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MIGRATION - Application for review of decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicant's fear of persecution was not well founded.

WACU v Minister for Immigration [2002] FMCA 143 (23 July 2002)

WACU v Minister for Immigration [2002] FMCA 143 (23 July 2002)
Last Updated: 24 July 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WACU v MINISTER FOR IMMIGRATION
[2002] FMCA 143



MIGRATION - Application for review of decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicant's fear of persecution was not well founded.



Migration Act 1958 (Cth) ss.474, 483A

Judiciary Act 1903 (Cth) s.39B

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

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

R v Murray; Ex parte Proctor (1949) 77 CLR 387

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407

WACK v Minister for Immigration & Multicultural Affairs [2002] FCAFC 122

Applicant:
WACU



Respondent:


MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 83 of 2002



Delivered on:


23 July 2002



Delivered at:


Sydney



Hearing Date:


11 June 2002

Applicant's supplementary written submissions received on 16 July 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr JD Allenson



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $3,750.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 83 of 2002

WACU


Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a young man of Arab ethnicity and Iranian nationality who prior to his departure to Australia lived in the town of Ahvaz in the region of Khozestan in Southern Iran. This region is the home to a significant number of members of the Arab minority in Iran.

2. The applicant arrived in Australia on 23 December 2000 and on

30 December 2000 he lodged an application for a protection visa (class XA). He completed the forms and was interviewed by officers of the Department of Immigration for consideration of the grant of a sub-class 785 (temporary protection) or sub-class 866 (protection) visa. On

1 March 2001 the delegate of the Minister refused to grant a protection (class XA) visa and the applicant sought review of that decision.

3. The Refugee Review Tribunal reviewed the decision of the delegate and on 3 December 2001 affirmed the decision not to grant the protection visa. The applicant appealed to the Federal Court of Australia. On 1 May 2002 Carr J considered the matters referred to in s.32AB(6) of the Federal Court of Australia Act 1976 (Cth) and pursuant to Order 82, rule 7 of the Federal Court Rules ordered that the application be transferred to this Court. His Honour was requested to consider the grant of pro bono legal assistance pursuant to Order 80 of the Federal Court Rules. His Honour considered the matter but declined to make a referral.

4. The Federal Magistrates Court has jurisdiction in these matters pursuant to s.483A of the Migration Act 1958 (Cth). This jurisdiction is that provided by s.39B of the Judiciary Act 1903 (Cth) subject to the provisions of s.474 of the Migration Act (the privative clause).

5. Before the matter came on for hearing before me it was the subject of directions made 21 December 2001. These directions included the following:

"2. The applicant file and serve on or before 8 February 2002:

(a) an amended application giving particulars of any grounds of review; or

(b) a written statement setting out the reasons why he considers the decision of the Refugee Review Tribunal is wrong; and

(c) any affidavit upon which he intends to rely at the hearing of this matter."

6. These directions were not complied with by the applicant presumably because he did not have the benefit of legal advice. The matter came before me for hearing on 11 June 2002 by videolink. The applicant had the assistance of an interpreter who was physically present in Sydney where I conducted the hearing. The respondent was represented by Counsel in Perth. The applicant attended a video conferencing centre in, I believe, Derby.

7. The respondent provided me with some helpful written submissions.

I asked the respondent's Counsel to go through these so that the points made could be translated for the benefit of the applicant.

8. During the course of the hearing it became apparent to all involved that the interpreter provided was not giving the requisite amount of assistance to the applicant or to the Court. When this was coupled with some technical problems I took the view that the hearing would miscarry unless I provided the applicant with a proper opportunity to make the points which he was attempting unsuccessfully to articulate over the videolink. I ordered that he set out his submissions in the Farsi language and that these be sent to the respondent to be translated. I made certain consequential orders and a letter was written by the Court to the applicant advising him that after the submissions had been received and any response to them considered I would advise whether it was necessary to reconvene the hearing or whether I could proceed to judgment without doing so.

9. The reasons given to the Tribunal by the applicant for his well founded fear of persecution were:

* The lack of educational opportunities available to members of the Arab minority in Iran and in his particular case his failure to receive a University education;

* The general antipathy towards members of the Arab ethnic minority by other Iranians and the Government; and

* The fact that the applicant had been asked by a leader of his tribe to take part in a demonstration with approximately 10 others against the seizing of tribal lands by the Government for use in the cultivation of sugar. The applicant did not take part in the demonstration which occurred after he had left. He left because he did not wish to take part in the demonstration. It was the fact of his leaving and not assisting his fellow tribes people that would make him a pariah in his community if he returned. Additionally because he left the country he claimed that he had been reported for planning the attack by his uncle and would therefore be wanted by the Iranian authorities.

10. The Tribunal made the following finding at [CB 127]:

"Of greater significance is the matter that the Applicant has claimed that the reason for his departure was that there was a planned attack which he did not support as he feared he would be identified.

