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MIGRATION - Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa - citizen of Iran claiming political persecution - issue regarding credibility and identity of Applicant - decision of Refugee Review Tribunal affirmed.

WAFK v Minister for Immigration [2002] FMCA 236 (23 January 2003)

WAFK v Minister for Immigration [2002] FMCA 236 (23 January 2003)
Last Updated: 3 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAFK v MINISTER FOR IMMIGRATION
[2002] FMCA 236



MIGRATION - Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa - citizen of Iran claiming political persecution - issue regarding credibility and identity of Applicant - decision of Refugee Review Tribunal affirmed.

Migration Act 1958, ss.474, 474(I) 477(I)

Migration Legislation Amendment (Judicial Review) Act 2001

Judiciary Act 1903, ss.39B(I)

Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547

NAAV v The Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 228

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

NWAV v Minister for Immigration and Multicultural and Indigenous Affairs and the Refugee Review Tribunal of the Commonwealth of Australia N265 of 2002



Applicant:
WAFK of 2002



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ98 of 2002



Delivered on:


23 January 2003



Delivered at:


Melbourne



Hearing Date:


23 August 2002



Judgment of:


Bryant CFM



REPRESENTATION

Counsel for the Applicant:


Applicant in appeared in person



Solicitors for the Applicant:


Applicant appeared in person



Counsel for the Respondent:


Mr Jenshel



Solicitors for the Respondent:


Australian Government Solicitor



FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH (via video link)


WZ98 of 2002

WAFK


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. The Applicant, who is a citizen of Iran, arrived unlawfully in Australia on the 3 November 2000. On 1 March 2001 he lodged an application for a protection (Class XA visa) to the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act). On

23 March 2001 a delegate of the Minister refused to grant a protection visa and on 26 March 2001 the Applicant applied for a review of that decision. The decision of the Refugee Review Tribunal ("the Tribunal") given 13 August 2001 affirmed the decision of the Minister's delegate not to grant a protection visa. The Applicant appealed that decision and on 22 November 2001. The Federal Court set aside the decision on the ground that the Tribunal erred in failing to consider and make a finding as to whether the Applicant could return to Iran. The Court ordered the matter be remitted to the Tribunal, differently constituted, for reconsideration of the matter.

2. On 14 March 2002 a differently constituted Refugee Review Tribunal handed down its decision, in which the Tribunal affirmed the decision not to grant a protection visa. The Tribunal considered the Department's file which included a record of interview with an Immigration Inspector on the Applicants arrival in Australia, the protection visa application, written submissions in support of the application, and record of interview with an officer of the Department. The Tribunal also had written submissions in support of the Application for Review. The Applicant gave oral evidence to the Tribunal on 25 May 2001 and 23 January 2002.

3. The Applicant was interviewed by an Officer of the Department on

13 November 2000 that interview being conducted in the Farsi language. He was informed that he was expected to give true and correct answers to the questions he was asked.

4. He was told that if he later gave inconsistent answers this could raise doubt about the reliability of what he said. The Applicant claimed that he was born in a village in Khozestan in Iran. He claimed that his religion was Islam and he was an Arab from Khozestan. He claimed that in 1996 he was employed as a Design Engineer in the Ministry of Defence and 1997 in another capacity in the defence industry. He claimed to have identity documents and a university degree in metallurgy and had undertaken military service. He claimed that his mother and father, three brothers and six sisters continue to live in Iran.

5. He said that he left Iran on 16 September 2000 and he spent 7 days in Malaysia and 30 days in Indonesia before coming to Australia. He claimed his passport was a genuine Iranian passport which he destroyed as the smuggler was going to amend the date but made a bad job of it. He claimed that his brother who worked in the tax office in Shadegunn could be contacted for emergency reasons and that he had been planning his departure from Iran for about a year.

6. He said that he tried to obtain employment in his field of expertise but was unsuccessful and after many disappointments just gave up. When he applied for government jobs he claimed he often had verbal arguments about the way he was treated and he accused the government of being responsible for what was going on. The Applicant claimed his brother told him he might get in trouble with the authorities, as he did not like the Iranian regime. He claimed that his brother was a member of Sepah and he emphasised strongly that he should leave the country.

