WABG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1096

FEDERAL COURT OF AUSTRALIA

WABG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1096

MIGRATION – protection visa – judicial review – privative clause decision – appeal from Federal Magistrate – Federal Magistrate affirmed decision of Refugee Review Tribunal – no principle of law

Judiciary Act 1903 (Cth) s 39B

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228

WABG of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W 113 OF 2002

HELY J
20 AUGUST 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	W 113 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WABG OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	20 AUGUST 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	W 113 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	WABG OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	20 AUGUST 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Iran who arrived in Australia on 1 November 2000.  He applied for a protection visa on 16 November 2000 on the ground that he had a well-founded fear of persecution by reason of his political opinion and by reason of his religious beliefs.  So far as religious beliefs is concerned, the appellant claimed to have converted from Islam to Christianity.  On 20 December 2000 a delegate of the Minister refused to grant a protection visa to the appellant.  The appellant applied to the Refugee Review Tribunal (“the RRT”) for a review of that decision.

2. On 19 October 2001 the RRT affirmed the decision of the Minister's delegate not to grant a protection visa to the appellant.  The date 19 October 2001 is of significance, because from and after 2 October 2001 the appellant's entitlement to relief became regulated by the new Part VIII of the Migration Act1958 (Cth) (“the Migration Act”) which severely restricted the circumstances in which this Court can interfere with decisions of the RRT.

3. The RRT did not accept the substance of the claims put forward by the appellant.  In particular, the RRT came to the following conclusions.  First, it was not satisfied that the appellant was involved with the political party which he claimed during his life in the navy.  Second, it was not satisfied that the appellant was gaoled in 1994 by reason of any political activities on his part.  Third, it was not satisfied that the appellant was arrested in student demonstrations which broke out in July 1999 or that he was a leader of the demonstration or that he had to go into hiding after the demonstration.  Fourth, it found that if the appellant did attend the demonstrations then the probabilities are that the authorities were not aware of this and the appellant was not wanted by the authorities by reason of his attendance at those demonstrations.  Fifth, it found that if the appellant was the subject of a suspended gaol sentence, as he claims, that sentence was not imposed by reason of any political activity.  The RRT said that although the appellant left Iran on a false passport, then either (as is more likely) this will not activate the suspended sentence; or, if it does, then this is not Convention-related persecution.  Sixth, the RRT found that the appellant’s claimed conversion to Christianity was not genuine.  In the RRT's assessment, the appellant claimed to have converted to Christianity because he believes that this might help him in his claim for refugee status. 

4. In short, the appellant was unsuccessful before the RRT because the RRT did not accept his claims which were the sole foundation for his asserted entitlement to the status of a refugee. 

5. An application for relief under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) was made to this Court. That application was determined at first instance by Driver FM.

6. Driver FM correctly observed that the decision of the RRT is a privative clause decision in terms of s 474 of the Migration Act; and he correctly noted that the Court could only interfere with such a decision in extremely limited circumstances, which have come to be referred to as the Hickman principles.

7. Driver FM found that the application did not fall within the Hickman principles because the complaints which the appellant made about the RRT’s decision did not rise above disagreements with the merits of that decision, which, even if made out, would not entitle the appellant to relief.

8. After Driver FM handed down his decision, a Full Court of this Court, consisting of five judges, delivered its decision in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, which confirmed that the privative clause had the effect attributed to it by Driver FM.

9. Like everybody else in this country, Driver FM and I are bound by the law and if Parliament says, as it has, that courts can only interfere with decisions of the RRT in a very limited range of circumstances, we have to obey that law.

10. The Notice of Appeal lodged by the appellant raises two grounds of appeal:

    ·first, there was no evidence or other material to justify the making of the decision that the appellant did not have a well-founded fear of persecution by reason of his political opinion, real or imputed, if he returned to Iran within the reasonably foreseeable future; and

    ·second, the decision involved an error of law, being an error of law involving the incorrect interpretation of the applicable law, or an incorrect application of the law to the facts as found by the RRT, or both. 

