WAAM v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1635

FEDERAL COURT OF AUSTRALIA

WAAM v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1635

MIGRATION - judicial review – refugee – application to Refugee Review Tribunal – judicial review by Federal Magistrates Court – appeal to Federal Court – no viable grounds for review – refusal of appellant to appear and argue case on hearing of appeal – appeal dismissed.

Migration Act 1958 (Cth)

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 cited
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

WAAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W286 OF 2002

FRENCH J
19 DECEMBER 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W286 OF 2002

BETWEEN:	WAAM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	19 DECEMBER 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant to pay the respondent’s costs of the appeal.

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	W286 OF 2002

BETWEEN:	WAAM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	19 DECEMBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The appellant in this matter is a citizen of Iran who arrived in Australia by boat on 20 December 2000.  In March 2001, he made application for a protection visa class XA under the Migration Act 1958 (Cth). That application was ultimately lodged on 4 June 2001. On 29 June 2001, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the visa sought and the appellant applied for review of that decision by the Refugee Review Tribunal (the Tribunal).

2. On 19 September 2001, the Tribunal affirmed the decision of the delegate not to grant a protection visa to the appellant.  The appellant then filed an application for a review of the Tribunal's decision with the Federal Court of Australia on 5 October 2001.  That application was amended and as amended is dated 4 July 2002.  The appellant relied upon the amended application.  The relief sought included an order that the Court make a declaration that the decision of the Tribunal was invalid and of no effect.

3. The application was transferred by order of Nicholson J to the Federal Magistrates Court on 15 May 2002.  On 24 July 2002, Hartnell FM made an order dismissing the application and that the applicant pay the respondent's costs of the application.  On 9 October 2002, the appellant lodged a notice of appeal from the judgment Hartnell FM.  The appeal came on for hearing today. 

4. The appellant is in immigration detention at the Baxter Immigration Detention Facility.  When the appeal came on for hearing the appellant did not appear.  However, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), who is Administration Manager at the centre, Julie Ann Todter, informed the Court that an officer of Australian Correctional Management (ACM) who had spoken to the appellant this morning was informed by the appellant that he did not wish to attend and did not care to pursue his appeal.  The Court then conveyed a message through Ms Todter and the ACM officer to the appellant that if the appellant did not appear the appeal could be dismissed.  The message that was conveyed back from the appellant was that he did not care, that he did not have legal representation and that he had been in detention for two years.  He did not appear.  The fact of that message was confirmed in sworn evidence by Ms Todter although she did not speak personally to the appellant but received the message from an ACM officer. On that basis I am prepared to deal now with this appeal in his absence. 

5. The reasons for decision of the Tribunal and the reasons for judgment of the learned magistrate indicate that he is a 28‑year‑old single man who comes from Iran, where his family continues to reside.  He said in support of his original application for a protection visa that he had been raised in a family who were not in favour of the Islamic Republic Regime.  In 1984 his uncle, who was a political activist against the Islamic Republic, had been arrested and some months later found dead.  He said his family had not been allowed to have a funeral for him nor show any grief for their loss.  This affected his attitudes to the Islamic Republic. 

6. The appellant studied management at the Azad University between 1992 and 1997.  He said that during his time at university he had been warned by the Islamic Council at the university not to talk about his opposition to the Islamic regime and that he was required to sign an undertaking not to engage in activities in opposition to the regime. 

7. Following his graduation from the university in 1997 he said he had completed two years of compulsory military service in Mahabad, a city in the Azarbijan.  As part of his military activities during the city's elections he claimed that he had been instructed to supervise an election box and to persuade soldiers to vote for a particular candidate on the promise of extra leave.  When the box was given to him before the commencement of voting it already contained a substantial number of votes.  He had complained about these practices and as a consequence was interrogated by the Ettela’at on several occasions and subsequently required to sign an undertaking not to engage in such activity again, to carry out a further 30 days of military service, and to forgo any leave during the remainder of his military service.

