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1 When this appeal was called for hearing, the appellant indicated to the Court that the judgment of Mansfield J had not been translated for him. After some discussion, the appellant sought an adjournment of the appeal to allow the judgment to be translated and to enable him to make submissions concerning its correctness or otherwise. The respondent Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister") opposed the adjournment.

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

SAAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 366 (8 November 2002)
Last Updated: 26 February 2003


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

[2002] FCAFC 366


SAAZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 205 OF 2002

HILL, BRANSON & STONE JJ

8 NOVEMBER 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
S 205 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SAAZ

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
HILL, BRANSON AND STONE JJ


DATE OF ORDER:
8 NOVEMBER 2002


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. the appeal be dismissed.

2. the appellant pay the respondent's costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
S 205 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SAAZ

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
HILL, BRANSON AND STONE JJ


DATE:
8 NOVEMBER 2002


PLACE:
SYDNEY





REASONS FOR JUDGMENT

HILL J:

1 When this appeal was called for hearing, the appellant indicated to the Court that the judgment of Mansfield J had not been translated for him. After some discussion, the appellant sought an adjournment of the appeal to allow the judgment to be translated and to enable him to make submissions concerning its correctness or otherwise. The respondent Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister") opposed the adjournment.

2 The appellant then gave evidence on oath.

3 He said that he had received a copy of the decision about a week before 8 August 2002. On or about that date, he had arranged to have prepared by a lawyer a notice of appeal. He signed that notice.

4 The first occasion he sought to have the judgment translated to him was, he said, about a week after 8 August. On that occasion he requested that he approach an interpreter behind the fence at Woomera urgently. The reference to "behind the fence" was a reference to a procedure whereby urgent interviews could be arranged with the interpreter being separated from the from the detainee by a fence. Shortly thereafter he spoke to a Mr Farid Baia, a Farsi interpreter who was working at Woomera at that time. Although Mr Farid Baia spoke Farsi well, he also used some Afghan words. The appellant did not easily understand Afghani.

5 Mr Farid Baia said that he was busy but that he could read the decision for the appellant, although he could not translate it formally for him. He then read the decision to the appellant in Farsi but subject to the use of some Afghan words. The appellant says that he did not understand the decision read to him, particularly because some words in Afghani were different.

6 A month and a half later he says he approached a lady to interpret the decision for him. That lady was unnamed but is said to still work in Woomera. He says that the lady did not have time to translate the decision at that time because she had other things to do. The appellant said that he had not thereafter made any further attempt to have the judgment translated.

7 In cross-examination it was put to the appellant that there were a number of Farsi interpreters available at Woomera in early August 2002. The appellant accepted that there were at least three interpreters who were named. Although the appellant contradicted his own evidence from time to time I think it is clear from the evidence that he was aware that he could, if he wished, request an interpreter to be made available to him or, if there was urgency, he could talk to an interpreter without appointment through the fence.

8 The appellant says that he did not really understand the reasons which Mansfield J gave for dismissing his application to the Court, but it is clear from his own evidence that he never made any written request for appointment with an interpreter, nor did he make any attempts to have the judgment translated, other than those which I have noted.

9 In the circumstances I am of the view that had the appellant wished seriously to have the judgment interpreted again for him, it having already been read to him, he could have made more of an attempt than he appears to have done. I am satisfied that the evidence leads to the conclusion that the judgment was clearly read to the appellant. I think also that it is more likely than not that the fact that he did not understand the judgment had more to do with the difficult legal concepts involved in it than the actual language used by Mansfield J.

10 In the circumstances I am of the view that it is not in the interests of justice that an adjournment be granted and I would accordingly refuse it.

BRANSON J:

11 I also am of the view that the interests of justice in this case do not demand that the appellant be granted an adjournment. I take into account that the judgment of Mansfield J has been read to him and I am satisfied that his failure to understand its content fully has more to do with the nature of the content of the judgment than the language in which it was read to him.

STONE J:

12 I agree with the views expressed by Hill and Branson JJ, and I would also refuse the adjournment.

The adjournment was then refused.

The appellant made some brief submissions.

Hill J delivered the judgment for the Court.

THE COURT:

13 The appellant is a citizen of Iran. Some time after he arrived in Australia he applied for a protection (Class XA) visa. His application was refused by a delegate of the respondent Minister. He applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. The Tribunal affirmed the decision of the delegate. The appellant then applied to this Court for judicial review of the Tribunal's decision.

14 The application to this Court was made after 2 October 2001 and accordingly the application is one made under s 39B of the Judiciary Act 1903 (Cth). The application to the Court appeared to be in form an application for review under the Migration Act 1958 (Cth) ("the Act"). However, his Honour, without objection, it would seem, properly treated it as an application made under s 39B of the Judiciary Act, but subject to the provisions of s 474(2) of the Act which provides that the decision of the Tribunal was a "privative clause decision".

15 It is a criterion of the grant of a protection visa that an applicant be a person to whom Australia has protection obligations. Generally speaking it can be said that Australia has protection obligations to a person who is a "refugee" within the meaning of that expression in Article 1(A)(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967, which together are compendiously referred to here as "the Convention".

