ABC v Minister for Immigration & Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA

ABC v Minister for Immigration & Multicultural Affairs [2001] FCA 955

MIGRATION – review of decision of Refugee Review Tribunal (“Tribunal”) – whether the Tribunal, in failing to refer to one of the applicants’ claims, constructively failed to exercise its jurisdiction or erred in law – whether the Tribunal failed to address the question of whether the applicants would be ‘persecuted’ on returning to Iran – whether there was no evidence to justify the Tribunal’s decision – whether the applicant has identified a ‘particular fact’ on which the Tribunal’s decision was based

Migration Act 1958 (Cth) s 476(1)(b), s 476(1)(c), s 476(1)(e), s 476(1)(g), s 476(4)(b)

Z v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 51 referred to
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 considered
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 followed
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 followed

Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status 1979

ABC & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 220 of 2001

STONE J
20 JULY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 220 OF 2001

BETWEEN:

ABC
FIRST APPLICANT

DEF
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

20 JULY 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        the application be dismissed;

2.        the applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 220 OF 2001

BETWEEN:

ABC
FIRST APPLICANT

DEF
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

STONE J

DATE:

20 JULY 2001

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. The applicants are a father (referred to as “ABC”) and his son (referred to as “DEF”).  They are citizens of Iran who arrived in Australia on 27 November 1999 as “unauthorised boat arrivals”.  On 6 April 2000, they lodged an application for protection visas under the Migration Act 1958 (Cth) (“Act”). The applicants claimed to be refugees within the meaning of the Convention, as defined in [20] below. That application was refused by the respondent’s delegate (“Delegate”) on 26 September 2000 and the Delegate’s decision was upheld by the Refugee Review Tribunal (“Tribunal”) on 27 February 2001. On 26 March 2001, the applicants applied to this Court for review of the Tribunal’s decision under Part 8 of the Act. On 4 April 2001, Weinberg J ordered that the names of the applicants not be published.

    THE APPLICANTS’ CLAIMS AND THE TRIBUNAL’S DECISION

  2. The Tribunal considered both applicants’ claims as contained in…

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Details
Case
[2001] FCA 955
Decision Date

CaseChat Overview and Summary

ABC, a citizen of Iran, and his son DEF, also a citizen of Iran, were applicants for protection visas in Australia. Their application under the Migration Act 1958 (Cth) was refused by the Minister for Immigration & Multicultural Affairs, and subsequently upheld by the Refugee Review Tribunal. The applicants sought judicial review of the Tribunal's decision in the Federal Court of Australia. The central legal issues were whether the Tribunal erred in its assessment of the evidence and its conclusions regarding the applicants' claims of persecution upon return to Iran. Specifically, the court had to determine if the Tribunal erred in concluding that ABC would not be persecuted in Iran due to allegations of mistreatment in Woomera, Australia, and whether there was sufficient evidence to support the Tribunal's findings.

The court found that the Tribunal's conclusion that ABC would not be persecuted in Iran due to the Woomera allegations was well-supported by the evidence. The Tribunal noted that ABC possessed a media release from the Minister that suggested the allegations were groundless. Even though ABC's name was not explicitly mentioned in the release, the Tribunal was entitled to conclude that the release, given its context and timing, related to the allegations against ABC. The court also found that the Tribunal did not err in its reasoning that ABC would not face persecution for Convention reasons upon his return to Iran, as the Tribunal considered multiple bases for its decision. These included ABC's acceptance of the media release as evidence of his innocence, the lack of eyewitnesses which would prevent a successful prosecution under Iranian law, and the notion that any prosecution would not amount to persecution for a Convention reason.

The court dismissed the application and ordered that the applicants pay the respondent's costs. This decision underscores the court's deference to the Tribunal's assessment of the evidence and its conclusions, provided they were reasonably open on the material before it.

Orders

Orders of the court

1. the application be dismissed;