7. He claimed that he was looking for a job in his own field of expertise and that after completing military service he had difficulty getting employment in his field and was often humiliated and mentally tortured working with uneducated people. He claimed that he then decided to leave Iran and go to a country where he was not humiliated and regarded as a human being. In response to questions about details of the association or involvement in activities against any government or political group, he claimed that unintentionally he muttered things against them. He answered "no" to the question about details of association or involvement with any political group and claimed that he decided to leave Iran about a year ago and come to Australia as there would be better chance of employment.

Application for protection visa

8. In his application for a protection visa 1 March 2002, the Applicant claimed to be a 33 year old Iranian Shia Muslim male born in Ramhormoz - Shaveh Sivar on 2 October 1968. He claimed his occupation was an Engineer and that he lived in Ramhormoz - Shawa village from 1990 until leaving around 2000. He claimed to about 18 years of education and to have gained an engineering metallurgy degree. He claimed to have done military service and to have been self employed from 1998 until he left Iran in September 2000.

9. The Applicant claimed not to have any identity documents with him in Australia and did not produce any identity documents.

10. He claimed to have left 2 September 2000 legally through Mehrabad Airport with the help of his brother. He claims to have stayed in Malaysia for seven days and then left for Indonesia. He spent some time in Indonesia waiting there illegally until departing in a boat for Australia.

11. In his written statement, 1 March 2001, he claimed that after graduating from university and finishing military service he looked for work for about a year but the government organisations refused to employ him. He said they did this because he was an Arab and because he had been active in university in organising and taking part in gatherings and demonstrations against the regime every now and then and that several times he had to sign "Good Behaviour Papers". He claimed that the main jobs were given to Persians and as he was from Arabic background he was discriminated against. He claimed that he was living in Khozestan province where the Arabs suffered the harshest discrimination and oppression. He claimed that when he saw the oppression of the regime against the Arabs he was not ready to forget his culture and people and co-operate with the regime. He asserted that he use to speak out about these things with the head of his tribe Sheik Haj Kamel Halichie but was warned about taking any action against the Islamic Republic.

12. He claimed that in the middle of January 1999 he and some university friends went to see the Sheik and discussed with him the situation of Arabs in Khozestan and the options to stand against the regime. They came to the conclusion they had to co-operate with the Mojahedin-e-Khalq (MKO) to be able to overcome the regime. They sent a representative to negotiate with the MKO and had a meeting in the Skeik's home. He claimed they finally reached an agreement that if the Mojahedin would support them they would supply the Mojahedin with 1,500 people to take part in an uprising.

13. He claimed that about a month later they were informed by the Mojahedin that they had to disseminate propaganda activities for the organisation, then they would be evaluated and given their position. He said that they wanted to demonstrate their ability and good intentions and started propaganda activities. This lasted for five to six months.

14. The Applicant claimed that one day when he had finished distributing some manifestos his brother came to him and told him he had been recognised by Sepah and he had to flee very soon. He said his brother told him that if he was delayed in fleeing then he would not be able to help him. His brother assured him that he would not be black listed at the airport if he left immediately and it would take at least three days after someone was recognised for authorities to send his name to the airport. He says that he left within the next two days.

15. He claimed that he did not tell his whole story in the first interview as he did not have a lawyer to give him advice, so he was not sure of the rules of protection and what to say and the limit of information he should reveal. He claimed that he feared being arrested upon his arrival, interrogated and persecuted, as the MKO is an illegal organisation and the penalty of co-operating with them is death in Iran. He claimed that he feared he would be arrested, interrogated, persecuted and send to court for trial if he returned to Iran. He claimed that he would be harmed by the authorities as he was struggling for Arab rights in Iran and his co-operation with the illegal organisation MKO.

Interview 3 March 2001

16. The Applicant when asked what he knew of the activities of the MKO in his area was unable or unwilling to provide any information to lend any credence to his claims of having been involved with the MKO. When asked how he and his friends undertook to mobilise 1,500 people to support the MKO, he claimed he got in touch with people he could trust, and he gathered 40 friends and relatives. He did not define the purpose of their mobilisation. He claimed to have distributed MKO propaganda sometimes on motorbikes and sometimes in cars delivering pamphlets to high schools and primary schools. He was unwilling to indicate what information his brother had obtained or how he obtained it.

Submissions 5 March

17. On 5 March the Applicant's advisor made general submissions on the situation in Iran on behalf of the Applicant.

Statement 24 May 2001

18. The Applicant provided a statement dated 24 May 2001. The Applicant claimed that in relation to his first interview there were reasons which prevented him from mentioning what he stated in the second interview. He claimed that there were rumours that after Khatami was elected as President of Iran, Iran-Australia relationships developed and the Australian authorities would check information with Iran. He claimed that although he was not satisfied this was necessarily the case, he took the safe course of mentioning he had problems in Iran but not describing them in detail until what he presumed would be the main interview.

