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Cases

1 The appellant is a male Iranian citizen. He arrived in Australia on 19 June 2000. At that time he was almost 33 years of age. On 1 March 2001 he lodged an application for a protection visa (class XA) under the Migration Act 1958 (Cth) ("the Act"). On 26 March 2001 a delegate of the respondent refused the application. On 18 July 2001 the Refugee Review Tribunal ("the Tribunal") affirmed the decision of the delegate. On 7 December 2001 Carr J dismissed an application by the appellant to review the decision of the Tribunal. Because of the date at which the appellant applied for judicial review, his application and the appeal must be dealt with pursuant to the provisions of s 476 of the Act as they stood prior to amendments which came into operation on 2 October 2001.

2 The criterion for a protection visa is whether, at the time of the decision, the decision-maker is satisfied that the appellant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"): ss 5(1) and 36(2) of the Act. In accordance with Art 1A(2) of the Convention, to qualify as a refugee an applicant must show that "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he ... is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...".

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

WACW v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 155 (29 May 2002)
Last Updated: 29 May 2002


FEDERAL COURT OF AUSTRALIA
WACW v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 155


MIGRATION - appeal - refusal of protection visa - whether no evidence - whether error of law - whether error of law in non-observance of United Nations Handbook on Procedures

Migration Act 1958 (Cth) ss 5(1), 36(2), 476(1)(e), 476(1)(g), 476(4)(b)

United Nations Handbook on Procedures and Criteria for Determining Refugee Status (1979)

Chan v Minister for Immigration & Ethic Affairs (1989) 169 CLR 379 followed

Applicant A v Minister for Immigration & Ethnic Affairs [1997] 190 CLR 225 referred to

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 followed

WACW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W567 of 2001

GRAY, RD NICHOLSON and EMMETT JJ

PERTH

29 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W567 of 2001





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
WACW

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGE:
GRAY, RD NICHOLSON and EMMETT JJ


DATE OF ORDER:
29 MAY 2002


WHERE MADE:
PERTH




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the respondent.

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
W567 of 2001





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
WACW

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
GRAY, RD NICHOLSON and EMMETT JJ


DATE:
29 MAY 2002


PLACE:
PERTH





REASONS FOR JUDGMENT
THE COURT:

1 The appellant is a male Iranian citizen. He arrived in Australia on 19 June 2000. At that time he was almost 33 years of age. On 1 March 2001 he lodged an application for a protection visa (class XA) under the Migration Act 1958 (Cth) ("the Act"). On 26 March 2001 a delegate of the respondent refused the application. On 18 July 2001 the Refugee Review Tribunal ("the Tribunal") affirmed the decision of the delegate. On 7 December 2001 Carr J dismissed an application by the appellant to review the decision of the Tribunal. Because of the date at which the appellant applied for judicial review, his application and the appeal must be dealt with pursuant to the provisions of s 476 of the Act as they stood prior to amendments which came into operation on 2 October 2001.

2 The criterion for a protection visa is whether, at the time of the decision, the decision-maker is satisfied that the appellant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"): ss 5(1) and 36(2) of the Act. In accordance with Art 1A(2) of the Convention, to qualify as a refugee an applicant must show that "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he ... is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...".

Appellant's claims

3 The appellant's articulation of his claims appears in three sources.

4 The first was in his initial interview. He claimed to have come to Australia for freedom as there was no peace in Iran. He said in Iran there was no personal safety or protection for belongings. He referred to two specific instances. The first was when he was stopped and questioned while walking with his sister in the market place. The second was the stopping of his brother's war pension, which he characterised as an issue of corruption. He claimed to have left Iran utilising a passport in his name which had later been taken by the smuggler in Indonesia.

