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MIGRATION - refugee - refusal of protection visa - appeal from single judge dismissing application for review of decision of Refugee Review Tribunal - whether evidence or other material to justify decision - whether error of law

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

WAFN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 240 (13 August 2002)
Last Updated: 22 August 2002


FEDERAL COURT OF AUSTRALIA


WAFN v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCAFC 240


MIGRATION - refugee - refusal of protection visa - appeal from single judge dismissing application for review of decision of Refugee Review Tribunal - whether evidence or other material to justify decision - whether error of law

WAFN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W84 OF 2002

HEEREY, CARR AND MANSFIELD JJ

13 AUGUST 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W84 OF 2002




BETWEEN:
WAFN

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGE:
HEEREY, CARR AND MANSFIELD JJ


DATE OF ORDER:
13 AUGUST 2002


WHERE MADE:
PERTH




THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondent's costs of the appeal including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W84 OF 2002




BETWEEN:
WAFN

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
HEEREY, CARR AND MANSFIELD JJ


DATE:
13 AUGUST 2002


PLACE:
PERTH





REASONS FOR JUDGMENT

1 This is a judgment in the matter of WAFN of 2002. The appellant appeals from a decision of a Judge of this Court which dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"). That decision in turn affirmed a decision of a delegate of the respondent Minister that the applicant was not to be granted a protection visa.

2 The appellant was born in Egypt in 1974 and arrived in Australia on 28 October 2000. He was interviewed on 10 November 2000 by an officer of the Department and subsequently made an application for a protection visa. The applicant, in his first interview with the departmental officer, said that he had left Egypt because of a feud in his village. That feud involved himself and a friend who is the appellant in the second matter before the Court today, WAFO of 2002.

3 The appellant said that he and his friend had been wrongly accused of responsibility for the pregnancy of a young woman in the village. The brother of this woman, a local policeman or intelligence officer, was also a rival to the appellant for the affections of another young woman. This man had raided the home of the appellant's family and issued threats against them. The appellant believed his life was in danger. He and his friend fled to Alexandria and then to Jordan. He arrived in Jordan in February 1999 and obtained work there. In June 2000 he heard from his family that the police officer and the woman's family knew his whereabouts in Jordan and would pursue him. As a result of this, the appellant made arrangements to leave Jordan and travel with his friend to Australia.

4 In his subsequent application for a protection visa the appellant made a new claim in which he said he had been involved with the Islamic Liberation Party in Egypt. This was a party which aimed to restore Islamic rule in Islamic countries. Many of its members had been executed in Egypt, Iraq, Libya, Tunisia and Jordan. The appellant claimed that he and his friend had been introduced to the party by a person they knew from their village. The appellant and his friend had become engaged in distributing pamphlets for the party. On one occasion the police intervened and the appellant's home was raided by police.

5 Because nothing of this claim had been mentioned at the initial interview with the departmental officer, the Tribunal wrote to the appellant and his adviser giving the appellant an opportunity to provide an explanation for what the Tribunal describes as a "major discrepancy". In response the appellant said that he had been "seized by fear" before the first interview because an Egyptian working as an interpreter at the detention centre had asked him his address in Egypt. The appellant feared that the interpreter had links with Egyptian intelligence and that it would be unsafe to mention any connection with the Islamic Liberation Party because it might lead to "subjecting my family in Egypt to torture".

6 In its reasons for affirming the refusal of a protection visa the Tribunal said that it had "significant problems" with the appellant's credibility and, in particular, his failure to mention any kind of political activity at the first interview. The Tribunal said it was not satisfied by the appellant's explanation for this. The Tribunal generally accepted the appellant's claims relating to his relationship with a girl and the accusations in relation to the other girl. The Tribunal accepted that these difficulties were the reason for the appellant and his friend leaving Egypt.

7 The Tribunal also accepted that their reason for leaving Jordan was again to avoid pursuit by the appellant's vengeful rival. However, the Tribunal was not satisfied that there was a real chance that the appellant would be harmed by his rival and associates if he returned to Egypt. If there were a risk of revenge in the appellant's home town, that could be avoided if the appellant resided elsewhere. Furthermore, even if he were pursued and harassed and suffered any harm, that would not be harm done to the appellant for a Convention reason, that is to say, a reason of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal said:

"The Tribunal has considered the claims put forward by the (appellant) regarding his political activities. Not only did the (appellant) not mention these at his on (sic) arrival interview, but his accounts of events at the Tribunal hearing was not convincing. The Tribunal notes that there was a two-week interval between the hearing of the (appellant's) friend and the (appellant). Even with this opportunity to ensure consistency between the two accounts, there were discrepancies in details of their evidence suggesting that the two were not relating events which actually occurred.
In summary, the Tribunal is satisfied that the appellant's claims in relation to political activities on behalf of an extremist Islamic group has been fabricated in order to support his claims of convention-related persecution."

8 On the hearing of the application for review before the primary Judge the appellant appeared in person. He contended that the Tribunal had not adequately considered his explanation for failing to discuss his political activities in his first interview and had made incorrect or inadequate findings of fact in respect of the dangers he faced if he returned to Egypt.

9 His Honour pointed out that the Tribunal has to be careful when making findings adverse to applicants when that finding is based on a failure to disclose at the first opportunity facts on which the fear of persecution is said to be grounded. His Honour quoted comments by Professor Hathaway in The Law of Refugee Status 1991 at pp 84-86. Nevertheless, his Honour found that the Tribunal in the present case had given the appellant appropriate opportunity to deal with an aspect of the appellant's case that the Tribunal considered cast grave doubt on the appellant's credibility. Particular reference might be made to [22] of his Honour's judgment.

10 The appellant's notice of appeal states the following grounds:

"(a) There was no evidence or other material to justify the making of the decision that the applicant did not have a well-founded fears (sic) of persecution by reason of his political opinion real or imputed if he returned to Egypt within the reasonably foreseeable future;
(b) The decision involved an error of law, being an error of law involving the incorrect interpretation (sic) the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both."

11 In addressing the Court, the appellant, who was not legally represented, stressed his concern about the vendetta. He said that last Friday, 10 August 2002, he heard on the radio that there had been a killing of 22 people in Egypt as a result of a vendetta. We cannot deal with any facts that have arisen since the date of the Tribunal's decision. Our task is simply to decide whether there is any error in the judgment of the primary Judge which refused to set aside the decision of the Tribunal. We are quite satisfied that no such error has been shown and we agree with the primary Judge that the Tribunal was entitled to reach the decision it did on the material before it. The appeal should be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 15 August 2002

Counsel for the Appellant:
Appeared in person






Counsel for the Respondent:
Mr A A Jenshel






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
13 August 2002






Date of Judgment:
13 August 2002


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