19. He complained that the delegate had not asked him for any additional information for his inability to explain in detail his MKO activities and for not understanding or accepting his explanation about how he mobilised people in Iran in support of the MKO, claiming "that was so self explanatory that I assumed the case officer would not have any doubts about that".

20. He then explained that the political actions he was involved in was conducting MKO policies in Iran, participation in demonstrations against the regime and helping them in producing and distributing anti regime literature and trying to attract the passionate and encouraging them to help the MKO. He claimed that the Arabs in Khozestan were still living as tribes and groups of families shared the same ancestors. He said that it was not difficult for those who were socially active to gather 1,500 people.

21. He explained that he never told the delegate that he and his friends distributed MKO materials openly and explained what he had meant. He claimed that the delegate was remiss in not asking him about the way he planned for, and left Iran. He claimed that when he decided to co-operate with the MKO he prepared to leave in case of emergency and it was natural for every educated person in Iran to think about the dangers. He claimed that if he had worked in a car show and it was the nature of his job to have cash money at any time and that he met the people smuggler after he left Iran, and that when he was outside Iran he thought about finding someone to smuggle him to Australia.

22. He said that he was able to leave Iran easily as his brother had been in Sepah for a long period and had many good friends who would help him if necessary. He said he was not sure about how his brother found out that he was wanted, and not sure that his brother would ever tell him how he found out as that would jeopardise his and his friend's positions. He said that it takes about one to two weeks for a persons name to enter the black list at the airport. He claimed that Arabs in general and dissenting Arabs in particular, are facing persecution and discrimination.

Tribunal hearing 25 May 2001

23. The Applicant gave oral evidence at the Tribunal hearing on 25 May 2001. He was assisted by an interpreter in the Farsi language and represented by Mr Hilani. It was put to him that while he claimed that Arabs could not obtain employment, one brother was in Sepah, one of his brothers worked in the trucking industry, and the other worked privately. He claimed that the government had proven that they did not like Arabs but they welcomed those that reported about the movements of Arabs, so his brother was accepted. The Tribunal indicated to him that there was no independent information that indicated that Arabs were discriminated against in employment. He claimed there was a UN report which condemned Iran in late 2000 in relation to the treatment of religious minorities.

Submission of 26 June 2001

24. The Applicant's advisor submitted in a phone conversation and facsimile, that the Applicant corrected certain dates provided in his earlier submission and indicated he, had referred, the Tribunal to a report in the Intown newspaper. He also corrected previous information given to the delegate regarding the number of operations by the MKO in 2000/01 and submitted a copy of part of a UN Economic and Social Council report of January 2001 into violations of human rights.

Document 17 July 2001

25. A document was submitted in support of the Applicant's claims, a copy of a letter from the Ahwasian Arab Peoples Democratic Popular Front of London confirming that the Applicant was a supporter of the organisation, and had been persecuted by the Iranian regime and that all the Arab people are suffering from racism.

Section 424A letter of 1 August 2001

26. On 1 August 2001 a Section 424A letter was issued to the Applicant. He was asked to comment on the fact that the information he gave in the interview when he first arrived in Australia contradicted the information he gave to the Department and Tribunal in relation to his claims and was invited to comment on this information.

Submission 7 August 2001

27. The Applicant's advisor submitted that in a letter the Applicant responded to the letter pursuant to section 424A of the Act. The Applicant claimed that there were rumours that after Khatami was elected as president of Iran a close Iran - Australia relationship developed and the Australian authorities would check information with the so-called democratic Iran. He said this was supported by the way DIMA representatives and ACM staff treated them. He claimed that some rumours stated that Australia disliked Iranian refugees. He said that he exercised caution, did not tell all the facts, only hinting at the main problem.

28. The Applicant claimed it was obvious in the first interview that he had a serious problem with the Iranian government and his brother warned him to leave the country. He also claimed that he put his problems in such a way as not to give away such information to the Australian government to be used against his brother and family as he did not trust the Australian government.

29. He claimed he did not mention his political affiliation because he did not want to indicate that he had a specified political view. He also claimed he had not wanted to come to Australia, but to stay in Malaysia or Indonesia. He was told what to say by the people smuggler and told that he could not stay in Indonesia or Malaysia.