5 The second was in his responses to questions arising from his application for a protection visa. The appellant said that in his first interview he had not dealt with his "main problem". The reason he gave for this was a fear of danger to him in doing so as he had fled Iran illegally. He then said that because his brother was under psychological and mental pressure as a consequence of having his war pension stopped, he decided to visit the veteran's organisation (called Buniade-Janbazan) responsible for payment of the pension. He attended at its office in Tehran. There, by bribing a servant, he obtained access to his brother's file and found that some officers of the organisation had embezzled the entitlements which should have gone to his brother. He claimed that he remonstrated vigorously with those in charge. The appellant asserted that he had angrily denounced the Buniade-Janbazan officials by yelling angry criticisms of the regime and its clerical leadership for theft and corruption and the treatment of the people of Iran. He had then been taken into custody by intelligence officers, beaten and tortured to the extent that he was hospitalised. Then he claimed that with the aid of a nurse at the hospital he had escaped custody and fled Iran illegally. He further claimed that after one week in Dubai he had telephoned his brother's home and been informed that the authorities had gone there and searched for him and also threatened the family. He therefore claimed to fear harm (by way of persecution) if returned to Iran because he had fled from the hospital when he was in custody, he had left the country illegally and he had problems with the Buniade-Janbazan organisation.

6 Thirdly, his migration agent formulated his claim as follows in written submissions to the Tribunal:

"[The appellant] claims to have a genuine and well-founded fear of persecutory treatment by the Iranian Ettela'at for reasons of imputed political opposition to the ruling fundamentalist Islamic theocratic leadership in Iran should he fall into their hands.
These fears arise from his enraged outburst in the offices of the head of the Bunyad which had deprived his brother of his entitlements as a disabled Iran-Iraq war veteran."

Tribunal findings and reasoning

7 When the matter came before the Tribunal it accepted that he is an Iranian national who owned a clothes shop, who was dissatisfied with the government and resentful of its treatment of his brother. It accepted that his brother was a veteran of the first Gulf war, he was injured, had received compensation for a time and that the payments had stopped and the cessation was contentious. It therefore accepted that the entry interview record was an accurate account of the grievances aired by the appellant on that occasion.

8 However, the Tribunal was of the view that many of the appellant's most significant later claims were the real fabrications in his case and were born of a fear that came upon him after his entry interview. It did not, therefore, accept as consistent or credible his account of the visit to the veterans' organisation, the sighting of the file, the clash with the head or the subsequent torture. Nor did it accept as consistent or credible his claimed reasons for omitting this information at the time of his entry interview.

9 In relation to the central claim of the appellant the Tribunal said:

"In his evidence at the hearing, the [appellant] made it clear that his attackers were reacting to his accusation of fraud and corruption. He did not argue in any satisfactory detail that they retaliated against him for reasons of "political opinion". He seemed to think it was enough merely to draw a long bow between the existence of the foundation and the regime that allowed it to operate. Leaving all issues of consistency and credibility aside, this seemed to be a problem for the [appellant's] application as a whole, for it meant that his case was about exposure of corruption not politics. His claims could still be characterised as Convention-related were there a suggestion to the effect that in order to escape justice his adversaries had the potential of painting him as an enemy of the state. However, even in the [appellant's] account, there was virtually nothing to indicate that his opponents wanted to do more than punish him physically and individually for trespassing, accusing them of fraud and making a scene."
10 Additionally, the Tribunal did not accept as credible or consistent the appellant's account of escape from Iran. It concluded he had legally departed Iran. Even if that were not the case, it considered it would be reasonable to expect him to obtain a replacement passport. It also considered any penalty he might face for illegal departure would be as the consequence of a law of general application and not of treatment of him as a political dissident.

11 Therefore, the Tribunal concluded it was not satisfied that the appellant faced a real chance of Convention-related persecution in Iran and could not qualify as a refugee so that he was not entitled to a protection visa.

Reasoning of primary judge

12 When these matters came before Carr J he set them out by reference to extracts from the primary documents. The grounds of review before him were that there was no evidence or other material to justify the Tribunal decision and that the decision involved an error of law: s 476(1)(g) and (e) of the Act. The essential basis for the Tribunal's decision as stated by Carr J was that it simply did not believe the appellant. He found that there was evidence or other material to justify the making of the decision. He concluded there was nothing raised to make out error of law or jurisdictional error on the Tribunal's part.

13 The appellant also raised before Carr J a complaint that the Tribunal had put him "under pressure continuously" because of the fact, as asserted by the Tribunal, that he had mentioned all of his claims at the first interview. His Honour said it was apparent the appellant's submissions misunderstood the Tribunal's reasoning.

Grounds of appeal

14 In this appeal the grounds relied upon by the appellant are that "the decision is contrary to law" and that "the decision places the appellant at serious risk of being forcibly returned to Iran where he has a well-founded fear of being persecuted". These grounds do not raise any error of law. That is understandable because the appellant is neither legally trained nor legally represented.

