NACH v MIMIA
[2002] FMCA 110
•19 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NACH v MINISTER FOR IMMIGRATION | [2002] FMCA 110 |
| MIGRATION – Appeal from a decision of the Refugee Review Tribunal – jurisdictional error – whether Tribunal made jurisdictional error in not accepting the applicant's explanations – the approach taken in relation to application of the privative clause under section 474(1) of the Migration Act 1958 (Cth) – decision of Refugee Review Tribunal confirmed. Migration Act 1958 (Cth) section 36(2), ss. 61(1), 474 R v Hickman; ex parte Fox v Clinton (1945) 70 CLR 598 |
| Applicant: | NACH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | WZ91 of 2002 |
| Delivered on: | 19 June 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 7 June 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Solicitors for the Applicant: | In Person NACH C/- Port Headland IRPC PO Box 3777 Port Headland WA 6721 |
| Counsel for the Respondent: | Mr MacLiver |
| Solicitors for the Respondent: | Mr D Blades Australian Government Solicitor GPO Box U1994 Perth WA 6845 |
ORDERS
That the Application be dismissed
That the Applicant pay the Respondents costs pursuant to the Federal Magistrates Court Rules Part 21.10.
IT IS CERTIFIED
THAT pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance as Counsel as advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
WZ 91 of 2002
| NACH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant who is an Iranian citizen arrived in Australia by boat on the 25 March 2001. He lodged an application for a protection (Class XA) Visa under the Migration Act 1958 (“The Act”). The delegate of the Minister for Immigration and Multicultural Affairs (the Minister) refused to grant a protection visa and the applicant subsequently applied for a review of that decision by the Refugee Review Tribunal (“RRT”). The RRT affirmed the decision of the Minister’s Delegate refusing to grant the applicant a Protection Visa. The relief sought by the applicant includes an order setting aside the RRT’s decision and remitting the application to the Tribunal to be determined “according to law”.
The grounds stated in the application are:-
a)The decision involved an error in law;
b)There was no jurisdiction to make the decision;
c)The Migration Act did not permit the making of the decision
On the 23 April the applicant was ordered to file and serve:
a)An amended application giving particulars of the grounds for relief under the Judiciary Act 1993 or a statement setting out why he considers the decision of the Tribunal should be overturned.
b)Any affidavits upon which he intends to rely at the hearing of this matter.
At the Hearing the applicant was unrepresented. In accordance with the orders made in the Federal Court of Australia in Perth by Deputy District Registrar Stanley the applicant did not file an amended application but filed a statement on the 23 April setting out why he considers the decision should be overturned. He also prepared a statement which was sent by facsimile to the Court on the 15 May which I treated as written submissions.
On the 3 May 2002 Nicholson J transferred the proceedings to the Federal Magistrates Court.
The Hearing proceeded by way of video link between Perth, Melbourne and Port Headland as the Applicant is in the Port Hedland Detention Centre.
Background
The applicant is a 33-year-old married man who was living in Shooshtar in Khouzestan. His wife and three children are in Iran. He departed Iran on 2 December 2000 from Tehran Airport on a passport issued in his own name.
The applicant had a grocery shop near the university in Ahvaz. He was unhappy about the general repression by the Islamic Republic of freedom of speech and expression, although he did not directly involve himself in any anti-regime activities.
Because of the proximity of his grocery store to the university he made friends from the academic circle of the university and used to discuss current political and social events with them. Being of like mind he offered to assist them and for about 12 months prior to his departure from Iran he allowed his shop to be used as a distribution point for political pamphlets. This was a highly secret activity as the distribution of anti-regime literature was a serious breach of the law. His aim was to ensure that the pamphlets got into the hands of students and intellectuals. There were many informal activist groups who used his shop as a way of distributing their pamphlets setting out their views against the ruling government. About a week before he left Iran the applicant received a phone call from one of his activist friends who informed him that another of their friends had been captured by agents of the Intelligence and Security Ministry Office of the university. The informant told the applicant that he (the informant) was on the run and the applicant should leave his shop immediately.
