Ferhadieh v Minister for Immigration & Multicultural Affairs

[2001] FCA 1682

FEDERAL COURT OF AUSTRALIA

Ferhadieh v Minister for Immigration & Multicultural Affairs
[2001] FCA 1682

MIGRATION – protection visa – appeal from order dismissing application for review of decision of Refugee Review Tribunal appeal – question of fact

Migration Act 1958 (Cth) s 48B

HOSHANG FERHADIEH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 290 of 2001

JUDGES:      SPENDER, MERKEL AND ALLSOP JJ
DATE:           28 NOVEMBER 2001
PLACE:         PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIADISTRICT REGISTRY	W 290 OF 2001

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	HOSHANG FERHADIEH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	SPENDER, MERKEL AND ALLSOP JJ
DATE OF ORDER:	28 NOVEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant pay the respondent’s costs of the appeal to be taxed if not agreed.

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	W 290 OF 2001

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	HOSHANG FERHADIEH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	SPENDER, MERKEL AND ALLSOP JJ
DATE:	28 NOVEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

SPENDER J:

1. I agree with the reasons of Merkel J and with his proposal concerning the disposition of the appeal.  I want to add only the following observation: the focus of the appellant on the appeal was on documents which relate to land in the appellant's country.  The appellant advanced the subjective view that the authorities were using knowledge of the appellant's conversion to the Zoroastrian religion to defeat his claims for compensation concerning that land which prompted him to flee his country.

2. My present understanding of the documents on which the appellant relies is that they do not establish or tend to prove this subjective fear for the claimed reason of his religious conversion.

3. Even if my understanding of what the documents prove or tend to prove is wrong, the question of the religion of the appellant is one of fact and is anterior to the

   question of whether there has been or is in the future likely to be persecution for reason of religion.  It is not competent for this court to review the question of fact found by the tribunal.

   Associate:

   Dated:             30 November 2001

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 290 OF 2001

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	HOSHANG FERHADIEH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	SPENDER, MERKEL AND ALLSOP JJ
DATE:	28 NOVEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

MERKEL J:

1. The appellant has appealed to a Full Court against the decision of the primary judge (Wilcox J) dismissing his application for review of a decision of the Refugee Review Tribunal.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse the appellant a protection visa.

2. The appellant was unrepresented before the primary judge and the Full Court but he has had the assistance of an interpreter on both occasions.

3. The appellant’s claim failed before the Tribunal because the Tribunal did not accept his claim that he has a well-founded fear of persecution were he to return to Iran because he had converted to the Zoroastrian religion.  The primary judge, after observing that the Tribunal’s finding that it did not accept that the appellant converted to the Zoroastrian religion was a finding of fact, stated:

   “I have considered for myself whether the Tribunal’s decision discloses a ground of review specified in s 476.  I do not think it does.  I have no choice but to dismiss the application.”

4. The appellant’s notice of appeal was accurately summarised by counsel for the respondent as follows:

   “(a)The appellant generally takes issue with the non-acceptance by the departmental decision maker and, in turn, by the Tribunal, as to his claim of having converted to the Zoroastrian religion.

   (b)The process undertaken at those two levels of decision making was insufficiently detailed or rigorous for a view to properly have been reached.

   (c)The appellant was hampered or inhibited in the presentation of his case by the inability to access certain documentation.”

5. The respondent’s response to the notice of appeal was:

   “(a)The proposition encapsulated at subparagraph (a) above is simply a grievance as to the process of fact-finding undertaken by the Tribunal.  Wilcox J was correct to conclude that he was without jurisdiction to review that fact-finding process.

   (b)Nothing has been put with sufficient detail or cogency to develop an arguable proposition that the Tribunal failed to observe any procedure required to be observed under the Act, or otherwise committed any of the kinds of reviewable error specified in section 476 of the Act.  In the absence of any material or argument approaching that level of detail or cogency, any argument along these lines is without foundation.

   (c)With respect to the proposition as distilled at subparagraph (c) above, two points may be made:

   (i)The apparent inability of the appellant to access certain documentation is not a proposition put with sufficient detail or cogency to give rise to any ground of review under section 476 of the Act; and

   (ii)as Wilcox J noted at AB 137, it is difficult to see that any documents of the kind described by the appellant would have contributed any substance to his application for a protection visa.”

6. Before the Full Court the appellant, in substance, requested the Court to reconsider, on the merits, the Tribunal’s critical and adverse factual finding concerning his conversion to the Zoroastrian religion.  As has been pointed out on many occasions fact finding is the responsibility of the Tribunal and not that of the Court.  The appellant has not been able to identify any specific act or omission on the part of the Tribunal that evidences procedural or legal error on its part.

7. Rather, the appellant has claimed that documents that support his version of events were only available to him after the Tribunal’s decision was handed down. The difficulty with that claim is that, as explained above, the Court is only concerned with procedural or legal error on the part of the Tribunal. If evidence that supports a refugee claim only becomes available after a decision is handed down the only recourse available to an unsuccessful applicant is to seek a Ministerial determination under s 48B of the Migration Act 1958 (Cth) to enable that applicant to make a further application for a protection visa.

8. The appellant also claimed that a reason for the Tribunal’s adverse view of his credit was the distress he felt during the Tribunal hearing, conducted by video link, at not having access to the documents that he believed might support his case.  That cannot constitute a basis for review of the decision of the Tribunal.

9. I have carefully considered the Tribunal’s reasons, and those of the primary judge, and am satisfied that no error of law, or any other reviewable error, has been demonstrated.  It follows that the appeal is to be dismissed with costs.

   Associate:

   Dated:             30 November 2001

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 290 OF 2001

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	HOSHANG FERHADIEH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	SPENDER, MERKEL AND ALLSOP JJ
DATE:	28 NOVEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

ALLSOP J:

1. I agree with the orders proposed by Merkel J.  I agree with his Honour's reasons.  I also agree with the comments and further reasons of the learned presiding judge.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             30 November 2001

For the appellant:	Appeared in person
Counsel for the Respondent:	RL Hooker
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 November 2001
Date of Judgment:	28 November 2001