8. In September 1999, after his discharge from the army, the appellant had obtained a marketing job.  He claimed he formed a group with three like-minded friends with a view to disclosing and commenting on the wrongdoings of the Islamic regime in pamphlets which they printed and distributed.  He said that he and his group published about six pamphlets over a period of twelve months.  He said that in November 2000 one of the members of the group had been arrested and that material emanating from its activities had been seized by the authorities.  He immediately made plans to leave Iran out of fear for his own safety, which he did on 7 November 2000, using his own passport.  He claimed that a bribe had been paid by his uncle to help ensure his departure from Iran.  Shortly after that departure he claimed that Iranian authorities had raided his family home looking for him.  His father had been taken into detention for about five days.

9. The Tribunal rejected his various claims, saying inter alia:

   "The Tribunal considers the applicant's account of his political activities to be implausible such that the Tribunal does not accept that the applicant was involved in political activities and is now wanted by the Iranian authorities because of this political activity." 

10. The Tribunal also said that the appellant’s claimed involvement in a political group and in the printing and handing out of leaflets was fabricated.  The Tribunal referred in its reasons to his claims and evidence in support of them.  It found inconsistency in his contention that he had formed an activist group comprising of four persons and the claim that he did not himself participate in demonstrations such as the Abadan demonstrations or the  student demonstrations which had been organised with an aim of demanding reform in the government.  The matters which were the subject of these demonstrations were topics covered in the leaflets which he said were published by his group.  The Tribunal also considered that his level of political knowledge was inconsistent with his claimed level of political activism.  It referred to his inability to answer questions about the names of some of the major political parties in Iran and concluded that he did not possess what might be characterised as even a rudimentary level of knowledge.  It also noted that he had failed to mention at entry interview his involvement in a political group.

11. The Tribunal essentially rejected the appellant’s claims on the basis of credibility, having regard to its assessment of the factual material that was put before it.  By the time the application for review was taken before the Federal Magistrate the amendments to the Migration Act effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) had come into force and, in particular. the privative clause, s 474, which was the subject of consideration by a special bench of the Full Court of the Federal Court in NAAV v Minister for Immigration &  Multicultural & Indigenous Affairs [2002] FCAFC 228. Three of the decisions in that group of five appeals, which were heard together by the specially constituted bench, are presently the subject of special leave applications to the High Court. The constitutional validity of s 474 has been challenged in another case, S157 v The Minister for Immigration and Multicultural and Indigenous Affairs and the High Court is presently reserved in judgment on that application.

12. The notice of appeal asserts baldly: 

    1.The Court erred in finding that the Refugee Review Tribunal had not acted in violation of an imperative duty or an inviolable limitation upon it by s 424(1) of the Migration Act;

    2.Procedures that were required by the Migration Act to be observed in connection with the making of the decision were not observed;

    3.That the decision involved an error of law, being an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts found by the person who made the decision; and

    4,There was no evidence or other material to justify the making of the decision.

13. These grounds, save for the first, appear to be borrowed from the language of s 476 of Pt 8 of the Migration Act as it stood prior to the 2001 amendments.  The first ground reflects the terminology of one of the exceptions to the operation of the privative clause, s 474, which is authorised by the dicta of Sir Owen Dixon in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. It is one of the exceptions to the operation of the privative clause as construed pursuant to that doctrine and enunciated by the majority in NAAV.  However, there is nothing in the particulars of the application to indicate any basis for that ground. Indeed, assuming s 474 not to be a valid provision, there is nothing in the notice of appeal by way of particulars or explanation that would indicate that any of the other grounds, assuming they fall within the scope of general grounds of judicial review otherwise available under s 39B of the Judiciary Act 1903 (Cth), even if not under s 476 as it previously stood, have any substance.

14. My reading of the learned magistrate's reasons for judgment, which proceeded on the wider view of the exceptions to the operation of s 474 that had been enunciated by some of the judges of the Federal Court prior to the special sitting of the bench of five, does not indicate any error on his part in his approach to what was essentially a decision on the facts and on the credibility of the appellant in relation to his claims.  My reading of the reasons of the Tribunal itself indicates that there is no apparent basis for judicial review of its decisions either in terms of any of the grounds enunciated in the notice of appeal or otherwise.  For these reasons and in the absence of the appellant I order:

    1.        The appeal be dismissed.

    2.        The appellant is to pay the respondent's costs of the appeal.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Acting Associate:

Dated:             December 2002

No appearance for the Appellant
Counsel for the Respondent:	Mr AA Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 December 2002
Date of Judgment:	19 December 2002