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MIGRATION - Decision of the Refugee Review Tribunal refusing protection visa - decision of primary judge affirming decision of Tribunal - whether Tribunal decision involved jurisdictional error - where Tribunal failed to consider evidence corroborative of the claims made - where Tribunal misconstrued the nature and content of Court documents - where Tribunal failed to consider whether appellant had a well founded fear of persecution.

W412/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 99

W412/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 99 (17 April 2002); [2002] FCA 432
Last Updated: 9 May 2002


W412/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 99
W412/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 432



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
W412/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 432


MIGRATION - Decision of the Refugee Review Tribunal refusing protection visa - decision of primary judge affirming decision of Tribunal - whether Tribunal decision involved jurisdictional error - where Tribunal failed to consider evidence corroborative of the claims made - where Tribunal misconstrued the nature and content of Court documents - where Tribunal failed to consider whether appellant had a well founded fear of persecution.

Migration Act 1958 ( Cth) s476(1)(b), (c), (e)

Craig v South Australia (1995) 184 CLR 163

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

W412/01A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W412 OF 2001

LEE, COOPER AND NICHOLSON JJ

PERTH

17 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
W412 OF 2001



BETWEEN:
W412/01A

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
LEE, COOPER AND NICHOLSON JJ

DATE OF ORDER:
17 APRIL 2002

WHERE MADE:
PERTH



THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders appealed against made on 28 August 2001 be set aside and the following orders substituted:

"1. The decision of the Refugee Review Tribunal made 22 March 2001 be set aside and the matter remitted to the Tribunal for redetermination.

2. The respondent pay the applicant's costs of the application."

3. The respondent pay the appellant'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


WESTERN AUSTRALIA DISTRICT REGISTRY
W412 OF 2001



BETWEEN:
W412/01A

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
LEE, COOPER AND NICHOLSON JJ

DATE:
17 APRIL 2002

PLACE:
PERTH




REASONS FOR JUDGMENT
THE COURT

1 On 11 April 2001, the appellant applied to this Court for judicial review of a decision of the Refugee Review Tribunal ("the RRT") given on 22 March 2001. The application for judicial review was dismissed by Tamberlin J on 28 August 2001 with costs. This is an appeal from the decision of Tamberlin J to dismiss the application.

2 On 22 March 2001, the RRT affirmed a decision of the delegate of the Minister to refuse to grant to the appellant a Protection (Class XA) Visa under the Migration Act 1958 (Cth) ("the Act"). The RRT concluded that it was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention (as defined under the Act). It followed that the appellant could not satisfy one of the primary criteria for each sub-class of a Protection (Class XA) Visa which was required to be satisfied at the time of decision. The decision of the delegate to similar effect was therefore affirmed.

3 Before the delegate and the RRT, the appellant claimed :

(a) he was involved in the Tehran University demonstrations on 12 - 13 July 1999;

(b) he was arrested and placed with other demonstrators in a bus from which he escaped;

(c) on the night of 20 July 1999, he was taken from his home by security forces and thereafter detained for a period of four months;

(d) during detention he was tortured and accused of being a member of a political group known as Feshar;

(e) after four months his whereabouts were ascertained by his family and he was visited by a relative who said he would try to help the appellant;

(f) he was informed by officials that he would be released from detention for one day to visit his family, but was then required to return to his place of detention and assist authorities to identify other members of Feshar from photographs and film clips;

(g) to secure his release to visit his family, his father and himself were required to provide surety;

(h) the surety in the form of the deeds to a house and a shop has been forfeited.

4 The appellant's fear of persecution if he is returned to Iran was expressed by him in material in support of his application in the following way :

"He will not be protected by the Iranian authorities because the persecution that he fears, is from the government itself. The harm and/or mistreatment he fears from the Iranian government is because, they think he belongs to the Feshar and now also because he left the country illegally and absconded while he was on bail."
5 The RRT was sceptical of the appellant's claim to have participated in the demonstration, but was prepared "to accept that if he was there, it was as a minor participant". The RRT also accepted that the appellant occasionally took part in discussions on youth issues in a loose, informal group.

6 Having found that the applicant was not an organiser or leader of the demonstrations, but rather an ordinary participant, the RRT was "not satisfied that he would have been of sufficient interest to have been sought out by authorities more than a week after the demonstrations and kept in detention for a further three to four months".

