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MIGRATION - Review of Refugee Review Tribunal decision - no grounds for review.

WAGK v Minister for Immigration [2002] FMCA 140 (12 July 2002)

WAGK v Minister for Immigration [2002] FMCA 140 (12 July 2002)
Last Updated: 19 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAGK v MINISTER FOR IMMIGRATION
[2002] FMCA 140



MIGRATION - Review of Refugee Review Tribunal decision - no grounds for review.



R v Hickman: ex parte- Fox and Clinton (1945)CLR 598, Gamaithige v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 109 FCR 424

Perera v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 183 ACR 204

Minister for Immigration & Multicultural & Indigenous Affairs v Epeabaka (1998) 84 FCR 411

Anthony Pillar v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 106 FCR 426.

Migration Act 1958, ss.475A, 476

Applicant:
WAGK



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS.



File No:


WZ 116 of 2002



Delivered on:


12 July 2002



Delivered at:


Perth



Hearing Date:


10 July 2002



Judgment of:


Phipps FM



REPRESENTATION

Solicitors for the Applicant:


In Person



Counsel for the Respondent:


Ms Price



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) THAT the application is dismissed.

(2) THAT the applicant pay the respondents costs fixed at $4,300.00

(3) THAT the court certifies that it was reasonable to employ an advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 116 of 2002

WAGK


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS.




Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 11 April 2002 affirming the decision not to grant the applicant a protection visa.

2. The applicant is an Iranian national who arrived in Australia on

31 December 2000. He made application to the respondent for a protection visa. On 17 January 2002 a delegate of the respondent made a decision refusing to grant a protection visa to the applicant.

3. On 23 January 2002 application was made to the Tribunal to review the delegates decision. The Tribunal conducted a hearing on 27 March 2002. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the 1951 Convention relating to the status of Refugees and 1967 protocol relating to the status of refugees. He did not satisfy the definition of refugee contained in article 1A(2) of the convention. In its reasons for decision the Tribunal stated that the applicant claimed in support of his application for a protection visa;

a) He had joined the Basij in 1987 and was active in enforcing religious observance and clamping down on political dissidents. He abandoned the Basij in 1998.

b) In 1999 he joined the Nehat Azadi (freedom movement of Iran). This movement was banned in Iran. He met with other member's monthly and distributed political literature for the movement.

c) He was under surveillance in Iran and when he found out he had been accused by the authorities of having aligned himself with the Nehat Azadi movement and that the authorities were about to take action against him, he fled from Iran using a passport in his own name and obtained using contacts.

d) He had escaped from the Woomera Detention Centre and there had been publicity of his escape in Iran.

e) Following this publicity his house in Iran had been searched by the Basij and political materials confiscated. His wife had been detained for two days and tortured.

f) He had been warned through an Iranian embassy official in another country that he risks serious consequences if he criticises the Iranian government.

4. The applicant's claims in (a), (b) and (c) above were not mentioned by the applicant upon his arrival in Australia. He informed the Tribunal that this was because he was worried for his family if he told the truth. He was advised by a smuggler that he need not say anything about the Iranian regime to gain residency rights in Australia. He had just spent five days at sea. He was told by the interviewer to hurry up with his answers to questions.

5. The Tribunal accepted that the applicant had joined the Basij in 1987 but became disaffected with the group and abandoned it in 1998. The Tribunal did not accept that the applicant was not able to resign or signal that he would no longer work for the Basij. Nor did the Tribunal accept that he would be persecuted, pestered and placed under surveillance for abandoning the Basij. The Tribunal relied on independent information and referred to the support for reform in Iran, the waning influence of the Basij, the large number of Basij and the voluntary nature of its membership and the fact the applicant had never encountered harm as a result of his association and disaffection with the Basij.

6. The Tribunal accepted that the applicant had an ephemeral and relatively low profile role in supporting the campaign of an independent candidate in the applicant's area in the most recent national elections in Iran. The Tribunal did not accept the applicant's claim of active involvement with Nehat Azadi. It found that the applicant had fabricated this claim referring to his failure to mention this initially and that the applicant's evidence at the hearing of his actual involvement with movement was vague and unconvincing.

7. The applicant called a witness to support his claim of active involvement in Nehat Azadi. The Tribunal did not accept the application's witness concluding that he had colluded with the applicant to help him contrive politically based claims.

8. The Tribunal was satisfied that even if the applicant had had an active involvement with the Nehat Azadi movement there was nothing more than a remote chance of persecution as a consequence as independent information indicated that the movement was generally tolerated in Iran. The Tribunal found that the applicant was not wanted by the Iranian authorities. Relying on independent information the Tribunal did not accept the applicant would have been able to leave Iran legally, as he did, if he was wanted by the authorities.

9. The Tribunal accepted that the applicant could face serious consequences if he was critical of the Iranian government. The sur place claim was not accepted as the applicant had not done anything in Australia against the Iranian regime. The applicant had escaped from Woomera and with two other escapees had travelled on a freight train to Perth where they were detained by police. This attracted media coverage including media coverage in Iran. This media coverage was put before the Tribunal, and although the Tribunal concluded that the applicant would be regarded as an asylum seeker, the media coverage did not indicate any criticism of the applicant or by the applicant against the Iranian government and did not indicate a real chance of persecution. After referring to independent information, the Tribunal concluded that, given the applicant's profile, on return to Iran the applicant would not face the prospect of more questioning. Given the lack of creditability of the applicant's involvement in politically dissident activity the Tribunal also rejected his claim of confiscation of materials from his house and the detaining and mistreatment of his wife.

