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MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant convert to Christian faith - applicant claimed arrest for political activity - credibility of applicant not accepted by Tribunal - no available grounds of review identified - no lack of bona fides - application dismissed.

WAFQ v Minister for Immigration [2002] FMCA 183 (2 September 2002)

WAFQ v Minister for Immigration [2002] FMCA 183 (2 September 2002)
Last Updated: 5 September 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAFQ v MINISTER FOR IMMIGRATION
[2002] FMCA 183



MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant convert to Christian faith - applicant claimed arrest for political activity - credibility of applicant not accepted by Tribunal - no available grounds of review identified - no lack of bona fides - application dismissed.



Migration Act 1958 (Cth) s.474

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

SAAG v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 547

SBAN v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 591

Applicant:
WAFQ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 118 of 2002



Delivered on:


2 September 2002



Delivered at:


Sydney



Hearing Date:


22 August 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr M Ritter



Solicitors for the Respondent:


Australian Government Solicitor


ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the amount of $3,750.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 118 of 2002

WAFQ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is an Iranian citizen who arrived in Australia by vessel on 25 March 2001. In September 2001 he lodged an application for a protection visa (class A, sub-class 785) with the Department of Immigration, Multicultural & Indigenous Affairs. On 19 November 2001 a delegate of the Minister refused to grant protection and on 23 November 2001 the applicant applied for review of that decision. The review was heard by the Refugee Review Tribunal which made its decision on 4 March 2002 affirming the decision of the delegate. It is in respect of the Tribunal's decision that the applicant has sought review from this Court.

2. The applicant was represented by an adviser before the Tribunal but was not represented before the Court. He had the assistance of an interpreter. In his application the applicant had stated:

"1. To allow the decision to stand would be wrong and would deny the applicant a visa.

2. The decision involve (sic) an error in law - there was no jurisdiction to make the decision.

3. The Migration Act did not permit the making of the decision."

3. When the matter came before the Court for directions on 30 April 2002 an order was made in the following terms:

"2. The applicant file and serve on or before 11 June 2002

(a) an amended application giving particulars of any grounds founding relief under the Judiciary Act 1903 or a statement setting out why he considers the decision of the Tribunal should be overturned; and

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

4. The applicant did not comply with these orders but on 22 August 2002 submissions in English were transmitted to the Court and to the respondent.

5. The respondent also provided written submissions which I had translated to the applicant. These submissions accurately encapsulate the applicant's claims and the Tribunal's decision. For this reason and because they have been translated to the applicant I repeat them here:

"[26] The Respondent submits the decision of the Tribunal does not provide any grounds for judicial review under s.39B of the Judiciary Act. It is submitted the decision of the Tribunal, to affirm the decision of the delegate of the Respondent, simply followed from its factual evaluation and determination of the merits of the application.

[27] At CB231-233, the Tribunal set out the relevant law without error.

[28] The Applicant relied upon the following in support of his protection visa application:

(a) The Applicant fled Iran fearing persecution because of his Christian religious beliefs and political views which had been imputed to him (CB234.3);

(b) The Applicant had been arrested, detained, beaten, deliberately hit by a car and expelled from school because of his lack in interest in Islamic instruction (CB234.6);

(c) About three months before the Applicant fled Iran, he and seven friends gathered at a farm and were drinking alcohol. The authorities arrived and wanted to arrest one of his friends, Ghasem, who had failed to enlist for compulsory military service. Ghasem was shot when running away and the Applicant then "crossed himself". The Applicant was taken to a police station, detained and mistreated and interrogated about his religious beliefs. He was accused of association with "dirty Armenian Christians" (CB234-235);

(d) After his release the Applicant participated in a public ceremony held for Ghasem, which led to a clash with Iranian authorities (CB235-236);

(e) The Applicant also held a private ceremony for Ghasem. This also led to a clash with Iranian authorities (CB236.3);

(f) The Applicant fled to a mountainous region. He heard from relatives, before he left the country, that the authorities were looking for him (CB236.6);

(g) The Applicant left Iran on a false Iraqi passport (CB236.10);

(h) The Applicant would be persecuted because of his conversion to Catholicism in Australia and his practice of religion if returned to Iran (CB238, 244, 251).

