WAAV v MIMIA - [2002] FMCA 85

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAAV v MIMIA

[2002] FMCA 85

MIGRATION – Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa – whether the applicant has a well-founded fear of persecution – credibility of the applicant.

Federal Magistrates Court Rules 2001 (Cth)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(2), 476, 483A

Lachmi v MIMA [2002] FMCA 19
NAAX v MIMIA [2002] FCA 263
NABM v MIMIA [2002] FCA 335

Applicant:

WAAV

Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

File No:

WZ56 of 2002

Delivered on:

14 May 2002

Delivered at:

Sydney, via videolink

Hearing Date:

14 May 2002

Judgment of:

Driver FM

REPRESENTATION

Applicant appeared in person

Counsel for the Respondent:

Mr J Allanson

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of the application, which are fixed at $4,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

WZ56 of 2002

WAAV

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL
AND INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a national of Iran. He has applied for the review of a decision of the Refugee Review Tribunal (“the RRT”) which affirmed a decision of a delegate of the respondent minister to refuse his application for a protection visa. This ex tempore judgment should be read with the transcript of the hearing of this matter today.
I have been assisted by written submissions prepared by the solicitors for the respondent and I adopt as accurate the background facts set out in those submissions at paragraphs 1 through to paragraph 7. I also adopt as accurate the description of the decision of the RRT in paragraphs 8 through to 12 of those written submissions. The application for review of the RRT decision was made on 14 October 2001. The application purports to be an application for review under former s.476 of the Migration Act 1958 (Cth) (“the Migration Act”). However, pursuant to s. 474(2) of the Act, the RRT decision is a privative clause decision. That is so because the application to the Federal Court was made on or after 2 October 2001.
The application has been transferred by the Federal Court to this Court. This Court has concurrent jurisdiction with the Federal Court under s.483A of the Migration Act. The effect of the privative clause is to confine the jurisdiction of this Court and the Federal Court to limited grounds. The jurisdiction is to provide prerogative relief on those limited grounds under s. 39B of the Judiciary Act 1903 (Cth). The application was heard by me today on the basis that the application was an application for prerogative relief on the limited grounds still available.
It is necessary first to clearly determine what the scope of that review can be. In the case of Lachmi v MIMA [2002] FMCA 19 I set out my understanding of the operation of the privative clause. In that case I found that this Court, like the Federal Court, is only able to review a decision of the RRT on three bases. Those bases are first, that the decision was not a bona fide or genuine attempt to exercise the decision-maker's power; secondly, that the decision displayed a constitutional or statutory jurisdictional error on its face; or thirdly that the decision did not relate to the subject matter of the legislation or was not reasonably capable of reference to the power given to the RRT.
Since then there have been a significant number of decisions of single judges of the Federal Court on the interpretation of the privative clause. Those decisions are set out in the list of authorities filed by the respondent. There are also some others. The view that I took in Lachmi is broadly consistent with some of those single judge decisions. It is clearly inconsistent with some other single judge decisions. None of those decisions is strictly binding on me because none of them was a Full Court decision and none was on appeal from this Court.
It does seem to me that the most thoroughly argued decision in the Federal court to date was that in NAAX v MIMIA [2002] FCA 263. That decision was also followed in a carefully reasoned decision of his Honour Beaumont J in NABM v MIMIA [2002] FCA 335. The trend of authority in the Federal Court appears to indicate that the grounds of review which I identified in Lachmi are broadly correct although they may be differently expressed.
There was no suggestion in this case that the decision of the RRT was not a bona fide attempt to exercise the decision-maker's power. Clearly the decision related to the subject matter of the legislation. Clearly the decision disclosed no constitutional error. The only possibility therefore is RRT decision disclosed a statutory jurisdictional error; that is, an error of jurisdiction related to the legislation. I find that it is not open to me to grant relief simply on the basis that there was some breach of common law principles of procedural fairness. However, I find it is open to me to grant relief if I could conclude that the decision of the RRT on its face disclosed some breach of an essential requirement of the Migration Act.
