W279/01A v Minister for Immigration and Multicultural Affairs

[2002] FCA 425

FEDERAL COURT OF AUSTRALIA

W279/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 425

Migration Act 1958 (Cth) ss 36(2), 425(1), 476, 476(1)(e), 476(1)(g), 476(4)(a), 476(4)(b)

Waterford v The Commonwealth of Australia (1987) 163 CLR 54 referred to
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied

W279/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W279 of 2001

RD NICHOLSON J
11 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRLIA DISTRICT REGISTRY	W279 of 2001

BETWEEN:	W279/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	11 APRIL 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRLIA DISTRICT REGISTRY	W279 of 2001

BETWEEN:	W279/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	11 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant brings an application seeking an order for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 4 July 2001. The decision affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa. The application is made in reliance upon s 476 of the Migration Act 1958 (Cth) (“the Act”) as it stood at the date of filing of the application on 5 July 2001.

2. When the hearing commenced the applicant was represented by pro bono counsel.  However, after opportunity was given for the applicant and counsel to confer confidentially using the video-link facilities of the Court, the pro bono counsel sought and obtained from the Court leave to withdraw.  The burden of presenting the case for the applicant therefore fell upon the applicant himself.  As a consequence of that, materials which he presented on the occasion of the hearing led to an adjournment to enable the respondent to prepare a submission in response.  No written submissions were received in reply. 

3. The applicant claimed to be a national of Iran.  He arrived in Australia on 21 June 2000.  His application for the visa was lodged on 1 March 2001.  The delegate’s refusal occurred on 30 March 2001. 

   Relevant legislative provisions

4. Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: “… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.” The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression “Convention” will be used to mean the Convention as amended by the Protocol. The same criterion appears in Sch 2 of the Migration Regulations in which item 785 and 866 both include the same criterion.

5. Article 1a(2) of the Convention defines a “refugee” to be any person who:

   “…owing to a 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

   The reasons specified in Article 1a(2) are known as Convention reasons.  The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Article 33 of the Convention.

   Tribunal’s findings and reasons

6. The Tribunal made the following findings:

   (1)It accepted that the applicant is an Iranian national.

   (2)After noting that he had worked outside Iran in the early 1990s and returned there voluntarily, the Tribunal accepted his claim that he had wanted to work abroad again, that he had considered Australia and other countries in terms of job potential and had settled on Australia on the advice of his cousin. 

   (3)It found that he had prepared for departure from Iran by obtaining a passport some six months before he departed and that he spent part of the rest of those months preparing to depart.

   (4)It accepted that the applicant’s departure from Iran in May 2000 was the fulfilment of an economically rationalised plan of some months or years standing. 

   (5)It did not accept that the reach of his mind was curbed by an interpreter.

   (6)It did not accept his explanation for the omission of Convention related claims at the entry interview stage because he gave too many divergent reasons for the omission. 

   (7)It did not accept that he had Convention related fears. 

   (8)It accepted that the applicant had allowed himself to be coached and in the course of the coaching he altered his position and that this had occurred after his entry interview was completed and before lodgement of his primary application form.  The Tribunal was confident in that finding due to the substantial variations in the applicant’s claims from the time they were made in his primary application until the hearing.  In support of this the Tribunal said:

   “He showed little understanding of the MKO; he could provide no satisfactory rationale for assisting it other than greed; he gave inconsistent evidence as to what the authorities found and when; he altered his evidence as to whose house it was from which he escaped.  The pornographic tape was dealt with differently according to claims made at different stages of the process; it effectively disappeared from the significant elements of his evidence at the DIMA protection visa interview.  The claim about being a Darwish came and went; it emerged after the Applicant claimed he was a Darwish that he was not “an official member”.  He has clearly shown the Tribunal that he is unable to stick to his claims.  This leads the Tribunal to the conclusion that they are not facts from his own past.”

   (9)It found that the applicant invented evidence of a videotape featuring fornicating mullahs and improvised its place in his account of assisting the MKO and his arrest. 

   (10)It dismissed as fanciful a claim by him about the MKO needing him to videotape parties.

   (11)It did not accept that the MKO needed to call upon non-supporters like the applicant to record its meetings and social gatherings or that it would have trusted him.

   (12)Given his overall lack of credibility, the particular implausibility of his claimed last four days in Iran beginning with the arrest, the escorted visits to the shop and home and the escape from custody, it did not accept that the applicant departed Iran whilst under arrest or whilst wanted by authorities for anything.

