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

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

WACV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 76 (10 May 2002)
Last Updated: 26 June 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WACV V MIMA
[2002] FMCA 76



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

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

Judiciary Act 1903 (Cth) s.39B

W195/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 369

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

NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263

Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 477



Applicant:
WACV



Respondent:


THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS



File No:


WZ 67 of 2002



Delivered on:


10 May 2002



Delivered at:


Sydney



Hearing Date:


29 April 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:
Ms L Price

Solicitors for the Respondent:
Australian Government Solicitor



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 67 of 2002

WACV


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. In this matter the applicant seeks a review of the decision of the Refugee Review Tribunal constituted by L Hardy made on 29 November 2001 affirming a decision not to grant a protection visa under class XA sub-class 785 or 866.

2. The applicant entered Australia 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).

3. The application states that the applicant is aggrieved by the Tribunal's decision because:

"He will be arrested and tortured for his political activity against the Iranian regime if he returns to Iran."

4. The grounds of the application are set out as follows:

a) There was no evidence or other material to justify the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his political opinion real or imputed if he returned to Iran within the reasonably foreseeable future.

b) The decision involved an error of law, being an error of law involving the incorrect interpretations of the applicable law or an incorrect application of the law to the facts as found by Tribunal or both.

5. The matter came before the Registrar on 11 January 2002. The Registrar made orders, including the following:

"1. The applicant file and serve on or before 8 February 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."

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 R D Nicholson J determined pursuant to Order 80 sub-rule 4(1) of the Federal Court Rules that it was in the interests of the administration of justice that the litigant be referred for legal assistance under Order 80 no legal practitioner could be found who was prepared to provide pro bono legal assistance in Western Australia.

7. The applicant and his adult son, both claiming to be nationals of Iran, arrived undocumented in Australia by boat from Indonesia on 6 March 2001. The applicant is an electrician from Tehran. He claims that he and his son became involved in the third day of the notorious student demonstrations in Tehran in July 1999 where he tore up a photograph of Ayatollah Khomeini and may have been seen doing this. He alleged that his son was held by authorities for twenty days. He claims to have lived the next eighteen months in constant fear. The applicant also claimed that he was dismissed from his position with the Tehran City Council for not attending group prayers and thereafter became self employed.

8. The applicant claims he left Iran on a false passport obtained with the assistance of a people smuggler together with his son.

9. The applicant and his son were both considered separately for the grant of protection visas. The Minister's Delegate made his decision in respect of both applicants on 13 August 2001. Between that date and the hearing of the applicant's appeal to the Tribunal on 15 November 2001 the son voluntarily returned to Iran. The fact of this voluntary return had considerable influence on the mind of the Tribunal when it decided that the applicant did not have a well founded fear of persecution which it expressed in the following manner:

"The Tribunal is deeply troubled by the applicant's son's voluntary return to Iran. It leaves the Tribunal strongly doubting that he was ever arrested, or at least living in fear of re-arrest. Were it to accept that the applicant's son also participated in the popular response to the 8 July 1999 raid, and that he was detained for 20 days, it would still conclude that this was a short, finite and arguably understandable response on the authorities' part to what was after all a riot, and especially compared with their response to dissident students generally.

The Tribunal dismisses as a fabrication the applicant's claim that his son was arrested at home after being allowed to return there from the airport. The Tribunal accepts the Applicant's evidence of his son's safe passage through the airport as evidence that he too can return to Iran without fear of being detained for any Convention-related reason, notwithstanding that he has applied for asylum in Australia."

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. In this case the applicant claimed a well founded fear of persecution in respect of his return to Iran.

12. The applicant was assisted by a firm of solicitors at the hearing before the Tribunal. The solicitors also provided the Tribunal with some written submissions which were attached to a letter dated 22 November 2001 which was faxed to the Tribunal and received on the same day. The letter says:

"The following submissions emphasise evidence given by the applicant at the hearing:

1. The applicant's son, who voluntarily returns to Iran, was mentally unwell at the time of his return. We submit to that the son was not in a position to make a rational decision and that his capacity for subjective fear was diminished by his mental state.

2. The applicant gave credible evidence concerning the delay by his family in Iran informing him as to his son's fate...

The letter also attached some further information concerning human rights abuses in Iran.

