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3 This is an appeal from a decision of Carr J given on 18 March 2002. His Honour dismissed an application by the appellant seeking review of a decision of the Refugee Review Tribunal given on 4 September 2001 affirming an earlier decision of a delegate of the respondent refusing to grant to the appellant a protection visa under the Migration Act 1958 (Cth).

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

WAFY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 303 (15 August 2002)
Last Updated: 3 July 2003


FEDERAL COURT OF AUSTRALIA
WAFY v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 303


WAFY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W 102 of 2002

FRENCH, HEEREY AND MANSFIELD JJ

PERTH

15 AUGUST 2002 (CORRIGENDUM 22 OCTOBER 2002)

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W.102 OF 2002




BETWEEN:
WAFY

APPLICANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
FRENCH, HEEREY & MANSFIELD JJ


DATE:
15 AUGUST 2002


PLACE:
SYDNEY





CORRIGENDUM

Please note that the orders page should read:

1. The appeal be dismissed with costs.

I certify that this is a true copy of the corrigendum herein of the Honourable Justices French, Heerey and Mansfield JJ.




Associate:

Dated: 22 October 2002


FEDERAL COURT OF AUSTRALIA
WAFY v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 303


WAFY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W.102 of 2002

FRENCH, HEEREY AND MANSFIELD JJ

PERTH

15 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W.102 OF 2002





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
WAFY

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
FRENCH, HEEREY & MANSFIELD JJ


DATE OF ORDER:
15 AUGUST 2002


WHERE MADE:
ADELAIDE




THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W.102 OF 2002





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
WAFY

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
FRENCH, HEEREY & MANSFIELD JJ


DATE:
15 AUGUST 2002


PLACE:
ADELAIDE





REASONS FOR JUDGMENT
FRENCH J:

1 I agree for the reasons expressed by Mansfield J that the appeal should be dismissed with costs.

HEEREY J:

2 I agree.

MANSFIELD J:

3 This is an appeal from a decision of Carr J given on 18 March 2002. His Honour dismissed an application by the appellant seeking review of a decision of the Refugee Review Tribunal given on 4 September 2001 affirming an earlier decision of a delegate of the respondent refusing to grant to the appellant a protection visa under the Migration Act 1958 (Cth).

4 The role of the Court on such an application is a restricted one. It is not entitled to review decisions of the Tribunal on the merits. Its function is to consider whether the Tribunal, in making its decision, has erred in some way involving an error of law or in applying the law or in a way which somehow involves procedural unfairness to the appellant.

5 On this appeal it is necessary for the appellant, if he is to succeed, to demonstrate that the approach of Carr J to the application to review the decision of the Tribunal was itself flawed in a significant way. It is not the function of the Court on appeal simply to review the decision of the Tribunal to see if the Court would have reached a different view on the facts before the Tribunal or to see whether it would have reached a different view on the facts from the view which Carr J took about the way the Tribunal approached its task.

6 The nature of the appellant's claim can be briefly stated. He claimed to have fled Iran because he was involved with an illegal opposition group called the Mujaheddin, that he had been identified by the Iranian authorities for engaging in activities on its behalf and that he faces persecution by the authorities if he returns to Iran.

7 As the Tribunal noted, there was little scope to dispute that if his claims were true - that is, if he were involved with an illegal opposition group, as he claimed, and had been detected - he would be at risk of serious harm if he were to return to Iran. His claim before the Tribunal failed because the Tribunal did not believe him. The Tribunal reported at some length what the appellant had said at his arrival interview and on subsequent occasions in the course of the consideration of his application for a protection visa.

8 Ultimately, as his Honour observed, the Tribunal was simply not satisfied that the appellant was involved in any way with an illegal opposition group as he claimed or was of interest to the Iranian authorities at the time he left Iran. The Tribunal noted that one of the appellant's sisters had been granted a protection visa under the Act after her arrival in Australia. It recited that she had been granted that visa following her activities in demonstrations in mid 1999 subsequent to the appellant himself having left Iran in the latter part of 1998. It did not accept that by reason of his sister's activity in relation to the demonstrations in the middle of 1999, the appellant was at risk of persecution if he returned to Iran.