   (13)While accepting that the applicant hired out pornography, it did not accept that guards or police found pornographic tapes of any kind in his shop.  The account relating to going to the shop and the house was found to have to been invented by the applicant to explain how a person in custody could escape easily. 

   (14)The Tribunal said that if it were wrong about all of the matters in findings (12) and (13) it would still have to conclude that as a pornographer, the applicant was not of concern in terms of the Convention.  That is, that he would be wanted in connection with breach of generally applicable laws. 

   (15)It considered his expanding account of his escape from his father’s other house and his passage through Tehran Airport on a false Iraqi passport was the product of fanciful embellishment and dismissed it entirely. 

   (16)It found he travelled on his Iranian passport under his own name and with the full blessing of authorities. 

   (17)It accepted that he had destroyed or jettisoned his passport but found him eligible to have it replaced.  It saw no reason to be concerned the applicant might be punished for losing or otherwise failing to retain his passport.

   (18)It stated that if the applicant were suspected of having left the country illegally, there were no Convention related issues. 

   (19)The Tribunal concluded the applicant was not a credible witness save as he described his intentions in coming to Australia as economically opportunistic, his professional and family background and his use of an Iranian passport for travel. 

   (20)It therefore found that the applicant was not a person to whom Australia owed protection obligations so that he did not satisfy the criterion set out in s 36(2) of the Act for a protection visa.

   Grounds of review

7. The applicant prepared the application form himself. It relies on s 476(1)(g) and s 476(1)(e). The real substance of the applicant’s complaints were set out in a letter to the Court which was interpreted and also in his oral submissions, consideration of which follows.

   Consideration of applicant’s submissions

   Conduct of hearing

8. The applicant complained that when the interpreter concluded interpretation the Tribunal member would “jump in and ask me another question” so that the applicant could not complete what he wanted to say. I have examined a copy of the transcript of the hearing conducted by the Tribunal on 14 March 2001. There is nothing in the transcript which supports this contention for the applicant. I agree with the submission for the respondent that a fair reading of the transcript demonstrates that the applicant was given adequate opportunity to give evidence and present arguments in accordance with the requirements of s 425(1) of the Act. Additionally, the applicant had the opportunity to provide further written submissions after the hearing and this occurred on 29 May 2001. Reading of the transcript also discloses that there were occasions when matters were repeated or reinterpreted at the request of the applicant.

   Membership of Sufis group

9. Here the applicant complains the Tribunal said he had not said he was an official member of the Sufis group but he had never been asked any question about this membership.  There was no need for the Tribunal to do so.  In its findings, as has been seen, the Tribunal made reference to what it was that the applicant had said concerning the Sufis (or Darwish) religious group:  see finding (8).

   Working abroad and obtaining passport

10. The applicant says, firstly, that he did not attempt to leave the country to go somewhere else to work and that it was his first passport which he obtained eleven years ago which was renewed six months before he left the country.  I agree with the submission for the respondent that examination of the statements made by the applicant during his initial interview and his answers to certain questions on the appropriate form show that the findings in (2) and (3) above is a sufficiently accurate reflection of what the applicant said. 

11. In any event, it is a point dealing with the merits of the Tribunal’ decision.  It is not within the jurisdiction of the Court to remake the findings of fact made by the Tribunal.  Indeed, even a wrong finding of fact is not an error of law:  Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77 – 78.

    Involvement with the MKO

12. This also involves a merits related point which cannot found review.  The matter is dealt with in findings (9) – (11) above.  Earlier in its reasons the Tribunal had also stated that the applicant had given no rationale for assisting the MKO.  No error of law is made out.

    Passports

13. In his initial interview the applicant stated he had used his Iranian passport to travel to Australia and made no mention of any Iraqi passport.  In his protection visa application the applicant claimed he had left Iran on a false Iraqi passport.  The Tribunal’s conclusions were part of the merits of its decision. 

    Contradiction in findings on travel with passports

14. This is also a merits related point.  The Tribunal’s finding is firstly set out in finding (16) above.  The second finding is set out in finding (18) above.  There is no contradiction because the second finding considers the position “if” it were otherwise than that upon which the first finding was reached. 