13. The decision of the Tribunal gives cause for concern in a number of respects.

14. On page 5 of the decision under the heading "Claims and Evidence" it says:

"The applicant also claimed he was sacked from a job in 1993 for not attending group prayers, but this seems to have no relevance in the present matter, for he was evidently continuously employed until October 2000. His pattern of employment and domicile was evidently unaltered by the claimed events of July 1999; he lived at the same address from 1996 to October 2000; he worked with the same employer, the Tehran City Council from 1993 to 1998 when he became self employed."

15. In his application for a protection visa the applicant indicates that he was employed by the Tehran City Council from December 1993 to October 1998. In the statutory declaration which accompanied his application he says:

"In the year 1377 (1998) I was sacked from my job. The reason being was that I was not participating in the group prayers."

16. It would appear from the face of the document that the Tribunal has misunderstood the applicant's evidence in respect of his dismissal.

17. In paragraph 4 of the applicant's statutory declaration he provides a history of his brother being arrested in 1998. His brother was charged with insulting the government and after a short period of detention in a mental hospital was released and within one month died. The applicant stated that his brother had been killed under a fatwa ordered by Ayatollah Mesbah Yazdi. In paragraph 4 of the statutory declaration he states:

"[I was] furious about my brother's death. I hated the regime for what they had done to our family. I started to tell people about the cruelty of the regime. I was so angry I would even talk to people at weddings, on a bus, anywhere I was so angry I wanted to speak up about it."

18. There is no reference to these matters in the decision of the Tribunal. I put it to Counsel appearing for the Minister that this incident might have caused the applicant to have a well founded fear of persecution. In response it was suggested that whilst this incident may have set the applicant upon the road to activities which he later claimed would put him in fear, the incident itself did not do so and was thus not required to be considered by the Tribunal.

19. On page 6 of the reasons the Tribunal states:

"The applicant claimed that his son decided to go back to Iran when he learnt that his case had been constituted to the presiding member...

"The applicant nevertheless confirmed that his son made a rational choice to return to Iran. He then went on to provide vague, contradictory, implausible and inconsistent evidence about calls home to his son since his return."

20. There is no reference on the face of the document nor any discussion of the matter contained in the letter from the applicant's solicitors which is set out in paragraph 11 of these reasons. On page 7 of the reasons the Tribunal says:

"The Tribunal has read the submissions of the applicant's advisers but these do not overcome the fundamental problems in this case. Having concluded that the applicant departed Iran under the scrutiny of authorities, and having concluded that he did so bearing a passport identifying him correctly, the Tribunal finds there are no grounds on which to be concerned as to his safe and incident free return to his own home, and to a routine life after that."

21. I have considered whether the summary dismissal of the applicant's legal representatives submissions pertaining to his son constituted what Lee J in W195/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 369 referred to as the Tribunal's as dismissal of material on intuition or inclination and thus it:

"Failed to hear the applicant's case as presented to it and failed to perform the duty imposed on it by s.414 of the Act."

22. Because of my concern about these matters I read and re-read the findings and reasons of the Tribunal. I have come to the conclusion that the Tribunal based its decision as to whether or not the applicant was a refugee firmly on the basis that if he was a person who risked death or imprisonment in Iran upon his return he would not have been able to leave Tehran through its airport with a passport (whether false or otherwise) in which his real name and photograph appeared. This conclusion was based firmly upon evidence contained in the country profile and found at page 75 of the Court Book. There was no jurisdictional error made by the Tribunal in coming to this conclusion. The findings which the Tribunal came to about the applicant's son, the views about the applicant's truthfulness, (whether or not they were influenced by an apparent misunderstanding about his employment), have no relevance to the real reason for the decision.

23. The jurisdiction of the Federal Magistrates Court in these matters is imposed by s.483A 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;

c) is final and conclusive; and

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

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

24. 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.

25. 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."

26. 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."

27. 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."

28. 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 Iran.

29. 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."

30. 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.

31. I should also state that even if I had not taken the view which I have expressed about the Tribunal's true reason for its decision and found that there was on the face of the document a jurisdictional error or errors in the non-consideration of evidence put before the Tribunal I would have followed the decisions of the Federal Court in NAAX v MIMA [2002] FCA 263; Turkan v MIMA [2002] FCA 397 and Wang v MIMIA [2002] FCA 477 the effect of which would have been to put such an error beyond the reach of remedy by this court.

32. Accordingly, I consider that the application must be dismissed. I so order. I see no reason why the ordinary rule as to 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 thirty-two (32) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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