Second Tribunal hearing 23 January 2002

30. The Applicant gave oral evidence to the Tribunal on 23 January 2002 and was represented by Mr Al Jabiri. The Applicant denied that he had help in preparing providing his applications, statements and submissions. He initially denied he had the assistance of the migration agent, then said he had the help of Mr Al Jabiri and finally admitted that he had the help and assistance of the his migration agent throughout his refugee application process. He said that some of the dates were wrong. The Applicant was asked, apart from the dates, if he was satisfied that the information was true and correct. He said there was several incorrect matters that he had mentioned to his migration agent, but was unable to identify what the mistakes were.

31. The Tribunal asked if there were any mistakes. He claimed that there were mistakes in relation to the initial application. He mentioned his brother was to provide documents to his brother in Sepah. He claimed that in the way it was translated that his brother was in Sepah was not correct . It was put to him that he had been aware of this for ten months and he had the services and the assistance of a trained and competent migration agent throughout that time and he was asked why he had not put any documents to establish his identity, or the identity of his family members to the Tribunal or DIMA during that time. He claimed that he did not understand when he had been asked. When asked if he could produce documents to establish his identity, he asked if the Tribunal required them. He was asked again if he could produce the documents. He said that maybe he could but he would have to ask. He said that no one had asked before and he had been accepted as an Iranian.

32. It was put to the Applicant that there was serious inconsistencies between information given at the initial interview and subsequently on his protection visa application, supporting statements and submissions and that this was of concern. He was asked to explain why there was a significant difference between the information in his initial interview and subsequent claim. He claimed that when he arrived he was taken to the detention camp, was told that he didn't have to say anything at the interview and would later be given a lawyer and the opportunity to explain everything. He was asked why he would not tell the Australian immigration authorities that he had persecuted in Iran and was seeking protection. He claimed that he did not understand. He said that he feared persecution in Iran and when is asked if he had come to Australia to seek protection from the fear of persecution, he said "no". He then claimed that he came to Australia to rescue himself, but he did not know about being a refugee. He claimed the people smugglers told him about safety and protection in Australia.

33. He claimed the situation was that he escaped, the smuggler told him that he would be taken to a country to protect him and he did not know refugee law. He claimed that he did not choose Australia, and did not know that he had to tell them about all matters. Later on he claimed he was told that he could tell a lawyer and put his claims.

34. It was put to the Applicant by the Tribunal that there appeared to be no information available about the Ahwasin Arab People Democratic Popular Front. He said that he had not contacted them and did not want them to write the letter but they knew about his Arab activities in Khozeston and their aims and objectives were the same as his, separation and independence. He claimed there was a meeting with the Sheik, that two people at the Front were there. They talked with them about similar aims of separation and independence and they wanted support. He then claimed that the Sheik knew that he had escaped, that his brother's contacts were with the lawyer and there was a possibility his brother and the lawyer knew and made contact with them.

35. It was put to the Applicant that he had no address, telephone, facsimile or email and no internet number or address and no information about the organisation at all and he was asked to comment. He was reminded that the previous Tribunal member commented on the issue yet nothing had been produced to give any information. The Applicant claimed that no one had asked. It was put to him that in the materials available to the Tribunal, there was no mention of any agreement, co-operation or association between the MKO, a Persian Islamic Marxist organisation, and Arab Independence Separatist groups and organisations. He claimed it had not anything to do with Arab people, it was considered part of the Arab people. He claimed that they kept it secret as they would have been arrested if any agreement was known.

36. As well as making submissions on behalf of the Applicant at the hearing, the migration agent made general submissions on 30 January 2002 concerning initial interviews with Applicants and made further submissions on 4 February 2002. He advised that the Applicant would be at risk of detention and interrogation on his undocumented return to Iran. He submitted that his claims were credible and strong and the Iranian authorities would have a file on the Applicant and he would therefore come to their adverse attention on his return to Iran. He submitted that those persons who had engaged in anti government literature and activities would be regarded as having committed a serious offence and those that associated with the MKO may be summarily executed. It was also submitted that the Iranian Embassy in Australia gathered information about Iranian detainees published in Australian newspapers and elsewhere and took adverse action against them on return to Iran. Some documents in support of his claim were admitted and copies of newspapers as evidence of the AAPDPF's political activities, copy of an AAPDPF Canada leaflet, web address, copy of letter from AAPDPF's, dated 20 October 2000 to the UNHCR about the plight of Arabs in Iran and copy of the download from the web site concerning the plight of the Arabs in Iran.