9 Carr J, as his reasons indicate, went to pains to identify clearly the grounds upon which the appellant sought to have the Tribunal's decision reviewed. At present it is not necessary to refer to the process by which his Honour did so. Ultimately the grounds of review were identified by a letter dated 16 January 2002 sent by the appellant to the Court to which his Honour referred in detail. It contained eight specific complaints described as errors of law on the part of the Tribunal and a general complaint with detailed references about the quality of the interpretation provided to the appellant during his hearing before the Tribunal on 8 August 2001.

10 His Honour went through each of the eight points of which the appellant complained. He did not discern as a result of that consideration that any of those complaints were made out and so was not satisfied that the Tribunal had erred in law in any of the ways of which the appellant complained. His Honour also considered at length the complaints about the quality of the interpretation provided to the appellant at the hearing before the Tribunal. His Honour reached the firm view on the basis of his consideration of the detailed complaints, upon his own listening to the tape-recording of the hearing and upon the information provided by the appellant's migration agent provided to the Tribunal, that there were no serious interpreting mistakes, that the standard of interpreting at the Tribunal's hearing did not fall below what is required. He thought the Tribunal generally had a clear understanding of what the Tribunal was saying to the appellant and what the appellant was saying to the Tribunal.

11 His Honour also addressed the individual complaints about the quality of the interpreting but concluded that there was no relevant interpreting error. Assuming it to be the proper interpretation of section 425(1) of the Act, his Honour was satisfied that the appellant had an opportunity to present to the Tribunal his claims and that the Tribunal had understood them.

12 Because the appellant was unrepresented, his Honour also separately considered the Tribunal's reasons to see whether any reviewable error was revealed. His Honour concluded that the Tribunal's findings were open to it and there was sufficient evidence and material to justify its conclusion that it was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention. He also concluded that the Tribunal made no reviewable error, either an error of law or jurisdictional error, in its approach.

13 The notice of appeal to this Court was also evidently prepared by the appellant in person. It contains two grounds. The first is that the appellant's claimed errors in the Tribunal's reasons were not properly considered by the judge at first instance. The second complains that the hearing proceeded in the face of a request by the appellant for an adjournment to arrange legal representation. In his oral submissions today the appellant has addressed only the first of those matters essentially by rearguing each of the points which were the subject of submissions before the judge at first instance.

14 The matters raised by the appellant concerning each of the complaints made about the Tribunal's decision have not, in my view, demonstrated any error on the part of the judge at first instance in his approach to those matters. Principally it has been argued that the judge at first instance and the Tribunal failed to have regard to a hearing problem which the appellant suffers and failed properly to address the complaints about the quality of interpretation at the hearing before the Tribunal.

15 It is obvious from the appellant's submissions today that to an extent those two complaints are related. He has referred to a number of references in the tape-recording of the hearing before the Tribunal which he says demonstrate communication problems possibly affected or caused by his hearing problem, as well as other inadequacies in the interpretation. I do not think the appellant has demonstrated any error on the part of the judge at first instance in his consideration of those matters.

16 His Honour identified those parts of the Tribunal's reasons where it acknowledged the hearing problem of which the appellant complained, so it clearly did not fail to pay any attention to that problem or to recognise it. His Honour also listened carefully to the tape and formed the impression that for the purposes of measuring the quality of the appellant's communications with the Tribunal, his hearing problem did not cause him to lose the opportunity to communicate effectively with the Tribunal.

17 Each of the particular references to communication matters, including references to points in the tape-recording to which we have been referred, were matters which his Honour addressed. As I have said, his Honour reached the conclusion that the Tribunal properly gave to the appellant an opportunity to convey to it that which he wished to convey to it and properly understood what the appellant sought to convey to it.

18 The balance of the matters to which the appellant today referred simply seek to reargue the merits of the Tribunal's consideration of those matters. The judge at first instance addressed each of those matters and indicated why in his view the Tribunal had addressed the matters it was said not to have addressed or had pursued appropriately questioning to the extent that it was obliged to do so and had understood the appellant's claims, contrary to his contention that it had not done so.

