WACU v MIMIA

[2004] HCATrans 460

[2004] HCATrans 460

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P74 of 2003

B e t w e e n -

WACU

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 2.53 PM

Copyright in the High Court of Australia

MR J.D. ALLANSON:   If the Court pleases, I appear for the Minister.  (instructed by Blake Dawson Waldron)

KIRBY J:   Yes, thank you very much.  The Court has considered the application on the papers and Justice Heydon will state the reasons and pronounce the orders of the Court.

HEYDON J:   The applicant for special leave is an Iranian citizen.  In an interview with an officer of the Department of Immigration and Multicultural and Indigenous Affairs conducted shortly after the applicant’s arrival in Australia, he said that he was an Arab from Khozestan, a region that discriminated against Arabs.  Before the Refugee Review Tribunal, he advanced a different case, namely, that he feared persecution because he had acted on behalf of his tribe in trying to stop the government of Iran from developing local land for sugarcane.  The tribe later attacked or demonstrated against the project, and the applicant feared being blamed for it. 

The Refugee Review Tribunal rejected the version given to it.  Its reasons were that the applicant had said that he had begun planning to leave Iran two or three years before his arrival in Australia, long before the attack was planned.  Further, he had failed to mention the matter in his initial interview, though he had gone into considerable detail about discrimination against Arabs.  He had left Iran freely, and therefore was not on a blacklist. 

The Tribunal found that the country information suggested only low levels of any relevant discrimination.  It was not the result of state practice and was not sanctioned by the state.  The failure of the applicant to comply with his tribe’s social mores did not mean that he would be persecuted.  He had employment skills, no dependants, was young, and therefore could live independently.  He could return to Iran without adverse consequences, and therefore had no well‑founded fear of persecution. 

The Federal Magistrates Court dismissed the applicant’s application for an order of review of the Tribunal’s decision not to grant a protection visa.  That court found that the challenges launched were only factual, though they were dressed up as jurisdictional.  A question arose as to whether all of the recording of the initial interview with the applicant had been transcribed, but there was no evidence that the planned attack had been mentioned in any part of it, whether transcribed or not transcribed. 

An appeal to the Federal Court of Australia was dismissed by Justice French on the ground that the challenges advanced by the applicant were challenges only to the factual merits of the Tribunal’s reasoning and revealed no jurisdictional error. 

In our opinion, a reading of the Tribunal’s reasons for decision does not reveal any jurisdictional error.  There are insufficient prospects of success in the appeal to merit the grant of special leave.  The Court, accordingly, orders that the application be dismissed with costs. 

KIRBY J:   Such is the order of the Court.  Now adjourn the Court. 

AT 2.56 PM THE MATTER WAS CONCLUDED