The Tribunal's decision

37. The Tribunal took into account that a group calling itself the Arab Peoples Movement was founded shortly after the Islamic resolution and its aim was the separation of Iran from the Province of Khizestan where ethnic Iranians are concentrated. With the help of Iraq intelligence services, they carried out armed attacks against Iranian targets in Khizestan until about 1986 or 1987 and some members of the Arab Peoples Movement were executed. Since that time they have carried out no activities inside Iran that the representative was aware of. He could find no independent evidence to suggest that a group known as the AAPDPF is active in Iran.

38. The Tribunal was satisfied that the MKO was originally formed in the 1960s, as an armed Islamic opposition movement. The group turned against the new government, it continues to wage an armed struggle against the Iranian State from Iraq, which provides the group with financial and logistical support and military equipment. The MKO remains the most powerful opponent of the Islamic Republic attacking targets in Iran and assassinating Iranian officials.

39. The Tribunal noted that findings of fact must be made in relation to the Applicant's claims and this may involve an assessment of credibility of the Applicant. The Tribunal noted that when assessing credibility it must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible, but who are unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any allegations made by an Applicant. Similarly, it is not necessary for the Tribunal to have rebutting evidence available to it before it can find a particular factual assertion by the Applicant has not been made out. Similarly, it is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the Applicant's country of nationality (Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547).

40. The Tribunal accepted that the Applicant was an Iranian national of Arab ethnicity. The Tribunal accepted some aspects of the Applicant's evidence but considered that other aspects were internally inconsistent, inconsistent with independent information and implausible.

41. Overall, the Tribunal found that the Applicant's evidence was not reliable, and that he had fabricated some aspects of his claims in an attempt to create for himself the profile as a refugee.

42. First the Tribunal was unable to make a finding that the Applicant was who he claimed to be because he had no passport, although his evidence was that he had left Iran legally with a passport. In his initial interview he indicated a number of documents which included his national identification, his drivers licence, university degree, military service card and certificate of employment which were held by his brother in Iran. He had not produced any of those documents. He was asked about this at the hearing on 23 January and it was put to him then that he had not produced any documents that could establish his identity despite the fact that he had been in Australia for at least 10 months and had the services of a trained and competent Migration Agent. At that stage he asserted no one had asked him about them and the point being made by the Tribunal was that notwithstanding the second hearing the Applicant had still not produced any verification of his identity.

43. The Tribunal found that the Applicant advanced several different reasons for the major discrepancies between the information he provided on arrival in Australia and his later claims. In his statement of 1 March 2002 he claims that he did not tell his whole story in the first interview as he did not have a lawyer to give him any advice he was not sure of the rules of protection. In his statement of 5 May 2002 he claimed that there were rumours in the camp that there was an agreement between the Iranian and Australian authorities that they would check information with Iran. In submissions from his adviser of 7 August 2001 in response to a s.424A letter concerning the discrepencies between the information provided in the initial interview and subsequent claims made by the Applicant he said that he had heard rumours that there was a relationship between Iran and Australia and that the Australian authorities would check the information with Iran and he exercised caution and did not reveal all the facts. He submitted that that it was obvious in the initial interview that he had a serious problem with the Iranian Government.

44. The Tribunal accepted that some asylum seekers may be reluctant to disclose full details of their claims upon arrival in Australia and in some cases they have been given specific instructions about what they should and should not say. The Tribunal also accepted that record of interview may be inaccurate for a variety of reasons including interpreting errors. None of the reasons advanced by the Applicant or his adviser, lack of a lawyer, listening to rumours about collusion between Australia and Iran being informed of having later interviews where he could advance his claims, could satisfactorily explain why he would mention the particular problems that he had but failed to mention such major problems as of his conduct of political activities for Arab rights at University and being a member of the MKO. It was pointed out by the Tribunal that during the interview the Applicant gave details of his own volition, and claimed to have been mentally tortured and humiliated by having to work with uneducated people in Iran.

