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MIGRATION - Application for review of decision of the Refugee Review Tribunal - claims evolving over time - refusal to permit production of transcript of interview with Federal Police - some Tribunal findings unsupported by evidence - no finding of bias leading to a lack of bona fides - application dismissed.

WAGU v Minister for Immigration [2002] FMCA 181 (23 August 2002)

WAGU v Minister for Immigration [2002] FMCA 181 (23 August 2002)
Last Updated: 30 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAGU v MIMIA
[2002] FMCA 181



MIGRATION - Application for review of decision of the Refugee Review Tribunal - claims evolving over time - refusal to permit production of transcript of interview with Federal Police - some Tribunal findings unsupported by evidence - no finding of bias leading to a lack of bona fides - application dismissed.



Migration Act 1958 (Cth) s.474

NAAG of 2002 v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 713

NAAV v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 228

SAAG v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 547

SCAA v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 668

Applicant:
WAGU



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 120 of 2002



Delivered on:


23 August 2002



Delivered at:


Perth



Hearing Date:


20 August 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr A Jenshel



Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $3,750.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 120 of 2002

WAGU


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is an Iranian veterinarian who arrived in Australia on

31 December 2000 by boat. He was not immigration cleared. On

30 August 2001 he lodged an application for a protection (class XA) visa which was declined by a delegate of the Minister on 17 January 2002. On 23 January 2002 the applicant applied for review of that decision which was made on 9 May 2002.

2. The applicant was represented before the delegate and before the Tribunal. He was not represented before this Court. This was unfortunate because it is never easy to explain to a person whose first language is not English the very severe limitations that have been placed on the Court in respect of its powers of judicial review by s.474 of the Migration Act 1958 (Cth).

3. The application which was filed states as its grounds the following:

"(i) The decision involves an error in law;

(ii) There was no jurisdiction to make the decision;

(iii) The Migration Act did not permit the making of the decision."

4. None of these grounds were illuminated by particulars. The gravamen of the Tribunal's decision is contained in the following quotation from [CB 187-88]:

"The Tribunal finds that the applicant's claims have evolved considerably over time, and that he is not a credible witness. The applicant indicated full awareness of the differences between his arrival interview and later claims, and the potential implications of these, when asked about this in the interview with the Delegate and later in the hearing."

5. At its highest point the applicant's reasons for alleging a well-founded fear of persecution for Convention reasons were that he was an active supporter of the Nehzat Azadi (Iran Freedom movement), which was banned shortly after he left Iran. He also complained of discrimination in employment and educational opportunities.

6. It is correct that the applicant's claims of political activity were developed and particularised over the period that he has been in detention. By the time the applicant reached the Tribunal his claims included active participation in the campaign of an independent reformist candidate in the 1999 parliamentary elections. The applicant also put forward a "sur place" claim based upon publicity surrounding his escape from detention which, he said, drew the attention of the Iranian embassy in Canberra to him. This resulted in warnings and threats being given to his family.

7. At the commencement of the proceedings the applicant asked whether the Court could order the production of certain transcripts of interviews because the applicant claimed that there were errors in the translations of his initial interview. He also claimed that he gave information about his political activities to the Federal Police when they had interviewed him following his escape. He required the transcript of that evidence. These matters were debated at some length and in the end I made a ruling to the effect that I would not call for the transcripts. This ruling is annexed to these reasons. I am satisfied that the applicant had an opportunity to call for these transcripts or tapes previously at a time when he was represented, that he did indeed call for some of the tapes and that they were provided to him. In so far as the tape of the interview with the Federal Police is concerned there does not seem to be any mention in the reasons for decision of the Tribunal of the existence of a claim by the applicant that he had provided information to the Federal police. If that is the case then these are not matters which are relevant to a review of the Tribunal's decision which proceeded in their absence and without the Tribunal's knowledge of them.

8. The main thrust of the applicant's complaint about the Tribunal's decision was that it was all premised on the finding of lack of credibility itself based on his failure to give any indication of his political activity at an early stage in the interview process. I have dealt with this, but essentially it is a complaint about the finding on the merits which is not reviewable. But the applicant went on to complain about other matters. For example, he did not understand how the Tribunal could have reached the conclusion that he had arranged for information to be provided to the Secretary General of the Freedom Movement which enabled that person to send an email to his advisers confirming the applicant's participation in the 1999 election process. At [CB 185] the Tribunal said:

"The Tribunal finds that the applicant is not an active supporter of the Nehzat Azadi or Varahpaee at all. This is not to cast doubt on the character of the Freedom Movement's Secretary General: his email reports what he has been told by people in Naeen. No doubt the applicant is well-enough connected there to have such statements arranged."

9. There is certainly no evidence in the Court Book that I can see from which such a conclusion might be drawn. The applicant also points out the internal inconsistency found at paragraph 5 of [CB 190] where there is acceptance that Iranian officials had been in contact with his family following the publicity about his escape from detention and the non acceptance that his house was searched or that his wife was detained. These matters may indicate a

"lack of satisfaction, however reached, with whatever attendance there may have been to what, absent s.474, may have been irrelevant considerations or with whatever misunderstanding of the right question to answer, whether capricious, arbitrary or lacking of probative foundation or a rational connection with circumstances present, or fanciful." (NAAG of 2002 v MIMIA [2002] FCA 713 at [13]).

But a lack of satisfaction reached on any of these bases no longer constitutes reviewable error on the part of the Tribunal (NAAV v MIMIA [2002] FCAFC 228).

10. The applicant did indicate that he thought the manner in which the Tribunal's decision had been reached indicated bias leading to a lack of bona fides. Although this was a submission only faintly put, I would say that whilst I believe that the Tribunal's decision could be open to criticism of the sort made by the applicant and discussed previously I do not believe that it either meets the test set by Mansfield J in SAAG v MIMIA [2002] FCA 547 or falls within the criteria outlined by von Doussa J in SCAA v MIMIA [2002] FCA 668 at [38].

11. It follows that I must dismiss this application and order that the applicant pay the respondent's costs which I assess in the sum of $3,750.00 pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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