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MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.

WAHI v Minister for Immigration [2002] FMCA 359 (10 December 2002)

WAHI v Minister for Immigration [2002] FMCA 359 (10 December 2002)
Last Updated: 17 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAHI v MINISTER FOR IMMIGRATION
[2002] FMCA 359



MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.



Migration Act 1958 (Cth) s.474




NAAV v MIMIA (2002) FCA FC228

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

Zahid v MIMIA (2002) FCA 1108



Applicant:
WAHI



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ164 of 2002



Delivered on:


10 December 2002



Delivered at:


Perth



Hearing Date:


10 December 2002



Judgment of:


Hartnett FM

Ex Tempore



REPRESENTATION

Counsel for the Applicant:


Applicant in person



Counsel for the Respondent:


Ms Price



Solicitors for the Respondent:


Australian Government Solicitor


ORDERS

IT IS ORDERED THAT

(1) Application dismissed.

(2) Applicant pay the respondent's costs pursuant to the Federal Magistrates Court Rules, Part 21, rule 21.10.

IT IS CERTIFIED THAT

(3) Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ164 of 2002

WAHI


Applicant

And

MINISTER FOR IMMIGRATION & MULTICURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. These proceedings were transferred from the Federal Court, Western Australia District Registry on 19 July 2002 by order of French J. This is an ex tempore judgment.

2. Procedural orders were made on 12 July 2002 and there has been no compliance with same by the applicant, in particular there has not been the filing of an amended application. However I am mindful that the applicant is a person in detention with limited access to resources.

3. The application filed by the applicant on 13 June 2002 seeking a review of the decision of the Refugee Review Tribunal claims that the decision of the Tribunal was "irresponsibly made" and claims the Tribunal member prejudged the matter.

4. The applicant is an Iranian citizen normally resident in the city of Ahwaz in Iran. He is of Arab ethnicity and Shia religious background. He is a 26 year old single male who left Tehran Airport on a false Iraqi passport and travelled through Malaysia and Indonesia before arriving in Australia by boat on 27 September 2000. He was detained upon arrival and remains so detained in the Curtin Immigration Detention Centre near Derby in the State of Western Australia.

5. The applicant made application for a protection (Class XA) visa by a person in detention dated 12 October 2000. On 26 October 2000 he was advised that his application for the grant of a protection visa was refused. The application had been assessed against criteria for the grant of a sub-class 785 (temporary protection) visa.

6. On 8 November 2000 an application was made by the applicant to the Refugee Review Tribunal for review of the delegate's decision. On

5 February 2001 the Tribunal determined that it did not have jurisdiction to review the delegate's decision because the application for review was lodged out of time. On 11 February 2002 the applicant successfully appealed this decision to the Full Federal Court. The matter was then remitted to the Tribunal. At the hearing of the Tribunal on 21 March 2002 the applicant gave oral evidence. The Tribunal's decision affirming the delegate's decision not to grant the applicant a protection (Class XA) visa was made on 24 May 2002.

7. The applicant claimed no political profile and whilst he stated that he had "lost faith in Islam" he did not claim that this had been overtly conveyed to the authorities but rather indirectly in his workplace by his behaviour. The applicant claimed to have a genuine and well founded fear of persecutory treatment for reasons of imputed political opposition to the ruling fundamentalist Islamic leadership in Iran should he fall into their hands. These fears arose from his claimed encounter with a senior regime figure over a parking matter and subsequent claimed harassment by a Basij gang tasked to keep him under surveillance and possibly seize him in the context of their planned seizure of his uncle, a policeman, whom the applicant claimed was tortured and murdered by them. The applicant further claimed that his father and brother had been detained and mistreated following his departure from Iran and that following a detention period of approximately three months his father had been admitted to hospital.

8. The applicant's various claims which were contained in his application; evidence before the Tribunal; his agent's written submissions and documentary evidence lodged in support of his claim were examined by the Tribunal with the assistance of Country Information, as set out particularly in pages 156 to 178 of the court book.

9. The Tribunal accepted that the applicant is an Iranian citizen who travelled via Malaysia and Indonesia to Australia arriving by boat on 27 September 2000.

10. The Tribunal reached an adverse conclusion on the applicant's credibility stating:

The Tribunal finds that the applicant's claims are dependent on many assumptions regarding incidents and events that are highly inconclusive. The applicant's former adviser stated in written submissions dated 18 January 2001 that the applicant fled Iran on the basis of fears that he "could be in serious trouble". His current advisers post-hearing submissions dated 22 March 2002 indicate a higher degree of uncertainty in describing the foundation of his fear of persecution. The Tribunal has come to the above conclusion, for the reasons discussed below, and is satisfied that the applicant is not credible in respect of certain key aspects of his claim for protection. At the hearing the applicant did not impress the Tribunal in his demeanour and responses in giving evidence on several key elements of his claims and did not convince the Tribunal that he is a young man who had to leave Iran in the circumstances he has described.

11. The Tribunal did not consider that the bashing the applicant received from a Basij street patrol in 1998 for allegedly following a girl was of direct relevance to his claims other than to show what the Basij are capable of and that the applicant has a fear of them for good reason. The Tribunal was of the view that any record of this incident would not be of particular significance in dealing with an insult to a senior official. The Tribunal considered improbable that a senior official would want to punish a carpark attendant for doing his job. It was not satisfied on the Country Information, that the Basij would make enquiries about the applicant in the peaceful manner the applicant had described. The Tribunal concluded:-

The Tribunal finds nothing in the applicant's account of official action against him to be convincing and does not accept the possibility, on the evidence, that the Basij were investigating the applicant. The Tribunal has concluded that, apart from the applicant having had a difficult experience over an incident such as he described in the course of his work, none of the suspicious events claimed by the applicant occurred.