45. In light of the specific opportunity to provide reasons why he should not be removed from Australia, the Tribunal found it implausible that he did not mention the serious incidents he now raises. As a consequence, the Tribunal did not accept that the Applicant was ever involved in political activities. Furthermore, the Tribunal found his evidence concerning his political activities problematic as it was inconsistent with the country information the Tribunal had. In particular there was no evidence to suggest that there was any political push for autonomy by Arab/Iranians, and if there was such a movement that it would have been known to sources used by Agencies such as the US State Department, the Australian Department of Foreign Affairs and Trade, the UK Home Office and the UNHCR.

46. The Tribunal also found from the independent information before it that an organisation called the Arab People's Movement was a small and politically insignificant group of Iranian exiles most of whom live in the Netherlands and Germany and that if the organisation was currently active in Iran it would also be known to the Agencies referred to.

47. Furthermore, the Tribunal found that the Applicant did not provide any information or evidence about the organization or his membership.

48. In relation to the letter from the AAPDPF the organisation says that the Applicant is not a member and the letter refers to him as a supporter of the organisation and as having been persecuted by the Iranian regime as a political socialist activist, but does not describe in any way what his political social activities were nor did it explain why he was persecuted. The Tribunal found it had the appearance of a standard format letter with his name at the top. The Tribunal also found that his expectations about how the letter came to be produced lacked credibility. The Tribunal found that the letter from the AAPDF did not assist the Applicant as it did not suggest that the AAPDF was in Iran let alone the Applicant was involved in political activities in that country.

49. The Tribunal also rejected the Applicant's claims that he was active with the MKO. In response to the Applicant's claims that he had not understood what the delegate wanted in terms of information in relation to the MKO the Tribunal listened to the tapes and were of the view that the delegate made himself sufficiently clear and that the Applicant appeared to be unwilling to answer the delegate's questions. Consequently, the Tribunal concluded that it was not satisfied the Applicant was active with MKO and was not involved in any political activities at all against the Iranian Regime. The Tribunal therefore was not satisfied that the Applicant was of any interest to the Iranian authorities for this reason.

50. The Tribunal then considered whether the Applicant has a well founded fear of persecution because he is a Arab/Iranian. Despite the claim by the Applicant that the Arab/Iranians have no rights and he was denied employment in his field the Tribunal noted that he speaks and reads Arabic as well as Farsi and that his brothers have gainful employment one in the Sepah, a government institution another in the trucking industry and the other in private enterprise of the Tax Office. The Tribunal noted that the Applicant was able to gain entrance into University and was an officer in the army during his military service. Overall, the Tribunal found that his evidence did not suggest that he had been disadvantaged because of his Arab ethnicity. Whilst accepting that many Arabs in Iran are economically deprived, the Tribunal was unable to accept that the evidence supported the contention that this applied to the Applicant's family and considered that the evidence suggested that his family was relatively prosperous and various members of it have gainful and influential employment.

51. Even if the family were economically deprived it would not follow that this would amount to persecution or they had a well founded fear of persecution for a contentious reason. Similarly, as to the Applicant's claims to be unable to gain employment in his field the Tribunal was unable to accept this was persecution for Convention reasons. The conclusion of the Tribunal was that it was not satisfied that the Applicant was ever involved in any political activities in Iran thus the Tribunal was not satisfied that the Applicant was wanted by the authorities or that he had to escape from Iran. The Tribunal concluded that a chance that he would be involved in political activities in the future that would bring the adverse attention of the Iranian authorities was thus remote and concluded that it was not satisfied that the Applicant had a well founded fear of persecution for reasons for his political activities or for his Arab ethnicity.

52. The Tribunal did not accept that he had to escape from Iran or that he had done so before his name had been placed on the black list. The Tribunal accepted he left Iran legally using his own passport which he has subsequently destroyed by giving it to a smuggler in Indonesia. Whilst being satisfied that he no longer has an Iranian passport because he had disposed of it on route to Australia the Tribunal was of the view that the Applicant could request the Iranian embassy to reissue him a replacement travel document and there was no evidence that the making of such a request would give rise to a well founded fear of persecution for a Convention reason. Similarly, the Tribunal was not satisfied that the Iranian authorities would take an adverse interest in a person merely because that person was applying for refugee status abroad.

53. Accordingly, the Tribunal concluded that it was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee Convention, and he does not satisfy the criterion set out in s36(2) of the Act for a protection visa.

Submissions of the Applicant

54. The Applicant contended that he had not said at his initial interview that he had come to Australia to have a better chance of gainful employment at all, and that this finding had significant effect on the government decision. However the Tribunal had listened to the tape.