7 The RRT continued :

"The Tribunal also finds that the applicant is not a person with a high political profile who would be of ongoing interest to the authorities for his political activism. The applicant conceded that he was not a member of any political or student organisation apart from the informal discussion groups he participated in because he had friends who were involved. When asked the issues that were discussed in the group, the applicant stated on more than one occasion during the hearing that they discussed `youth issues' without elaborating further despite being given the opportunity to do so. He also stated in his oral evidence that he had not been involved in any other political activities. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted in the future by the Iranian authorities because of his political profile.
It may well be that the applicant was required for questioning and/or detained for some reason and then released on bail. The Canadian report on court documents cited at pages 21 - 22 indicates that witnesses and/or accused can be given a `notice to appear' in both civil and criminal cases. It also points out that forfeiture documents, such as those provided to the Tribunal by the applicant, are a common occurrence when a person does not appear when summonsed. The Tribunal notes that the date of the summons requiring the applicant to appear is 27 February 2000 and that an appearance is listed for 20 April 2000. The date of the forfeiture document tendered by the applicant is 25 June 2000. The applicant in his oral evidence to the Tribunal indicated that he had been in Malaysia for about a month after leaving Iran and that he had been in Indonesia for some three to four months (see page 12). He arrived in Australia on 30 April 2000. Therefore, given that the applicant was not in Iran on 20 April 2000 and was not able to answer the summons, it is not surprising that the property was forfeited. The text of the documents given to the Tribunal does not indicate the reason for issuing of the summons. The Tribunal accepts that the applicant's and/or his father's property has been forfeited because of the applicant's failure to appear on 20 April 2000 in a legal matter. However, there is no evidence to suggest that the reason for such forfeiture is related to the university demonstrations or to political activities. If the applicant does experience prosecution or ongoing forfeiture of property for breaching bail conditions, it will be due to a law of general application rather than for a Convention ground. The Tribunal is satisfied that this law of general application will not be applied selectively to the applicant because of his political opinion given its earlier finding that the applicant is not a person with a high political profile.

...

... The Tribunal finds that any ill treatment in detention was related to the applicant's being in detention rather than his political opinion or imputed political opinion or his participation in demonstrations."

8 On the whole of the evidence the RRT was not satisfied that the appellant was a person to whom Australia had protection obligations.

9 The appellant sought judicial review in this Court and raised two grounds of review :

"1. The Tribunal erred in rejecting the applicant's account of events by reference to the absence of evidence of a certain matter when that absence was not capable of supporting the finding. That finding was central to the decision, which was accordingly not justified by evidence and is reviewable under s 476(1)(g) of the Migration Act 1958 (Cth).
2. The Tribunal erred, contrary to s 476(1)(e), in failing to hold that on the proper construction of the Refugees' Convention and Refugees' Protocol a well founded fear of persecution for reasons of membership of a particular social group or political opinion may arise from ill treatment during detention following and as a result of participation in a political or social demonstration."

10 The appellant appeared in person to argue his application for judicial review. Each of the grounds relied upon by the appellant was considered by Tamberlin J. As to the first ground, his Honour concluded that there was sufficient evidence to support the drawing of an inference that the appellant had not been detained on account of his participation in the student demonstrations. As to the second ground, his Honour held that the finding of the RRT that the appellant's detention was not for political reasons together with an absence of evidence that any violence thereafter was other than random brutality, meant that the detention and exposure to random brutality without more could not come within the Refugees Convention definition of persecution.

11 The appellant conducted his appeal in person. He is not a lawyer and he required the assistance of an interpreter. The essence of his argument on the appeal was, as he contends it was at first instance, that the RRT used material relating to ordinary student participation in the demonstrations to sustain the findings it made in respect of his claims when that material was not applicable to his particular circumstances and failed to have regard to such of the evidence as was corroborative of the claims he made. Relevantly, his claim was that the authorities believed that he was a member of a political group known as Feshar and his detention and torture was for that reason, with a view to his providing information to the authorities as to other members of that political group.

12 The RRT did not ask itself the question whether or not the appellant had a well-founded fear of being persecuted because the Iranian authorities believed he was a member of the political group Feshar and had information relating to the membership of that organisation which the authorities wished to obtain. As appears from its reasons, the RRT has asked the question whether or not the appellant was, in fact, a leader or organiser of the student demonstrations, or a person of such high political profile as to be of interest to the Iranian authorities. Having found that the appellant was not such a person on the basis of the appellant's concessions that he was not such a person, the RRT proceeded to assess his claims on the basis that he was an ordinary student participant in the student demonstrations. It then used the materials it described as "Relevant Independent Information on Iran" in so far as it dealt with the treatment of ordinary students participating in the demonstrations to reject the appellant's claims as to the circumstances of his detention and torture and his claim to having a well-founded fear of persecution from the Iranian authorities for a Refugees Convention reason if he were to return to Iran.