I asked the applicant to today to tell me what was wrong with the RRT decision. He raised five issues. The first issue was a letter from his spouse which he says he received on 5 March 2001. The applicant says that the RRT wrongly found that the letter was received by him on 1 May 2001, at a time when he had limited contact with his relatives. The letter is included at page 68 of the court book and is referred to by the RRT at page 109 and page 138. It is clear, in particular from what the RRT said at page 138, that the RRT did not regard the letter as genuine. The RRT was dissatisfied with the content of the letter. I find that the date on which the RRT said the letter was received is not material.
The second issue raised by the applicant concerns his conversion to Christianity. The applicant says that the RRT should not have said anything about that matter because he did not rely on it. It is clear from what the RRT said at page 151 of the court book that the RRT disregarded the letter from Pastor Dolling concerning the applicant's alleged conversion. There is no error of law in that decision of the RRT.
The third issue raised by the applicant concerned three death certificates relating to the alleged death of the applicant's father and two brothers. English translations of these documents appear at pages 69 to 71 of the court book. The applicant asserted that his father and brothers died in the course of anti government activities. The RRT was concerned about the authenticity of the three death certificates. The applicant says that the RRT should not have rejected those documents. He has appealed for a thorough investigation of those documents.
The RRT was concerned that the documents did not appear to have been properly filled out. It is clear, however, from what the RRT said at pages 136 and 137 of the court book that the RRT was not simply worried about the authenticity of the documents. The RRT found that even if the documents were genuine they did not support the applicant's claims because they said nothing about the circumstances in which the individuals died. It follows that no further investigation of those documents is warranted for the purposes of this case.
The fourth issue raised by the applicant concerned his departure from Iran. This is dealt with at page 139 of the court book. The RRT found it incredible that, if the applicant was wanted by the authorities as he claims, he did not leave Iran by the quickest, cheapest, and most familiar and safest escape route. That would have been across the Afghan border, near the applicant’s home. Instead, the applicant left by a normal commercial airline flight. The applicant submitted to me that this finding was wrong and he explained that he could not leave Iran via Afghanistan because the escape routes had been discovered. It is clear from what is said at page 113 of the court book that this argument was put to the RRT. It is also clear that the RRT rejected the applicant's explanation. There was a reasonable basis for that rejection. I find no error of law in this aspect of the RRT’s decision.
The final issue raised by the applicant concerned the alleged supply of guns to his family by the Iranian intelligence service. The applicant referred to an Iranian language newspaper article published in Sydney referring to the apparent supply of guns to 42,000 people near the Afghan border in Iran. The applicant submitted that the RRT was wrong in rejecting this aspect of his case. It is clear from what the RRT said at pages 135 and 136 of the court book that the RRT was unable to accept the applicant's claims concerning his family's relations with the security service and the supply of guns. This was not simply a question of fact whether or not guns were supplied but many elements of the applicant's story were found to be inconsistent and implausible. I find that the adverse conclusions on credibility reached by the RRT were reasonably open to it.
There is no other basis for challenging the decision of the RRT. The applicant has been unable to satisfy me that any statutory jurisdictional error, or, indeed any error of law by the RRT is apparent from its decision. He was not legally represented before me even though the Federal Court had granted a certificate under order 80 for him to be represented. That is unfortunate but I am satisfied that the applicant has done the best he could in the circumstances. I have sympathy for his circumstances and note that he has been in detention for a long time. Unfortunately for him, however, he is unable to advance any facts or circumstances that would permit me to interfere with the decision of the RRT. Therefore, I must dismiss his application.
The respondent Minister is entitled to an order for his costs. There is nothing in this case that would make me depart from the general principle that costs follow the event. My usual practice in these cases is to fix the amount of costs payable pursuant to rule 21.02(2)(a) of the Rules of this Court. The amount of costs to which the respondent is reasonably entitled will vary from case to case but generally the variation will not be dramatic.
In my view cases of this nature generally call for an award for costs somewhere between $4,000 and $5,000. This case falls at the lower end of the scale and accordingly I will order that the applicant pay costs in the sum of $4,300.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 22 May 2002