19 The appellant specifically raised today the concern that the Tribunal had not considered the evidence of his sister, in particular that she had herself been granted a protection visa in Australia. The Tribunal did refer to those circumstances in its reasons for decision. It was not satisfied that by reason of the circumstances leading to his sister being granted a protection visa he would be at risk if he were to return to Iran.

20 The appellant presented to the Court by facsimile sent on 22 July 2002 some information which appears to be inconsistent with the information upon which the Tribunal relied about the way in which students who participated in the 1999 demonstrations have been treated in Iran. I do not think it is appropriate to receive that information on this appeal. It does not indicate that the Tribunal did not have information available to it upon which it formed its view as to how those students were treated. To receive it would simply involve the Court in embarking upon a decision as to the merits of the Tribunal's decision on that matter.

21 More importantly, the Tribunal took the further step of saying that however such students were treated, it would not lead to persecution of members of their families, at least in relation to those students who played a minor role in the demonstrations such as the appellant's sister.

22 The additional information the appellant sought to adduce does not throw any further light on that question and could not demonstrate error on the part of the Tribunal or on the part of the judge at first instance in its consideration of that issue.

23 The appellant also sought to adduce before the Court a letter from his migration agent dated 24 July 2002, commenting upon the quality of the interpreter who interpreted at the hearing before the Tribunal on 8 August 2001. In my view that letter ought not be received on the appeal. It would simply lead to the Court being asked to review findings of the Tribunal on the merits of the hearing. It could not demonstrate that the judge at first instance erred in law in a way which would entitle this Court to set aside that decision. It is not material which is in its form capable of demonstrating in an admissible way anything about the quality of the interpreter at the hearing.

24 Although the appellant did not develop this second ground of appeal in his oral submissions, it is appropriate to deal briefly with it. The matter first came on before his Honour on 20 December 2001. There had earlier, on 19 October 2001, been directions requiring the appellant to set out in some detailed form a statement why he considered the decision of the Tribunal should be overturned. He had not done so.

25 At the hearing on 20 December 2001 the judge at first instance discerned from the nature of the appellant's oral submissions the need to have them put in some coherent and detailed form and adjourned the hearing to enable the appellant to do so. The letter of 16 January 2002 was the result and it was used by his Honour as identifying the grounds of the application.

26 A further hearing date was fixed for 18 March 2002. On 15 March 2002, through a lawyer acting pro bono publico, some written submissions were made in effect asking for a further adjournment, principally because the grounds of review to be relied upon were not sufficiently clearly expressed. At the hearing on 18 March 2002 the appellant appearing in person sought an adjournment of the hearing for the reasons I have noted. That application was opposed. His Honour considered that the letter of 16 January 2002 did sufficiently clearly identify the issues to be addressed on the application.

27 Having regard to the past history of the matter and his view about the clarity of the issues identified, his Honour did not consider that the interests of justice required the appellant to be given a further time to prepare for the hearing. In my view his Honour's decision to decline that adjournment application has not been shown to have been wrong. It was a discretionary decision and his Honour took into account those matters which he ought to have taken into account in deciding to proceed with the hearing. He noted that the issues were clear. He noted the time between the hearings, in effect three months, and the timing and basis upon which the application for the adjournment was then made and he noted that the appellant had the benefit at the hearing of a migration agent who spoke Farsi and had an Iranian law degree.

28 He noted his capacity to listen to the audio recording of the Tribunal hearing. In my judgment the decision to decline the adjournment at that time was one clearly open to his Honour and he did not err in proceeding with the hearing at that time. For those reasons I consider that the appellant has not made out any error on the part of the judge at first instance on this appeal or to the extent that he has addressed his contentions to the Tribunal's decision on the part of the Tribunal. I therefore consider that the appeal should be dismissed, with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 4 October 2002

Counsel for the Appellant:
Mr WAFY appeared on his own behalf.






Counsel for the Respondent:
Ms LB Price






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
15 August 2002






Date of Judgment:
15 August 2002


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