Mr A v Minister for Immigration and Multicultural Affairs

[1999] FCA 645

FEDERAL COURT OF AUSTRALIA

Mr A v Minister for Immigration & Multicultural Affairs [1999] FCA 645

MR A v MINISTER FOR IMMIGRATION and MULTICULTURAL AFFAIRS

N 77 OF 1999

SPENDER, O’CONNOR and WHITLAM JJ
11 MAY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N77 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MR A Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGES:	SPENDER, O'CONNOR and WHITLAM JJ
DATE OF ORDER:	11 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

2.Until further order the Court forbids the publication in any form, of the name of the applicant and the person named as the applicant’s brother-in-law in these proceedings.

3.The applicant be named in any reference to these proceedings as “Mr A”.

4.Any reference to Mr A’s brother-in-law in these proceedings be named as “Mr Z”.

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	N77 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MR A Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	SPENDER, O'CONNOR and WHITLAM JJ
DATE:	11 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

SPENDER J:

1. This is an appeal from the judgment of Hely J on 17 November 1998 wherein he dismissed an application brought pursuant to Part 8 of the Migration Act 1958 (Cth) which sought a review of a decision of the Refugee Review Tribunal given on 16 July 1998 which affirmed the Minister's decision not to grant a protection visa to the appellant.

2. In the hearing before Hely J the appellant was represented by Mr Churches of counsel, who is known to be a meticulous, careful and thorough counsel who takes any valid points which might possibly be arguable for persons in a position such as the appellant.  Before Hely J, three grounds of reviewable error were asserted on behalf of the present appellant.

3. The central one for present purposes was an allegation that there was a failure by the Tribunal to inquire into the authenticity of documents.

4. The documents in question were a death certificate and a burial permit in relation to a named person.  The Tribunal concluded:

   “…the documents were fabricated in an attempt to bolster [the appellant's] claims, but did not accord with [the appellant's] original statement”

5. Hely J said of this finding:

   “[The Tribunal] therefore did not accept the documents as evidence that the applicant had a brother-in-law who was executed by the Iranian authorities.”

6. The finding made by the Tribunal was one of fact.  The Tribunal can legally make a wrong finding as well as the right one.  The grounds of review to the Federal Court are limited.  They do not permit the correction of factual finding that is merely wrong, and if the tribunal's conclusion that the applicant did not have a brother-in-law who was executed by the Iranian authorities was wrong, that does not of itself provide a basis on which the Federal Court at first instance, or this Court on appeal, can interfere.

7. In the proceedings before us, Mr A, through his interpreter, referred to the original and a copy of what is said to be his sister's birth certificate, which, it is said, contained information relevant to the question whether the applicant's brother-in-law was the person executed by the Iranian authorities and referred to in the death certificate and the burial permit.

8. On no view of the true meaning of fresh evidence is that document fresh evidence, and it would not have been possible, (except perhaps that it would have indicated what a further enquiry into the issue of the identity of the person named in the two documents before the Tribunal might have revealed, it being evidence supporting the contention that the person named in the two documents that were before the Tribunal was in truth the brother-in-law of the present appellant) for it to have been put before the Federal Court at first instance.

9. That material was not before the Tribunal and was not before Hely J.  In my view, the document (of which we have seen neither the original nor the copy) does not fall within the category of fresh evidence.  The use sought to be made of it is to controvert the correctness of the finding of fact made by the Tribunal, that on the evidence, it did not accept that the applicant had a brother-in-law who was executed by the Iranian authorities.

10. It is apparent from submissions made to this Court that Mr A has the understandable concern that the Tribunal was wrong in its finding of fact. That does not provide a basis upon which the Federal Court at first instance can interfere nor, a fortiori, does it mean that there is a basis on which this Court could conclude that Hely J erred in some legal way in his findings.

11. As to the other matters that have been canvassed in the course of this appeal, it seems to me that they can be met by the simple statement that the judgment below was a thorough and careful judgment in relation to the alleged reviewable errors made by the Tribunal.  For the reasons given by the learned primary judge, those matters, I think, are not of any substance.  No legal error has been shown at all in the reasons for judgment of the learned primary judge.

12. On the question of whether the conclusion by the Tribunal was erroneous, it may be that there is now available material relevant to that question, particularly, the sister's birth certificate.  Avenues are available to the appellant which may provide him with a further means of prosecuting his claim to be a refugee.  I refer without any further elaboration to s 48B and s 417 of the Migration Act.

13. However, it ought to be understood, even in those circumstances, that there are two aspects to Mr A's claim to have a well-founded fear of persecution.  As Hely J said:

    “…a mere enquiry into the authenticity of the documents in question would not have established that the person named in them was the applicant's brother-in-law nor would it have established a nexus between the death and the applicant's claim of a well-grounded fear of persecution if he were to be returned to Iran.”

14. The further material appears to relate only to the first of those factors, namely, whether the person named in the documents in question was the applicant's brother-in-law.  There is a very real question as to whether there has been established a nexus between the death of that claimed brother-in-law and the applicant's claim of a well-grounded fear of persecution. 

15. There are a number of factors relevant to that second question which were canvassed by the Tribunal, including the explanation for the failure by Mr A’s mother to warn him prior to his return to Iran, as well as other factors which clearly have a relevance to that second factor referred to by his Honour.

16. Be that as it may, in my opinion, no legal error has been shown in the judgment of Hely J.  The appeal should be dismissed.

    O'CONNOR J:

    I agree with the oral reasons for judgment given by the presiding judge and wish to add only the following:  While the appellant expressed as a series of incidents and explanations the circumstances of his case he in fact relied on only two arguments in this appeal before us. 

17. The first one was that the findings of credibility that were made by the tribunal were unjustified and the trial judge had erred in not so finding; secondly, that the tribunal because of its view as to his credibility had formed a view of the appellant based on that single mistake as to the date of a funeral ceremony and this led it to a failure to make proper inquiries and the trial judge had erred in not finding that this was a legal error.

18. Although six grounds are cited in the notice of appeal and the applicant says that he relies upon these, these were the substantial matters raised.  In my view the submissions made about those two matters do not on a fair reading of the judgment of Hely J reveal any error of law.

    WHITLAM J:

19. I also agree with Spender J.

20. The grounds stated in the application for the order of review of the Tribunal’s decision in this matter were entirely opaque.  They were not clarified in a document described as Grounds of Application, evidently lodged on 10 August 1998.  Nonetheless, at the hearing of the application before Hely J, the appellant was represented by able counsel who obviously advanced everything that could possibly be said in support of the application.  Hely J’s reasons for judgment do not betray any error, and none of the grounds of appeal before us has been made out.

21. The appeal should be dismissed.

    SPENDER J:

22. There seems to be no basis on which we can resist making an order for costs. 

23. The orders of the court are as follows:

    1.          The appeal be dismissed with costs.

    2.Until further order the Court forbids the publication in any form, of the name of the applicant and the person named as the applicant’s brother-in-law in these proceedings.

    2.The applicant be named in any reference to these proceedings as “Mr A”.

    3.Any reference to Mr A’s brother-in-law in these proceedings be named as “Mr Z”.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, O'Connor and Whitlam.

Associate:

Dated:             11 May 1999

The appellant appeared in person.
Counsel for the Respondent:	N J Williams with A B Gotting
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 May 1999
Date of Judgment:	11 May 1999