His adviser has submitted that he was continually urged to be brief in his claims.

Even if that was the case, I note that the questions he was asked were specific.

He was asked what it was that made him decide to leave his country. He made no mention of the claimed confiscation of land and the associated problems with that. He failed to make any mention of his detention, the planned attack and the consequences of his departure.

I do not accept that he would have failed to do so if, as he later claimed, these were the driving forces behind his departure.

Instead he claimed minor matters which he gave in detail. He described the type of discrimination as being in the fields of education ad employment. He provided details of not being able to be a hairdresser and stressed that the major discrimination was the lack of employment opportunities in the government.

He also claimed that he had begun planning to leave Iran two to three years prior to the interview.

This was long before the planned attack which he claimed precipitated his decision to leave.

I reject the Applicant's claims to have been involved in an altercation over land matters and find that this claim has been provided solely to give strength to an otherwise weak set of claim for a protection visa."

11. The Tribunal also considered certain country material and came to the view that Iranian authorities do not have practices of serious discrimination against Arab Iranians. Finally, it came to the conclusion:

"not all urban Arabs follow tribal culture and find that as a young able bodied man without immediate dependence and with independent employment skills, driver/mechanic, that he can live independently."

12. I have read the translated submissions of the applicant. Essentially these are that the Tribunal was in error in rejecting the claims which he made about the proposed attack and its consequences on the basis that these matters had not been mentioned at the initial interview. The applicant obtained the cassette of the initial interview and in his submissions states the following:

"Then I contacted my lawyer and the only thing I needed was to ask him to send me the cassette. He did that after several months. I received the cassette and after listening to it I realized that it was defect for three obvious reasons and some suspicious reasons. 1. At the bottom of page 12 in the Court Book is written: There are professions that Arabs are not allowed to practice for example I could not practice hairdressing because I was an Arab. There is no mention of this in the cassette. 2. On page 14 in the Court Book in part D there are 8 principal and important questions put to me and answered by me. I could again not see any sign of these questions and answers in the cassette. 3. I remember when the cassette was finished (part A), the recorder had stopped. At that time the interviewer asked the interpreter and me by his finger to be silent. After turning the cassette and placing part B into the recorder and starting it said: "In the interval when I turned the cassette did we have any discussions?" I answered: "No". He said that now we would resume. If you look at the bottom paragraph on page 12 you can read: "If an Arab is in trouble it is expected that they would help him and then suddenly the words change into: "We Arabs are not allowed to practice some professions such as hairdressing." (This part has not been recorded). Then again the former topic is resumed and says: "It is expected that the Arab fellow gets help even if this even might put you life at risk. (This part has been recorded).

If you go back to the recorded first interview (Q5, page 13, court book), I have been asked: "Do you have any reasons preventing you from returning to your country?" My response was "yes, I do" because I have actually left my tribe and this puts me at risk and my life might be also in danger by the tribe's chief. If I go back I would not have any dwelling, no protector and even my brothers dissuade me from leaving the country. This shows clearly that 1. If I were not in danger I would not be afraid of going back and would not announce that my life were in danger. 2. If there were no fears I would not announce that there would not be any house or protection for me even by my brothers. Considering all this isn't it logical to claim that part of my words has not been recorded?"

13. If the Tribunal had proceeded on the basis of a finding about what the applicant said at his initial interview that was patently wrong then a reviewable jurisdictional error would have manifested itself for which relief under s.39B could be granted (MIMA v Yusuf (2001) 180 ALR 1). The ability to grant such relief would of course be subject to the provisions of s.474 Migration Act. I would be obliged to consider whether or not the privative clause restricted review only to those cases which fell within the decision in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 as explained in R v Murray; Ex parte Proctor (1949) 77 CLR 387 or whether this failure by the Tribunal was so fundamental that it amounted to a failure to exercise the jurisdiction given to it under the Act.

14. I have read and re-read the applicant's submissions. Accepting for the purposes of these reasons that they accurately reflect what was said at the interview I cannot find any reference to the planned attack which was the trigger for the applicant's decision to depart Iran. It is not within the jurisdiction of this court to re-hear the applicant's claims and to make a decision upon its credibility. The Tribunal came to a decision about that credibility which as McHugh J said in Re MIMA; Ex parte Durairajasingham (1999) 168 ALR 407 at 423 is the function of the primary decision-maker par excellence (see also WACK v MIMA [2002] FCAFC 122 at [8]). In the circumstances there is nothing in this part of the decision which I believe is open to review.

15. I should add that the applicant submitted that the Tribunal was wrong in its interpretation of the position of the Arab minority in Iran. That may well be the case, but the Tribunal based its decision upon a consideration of material provided both by the Department and by the applicant. It is not within the jurisdiction of this Court to review a decision which has been arrived at in a proper manner as this one has. To do so would be providing a merits review that is impermissible. In the circumstances I must dismiss the application. I would order that the applicant pay the respondent's costs which I assess pursuant to Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $3,750.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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