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MIGRATION - Review of Refugee Review Tribunal decision affirming decision of a delegate not to grant a protection visa - disputed Tribunal findings - credibility of the applicant.

WAAH v Minister for Immigration [2002] FMCA 131 (5 July 2002)

WAAH v Minister for Immigration [2002] FMCA 131 (5 July 2002)
Last Updated: 15 July 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAAH v MINISTER FOR IMMIGRATION
[2002] FMCA 131



MIGRATION - Review of Refugee Review Tribunal decision affirming decision of a delegate not to grant a protection visa - disputed Tribunal findings - credibility of the applicant.

Federal Magistrates Court Rules 2001 (Cth)

Judiciary Act 1903 (Cth), ss.39B, 44

Migration Act 1958 (Cth), ss.424A, 474, 476, 483A

Craig v State of South Australia (1995) 184 CLR 163

NACH v MIMIA [2002] FMCA 110



Applicant:
WAAH



Respondent:


MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ100 of 2002



Delivered on:


5 July 2002



Delivered at:


Sydney



Hearing Date:


28 Jun 2002



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person






Counsel for the Respondent:


Mr J D Allenson



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at the amount of $4,300.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ100 of 2002

WAAH


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. The applicant is an Iranian national who seeks an Australian protection visa. He is seeking a review of a decision of the Refugee Review Tribunal ("the RRT") which affirmed a decision of a delegate of the respondent Minister to refuse his application for a protection visa.

2. The applicant's case is founded on the proposition that he has a well founded fear of persecution by reason of his family's and his links with the former regime of the Shah. The applicant asserts that if he is returned to Iran he will be persecuted because of the long history of conflict with the authorities by various members of his family. The applicant put his case in detail to the RRT. A number of factual issues advanced by the applicant were accepted by the RRT but a significant number were not. The applicant asserts that the RRT was in error in making factual findings against him. The only issue to be resolved in these proceedings is whether those alleged errors, taken individually or in combination, could lead to a conclusion that the decision of the RRT is vitiated by reviewable legal error.

3. The applicant was unrepresented at the hearing of this matter before this Court. Although I explained to him that it was not the function of this Court to review the merits of the RRT decision, the submissions made by the applicant were limited to a rehearsing of the factual issues that he put to the RRT and an assertion that the RRT was wrong in rejecting some of those alleged facts. At the hearing the videolink to Broome Regional Prison, where the applicant is presently held, was poor, and the interpreter in Sydney experienced some difficulty in translating what the applicant said, particularly as he spoke quickly when agitated. I am satisfied, however, that the applicant understood what was expected of him in these proceedings and that he was able to put before the Court what he wanted to say.

Background

4. I have been assisted by written submissions prepared by solicitors for the respondent. I adopt as accurate the background information provided at paragraphs 1.1 to 3.1 of those written submissions. For convenience I set out that background material below.

5. The applicant is a citizen of Iran. He arrived in Australia by boat in November 2000. His arrival in Australia was not authorised.

6. The applicant was interviewed by an officer of the Department of Immigration and Multicultural Affairs on 13 November 2000. In that interview he claimed:

a) he was a citizen of Iran;

b) he had been planning to leave since 1983;

c) he had been jailed in 1986 for three weeks and beaten for harassing a security agent;

d) in 1993 he had sought refugee status in Cyprus but had been returned to Iran, and banned from leaving for two years;

e) he had written to the Etelaat before leaving Iran and told them he was leaving.

7. On 4 June 2001 the applicant lodged an application for a protection visa. That application was supported by a statement by the applicant dated 1 June 2001 in which he made further claims including:

a) when he left Iran he had gone to Malaysia but he was sent back to Iran because his passport was due to expire. In Iran he was interrogated but let go, got his passport extended and left again;

b) his father had been an officer in the secret service under the Shah and had connections with previous government officers. The applicant had gone to Malaysia to meet a man who was organising cultural opposition to the regime in Iran;

c) his family's assets had been taken in the revolution against the Shah and three of his family on his mother's side had died in prison and by execution;

d) the applicant's father was in prison for eight years until 1986, and then expelled to another city for two years;

e) the applicant had started to establish an anti government movement at the end of 1999 and started travelling to make contacts;

f) in 1993 after being returned from Cyprus he had been detained for two months and put on a list of those who could not travel for two years (but had bribed his way off the list).