12. The Tribunal also considered closely the evidence of the applicant regarding his father and brother being allegedly assaulted and detained by the Basij in a raid of the family home shortly after the applicant left the house in June 2000. In light of the Tribunal's findings that the Basij did not have an adverse interest in the applicant, the Tribunal did not accept that such a raid occurred nor that his father and brother were assaulted or detained on account of the authorities looking for the applicant. As a result, the Tribunal placed no weight on medical certificates submitted to the Tribunal to establish the mistreatment of the applicant's father and brother by the Basij. The Tribunal found that, if these certificates were authentic, the injuries reported as existing in October 2000 had no connection with the applicant's claims.

13. The Tribunal accepted that the applicant's cousins and his uncle had suffered unfortunate and unjust experiences at the hands of the Basij and the Iranian authorities but stated that the applicant agreed he had largely raised these past incidents as examples to show what the authorities are capable of and their impact on his state of mind. The Tribunal was not satisfied on the applicant's evidence and the Country Information set out in its reasons for decision, that the applicant or his family in Ahwaz were of interest to the Iranian authorities.

14. In respect of the applicant's conversion to Christianity the Tribunal found that the applicant had been baptised into the Catholic Church whilst in detention in Australia and accepted that he would pursue the practice of that faith if he returned to Iran. The Tribunal did not accept on the evidence that the applicant would declare his new religious affiliation to the authorities on return to Iran or practice his faith in other than a low profile manner. The Tribunal stated that there is no evidence of low profile apostates attracting penalties of any kind in Iran and if the applicant returned to Iran and chose to join the officially accepted Roman Catholic community there was no reason to believe that he would be at risk of harm or harassment for doing so.

15. In relation to the applicant's concern about the reaction of the Arab community in Ahwaz to his conversion the Tribunal concluded the applicant could reasonably relocate to live safely in Tehran, taking into account the applicant's intelligence and maturity, his education and work skills and that he was single and without dependants.

16. The Tribunal found that the applicant left Iran legally. The Tribunal examined an article in The Age concerning two former Iranian detainees in Australia mistreated on return to Iran. The Tribunal found the report to be very limited in detail and the facts surrounding each detainees circumstances not clear or substantiated. The Tribunal preferred and accepted the Country Information regarding the likely treatment of returning failed asylum seekers that indicated the act of applying for asylum abroad was not, in itself, an offence and not much more than verbal harassment would occur, unless the asylum seeker had an opposition or political profile, which the Tribunal did not accept the applicant had.

17. In view of the Tribunal's adverse findings on the applicant's credibility and its rejection of key elements of his claims, the Tribunal was not satisfied that the Iranian authorities have had or would have any adverse interest in the applicant for reason of religion or an imputed or actual, dissident, political opinion. The Tribunal did not accept that the applicant left Iran as a fugitive from persecution and the Tribunal did not accept that he would face any serious difficulty for a Convention reason upon his return to Iran. Accordingly, the decision to not grant a protection visa was affirmed.

18. This Court is not engaged in a merits review. Although the applicant is able to file his application and have it heard by the Court, this Court's function is limited to determining whether or not the Tribunal exercised in a bona fide manner the jurisdiction given to it.

19. Since the decision in NAAV v MIMIA (2002) FCA FC228 it is clear that s.474 of the Migration Act 1958 (Cth) operates to expand the effective jurisdiction of the Tribunal in respect of privitive clause decisions. The accepted construction of a privitive clause is set out in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 614 to 616 and it has not been disturbed by the judgment in NAAV v MIMIA.

20. The ratio of NAAV v MIMIA was analysed and applied by Sackville J in Zahid v MIMIA (2002) FCA 1108. That analysis was approved and applied by the Full Court in NABN of 2001 v MIMIA (2002) FCA FC294. In Zahid at (33) to (38), Sackville J set out the following as principles that were common ground among the judgments in NAAV v MIMIA:

(a) Section 474(1) is to be interpreted in accordance with the principles of constructions enunciated by Dixon J in Hickman's case and thereafter consistently applied by the High Court.

(b) Section 474(1) affects the substantive law as to what decisions are valid, altering (and giving force to) what would otherwise be unlawfulness in the decision making process. In the language of Dixon J in Hickman, and subject to the three provisos set out at par 15 above, a privative clause;

Is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it was not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its act within the limits laid down by the instruments giving it authority.

(c) There is a further limitation on the validating effect of s.474(1) namely the purported exercise of power must not be one which contravenes a final or inviolable limitation upon the powers, duties and functions of the decision maker.

21. Did the Tribunal act bona fide? A lack of bona fides is discussed by Mansfield J in SBAU v MIMIA (2002) FCA 1076. There is clearly no lack of bona fides on the part of the decision-maker. I find the Tribunal acted in a bona fide manner and accept the submission made by the Respondent that there is nothing in the record of the Tribunal's decision that is indicative that the Tribunal made its decision irresponsibly as the applicant claims. The applicant asserts, but provides no material in support that the Tribunal member had a predetermined view on the outcome of the case before the RRT. There is no justification to look behind the decision of the Tribunal to see if there is any basis for the allegation of bias.

22. Did the Tribunal's decision relate to the subject matter of the legislation and was it reasonably capable of reference to the power given to the Tribunal by the Act? Clearly it did.

23. The application does not identify a Hickman exception. Nor does the application identify any requirements or limitations on the exercise of power by the Tribunal that it has not complied with and which, notwithstanding the terms and effect of s.474, is essential to a valid decision.

24. The application is dismissed. I order the applicant pay the respondent's costs which are assessed pursuant to the Federal Magistrates Court Rules, Part 21, rule 21.10.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:

Date:
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