His friend told the applicant that he had been identified as the person who had been passing anti-regime pamphlets to his friends and consequently he closed down his shop, went to stay with a friend, organised his wife to buy him an air ticket and send his passport to him and then travelled to Tehran where he stayed for two nights before flying out. He flew to Malaysia, travelled to Indonesia and boarded a boat for Australia. His wife and children remain in Iran.
The applicant told the RRT that anti-regime activities are dealt with seriously and there are serious consequences such as 15 to 20 years imprisonment. He provided a copy of a court summons sent to him by his wife issued by the General Court and apparently served after he had left Iran.
The RRT decision
In order to satisfy the Tribunal that he is entitled to a protection visa the applicant must satisfy the decision-maker that the prescribed criteria for the visa had been satisfied. The relevant criteria in this case are set out in section 36(2) of The Act. This provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Australia is a party to the Refugees Convention and the Refugees Protocol and has protection obligations to people who are refugees as defined in them. Article 1A(2) of the Convention defines a refugee as any person who:
Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
The applicant claims a well-founded fear of persecution because of the political activities which caused him to have to leave Iran and he feels he will be in considerable danger if he returned to Iran.
The RRT dismissed the applicant's claim saying:
The Tribunal has come to the conclusion that the applicant is not credible in respect of key aspects of his claim to have been involved in the distribution of anti-regime literature.
The applicant was not able to describe the ideology of the group for whom he handed out pamphlets and could only describe them as anti-regime. He did not know the names of the groups and knew only a couple of members and did not know the structure or organisation of the group. The Tribunal concluded that the generality with which the applicant described the group led the Tribunal to have serious reservations as to the existence of such a group.
The Tribunal also considered it implausible that the applicant was prepared to become involved with assisting a group in an activity which he himself believed could result in a prison sentence of 15 years while knowing so little about them.
The Tribunal also considered his readiness to be involved with the group while having no other involvement in political events to be inconsistent. The applicant informed the Tribunal at the hearing that he did not participate in demonstrations, did not vote in elections and did not distribute literature to his friends. He had not read any of the literature he was passing on, except on one occasion when it became unwrapped. He was unable to nominate any political parties in Iran over and beyond the MKO.
The Tribunal said, "These implausibilities collectively led the Tribunal to reject the applicant's claim that he was involved in anti-regime activities and faces imprisonment on his return to Iran because of this."
As to the summons produced by the applicant the Tribunal did not accept that the applicant had received a summons to appear in the General Court for anti-regime activities. This claim was rejected because the country information in respect of the prosecution of persons for political activities, indicated that charges such as "anti-regime" activities result in an immediate arrest and are prosecuted in a Revolutionary Court. Minor offences such as traffic offences result in the issue of a summons are and prosecuted in the General or Public Court. On the basis of this country information the Tribunal did not accept that the applicant had been summoned to the General Court on charges of anti-regime activities.
On behalf of the applicant the Tribunal received submissions that some minor political charges are heard in the General Courts and that the applicant's political activities were minor and thus it is feasible that he would be charged by way of summons to appear in the General Court. The Tribunal was not persuaded by this argument because the country information indicated that producing and distributing anti-government literature was considered by the authorities to be a serious offence which is dealt with harshly. Further, the applicant in his own evidence at the hearing stated that his claimed political activity would be considered by Iranian authorities to be serious leading to long-term imprisonment.
Finally the Tribunal noted that the applicant was able to leave Iran via Tehran Airport passing through security checks with a passport issued in his own name. Despite the applicant's claim that he departed Iran before the authorities were able to place his name on "blacklist" the Tribunal did not accept that the authorities in Iran wished to detain the applicant and that as he departed Iran legally he would not face difficulty on returning to Iran.
Accordingly the Tribunal was not satisfied that the applicant had a well-founded fear of persecution on his return to Iran.
Jurisdiction
The jurisdiction of the Federal Magistrates Court in these matters is imposed by section 483(A) of the Migration Act. The jurisdiction which the court exercises is subject to section 474 of the act, which is found in Part 8, dealing with judicial review. Section 474 is the section which places into the Act the privative clause in the following form.
474. Decisions under Act are final.
(i) A privative clause decision;
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court or on any account.