55. The Applicant's main contentions were that it was unreasonable for the Tribunal to rely upon previous inconsistent answers to questions, and failure to answer questions satisfactorily, and should have re-asked the questions itself and given the opportunity to the Applicant to answer (again). The submission implies that no account of previous answers would be taken.

56. This submission misunderstands the function of the Tribunal, which subject to the limitations it expresses, is entitled to weigh up the conflicting evidence given and is not precluded from drawing adverse inferences. The Applicant contends in effect that only the information given to the last Tribunal should be considered.

57. The Applicant further contends that the Tribunal questioned the existence of the AAPDPF but this misunderstands the Tribunal's findings. The Tribunal accepted that such an organization exists but was not satisfied that it was currently active within Iran and said the letter did not advance any evidence to support the Applicants contention that he was involved in political activities in Iran. He contends again, that he should have been asked by the Tribunal for further information if they were unsatisfied with his evidence.

The Law

58. In legislation which commenced on 2nd October 2001 the judicial review regime in Part 8 of the Migration Act was repealed by the Migration Legislation Amendment (Judicial Review) Act 2001 which commenced in the 2 October 2001. Since that time the sole source of jurisdiction in the Federal Magistrates Court to review the decisions of the Tribunal is section 39B(I) of the Judiciary Act 1993 (Cth) ("the Judiciary Act") [see Migration Act section 477(I)]. The jurisdiction in the Federal Magistrates Court in these matters is invoked by section 483(A) of the Migration Act. The jurisdiction which this Court exercises is subject to section 474 of the Act. The amendments made to the Migration Act in October 2001 have by section 474(I) restricted the review by the Courts of administrative decisions of the Minister for Immigration and Multicultural and Indigenous Affairs, by his delegates in the merits review Tribunals (notably the Migration Review Tribunal and Refugee Review Tribunal) in migration matters.

59. Amendments to the Migration Act have removed what would otherwise be errors in the making of some migration decisions from the scope of judicial review by the Courts and have done so by implicitly changing the substantive meaning of the Act so that the jurisdiction and/or power of decision makers under the Act is expanded. In this way the decisions that might otherwise have been invalid are validated by the effect of the privative clause.

60. The "privative clause" introduced in October 2001 is contained in Section 474 of the Act and reads "a privative clause decision:

a) is final and conclusive;

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

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

61. However the words of section 474 have effect subject to the exceptions set out in the judgment of Dixon J in Hickman ex parte Fox v Clinton (1945) 70 CLR 598 where the High Court held that a privative clause expanded the power of the relative decision maker making in such a way that the lawfulness of any decision made was beyond question provided

"The decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the power given to the body".

62. The effect of s.474(1) was considered by the five member court in NAAV v The Minister for Immigration & Multicultural & Indigenous Affairs ("NAAV") von Doussa J (with whom on this point Black CJ and Beaumont J agreed) stated at [635] that the Migration Act contained a hierarchy of provisions of which in relation to privative clause decisions, section 474(1) was intended by Parliament to be the leading provision, "apparently inconsistent provisions of the Act" are to be construed as subject to the restrictions in section 474(1). Consequently, the effect of section 474(1) is to expand the jurisdiction of the relevant decision makers (including the Tribunal) so that a decision that is effected by irregularities that would in the absence of section 474(1) amount to jurisdictional error, would be within power, subject to satisfying the so called Hickman conditions. The Hickman conditions require that the decision

* be a bona fide attempt to exercise the power which the Migration Act reposes in the decision maker;

* relates to the subject matter of the Migration Act;

* be reasonably capable of reference to the power.

63. In addition it follows from the reasons that the majority in NAAV that a decision will not be protected from judicial review if it contravenes what is variously described as an "inviolable" condition "jurisdictional factor" or "structural element" found in the legislation.

Conclusion

64. It is clear in this case from the substance of the complaints, that they are about the merits of the Tribunal's decision, and in particular its findings of fact. Given the various opportunities the Applicant had to explain his position I am far from convinced that he was not given an opportunity to do so by the Tribunal or that the Tribunal had any obligation to act as inquisitor. More importantly, no argument is advanced or articulated which suggests that the three Hickman conditions were not satisfied or that the alleged failure on the part of the Tribunal constituted an infringement of an inviolable condition, jurisdictional factor or structural element found in the Migration Act. There is nothing to suggest that the Tribunal was not attempting to carry out its functions in a bona fide manner. Thus the appeal must be dismissed.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 21 January 2003
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