bad faith is not just a matter of poor execution or poor decision-making involving error." There is nothing in the material before the Court to establish that the Tribunal's decision or the conduct of the review was capricious or arbitrary (see SBBS v MIMIA [2002] FCAFC 361 at [42]-[48]) or that it involved personal fault on the part of the decision-maker. Nor is there anything to suggest an abuse of power or the knowing exercise of power for an improper purpose or that there has been no attempt or no honest or genuine attempt to undertake the task of review (see Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) 184 ALR 576 per Finn J). The Tribunal assessed the applicant's claims and the material before it, addressed the question of whether the applicant was a refugee and gave reasons for its findings. A failure to accept the letter from London as genuine or to inquire further does not, considered in the context of the Tribunal's reasons for decision, constitute a lack of a bona fide attempt to exercise the power of review as required by sections 414 and 415 of the Act.

22. The applicant also referred to a mistake made by the Tribunal member in relation to the schooling he had undergone. However this issue was clarified for the Tribunal in a letter from the migration agent for the applicant dated 23 July 2001 indicating that the applicant had only five years of education. There is nothing in the Tribunal reasons for decision to suggest that there was any reliance on an incorrect account of the extent of the applicant's schooling.

23. As to the applicant's complaint in relation to the Tribunal conclusions about the inconsistencies in his accounts, the Tribunal's assessment of the applicant's credibility was essentially a matter for the Tribunal (Re The Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham (2000) 168 ALR 467). The Tribunal's concerns in this regard were put to the applicant in the hearing and by way of a section 424A letter and both he and his migration agent had the opportunity to provide comment for consideration by the Tribunal. The Tribunal gave detailed reasons for rejecting the credibility of the applicant's claims. Its reasons do not demonstrate an erroneous process of reasoning or bias on the part of the Tribunal or a lack of good faith (see SCAA v MIMIA [2002] FCA 668).

24. The applicant claimed generally that there may be explanations for inconsistencies in accounts, particularly initial accounts, provided by applicants for asylum as detailed in his second supplementary submission. This claim does not establish any reviewable error. Whether such explanations are accepted by a Tribunal in any particular case will depend on the entirety of the material before the Tribunal and the particular circumstances of the case. In this case it was a matter for the Tribunal. It sought, considered, and rejected, the applicant's explanation for the inconsistencies. Insofar as the applicant seeks merits review, such merits review is not available in these proceedings.

25. Finally, I have considered whether the combination of complaints raised by the applicant amount to a lack of a bona fide attempt by the Tribunal to exercise its power. As was pointed out by Kiefel J in NADR v MIMIA [2002] FCAFC293 at [31] bad faith in this contact "implies a lack of honest or genuine attempt to undertake the task and involves a personal criticism of the Tribunal or officer in question". Insofar as the applicant's claims in relation to the inadequacy of the Tribunal investigations of his claims amount to an allegation of actual bias I note that as von Doussa J stated in SCAA v MIMIA [2002] FCA 668 it would be a rare and exceptional case where actual bias could be demonstrated solely from the published reasons for decision.

26. There is nothing in the material before the Court in this case from which bias or lack of good faith on the part of the Tribunal could be inferred. The evidence does not establish a lack of a bona fide attempt by the Tribunal.

27. The claims made by the applicant do not suggest that the decision of the Tribunal did not relate to the subject matter of the legislation or that it was not reasonably capable of reference to the power given to the decision maker or that the decision contravened an inviolable limitation. It follows that the applicant's claim for relief pursuant to section 39B(1) of the Judiciary Act must be dismissed.

28. I therefore dismiss the application and order that the applicant pay the respondent's costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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