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MIGRATION - appeal from a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicant's fear of persecution was not well founded

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

WACX v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 75 (10 May 2002)
Last Updated: 26 June 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WACX v MIMIA
[2002] FMCA 75



MIGRATION - appeal from a 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

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

SAAD v Minister for Immigration & Multicultural Affairs [2002] FCA 206

SBAE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 479

Turkan v Minister for Immigration & Multicultural Affairs [2002] FCA 397

Applicant:
WACX



Respondent:


MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS



File No:


WZ 59 of 2002



Delivered on:


10 May 2002



Delivered at:


Sydney



Hearing Date:


30 April 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Ms L Price



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The application be dismissed.

(2) The applicant pay the respondent's costs pursuant to Part 21.10 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


WZ 59 of 2002

WACX


Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. In this matter the applicant seeks a review of the decision of the Refugee Review Tribunal constituted by R A Fordham made on 7 December 2001 affirming a decision not to grant a protection visa under Class XA Sub Class 785 or 866.

2. The applicant entered Australia on 20 December 2000 as an unauthorised boat arrival and was not immigration cleared. He is therefore unable to meet the requirements for the grant of a permanent Sub Class 866 (protection visa). He was assessed in accordance with the criteria set out in the Migration Regulations for the grant of a visa of Sub Class 785 (temporary protection). The application states that the applicant is aggrieved by the Tribunal's decision because:

"He is a person to whom Australian has protection obligations under the Convention and protocol relating to the status of refugees."

3. The grounds of his application are set out as follows:

"1. Procedure that were required by the Migration Act to be observed in connection with the making of the decision were not observed.

2. That the decision involved an error of law being an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the person who made the decision."

4. The matter came before the Registrar of the Federal Court on 10 January 2002. The Registrar made orders including the following:

"1. The applicant to 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 Tribunal as wrong; and

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

5. The matter was transferred to the Federal Magistrates Court by order of Nicholson J dated 10 April 2002.

6. No such documents were filed by the date ordered or by the date of the hearing. The reason for this may have been that although Nicholson J determined pursuant to Order 80, Sub-Rule 4(1) of the Federal Court Rules that it is in the interests of the administration of justice that the applicant be referred for legal assistance under Order 80 no pro bono assistance could be found in Western Australia.

7. The applicant claimed to be (and it was found that he was) an Iranian citizen who worked for some years with the Ministry of Agriculture although there is some dispute as to whether or not he was paid more than his expenses for so doing. He worked with the Ministry until 1999 at which time he became unemployed.

8. The history which the applicant gave that he said gave rise to his well founded fear of persecution for Convention reasons was that he had been a member of Sepah in the early 1980s and this brought him into contact and conflict with a member of the Revolutionary Court Haj Marvi. Also whilst working for the Sepah he would tip-off people who were going to be arrested. In 1982 he was arrested for leaking secret information about the actions of the Sepah. He claimed to have been given a 30-month prison term and a five year suspended sentence. He was released after six months in prison and placed under house-arrest for six months.

9. Between 1982 and 1998 the applicant did nothing which would have brought him to the attention of the authorities. He claimed that in 1998 he gave assistance to a pro-reformist parliamentary candidate. He gave that candidate documents which he had accumulated over the years he had worked with the Sepah. The candidate was unsuccessful. The candidate told the applicant that he believed the government would be cracking down on people who opposed the present regime and that the applicant's life would be in danger and that he should flee the country. He said that in June 2000 fearing for his life he asked the candidate to help him escape. The applicant used a friend's birth certificate to apply for a passport as he believed he was black-listed. He obtained a passport with his friend's name but his photograph in it and left Iran on 22 November 2000.

10. In order to satisfy the Tribunal that he is entitled to a protection visa the applicant must satisfy the decision maker that the prescribed criteria for the visa have been satisfied (s.65(1) of the Migration Act 1958). The relevant criteria in this case is set out in s.36(2) of the Migration Act. This provides that a criteria for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol. Article 1A(2) of the Convention defines a refugee as any person who:

"Owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or politically opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

11. The applicant claims a well-founded fear of persecution if he returned to Iran.

12. The applicant was assisted in his application before the Refugee Review Tribunal by a firm of solicitors who provided the Tribunal with submissions, including submissions as to the discrepancies between the information provided by the applicant at his initial interviews and the information provided later. They also provided information indicating that three members of the MKO who the applicant claimed he had assisted were executed.

13. The Refugee Review Tribunal considered at some length the evidence presented to it by the applicant in his interviews with the Department, in the conduct of his application before the Minister's Delegate and in the hearing before the Tribunal. The Tribunal also listened to the tape recording of interviews with the applicant in order to deal with submissions from his solicitors that the applicant was prevented from giving the fullest possible version of events. The Tribunal came to the view that the claims that the applicant had provided information to the candidate were untrue and that

"He fabricated them at a later date to strengthen his otherwise weak claims for a protection visa."