16 The appellant at the time of making the application for the visa was a Shi'a Muslim. He claimed to be a refugee and to fear persecution should he be returned to Iran because the authorities would impute to him a political opinion, that being that he was opposed to the government.

17 The appellant claimed that he had worked for his uncle in a printing business and that anti-government graffiti had been scrawled on a wall of the shop from which the business was conducted by an unknown person and that anti-government leaflets had been left outside the shop. He thought that this was the work of some enemies who wanted to implicate the uncle and himself as being anti-government. He claimed to have quickly washed the graffiti away and taken the leaflets from the front of the shop to the inside of it. There they had been found, he said, by the Etela'at. He said that he and his uncle had been arrested and that his uncle had thereafter disappeared. He claimed to have been questioned and beaten. The beating had resulted, he said, in a back problem from which he still suffered. He claimed that the Etela'at was seeking him for further questioning and that he had left the country for this reason. He said that neither he, nor his uncle, had been politically active in Iran.

18 In the course of the proceedings before the Tribunal the appellant disclosed in passing that he had become a Christian some two months before the hearing. He had not yet been baptised and had not told anyone, apart presumably from his religious instructors, that he had changed his religion. He said that if returned to Iran he would try to hide his conversion. In support of his conversion the appellant's advisers submitted a letter from Sister Anne Higgins of the Woomera-Roxby Downs Catholic parish. He claimed therefore to be a refugee and to fear harm also for reasons of his religious belief and conversion.

19 The Tribunal did not accept the appellant's evidence as to the discovery of the anti-government literature at the uncle's shop. It did not regard that evidence as credible and said that it "defied logic" and stretched "the bounds of credulity". It noted that the appellant had, otherwise, no political profile and, while accepting that the appellant had been questioned about the graffiti, said that it was not satisfied that the authorities would impute a political opinion to him based upon the graffiti which the appellant had, in any event, quickly removed. The Tribunal was not satisfied that the shop premises were thereafter searched or that any pamphlets had been found. Indeed, the Tribunal found that the claims concerning the pamphlets had been made up to enhance the appellant's claim to be a refugee.

20 A claim to be considered a refugee on religious grounds had not initially been made. However, the appellant requested the Tribunal to consider this additional ground, which the Tribunal did. The Tribunal made no finding as to whether the appellant's conversion was genuine because, having regard to his evidence that he would hide his conversion and also country information before it that those who worshipped privately and maintained a low profile would be unlikely to suffer any adverse attention it was not satisfied that the appellant had a well-founded fear of harm in Iran in the foreseeable future, for reason of his conversion to Christianity.

21 Finally, the Tribunal considered the fact that the appellant had departed Iran illegally and that if returned that fact and his application for refugee status would come to the attention of the authorities. It concluded on the basis of country information that the appellant would not face harm amounting to persecution because of these matters if returned to Iran.

22 Accordingly the tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations.

23 Before the learned primary Judge the appellant, who was then represented, relied upon a number of matters in support of an argument that the Court had jurisdiction to review the decision. The arguments were complex and are set out in his Honour's reasons. Each of them was rejected.

24 Additionally, the appellant claimed that the Tribunal had fallen into error of a kind that would, subject to s 474(1) of the act, entitle him to relief under s 39B. In particular it was argued that the Tribunal had adopted the wrong test as to what constituted persecution in considering the appellant's conversion to Christianity. It was said also that the tribunal had failed to "fairly weigh the evidence before it" and had not given to the appellant substantial justice, nor had it determined his claim in accordance with the merits of the case. Finally, it was submitted that the Tribunal had taken into account irrelevant considerations and had failed to take into account relevant considerations in a way which affected its jurisdiction. It was argued that the tribunal had relied upon outdated country information and had relied upon that information rather than the sworn testimony of the appellant.

25 In a careful judgment, the learned primary judge considered each of these submissions and rejected them.

26 Before us the appellant was unrepresented and appeared with the assistance of an interpreter. The notice of appeal filed in the court contained two grounds. The first was that the learned primary Judge was wrong in his interpretation of the law with respect to refugee status; the second was that his Honour should have found a jurisdictional error which was not validated by the privative clause. These grounds of appeal were not particularised, nor were they developed on the appeal. We have, however, given consideration to them. Rather, before us, the appellant raised a number of matters going to the merits of his case. He referred to a number of matters which he said pointed to mistakes of the Tribunal in deciding his case. All of the matters raised before us, however, go to a review on the merits of the decision. Even apart from s 474 of the Act it is not within the jurisdiction of this Court to embark upon a merits review.

27 We agree with the reasons of the learned primary Judge that there was not an error of a kind, that in the absence of s 474, would lead to the granting of relief. It follows that, for that reason, the appeal must fail. It is therefore unnecessary for the Court on appeal to consider the additional arguments on the basis of which his Honour found the Court lacked jurisdiction to determine the application. In saying this we do not want it to be suggested that by our not considering the arguments his Honour was wrong. The appeal must therefore be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Branson and Stone.




Associate:

Dated: 20 November 2002

Counsel for the Appellant:
The Appellant appeared in person.






Counsel for the Respondent:
M Roder






Solicitor for the Respondent:
Sparke Helmore






Date of Hearing:
8 November 2002






Date of Judgment:
8 November 2002


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