Appellant Nach of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1634

FEDERAL COURT OF AUSTRALIA

Appellant NACH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1634

Migration – judicial review – appeal against decision of Federal Magistrates Court – complaint about merits of Tribunal’s decision – no viable ground of appeal  shown – appeal dismissed.

Migration Act 1958 (Cth) s 474

APPELLANT NACH OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W214 OF 2002

FRENCH J
10 OCTOBER 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W214 OF 2002

BETWEEN:	APPELLANT NACH OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	10 OCTOBER 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant is to pay the respondent's costs of the appeal.

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	W214 OF 2002

BETWEEN:	APPELLANT NACH OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	10 OCTOBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The appellant was born in Iran and came to Australia unlawfully by boat on 25 March 2001.  He lodged an application for a protection visa on 17 July 2001.  That application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs on 28 November 2001.  On 30 November 2001, he applied to the Refugee Review Tribunal (the Tribunal) for review of that decision.  The Tribunal made a decision on 11 February 2002 affirming the decision not to grant him a protection visa.

2. On 15 February 2002, the appellant applied to the Federal Court for review of the Tribunal's decision.  Those proceedings were transferred to the Federal Magistrates Court on 3 May 2002.  The hearing of the application in the Federal Magistrates Court proceeded on 7 June and on 19 June the Chief Federal Magistrate dismissed the application.  On 5 July 2002, the appellant filed an appeal against the decision of the magistrate.  That appeal now comes before the Court for determination by a single judge pursuant to a direction of the Chief Justice to that effect.

3. The Tribunal in its reasons for decision set out the essential claims made by the appellant in support of his claim for a protection visa.  In substance he said that he had been operating a grocery store close to a university in the town in which he lived.  Many of his customers had an association with the university.  He got to know two of them particularly well.  They held strong anti-regime views.  They talked about the importance of freedom of the press and respect for the rights of individuals.  The appellant said that once he got to know them he offered to do what he could to advance their cause. 

4. Over the year or so before he left Iran he delivered parcels containing pamphlets to various persons on behalf of these people.  He said he passed 30 to 40 parcels over to four different persons.  However, about a week before he left Iran he was told that one of his friends had been captured by agents of the Ettela’at.  He was warned to leave his shop straightaway as he had been identified as a person passing anti-regime pamphlets.  As a result he closed his shop and went to stay with a friend and arranged for his wife to buy him an air ticket and send his passport to him.

5. He travelled to Tehran and he stayed there two nights before leaving by aircraft.  He flew to Malaysia, then to Indonesia, and from there travelled by boat to Australia.  He also told the Tribunal that he had found out since arriving here that a summons had been served on his wife requiring him to appear in court in Iran to answer charges about anti-regime activities.  More detailed explanations of these claims were made in the hearing before the Tribunal.  His adviser also put in a post-hearing submission to the Tribunal. 

6. In its findings and reasons the Tribunal said it came to the conclusion that the appellant was not credible in key aspects of his claim about being involved in the distribution of anti-regime literature.  It thought that his knowledge of the political group he claimed to have assisted was very superficial.  The Tribunal referred to the large number of reformist newspapers and political groups pressing for greater freedom in Iran.  It considered that if he was involved with a group of political dissidents he would be more specific about the nature and aims of such a group.  The Tribunal also thought that the fact he was prepared to be involved with a group was inconsistent with the contention that he had no other involvement in political events.  It pointed out that he did not participate in demonstrations or vote in elections and did not distribute literature to his friends.  He did not read any of the literature he was passing on except on one occasion when it became unwrapped.

7. The Tribunal said the appellant struggled to name any political parties in Iran other than the MKO.  The Tribunal rejected his claim that he was involved in anti-regime activities.  It also rejected his claim that he faced imprisonment on his return to Iran.  The Tribunal did not believe that he had received a summons to appear in the general court for anti-regime activities.  On the basis of independent country information the Tribunal said that the indications were that anti-regime activities would result in immediate arrest and prosecution, not summons.  The Tribunal also referred to his departure from Iran and, given that he was able to get through the airport, did not accept that the authorities wanted to detain him. 

8. When the matter came on before the Federal Magistrates Court the Court in its reasons for judgment summarised the Tribunal's decision. It referred to the law under which it had to consider the application for review of the Tribunal's decision. In particular the Court referred to s 474 of the Migration Act1958 (Cth) That section provides that decisions such as that of the Tribunal are final and conclusive. It also provides that they must not be challenged, appealed against, reviewed, quashed or called in question in any court.

9. The Chief Federal Magistrate accepted that even so there were still some grounds upon which a decision of the Tribunal could be reviewed.  At the time the learned magistrate made her decision there were differing views in the Federal Court about how wide the grounds of review were.  The learned magistrate, when she gave her decision, assumed in favour of the appellant that the grounds of review available were wider rather than narrower.  Since then the Full Court of the Federal Court has held that the narrower view is the correct view.

10. The learned magistrate, however, was not able to see any basis in this case for saying that the Tribunal had made any reviewable error.  She said:

    “It does not appear to me in this case that the Tribunal 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 Tribunal.  The applicant's complaint is in reality that the Tribunal did not accept his explanations.  That alone is not a basis for judicial review.  It certainly does not constitute jurisdictional error.”

11. It was not necessary to consider s 474 of the Act. The Chief Magistrate therefore dismissed the application.

12. The notice of appeal filed in this Court against the learned magistrate's decision does not set out any grounds of appeal.  The appellant has addressed the Court on the hearing of the appeal but his complaints about the Tribunal's decision are essentially complaints about its findings of fact.  These are not matters with which this Court can interfere.  There is nothing in the learned magistrate's decision or in the Tribunal's decision which gives rise to an error upon the basis of which this Court could overturn the learned magistrate's decision and the Tribunal's decision.

13. The orders therefore will be:

    1.        The appeal is dismissed.

    2.        The appellant is to pay the respondent's costs of the appeal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Acting Associate:

Dated:             December 2002

NACH appeared in person
Counsel for the Respondent:	Mr A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 October 2002
Date of Judgment:	10 October 2002