14. The Tribunal also rejected the applicant's claim to be at risk of harm because he provided information of wrong-doing on the part of regime members to the candidate.

"Secondly, I find the claims are implausible when I consider the applicant's profile, the nature of the documents, the time he held them without using them and the claim that he was provided with documents after 1982 by a member of the MKO."

15. The Tribunal made findings about the applicant's work history. It did not accept that the applicant was unpaid at the Ministry of Agriculture and found

"The applicant either left or was sacked for reasons other than those he has advanced and I am not satisfied that they were convention related."

16. The Tribunal also found that the applicant had claimed when he first arrived that he had left Iran using a genuine passport which was issued in his area and that the claim later made to have used a passport obtained in another person's name bearing his photograph was false. Because the Tribunal found that the applicant had used his own passport it came to the conclusion, citing in country evidence that his departure from Iran was regular and therefore he would not suffer any adverse consequences as a result of his departure.

17. The discussion by the Tribunal of the reason for coming to these unfavourable views of the applicant appears to be properly based on the evidence which the Tribunal says was before it. There has been no suggestion from the applicant that this was not the case.

18. The jurisdiction of the Federal Magistrates Court in these matters is imposed by s.483(A) of the Migration Act. The jurisdiction which the court exercises is subject to s.474 of the Act which is found in Part 8 dealing with judicial review. Section 474 is the section which places into the Act the privative clause in the following form:

474 Decisions under Act are final

i) A privative clause decision;

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

19. This clause was interpreted by the High Court in R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598 and the implications of such a clause to decisions under the Migration Act have been the subject of several decisions in the Federal Court. There have also been decisions in this court.

20. Mansfield J in SAAD v Minister for Immigration and Multicultural Affairs [2002] FCA 206 and SBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 479 dealt with two cases in which the application for review before the court did not identify any grounds upon which the application was brought. He considered those cases on the basis that he would look first to see whether or not there was any matters which would give rise to relief under s.39B of the Judiciary Act 1903 (Cth). He said in SBEA at [17]:

"The assessment of the merits of the applicant's claims is fundamentally the function of the Tribunal. The court is not empowered to revisit findings made by the Tribunal, and to substitute its view of appropriate findings for those made by the Tribunal. That is not to indicate that, in this instance I have found different views about matters of fact upon which the Tribunal has made findings. I have not done so. That is not the court's function. It is to indicate that, without error of the kind which would enliven a court's powers under s.39B of the Judiciary Act, the sort of matters to which the applicant has referred as noted above do not entitle the court simply to revisit the determination of the Tribunal or set it aside."

21. His Honour would only consider the effect of s.474 of the Migration Act if he found there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B. When he was unable to find such an issue in SAAD his Honour said at [23]:

"Consequently, in my view, it is not necessary to address the application of s.474 in the particular circumstances."

22. This approach is not universal. In Turkan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 Heery J said at [46]:

"In my view, the correct approach is to first consider whether s.474 applies. If it does, the court need not. Indeed it should not, go any further. The court should not assess the case as if 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in its terms goes to the court's jurisdiction and is to be applied at the threshold."

23. This dichotomy will doubtless be resolved shortly by a Full Bench of the Federal Court but in the meantime I would propose to follow the approach adopted by Mansfield J because in his cases, like the present one before me, the applicant was not represented and did not articulate his grounds for the appeal other than by re-asserting the matters which he brought to the attention of the Tribunal and the fears which he expressed about his safety if he were returned to any of the three countries.

24. In SBAE Mansfield J noted at [22]:

The applicant appeared in person at the hearing, but his submissions did not extend beyond asserting factual error on the part of the Tribunal. I have also independently reviewed the Tribunal's reasons, having regard to the applicant's circumstances, to discern whether they disclose error on its part such as would warrant the court's intervention under s.39B of the Judiciary Act. In my judgment no such error on the part of the Tribunal is apparent."

25. I have adopted the approach taken by Mansfield J in relation to this applicant. I am unable to find in the Tribunal's reasons any matter which would disclose error under s.39B of the Judiciary Act and I have not been assisted in doing so by any of the representations made by the applicant to me at the oral hearing of this application.

26. Accordingly, I consider that the application must be dismissed. I so order. I see no reason why the ordinary rule of costs should not apply. I order that the applicant pay to the respondent its costs of the application pursuant to Part 21.10 of the Federal Magistrates Court Rules. I certify that it was reasonable for the Respondent to employ an advocate pursuant to Part 21.15.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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