"M" v Minister for Immigration & Multicultural Affairs

[1999] FCA 1852

FEDERAL COURT OF AUSTRALIA

"M" v Minister for Immigration & Multicultural Affairs [1999] FCA 1852

“M" & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 964 of 1999

WHITLAM J
14 DECEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 964 OF 1999

BETWEEN:	“M” First Applicant
“N” Second Applicant
“O” Third Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WHITLAM J
DATE OF ORDER:	14 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 964 OF 1999

BETWEEN:

“M”
First Applicant

“N”
Second Applicant

“O”
Third Applicant

AND:

MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS

Respondent

JUDGE:	WHITLAM J
DATE:	SYDNEY
PLACE:	14 DECEMBER 1999

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 August 1999. 

2. The first and second applicants, who are husband and wife, are both nationals of Iran.  In 1986 they fled from that country to Germany where they have been accorded refugee status.  The third applicant is their daughter and she is a citizen of Germany.  The applicants arrived in Australia on 6 October 1998.  On 23 November 1998 they lodged combined applications for protection visas with the Department of Immigration and Multicultural Affairs.  On 13 January 1999 a delegate of the respondent refused to grant protection visas to the applicants.  They applied to the Tribunal for review of that decision and the Tribunal affirmed the decision not to grant the visas.

3. The third applicant is not here today and the case has been conducted on behalf of the applicants by the second applicant with the assistance of an interpreter in the Farsi language.  The applicants have the misfortune not to have the assistance of a lawyer in conducting their application for review.  Nonetheless, the first and second applicants are both obviously intelligent people.  They seem to appreciate that the proceeding today involves an application for judicial review, and that the Court does not have authority to determine the merits of their applications for protection visas.

4. The application for an order of review is in English and must, I assume, have been translated to the applicants prior to their signing it and lodging it on 2 September 1999.  The grounds of the application are stated to be:

   “1.The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an error involving the incorrect application of the law to the facts as found by the Tribunal: (s 476(1)(e) of the [Migration] Act [1958 (“the Act”)]).

   Particulars

   (a)The Tribunal erred in law by finding that since the applicants were not physically harmed between the time they received the threatening telephone calls and leaving Germany, they did not maintain a well-founded fear of persecution.  There is no requirement in law that an applicant be harmed before being eligible to be recognised as a refugee, only that they fear harm and that harm is well-founded.

   (b)The Tribunal erred in law in finding that since the “menacing” telephone calls did not warn of death or injury, they could not form the basis for a well-founded fear of persecution.

   2.The Tribunal failed to provide adequate reasons under s.430 of

   the Act.

   Particulars

   (a)The reasons provided by the Tribunal under s430 of the Act were inadequate in that they revealed that a principal conclusion of the Tribunal was made without logical grounds, namely that the Tribunal found that any of the applicants were not on a death list simply on the basis that one “death list” submitted to the Tribunal did not include their names, without considering that the Government of the Islamic Republic of Iran might have several death lists.”

5. The first ground was not addressed in terms by the second applicant.  However, she was anxious that the facts asserted in the case that she and her husband made to the Tribunal were apprehended by the Court.  The Tribunal's statement does, in my view, carefully record those claims.  During their time in Germany, the first and second applicants have been active opponents of the government in Iran.  The second applicant is Kurdish, and the first applicant's sister was arrested in Iran and executed in 1998.  Against that background, it may readily be appreciated why both of them continue to harbour fears about the regime in Iran and a real resentment towards it.

6. In Germany the applicants reside in Wiesbaden.  The second applicant has been at pains today to explain that what they fear in Germany is harm at the hands of the agents of the Iranian Government.  That basis of their claim was clearly understood by the Tribunal, as appears from its statement, which notes several sources of information about activities of Iranian agents, particular VEVAK, in Western Europe and other parts of the world.  The Tribunal obviously assessed what it was that the applicants had to say about their experiences against that material. 

7. The Tribunal dealt in its statement (at p 25 et seq) with what it described as intimidating telephone calls received by the first and second applicants.  (Their daughter, the third applicant, was not the subject of any specific threats, although she says that she was aware of the threats to her parents and was worried by them).  In the circumstances where the applicants were residing in Germany, the Tribunal correctly regarded the case as one to be determined in the light of Australia's protection obligations under Article 33 of the Refugees Convention, as explained by von Doussa J, for the Full Court, in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543.

8. The Tribunal set out its understanding of the requirements of Article 33 and proceeded to deal with them by reference to a series of questions it posed for itself.  The way in which the Tribunal did that, including, in particular, its assessment of the telephone calls about which the applicants had given evidence, reveals no error of law in considering the question of effective protection.  The finding by the Tribunal that it did not accept that a threat of physical harm or death was implicit in the calls does not suggest error.  It is a recognition by the Tribunal of the nature of those calls, namely that they were annoying and distressing.  The Tribunal had to assess effective protection against the question of the threats to life or freedom as it is posed by Article 33.  On a fair reading of its reasons, the Tribunal cannot be said to have regarded itself as precluded from finding an objective basis for any fear of harm unless the applicants have suffered actual physical harm.  The Tribunal has dealt with the question methodically and with careful attention to the claims made and the evidence before it.  Unlike a lawyer, the second applicant has not focused at all on the language of the Tribunal's statement.  However, assisted by the careful submissions of the solicitor for the respondent, I am satisfied that the Tribunal properly considered the question of effective protection and that its decision did not involve an error of law.

9. Presumably the second ground of the application is intended to rely on the ground of review specified in either par (a) or par (e) of s 476 (1) of the Act.  A complete answer to that ground is, however, provided by the observation of the Full Court in Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, that such a want of logic as that suggested by the applicants would not of itself constitute an error of law.

10. The applicants have failed to make out a case for an order of review.  The application will accordingly be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             14 December 1999

The first and second applicants appeared in person.
There was no appearance by the third applicant.

Mr Andras Markus of the Australian Government Solicitor appeared for the respondent.

Date of hearing:           14 December 1999

Date of judgment:        14 December 1999