15 However, it is important that it be understood that the role of the Court on judicial review of a decision of the Tribunal is a limited one. The Court is not able to look at the matter afresh and to make its own decision about the merits of an application for a protection visa. It can only review a decision of the Tribunal if it finds that the Tribunal has made an error of a kind bringing the case within one of the grounds specified in s 476(1) of the Act. Those grounds are limited. We have examined the reasons of the Tribunal and heard the oral submissions of the appellant with this in mind and without regard to the limited nature of the stated grounds of appeal.

Reasoning

16 At the hearing before us the appellant raised the following matters. Firstly he referred to a number of paragraphs in the United Nations Handbook on Procedures and Criteria for Determining Refugee Status (1979), namely pars 39, 42, 51, 83, 198, 200, 201 and 203. He contended that in his case the procedures to which he had been subject had not been carried out in accordance with those requirements. He claimed it followed there had been error of law in his case.

17 In Chan v Minister for Immigration & Ethic Affairs (1989) 169 CLR 379 at 392 Mason CJ said:

"I note in conclusion that I have not found the Handbook on Procedures and Criteria for Determining Refugee Status (1979) ("the Handbook") published by the Office of the United Nations High Commissioner for Refugees especially useful in the interpretation of the definition of "refugee". Without wishing to deny the usefulness or the admissibility of extrinsic materials of this kind in deciding questions as to the content of concepts of customary international law and as to the meaning of provisions of treaties (see, e.g., Fothergill v Monarch Airlines (39); O'Connell, International Law, 2nd ed (1970), vol, 1, pp 261-262), I regard the Handbook more as a practical guide for the use of those who are required to determine whether or not a person is a refugee than as a document purporting to interpret the meaning of the relevant parts of the Convention."
See also Applicant A v Minister for Immigration & Ethnic Affairs [1997] 190 CLR 225 at 302 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at par 171.

That view is reflected in the Handbook itself where item (VII) of the Foreword reads:

"VII) The Handbook is meant for the guidance of government officials concerned with the determination of refugee status in the various Contracting States. It is hoped that it will also be of interest and useful to all those concerned with refugee problems."
The Handbook is therefore in the nature of a guide. It has no force in Australian law. Failure to follow procedures set out in it (even if established by proof) does not give rise to any transgression of the law and consequently not to any error of law.

18 Secondly, the appellant maintained that the Tribunal and the primary judge had considered only the claims in his initial interview and had disregarded his later claims. It is patent from examination of the Tribunal's reasons that it did not "disregard" those later claims. What the Tribunal did was "disbelieve" those later claims. They were the foundation of his claimed well-founded fear of persecution for political reasons. Once disbelieved, his claim lacked support. The assessment of the credibility of such evidence is essentially within the province of the Tribunal.

19 Thirdly, the appellant contended that, because he had been disbelieved in these essential elements, the Tribunal and the primary judge were predisposed against him and the country he came from. This claim is without any foundation. The Tribunal was bound to assess the evidence as to its credibility. The primary judge was bound to review the reasons of the Tribunal for any permitted error of law. The adverse credibility finding made by the Tribunal was not what the appellant sought. Once made, however, it could only be disturbed if impermissible at law. The adverse finding does not itself support an inference of actual bias or perceived bias. There is absolutely no evidence from which to make such an inference in the case of the primary judge.

20 We have examined the reasons of the Tribunal for ourselves together with the materials in the appeal book. We agree with Carr J that there is no error of law apparent in the reasoning of the Tribunal, either to the interpretation or the application of the law: s 476(1)(e) of the Act. We also agree with him that it is apparent that there was evidence or other material to justify the making of the Tribunal's decision: s 476(1)(g) as understood in conjunction with s 476(4)(b). In our view also no issue of jurisdictional error is raised: Yusuf at [82].

Conclusion

21 For these reasons we consider that there are no grounds for reviewing the decision of the Tribunal. Accordingly, the appeal must be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray, RD Nicholson and Emmett.




Associate:

Dated: 29 May 2002

The Appellant represented himself.






Counsel for the Respondent:
Mr PR Macliver






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
20 May 2002






Date of Judgment:
29 May 2002


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