10. In the hearing before the court the applicant was unrepresented. His submissions to the court concentrated on the finding of the Tribunal that he had not had active involvement with Nehat Azadi and in particular e-mails and a letter purportedly from the Secretary General of that movement.

11. The Tribunal received, from the migration agent assisting the applicant, two e-mails purportedly from the Secretary General. Later it had received a letter purportedly from the same person and containing the same information as the second e-mail. Those materials claimed that the writer, the Secretary General, had been informed by the leaders of his party in two Iranian cities that the applicant supported a reformist candidate in the last parliamentary elections running as an independent and that he had since continued to co-operate with the Nehat Azadi. The Tribunal in its reasons said this;

The afore mentioned e-mails and letter arrived after the hearing. Such e-mails can be set up by anyone for genuine purposes or otherwise. The assertions contained within the e-mails can not be tested. The letter that followed is photocopy sent, apparently to the applicant's adviser, from within Australia. The writer, who is currently based in the United States of America, has no personal knowledge and his informants as to the applicant's alleged political involvement are not identified except by vague reference to their status within the party. Put at their highest, the e-mails and letter, indicate only that the applicant is a supporter of the freedom movement of Iran who actively campaigned in a parliamentary election for a independent candidate who was endorsed by that group.

12. The applicant requested that the court make inquiries to indicate that the e-mails and letter were genuine. I told the applicant that the court could not do that, that this was not part of the court's function. The documents had been put before the Tribunal on behalf of the applicant. The Tribunal was entitled to make the observations and conclusions it did make.

13. It is the function of the Tribunal to consider the evidence before it, consider what weight it will give to that evidence and to make its finding of fact. On a review application, the fact finding process is not for the court. That is for the Tribunal. The applicant was critical of the Tribunals finding that Nehat Azadi is among those oppositions groups that are generally tolerated by the Iranian regime. The Tribunal said this;

As well, the Tribunal notes and gives weight to information indicating that, even if such a claim were true, Nehat Azadi is among those oppositions groups that are generally tolerated by the Iranian regime, notwithstanding the recent arrest of one of its leaders and forty activists from that movement and others for unspecified reasons in the lead up to forth coming presidential elections (see Human Rights Watch, press release, 11 April 2002).

14. The Tribunal then referred to information dated 8 March 2001 from the United King Home Office and Reuters article 6 March 1999 headed "Human Rights Watch Representative Comments on her Observations in Iran". Both of these articles point to matters showing that Nehat Azadi was tolerated by the Islamic regime in Iran.

15. The solicitor representing the applicant wrote a lengthy submission dated 7 March 2002 to the Tribunal. This included a reference to the US State Department country report on human rights practices for year 2001, released by the Bureau of Democracy, Human Rights and Labour, 4 March 2002. It reported that in March authorities closed the fifty year old freedom movement and that the closure came after the March 11 arrest of twenty-one independent activists including a former chancellor of Tirane University.

16. Ms Price, who appeared for the respondent, pointed out that it was not clear whether it was March 2001 or March 2002 that the arrests had taken place. She submitted that at worst, the Tribunal's decision making on the question of whether Nehat Azadi was tolerated in Iran could be described as illogical. A finding that an opposition group is generally tolerated when there has been a recent arrest of one of its leaders and forty activists from the movement could be said to be illogical. Want of logic by an administrative decision maker in drawing an inference of fact, does not, by itself constitute an error of law and is not a basis of review by a court exercising jurisdiction to review a decision a maker - Minister for Immigration & Multicultural & Indigenous Affairs v Epeabaka (1998) 84 FCR 411. Anthony Pillar v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 106 FCR 426.

17. These decisions were before the enactment of privative clause provisions in part 8 of the Migration Act 1958 and the enactment of Section 475A and 476 which limit the jurisdiction of the court.

18. It is accepted that review is now limited to the three grounds set out by Dixon J in R v Hickman: ex parte- Fox and Clinton (1945)CLR 598, Gamaithige v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 109 FCR 424 & Perera v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 183 ACR 204. These are:

a) The decision maker is required to have made a bona fide attempt to exercise its power;

b) The decision must relate to the subject matter of the legislation;

c) The decision must be reasonably capable of reference to the power given to the decision maker.

19. Given that nothing that the applicant put would be a basis for judicial review in the absence of the privative clause it follows that there can not be a review of the decision. It cannot be said that the decision maker has not made a bona fide attempt to exercise its power. The decision relates to the subject matter of the legislation. The decision is reasonably capable of reference to the power given to the decision maker.

20. When invited to respond to the submissions by the counsel for the respondent, the applicant then raised for the first time the question of whether he had been able to put his case properly to the Tribunal. He said that the Tribunal refused to listen to him. He referred to his wife and children being put in jail. He referred to the Tribunal not accepting the evidence of his witness. He referred to the Iranian embassy telling him not to mention these matters in Australia. He said that the tape of the Tribunal hearing would show that the member had ignored all of this. I do not think it necessary to listen to the tape of the Tribunal hearing. Each of the matters to which the applicant has referred has been dealt with by the Tribunal's reasons. There is nothing to suggest that in dealing with those matters the Tribunal has not made a bona fide attempt to exercise its powers.

21. It follows that the application must be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date:
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