    Change of claims concerning videotape

15. The Tribunal’s statement of this appears in finding (8).  There was no statement that this had not been mentioned during the interview with the case officer.  The Tribunal’s conclusion was one involving consideration of the merits and, for the reasons it gave, it made its finding.  It was entitled to reach the conclusion which it did. 

    Manufacture of case

16. Again, this relates only to the merits of the Tribunal’s decision.  There is no finding that the applicant's advisor had coached him:  see finding (8).

    Difficulties with interpreter and time for presentation

17. The applicant said he had complained about the interpreter at his first interview and if they given enough time during the Tribunal hearing he would have explained all the issues.  The claims in relation to the interpreter (“Sue”) were not accepted by the Tribunal:  see finding (5) above.  I agree with the respondent that the transcript of the Tribunal hearing also demonstrates that the applicant was given ample opportunity to present his case (and to lodge detailed post-hearing submissions).

    Work permit

18. This is dealt with in findings (12) and (13) above, the work permit having been said by the applicant to have been a reason for going to the shop and house.  It is a further instance of the applicant seeking (impermissibly) to attack the merits of the Tribunal decision.  In any event the Tribunal went on to ask the question “what if I am wrong” and still concluded the applicant was not of Convention concern:  see finding (14) above.

    Escape from house

19. Here the applicant refers to the Tribunal’s conclusion in finding (15) above to the effect that he altered his evidence as to whose house it was from which he escaped.  This is again an attack on the merits which cannot invoke the review jurisdiction of this Court.  There was, in any event, material upon which this particular conclusion was based. 

    Arrest of applicant

20. The applicant claimed that the reasons did not take into consideration that he was arrested during a meeting of the MKO.  However, there was evidence in the statement accompanying the applicant’s protection visa application that he had been invited to go to a party and make a film of it and that the party was raided by armed guards.  There is no basis for this point and it again seeks to attack the merits of the Tribunal’s decision.

    Location of applicant’s military service

21. The applicant claims that he did his military service in the computer centre and that it might be thought that while he was away from Iran he had been exporting information about the government.  This was not a claim made by the applicant to the Tribunal so that there was no error on its part in failing to consider it. 

    No reference to MKO in initial interview

22. This was fully canvassed by the Tribunal.  The applicant simply seeks to reopen the merits.  Examination of the transcript of the Tribunal hearing does not reveal any comment by it to the effect that it considered the applicant was a terrorist because he had been working with MKO groups or that he needed to be punished because of that involvement.

    Matters raised in formal grounds

23. With regard to the no evidence ground in the application, this can only be made out if the applicant establishes the requirements of either pars (a) or (b) of s 476(4) of the Act. There is no basis upon which the Court can find that the requirements of either paragraph have been met.

24. Further, and in any event, it cannot be said there was “no evidence or other material” to justify the making of the Tribunal’s decision.  The foundation of the Tribunal’s reasoning was its adverse credibility findings in relation to the applicant.  The reasons for this were set out by the Tribunal.  There is no room for application of the no evidence ground of review.

25. Likewise there is no room for the application of s 476(1)(e) so far as it relates to error of law arising from the Tribunal’s correct interpretation of the law.

26. In my opinion there is no room for the application of the same paragraph in relation to the application of the law to the facts as found by the Tribunal.  Given the Tribunal’s findings and conclusions in relation to the various claims made by the applicant following his initial interview, its conclusion that it did not accept the applicant faced a real chance of Convention-related persecution in Iran and so was not a refugee followed reasonably as of course.  The opposite conclusion was simply then not open to the Tribunal.  Its views were fundamentally grounded in its disbelief of the applicant, a view of credibility to which it was entitled.

27. I have also had regard to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [82]. I do not consider that the issues which the applicant has raised show that the Tribunal identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material in a way that affects the exercise of power and so constitutes an error of law. The applicant has argued strenuously that the Tribunal ignored considerable relevant material. In my view, however, his submissions are such that they invite this Court to say that the Tribunal should have viewed the relevant material in a different way to that which it did. That is an invitation to engage in merits review which, as has been said, lies beyond the jurisdiction of this Court.

28. Because the reasons of this Court are published on the Internet through which worldwide access is possible, the applicant has not been identified in the title of the proceeding. 

    Conclusion

29. For these reasons the application must be dismissed.

I certify that the preceding twenty – nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:            11 April 2002

The Applicant represented himself:
Counsel for the Respondent:	Mr Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 December 2001
Date for receipt of last written submission:	1 February 2002
Date of Judgment:	11 April 2002