    Neither of these grounds of appeal, even if established, would justify the grant of relief under s 39B of the Judiciary Act, having regard to the privative clause.

11. This morning the appellant handed to me a written submission of some five pages in length which I have placed with the papers as a record of the submissions which the appellant has put to this Court.  I have taken account of the matters that are referred to in that document and the appellant elaborated on the terms of that document in his oral submissions to the Court.

12. I will deal briefly with the matters that were put orally, even though most of them are referred to in the written submission.  First, the appellant complained that he was not permitted to speak before Driver FM.  I do not have any evidence before me as to what happened before Driver FM, but I was informed by Mr Jenshel, who appeared for the Minister both in this Court and before Driver FM, that from time to time Driver FM stopped the appellant during the delivery of his submissions to inform the appellant that the jurisdiction of the Court to deal with his case was limited, and that the Court could not reconsider the merits of his claim.  The respondent accepts that the appellant's submissions before Driver FM were curtailed in this respect.

13. During the course of this hearing I also interrupted the appellant's submissions for the purpose of drawing his attention to the limitations on the extent of this Court's power to intervene so that he could address those issues if he could.  It is apparent on the face of Driver FM’s decision that the appellant was seeking to re-agitate the merits of the case before Driver FM, and that Driver FM correctly determined that he had no power to embark upon a reconsideration of the issue upon its merits.

14. The second matter, which was the subject of a specific oral submission, was that there was before the RRT an official letter which confirmed that the appellant had been dismissed from the navy by reason of his political activities.  That letter appears at page 67 of the appeal book of relevant documents.  There is also a letter at page 68 of the relevant documents which states that the appellant was dismissed from the navy on the grounds of inefficiency.

15. The RRT noted the discrepancy between these two documents and was not satisfied that the letters were genuine and therefore did not accept that these letters provided evidence of the appellant's detention because of his political activities.  That is a decision which is for the RRT to make.  It has the power and the responsibility of adjudicating upon those matters and neither the Federal Magistrate nor I am entitled to substitute any views that we might have on those questions for those of the RRT.  Driver FM addressed this question at [16] and concluded that the decision of the RRT in regard to the letters was reasonably based.

16. The third matter which was raised by the appellant in his oral submissions was that if the RRT was not satisfied with his explanations, why did it not ask more questions before rejecting his claim?  This submission reflects a misunderstanding of the role and function of the RRT.  The RRT is not in the position of a contradictor which has to disprove the appellant's claims.  Nor is it obliged to continue asking the appellant questions until it reaches a stage that it is satisfied that the appellant's case is made out.  The RRT is only required to assess the appellant's case on the material before it, and if the RRT is not persuaded by that material that the claim to refugee status is established, it is bound to refuse to issue a protection visa.

17. The fourth matter which the appellant specifically addressed in his oral submissions was his involvement in the demonstrations.  This topic is dealt with on page 13 of the decision of the RRT.  The appellant has strongly criticised the conclusions which the RRT reached on that page.  He told me that he was involved in the demonstrations, and that this is something he has said from the beginning of his arrival in this country.  The appellant also contends that country information available to the RRT supports the claim that he was involved in these demonstrations, and that that information indicates that a large number of people were arrested and gaoled during the course of these demonstrations.  The appellant asked: how can one say that the problem has been solved, as the RRT does, when a large number of those people are still in prison?

18. These are not submissions that I can entertain because they go to the merits of the case and it is solely the prerogative of the RRT to determine factual questions.  Even if I were to accept everything which the appellant has put to me in this respect, it would not entitle him to relief in point of law.

19. It is apparent from a reading of the RRT's decision that it truly addressed the question as to whether it was satisfied that the appellant was a refugee and it gave its decision upon that question in good faith.  That being so, Driver FM correctly concluded that the application made to him had to be dismissed, just as I conclude that the appeal to this Court must be dismissed. 

20. The order of the Court is that the appeal should be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             4 September 2002

The appellant appeared in person
Counsel for the Respondent:	Mr A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 August 2002
Date of Judgment:	20 August 2002