2. the applicant pay the respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In any event, as the respondent pointed out, even if the applicant is right, the Tribunal’s finding that any persecution to which ABC would be exposed following the Woomera allegations would not be for a Convention reason (see [11]-[12] above) is sufficient to justify the Tribunal’s conclusions on this point.No evidence The particular fact identified by the applicant as not existing is that ABC would not be persecuted in Iran on the basis of the Woomera allegations because he could produce a press release from the respondent which would ultimately have the consequence that ABC would neither be persecuted nor prosecuted in Iran. The relevant passage in the Tribunal’s reasoning is“More importantly, he has in his possession the Australian Minister for Immigration and Multicultural Affairs’ media release, which unequivocally confirms that the allegations about [ABC’s] treatment of [DEF] are groundless.” The applicant submitted that, because the press release did not identify the applicants by name, the authorities would not necessarily take it as exonerating the applicant. Thus, it could not be said that the press release ‘unequivocally confirms’ that the allegations against ABC are groundless. The respondent’s first submission was that the ‘particular fact’ identified by the applicant is not a fact at all, but rather a conclusion. That is, whether or not a document ‘unequivocally confirms’ a state of affairs is a conclusion reached by an examination of the document in its context. Here, it is submitted, the Tribunal was entitled to conclude that the timing of the media release would strongly suggest that it related to the allegations against ABC. The respondent also submitted that the Tribunal’s statement, that the press statement confirms the Woomera allegations are groundless, is an accurate statement of fact. Mr Tracey, counsel for the respondent, submitted that the press statement had to be read in the context of the publicity surrounding the Woomera allegations. I agree that, even though ABC’s name did not appear in the press statement, its contemporaneity with the Woomera allegations and its obvious reference to those allegations would be sufficient to establish that the allegations were groundless. Moreover, this position appeared to have been accepted by the applicant (see [26] above). ABC’s response to the Tribunal’s statement that he could rely on the press statement to clear his name was not to deny this because he is not identified in the press statement but to refer to the actions of unofficial people. This response, as Mr Tracey submitted, was indicative of the fact that ABC was accepting the Tribunal’s conclusion concerning the effect of the press statement. In any event, the no evidence ground of review can only succeed where there is no evidence justifying the making of the decision. In this case, the Tribunal concluded that the applicant did not have a well-founded fear of persecution by the authorities arising from the Woomera allegations. As noted in [11] above, the Tribunal reached this conclusion on several alternate bases, being that the applicant had seemed to accept that the press release could be used to prove his innocence, that a prosecution could not succeed under Iranian law due to the absence of eye-witnesses and that any criminal prosecution would not amount to persecution for a Convention reason.Selective enforcement of a law of general application

Decision

Reasons for decision

STONE J
The applicants are a father (referred to as “ABC”) and his son (referred to as “DEF”). They are citizens of Iran who arrived in Australia on 27 November 1999 as “unauthorised boat arrivals”. On 6 April 2000, they lodged an application for protection visas under the Migration Act 1958 (Cth) (“Act”). The applicants claimed to be refugees within the meaning of the Convention, as defined in [20] below. That application was refused by the respondent’s delegate (“Delegate”) on 26 September 2000 and the Delegate’s decision was upheld by the Refugee Review Tribunal (“Tribunal”) on 27 February 2001. On 26 March 2001, the applicants applied to this Court for review of the Tribunal’s decision under Part 8 of the Act. On 4 April 2001, Weinberg J ordered that the names of the applicants not be published.THE APPLICANTS’ CLAIMS AND THE TRIBUNAL’S DECISION The Tribunal considered both applicants’ claims as contained in records of interview with an immigration inspector on the applicants’ arrival in Australia and with an officer of the Department of Immigration and Multicultural Affairs, the protection visa application, written submissions and oral evidence given by both applicants separately. The applicants’ troubles allegedly began when ABC’s wife was charged with not wearing hejab (Islamic cover) while visiting Turkey. The charge itself, translated from Farsi, was for “propagation of corruption and encouraging the community members not to follow the Islamic principle” and was based on holding non-Islamic parties where women were not properly dressed, alcohol was consumed and non-Islamic music was played. The Tribunal was unable to draw any conclusions about the nature of the charges against ABC’s wife because of the inconsistency of the evidence and the fact that there was no independent evidence that Iranians travelling overseas were monitored for compliance with the dress code. There was some inconsistency in the evidence as to what sentence had been imposed on ABC’s wife, but it evidently included some lashes of the whip; she was also detained for three months in prison. Possibly as a result of her treatment by the authorities while she was pregnant, her son (not DEF) was born with brain damage. ABC claimed that he also served a sentence of three months in prison and was fined as a result of failing to produce his wife before the court pursuant to a summons issued on 11 July 1992. In 1995, ABC was issued with a passport in his own name and paid a bribe to have his wife’s name added to it. He also added the names of his two youngest sons. In 1999, he sought to leave Iran with his wife and the two youngest sons, DEF and the son with brain damage. At the airport, ABC’s wife was not permitted to leave Iran so she remained with one son and ABC left with DEF. ABC believes that his wife is currently in prison in Iran. The Tribunal relied on independent evidence to the effect that if a man was able to depart Iran legally, his name could not be on the “blacklist” and thus he would have “no outstanding problems with the judicial, disciplinary or security authorities”. The Tribunal noted that the authorities had clearly differentiated between ABC’s wife’s conduct and that of ABC and that none of the evidence suggested that ABC had ever been detained or harmed as a result of his wife’s conduct. The only reason for his three month imprisonment was that he had failed to obey a court summons. The Tribunal concluded that ABC was not at risk from the authorities on his return to Iran as a result of his wife’s conduct.

Ratio Decidendi

Legal Principle Established

Established by: STONE J

Full text does not contain this section.