Such a clause has been interpreted by the High Court in a line of authority stemming from the judgment of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 to mean that a court can still review matters but the available grounds are confined to exceeding constitutional limits, narrow jurisdictional error or bad faith. In several decisions of the Federal Court of Australia different views as to how the court is to approach the application of the law have emerged.
In SAAD v MIMIA (2002) FCA 206 and SBAE v MIMIA (2002) FCA 479 Mansfield J dealt with two cases in which the application for review before the court did not identify any grounds upon which the application was brought. He considered those cases on the basis that he would look first to see whether or not there were any matters which would give rise to relief under section 39B of the Judiciary Act 1993 (Cth). In SBAE at [17] he said:
“The assessment of the merits of the applicant's claims is fundamentally the function of the Tribunal. The court is not entitled to revisit findings made by the Tribunal, and to substitute its view of appropriate findings for those made by the Tribunal. That is not to indicate that, in this instance, I found different views about matters of fact upon which the Tribunal has made findings. I have not done so. That is not the court's function. It is to indicate that, without error of the kind which would enliven a court's powers under section 39B of the Judiciary Act, the sort of matters to which the applicant has referred as noted above do not entitle the court to simply revisit the determination of the Tribunal or set it aside.”
His Honour would only consider the effect of section 474 of the Migration Act if he found there was an error on the part of the Tribunal which would enliven the entitlement to an order under section 39B. When he was unable to find such an issue in SAAD, his Honour said at [23]:
“Consequently, in my view it is not necessary to address the application of section 474 in the particular circumstances.”
Whilst this approach has not been universally adopted, it has received the support of Marshall J in VAAC v MIMIA (2002) FCA 573 and Allsop J in NABL v MIMIA (2002) FCA 102. It has also been adopted in WABB v MIMIA (2002) FMCA 94 per Raphael FM. In other cases a different approach has been taken (see for example Turcan v MIMIA (2002) FCA 397 per Heerey J). The issue of the correct approach has been the subject of appeals to the Full Court of the Federal Court which are yet to be handed down. I intend to follow the approach adopted by Mansfield J and Raphael FM for similar reasons. Namely, that the applicant in this case was not represented and did not articulate his grounds for the appeal other than by reasserting the matters which he brought to the attention of the Tribunal and the fears which he expressed about his safety if he were returned to Iran.
In addition, given that the Full Court of the Federal Court is yet to determine which approach is correct, I prefer to adopt the “wider” approach.
The applicant sought to refer me to several matters which he set out in his written submissions and also emphasised in oral submissions before me. In response to the Tribunal's concern that he left Iran with his passport, he asserted that it was only because his friends had warned him to leave the country quickly, otherwise he would have been arrested by the intelligence.
In relation to the summons which the Tribunal had found was from the General Court he argued that the Tribunal did not believe that a summons from the General Court was issued for him. It is clear from the decision of the Tribunal that they did accept that a summons had been issued, but not that it necessarily had any connection with anti-regime activities. The applicant seeks to address this further in his submission. He submits that after a few months he was informed that a summons had been sent to his house, and he had submitted a copy to the Tribunal. He asserts that he responded at the hearing to the Tribunal's concerns about his summons being from the General Court by confirming his argument that the General Court identifies anti-regime activists to the Revolutionary Court. The applicant also submits that the RRT erred in not accepting his evidence that he could contribute to political group activities without having detailed knowledge about the party. He asserts that he put his life in danger when he was in Iran for the people who were deprived of their human rights and did so because he believed in his country and was distressed by the repression of the regime.
The applicant conceded at the hearing that all of the matters raised in his submissions were matters which he raised with the Tribunal and his complaint was that the Tribunal had not accepted his evidence.
The question then to be considered is whether there are any matters raised by the applicant that individually or collectively establish jurisdictional error sufficient to satisfy review under section 39B of the Judiciary Act.
In Craig v State of South Australia (1995) 184 CLR 163 at 179 Brennan, Deane, Toohey and McHugh JJ said:
“If an administrative Tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or power. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects.”
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. Thus it is unnecessary to consider section 474 of the Act.
I would accordingly dismiss the application.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Mardi Jarvis
Date: 19th June 2002
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