13 Importantly, the RRT because it found that the appellant was not a person of sufficient political profile to have been detained by the authorities for that reason, concluded that the forfeiture of the appellant's and his father's property was not linked to the student demonstrations, but rather a failure to honour the bail conditions attaching to some civil or criminal proceedings of an unknown nature, pending against the appellant in Iran. The RRT found support in this conclusion from Court documents which it found were issued on 27 February 2000 directed to the appellant requiring his attendance in Court in Iran on 20 April 2000.

14 The RRT, in its use of the Court documents, misconstrued the nature and contents of the documents. It thereby failed to consider the documents at all as material which corroborated the claims made by the appellant as to the circumstances of his detention and as to the reason for the forfeiture. The documents consisted of a summons and a judgment. The summons was dated 27 February 2000 and was directed to the appellant's father, not to the appellant as the RRT found. The summons required the attendance of the father before the Court on 20 April 2000. The reason to appear, as appears in the translation, was :

"The complaint of [the appellant's father] in order to place a surety for bail for release of the son and his return, the hearing and reference are under consideration."
15 The translation of the judgment, so far as is relevant, stated :

"Date: 25 June 2000 (04/04/1379, Persian Calendar) File No ...
Complainant: By Power of Attorney Mr Minaee, a Vice Chancellor of the University of Tehran

Defendant: [Applicant's father], a resident of Tehran

Claim: Confiscation of the entirety of a shop including goodwill and freehold

Procedures: After submissions and receipt of statements by this court, registration in the book under the above reference number, and following the legal formalities, and determination of the above hearing date, the court hearing was conducted with the presence of the following signatories. The court declared the completion of hearing and made the following judgment:


Court Order:

According to this order, the defendant secured the release of his son from detention by leaving a bond as bail surety. A complaint was lodged for his return. According to the Court, modifications were made to the order number ... , a judgement made in absentia. He is barred from operations and the property will be put for tender at a date set by this Court.

Chairperson of Branch ... of Tehran City Court."

16 These documents show that :

(a) the appellant was in detention;

(b) he was released from detention on a surety for bail lodged by his father;

(c) the surety was for bail for release and return;

(d) a complaint was lodged by a Vice Chancellor of the University of Tehran for the return of the appellant to detention;

(e) the surety was called up and the property confiscated.

17 The RRT did not consider this evidence. The evidence was relevant and cogent and was corroborative of the appellant's claim to have been detained in the circumstances he alleged for a Refugees Convention reason. It was material independent from the appellant which corroborated his claims that :

(a) he was in detention;

(b) his release from detention was procured by his father;

(c) his father put up surety for the performance of his bail conditions;

(d) his release from detention was for a limited period and that he was required to return as a condition of his bail;

(e) the surety was forfeited for his failure to return to detention.

18 The documentation also showed that the University of Tehran was connected with his detention in a sufficient way to enable it to seek his return to detention as the moving complainant. Further, the timing of the proceedings for forfeiture of the surety is broadly consistent with the appellant being in detention for four months after the student demonstrations at the University of Tehran.

19 In our view, in treating the appellant as an ordinary student participant in the student demonstrations, the RRT has considered a body of material which was irrelevant to the appellant's circumstances, and has not considered relevant and independent evidence having the capacity to corroborate his claim in some material respects. Further, it has not asked the question whether the appellant has a well founded fear of being persecuted for reasons of imputed political opinion by the Iranian authorities because they believe he is a member of a political group named Feshar, which is opposed to the government of Iran, and he has information as to the membership of that group which the Iran authorities wish to obtain.

20 In these circumstances, the determination of the appellant's claim by the RRT involved a jurisdictional error (Craig v South Australia (1995) 184 CLR 163 at 179) and a ground for review under s 476(1)(b), (c) or (e) of the Act was made out and the appellant was entitled to have the decision of the RRT set aside: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [81] - [85].

21 The finding of his Honour below that there was sufficient evidence to support the drawing of an inference that the appellant had not been detained on account of his participation in the student demonstrations, does not assist the respondent. That finding did not address, his Honour not being asked to do so, the proper question which ought to have been addressed by the Tribunal, namely whether the appellant was detained and tortured as he claimed because of his imputed membership in a political group known as Feshar.

22 The appeal will be allowed, the orders appealed against made on 28 August 2001, including the order for costs, set aside, and in lieu thereof it will be ordered that the decision of the RRT given on 22 March 2001 be set aside, and the matter remitted to the RRT for reconsideration according to law.

23 The reasons of this Court are distributed throughout the world on the Internet and, exercising appropriate caution, the Court has not identified the appellant in the title to the proceeding or in the reasons.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Cooper and Nicholson.



Associate:

Dated: 17 April 2002


The appellant appeared in person




Counsel for the Respondent:
R L Hooker

Solicitor for the Respondent:
Australian Government Solicitor




Date of Hearing:
20 February 2002

Date of Judgment:
17 April 2002

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