g) In 1995 he went to Turkey, hoping to go to another country but returned to Iran when his father had a heart attack;

h) His brother was a doctor and his sisters engineers;

i) One of his father's friends had been killed by the government and had been in secret consultation with his father. His father had been taken away and detained for 35 days before being released;

j) The applicant had started an "ideas group" with four others, all of whom had had been arrested since he left Iran;

k) The applicant had said very little in his first interview because he was fearful.

8. The applicant claimed asylum on the grounds of political persecution due to belonging to a family identified with anti government activities.

9. On 10 July 2001 the delegate notified the applicant of concerns about the credibility of some of his claims, inviting comment. A response was sent dated 12 July 2001.

10. The delegate refused the application on 17 July 2001. On 23 July 2001, assisted by a solicitor/migration agent, the applicant applied to the RRT for review of that decision.

Proceedings in the RRT

11. On 24 August 2001 the RRT, under s.424A of the Migration Act 1958 (Cth) ("the Migration Act") by letter advised the applicant of information arising out of his entry interview that may affect his credibility and sought his comment.

12. The applicant attended a hearing of the RRT on 27 August 2001. His migration agent made written submissions on 5 September 2001. The applicant was notified of further information going to his credibility on 6 September and a response was provided on 18 September.

13. On 2 October 2001 the RRT made a decision affirming the decision of the delegate not to grant a protection visa. In making its decision:

a) the RRT identified aspects of the applicant's evidence which it found to be internally inconsistent, inconsistent with independent evidence and vague. Particular mention is made at page 111 of the court book of the applicant's vagueness in relation to the political philosophy of the groups to which he belonged. The RRT found the applicant's manner of giving evidence to be also evasive, with the applicant trying to avoid some questions and reluctant to give details.

b) The RRT did not accept certain of the applicant's claims: that he was involved in the activities of a pro-monarchist group; or that the applicant's father's property had been confiscated and as to his father's employment; or the applicant's account of his father's consultations with Darius Foruhar.

c) Other claims it accepted factually, but did not find that there was a well founded fear of persecution as a result: the claim of arrest and detention in 1986; the claim that the family of the applicant's maternal grandfather may have had members imprisoned and executed; that he had written to the Etelaat before leaving Iran.

d) The RRT also referred specifically to the applicant's travel to Cyprus in 1993, and his return to Iran. The RRT did not accept that the applicant had been banned from travel, but even if he had his own evidence was that he was able to obtain another passport and travel again by 1995. The evidence showed the applicant had been able to leave and re-enter Iran and this suggested that the applicant was of no ongoing interest to Iranian authorities.

14. The RRT found that the evidence did not suggest that the Iranian authorities had any ongoing interest in the applicant, and did not accept that he was of any interest to them prior to leaving Iran. It was not satisfied that the applicant had a well founded fear of persecution for a Convention reason.

15. On 4 October 2001 the applicant filed an application for review of the decision of the RRT in the Federal Court of Australia. That application sets out three general grounds:

a) procedures that were required by the Migration Act to be observed in connection with the making of the decision were not observed;

b) that the decision involved an error of law being an error of law involving an incorrect interpretation of the application of the law to the facts as found by the person who made the decision;

c) there was no evidence or other material to justify the making of the decision.

16. On 15 May 2002 the matter was transferred to the Federal Magistrates Court.

Consideration and findings

17. The application in its terms purports to be an application for review under the former s.476 of the Migration Act. However, pursuant to s.474(2) of the Migration Act the RRT decision is a "privative clause" decision. Because the application was made to the Federal Court after 1 October 2001 the application is caught by the privative clause in s.474(1). This Court has concurrent jurisdiction with the Federal Court pursuant to s.483A of the Migration Act but the effect of the privative clause is to confine jurisdiction to limited grounds as an application for prerogative relief under s.39B or s.44 of the Judiciary Act 1903 (Cth) ("the Judiciary Act").