[29] The Tribunal made the following principal findings:

(a) The Applicant is a citizen of Iran (CB246.5);

(b) The Applicant left Iran for the reasons given in the unauthorised arrivals interview, being a lack of entertainment, a lack of legal access to alcohol and restrictions on his ability to associate with some friends (CB246.6);

(c) The Tribunal accepted that one of his friends was killed after ignoring a warning to stop when escaping from the authorities that intended to arrest him for avoiding national service. The Tribunal also accepted the Applicant was arrested at the same time because he had been drinking alcohol with friends. The Tribunal did not accept that this incident gave rise to a well-founded fear of persecution for a Convention reason (CB246.8);

(d) The Tribunal did not accept the Applicant left Iran due to his interest in Christianity or because authorities were interested in him for reason of his religion. The Tribunal also rejected the Applicant's claims of difficulties encountered as school for reasons of religion, based on independent country information (CB247.6);

(e) The Tribunal did not accept the Applicant had crossed himself before the authorities or that the authorities attributed him with being anti-regime because of his mother's association with Armenian Christians (CB247-248);

(f) The Tribunal did not accept the Applicant was a credible witness or truthful in making his claims (CB248.3);

(g) If the difficulties arising out of the Applicant's friend's funeral occurred, the Tribunal did not accept this was Convention related (CB248.5);

(h) The Tribunal was not satisfied the Applicant was at risk of persecution for reasons of religion should he return to Iran (CB238.9);

(i) The Applicant did not have a well-founded fear of persecution on the basis of leaving Iran illegally on an Iraqi passport (CB249.3). The Tribunal cited country information in support of this conclusion;

(j) The Tribunal also cited country information and decided the Applicant did not have a well-founded fear of persecution because of his applying for asylum in Australia (CB251.3).

[30] The Tribunal also considered whether the Applicant had a well-founded fear of persecution because he had been baptised as a Catholic when in Australia (CB251.1).

[31] The Tribunal considered whether the Applicant was entitled to a protection visa on this basis, having regard to s.91R(3) of the Act. As to this subsection see SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726.

[32] The Tribunal was not satisfied the Applicant engaged in conversion to Christianity otherwise than for the purpose of strengthening his claim for refugee status (CB251.9).

[33] The Tribunal did not accept the Applicant would seek to practise Christianity if he returned to Iran and was not satisfied the Applicant faces persecution in Iran even if he was then a non-believing and non-practising Muslim (CB 252.3).

[34] The Tribunal concluded that it was not satisfied the Applicant was a person to whom Australia owned protection obligations under the Refugees Convention and accordingly affirmed the decision not to grant a protection visa (CB252.5).

[35] There is no basis on which the decision of the Tribunal could be reviewed or set aside by the Court, given its narrow jurisdiction."

6. The respondent in his oral submissions and myself did our best to explain the complex nature of the privative clause [s.474 Migration Act 1958 (Cth)] and the recent jurisprudence upon its interpretation to the applicant. The applicant then made the following submissions:

a) The Tribunal indicated a lack of interest in his case and lack of attention to his plight by incorporating in its reasons for decision at [CB 244] the following sentence:

"The adviser presented a plethora of information about evangelical Christians the applicant husband I have taken into account including an affidavit from an Iranian Christian who has never met the applicant and appears to know nothing of his particular circumstances."(emphasis added)

b) The Tribunal member told him to just answer the questions that were being put to him. He did not have a chance to explain important issues. Whenever he tried to do so he was told to stop. For example he tried to explain the ceremony he arranged seven days after his friend's death but he was not permitted to.

c) From the beginning of the hearing until the end, the Tribunal constantly talked about alcohol consumption. The applicant told the Tribunal that drinking was not the core of his problems and asked why he couldn't talk about his core problems. The Tribunal did not pay attention and continued the line of questioning about alcohol.

d) A lot of things happened to the applicant. He was expelled from school because of his religious beliefs, he arranged a ceremony for his friend, he participated in demonstrations. The applicant argued that the Tribunal dismissed these facts and said that all of his problems were due to his drinking alcohol. The applicant denied that this was the case. He argued that the member had made a decision without paying any attention to his serious problems. The Tribunal emphasised drinking of alcohol which was unfair. The member deprived him of any right to explain or discuss the real issues.