18. The grounds of review recited in the application are no longer relevant. I have heard the application as if it were an application for prerogative relief under s.39B of the Judiciary Act on the remaining grounds of review available since the enactment of the privative clause.

19. In previous cases I have adopted the approach of determining what is the proper interpretation of the privative clause in s.474 of the Migration Act before considering the particular matters raised by the applicant as supporting the application for review. In this case I have decided to follow the approach taken by the Chief Federal Magistrate in NACH v MIMIA [2002] FMCA 110. I refer, in particular, to what the Chief Federal Magistrate said at paragraphs 23 to 28 of that decision. Given that the Full Federal Court is yet to determine what approach to the interpretation of the privative clause is correct it is appropriate to give the applicant the benefit of the most generous interpretation to the privative clause pending the outcome of the five cases that are presently before the Full Federal Court.

20. The RRT decision in issue in these proceedings traverses in detail the factual matters advanced by the applicant. The nub of the decision appears at page 115 of the court book. The presiding member said this:

Overall, I am not satisfied that the applicant was involved in any political activities in Iran. I do not accept that his family members have been arrested since his departure from that country, or that his father was arrested because of a connection to Darius Foruhar. I do not accept that the applicant was of any adverse interest to the Iranian authorities at the time he left Iran to come to Australia or that his is of any interest to them currently. I accept that the applicant was detained for three weeks and sentenced to 15 lashes in 1986 when he harassed a security officer. I am not satisfied that this incident gives rise to a well founded fear of persecution for a Convention reason. I accept that the applicant left Iran and went to Cyprus in 1993. However, I do not accept that he was detained following his return to Iran. I am not satisfied that the applicant has a well founded fear of persecution for a Convention reason arising out of his departure from Iran in 1993 when he went to Cyprus or his departure from Iran in 1995 when he went to Turkey. I accept that the applicant has a scar arising out of knife wound to his neck. However, I cannot be satisfied that Basiji inflicted this wound because of the applicant's religious, political or family profile. I am not satisfied that the applicant has a well founded fear of persecution for a Convention reason. He is not a Convention refugee.

21. The applicant disputes each of the RRT conclusions adverse to him. All of those matters were matters that were raised before, and rejected by, the RRT. The question to be considered is whether there are any matters raised by the applicant that individually or collectively establish a legal error sufficient to satisfy a ground of review potentially available under s.39B of the Judiciary Act.

22. In Craig v State of South Australia (1995) 184 CLR 163 at 179 Brennan, Deane, Toohey and McHugh JJ said:

If an administrative Tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or power. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it.

23. In NACH the Chief Federal Magistrate found that it did not appear to her in that case that the RRT identified or addressed wrong issues or ignored relevant material or relied on irrelevant material. All of the matters raised by the applicant in the appeal were addressed by him with the RRT. The applicant's complaint was in reality that the RRT did not accept his explanations. That alone is not a basis for judicial review. It certainly does not constitute jurisdictional error. Thus it was unnecessary to consider s. 474 of the Migration Act.

24. The position is the same in this case. Whatever view one takes of s.474 of the Migration Act it is apparent in this case that the applicant has been unable to point to any jurisdictional or other legal error on the part of the RRT. There is no suggestion of bad faith or jurisdictional error, either in terms of the code of procedure in the Migration Act, or the requirements of the general law. All of the matters advanced by the applicant are no more than assertions that the facts as put forward by him should have been accepted. This is no more than a contest over the merits of the RRT decision. It is not the function of this Court to review those merits. It is the function of the RRT to examine the claims of the applicant. In doing so, the RRT is entitled to critically assess those claims, and to form a view of the credibility of the applicant. That was done by the RRT. To all appearances it appears to have performed its task lawfully and properly. No basis has been advanced by the applicant for calling into question the decision reached by the RRT. Accordingly, this application must be dismissed.

25. The respondent Minister has been wholly successful in these proceedings and is entitled to an order for costs. Consistently with my practice in previous cases of this nature I will fix the amount of costs pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 5 July 2002
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