7. The applicant also relied on the written outline of submissions which added to the matters raised above a complaint about a finding that the applicant's detention was consistent with the country information about the penalties for alcohol drinking and inconsistent with more serious political or religious offences. He complained that the Tribunal ignored the applicant's explanation for his early release from custody or that he had been released on bail. The submissions criticised the Tribunal's findings about the affidavit submitted by the applicant on the situation for evangelical Christians and the letter from Father Kessy which he claimed was not based on any evidence.

8. The written submissions also criticised the findings of the Tribunal that the applicant was not arrested because of any Convention reason but because he was the subject of a law of general application (the use of alcohol). Finally the applicant criticised the Tribunal's finding of the effect on his return of having been released on bail.

9. The respondent submitted that none of the matters raised by the applicant established a breach of any of the conditions restricting the validity of a privative clause found in the judgment of Dixon J in

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. He submitted that the Tribunal in its decision set out each of the claims made by the applicant and took all of those claims into consideration. The respondent also noted that the applicant's adviser did not complain that he or his client could not explain things to the Tribunal and submitted that the decision of the Tribunal showed clearly that the core problem was the applicant's claim of persecution because of religion. The Tribunal took this submission into account. The respondent pointed out that although the applicant had complained about the emphasis upon the use of alcohol, the Tribunal's reasons clearly showed that it understood that the use of alcohol was not the core of the applicant's complaints [CB 242] and the Tribunal took this issue into account.

10. The respondent pointed out that the Tribunal had considered the applicant's claims that he had been expelled from school but had come to the conclusion that this did not occur for the reasons stated. This also happened in regard to the applicant's claim about participating in a demonstration.

11. In so far as the complaint that the applicant was not given an ample opportunity to make his claims the respondent submits that the reasons summarised at length what he said to the Tribunal at the hearing. The Tribunal gave both the applicant and his adviser time to make further submissions and such submissions were made. These included another statement from the applicant [CB 222-226].

12. In regard to the emphasis upon the use of alcohol the respondent submitted that this was not unreasonable given that in his initial interview the use of alcohol was mentioned as a reason why the applicant left Iran, whereas there was no reference to religion.

13. The respondent went through the written submissions pointing out that the Tribunal had made a number of findings which were not accepted by the applicant. These findings, usually based upon the applicant's credibility, are conclusions of the Tribunal following upon its investigation of the facts. For example the complaints made by the applicant about the Tribunal's failure to consider that he had been released on bail and the effect of this upon his safety on return were dealt with at [CB 248] and [CB 251].

14. It should be clear from the matters discussed above that the only possible Hickman ground that the applicant could be said to have asserted is that of lack of bona fides. He expresses this in the manner in which he claims the Tribunal treated him and his submissions. A lack of bona fides is not to be found merely in the existence of an adverse decision. The very serious failures inherent in that phrase must exist in the decision-making process, not the decision. The Courts have time and again warned against turning an examination of the reasons for decision into an examination of the decision-maker himself. Although I am satisfied that there have been (SAAG v MIMIA [2002] FCA 547; SBAN v MIMIA [2002] FCA 591) and will continue to be decisions where a lack of bona fides is found this is not one of them. I am satisfied that the Tribunal duly considered all of the matters put to it by the applicant and came to a conclusion after weighing up those submissions against the competing evidence of its own observations and the country information. This is the task of the Tribunal and its exercise in this case does not need a privative clause to protect it.

15. I do not find that the allegations made against the Tribunal by the applicant have been made out. The inclusion of the words "the applicant husband" in the sentence quoted at [6(a)] above is obviously a computer assisted error. It does not indicate to me any lack of attention by the Tribunal to the applicant's case.

16. It follows from the above that I must dismiss this application. I order that the applicant pay the respondent's costs assessed by me in the sum of $3,750.00 pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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