WADP v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 672

FEDERAL COURT OF AUSTRALIA

WADP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 672

Judiciary Act 1906 (Cth) s 39B
Migration Act 1958 (Cth) ss 36(2), 91R, 424, 426(2), 474(2), 474(3)(i), (4), and (5), 475A, 477(1), 477(2), 483
Migration Legislation (Judicial Review) Act 2001 (Cth)

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 followed
R v Murray; Ex parte Proctor (1949) 77 CLR 387 followed
NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 considered
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred to
Walton v Minister for Immigration & Multicultural Affairs [2001] FCA 1839 considered
Waterford v The Commonwealth (1987) 163 CLR 54 followed

WADP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W3 of 2002

RD NICHOLSON J
31 MAY 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRLIA DISTRICT REGISTRY	W3 of 2002

BETWEEN:	WADP APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	31 MAY 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	W3 of 2002

BETWEEN:	WADP APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	31 MAY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application which is accepted by the respondent as being one seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 December 2001.  In that decision the Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection (class XA) visa.  The application is brought in reliance on the provisions of the Migration Act 1958 (Cth) (“the Act”) as they stood at the date of the lodgement of the application, namely 3 January 2002.

2. The applicant is a citizen of Iran.  He arrived in Australia on 11 February 2000.  The delegate’s decision adverse to his application was made on 16 January 2001.

   Relevant legislative provisions

3. 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 items 785 and 866.

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

   “…owing to 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.

   Applicant’s background and claims

5. The Tribunal summarised the applicant’s claims as follows:

   “Claims at initial interview:

   ·Applicant was under surveillance for 4 months, he had a conflict with the authorities as he was a supporter of the King.  His name was on a black list.

   ·He was sacked from his employment in Customs.  From 1982 he was self employed.

   ·In 1988 he was arrested and imprisoned for 3 years and after release remained under surveillance.

   ·His children were deprived of attending university, his house and land was given to the authorities to secure his release and has not been returned.

   ·He was a member of I-Iezbe Melat Iran and the Nahzat Azadi or Melate Iran Party and Children of Marze Por Gohar Party.

   In his protection visa application he stated:

   ·He had problems in 1981 when working for Customs as he was searching dead bodies and management told him not to interfere when the officials would not allow him to look into the bodies.

   ·In 1982 he was sacked by Islamic Society of Customs and he was refused a resignation letter.

   ·He was in contact with the Royalists and Monarchists, he was pro-Shah and expressed his anti-revolution views openly by shaving.  He was taunted for his stance.

   ·He started a business retailing electrical appliances and in 1989 needed his employment records for insurance purposes so he returned to the Islamic Society of Customs.  He argued there.  Two weeks later 2 people came to his shop, arrested him, kept him for 3 days and he was charged with offending the spirit of Imam.  He was kept for 3 months, beaten and tortured.  He was released on bail and his property, including his home, his shop and his belongings was confiscated.  He was fingerprinted.  He was unable to work thereafter under his own name.  He invested his money for somebody else to do his work. 

   ·In 1991 he was summoned by the Court, condemned to 3 years imprisonment and given a suspended sentence.  He was black listed and unable to obtain a passport.

   ·His daughter was unable to study in Iran and studied by long distance and obtained a Ph.D.  She had been beaten once by the religious patrol for showing her hair.

   ·He continued to remain in contact with the Monarchists and Royalists.  The head of the Melate Iran Party and his wife were killed in about 1997.  He continued to give them assistance.

   ·In 1999 at the university riots he distributed political opposition newspapers and leaflets.  Later that day he went to a friend’s house, rang his wife who told him the Basiji had searched their house as the Melate Party and Children of Marze Por Gohar Party had been discovered and his financial contributions to them had been discovered.

   At a hearing held by a previous Tribunal the applicant additionally stated:

   ·In 1994 he became involved in monarchists groups, he was involved in organising meetings in Shiraz as well as bus loads of people to go to Tehran to help the student demonstrations.  He handed out leaflets at the July 1999 demonstrations.  He was filmed at the demonstrations and for this reason the authorities raided his house.  He was a principal person.

   By letter dated 7 April 2001 the applicant additionally stated:

   ·His resignation from the Customs office was politically motivated.

   By information provided in a memo to Abelabad Prison:

   ·He was fingerprinted for anti-government activities in ridiculing a funeral procession.

   At a Tribunal hearing on 5 October 2001:

   ·He resigned from his employment in 1982.

   ·He returned to the Customs office in 1989 in order to obtain his 8.5% superannuation payment and when asked for the return of his ID card refused to do so.  His ID card still remains in his possession.  He was then imprisoned and tortured for 3 months.

   ·In 1991 he went to a court and that court closed the file and pronounced him ‘not guilty’ but he was given a suspended sentence that if he were to get into any other trouble then he would have an additional 3 years added to any sentence.

   ·He lived in the city of Shiraz from 1980 and had been a monarchist supporter since 1982.  He belonged to a group that consisted of some 25 to 30 members called the ‘Organisation for Monarchists for the Shah’.

   ·In July 1999 there was a demonstration and riot at the University in Tehran.  This demonstration spread to other cities.  Three days after the riot started, he was in a meeting when he rang home and was told the authorities had come to his home and searched it.  He had been filmed handing out pamphlets and organising the protest in Shiraz.

   ·His involvement in this demonstration and the searching of his house was the catalyst for him to leave Iran and flee to Turkey.

   Post Hearing Submission:

   ·After 1999 involvement in riot his house, contents and shop were confiscated.

   ·A book called “White Collar Crime” indicates members of Nai-izat and Monarchist will be executed if arrested.

   ·His group worked in sympathy with the Melate Iran Party and Children of Marze Por Gohar Party.

   ·After he left Iran many of the leaders of Nahzat Azadi Party and most of Iran National Party were arrested.”

   Tribunal’s findings

   (1)The Tribunal was satisfied that the applicant was an Iranian national. 

   (2)        It had no real doubt that the applicant’s claims concerning the July 1999 riots and the events dependent on that involvement post July 1999 did not occur.  It gave two reasons for that which read as follows:

   “

   ·The applicant told the Tribunal his reason for fleeing Iran was his involvement in the July 1999 riots yet he did not inform the Australian authorities on his arrival the reason for his flight from Iran.

   ·He made no attempt to claim refugee status in Turkey or make enquiries about remaining there as an undocumented Iranian.  Yet Turkey is a country where some of his family lived and a country that granted protection to undocumented Iranians fleeing persecution.

   Additionally independent information, in relation to pro-Monarchists and the July 1999 riots, does not support his claims.”

   Additionally, the Tribunal accepted the view that the applicant’s statements lacked coherency when pressed to provide particulars.

6. The Tribunal also stated that his omission upon arrival in Australia of his reason for his flight from Iran, namely his political activity in the July 1999 riots, was a “fundamental flaw in his claim”.  It considered he had subsequently created his claim of such involvement in order to enhance his claim for refugee status.  Therefore, it did not accept him as a witness of truth.  The Tribunal continued:

   “As I do not accept the applicant was involved at all in the July 1999 riots it follows that I do not accept that the authorities raided his home, he was a financial contributor to monarchist parties or a financial contributor, he had been filmed handing out pamphlets at the 1999 riots, that he was an organiser of the riots or that the Iranian authorities seek him or his involvement in the riots.  It also follows I do not accept that after the 1999 riots his house, belongings and shop were confiscated.  It also follows that I do not accept he is black listed or that he left the country illegally.”

   (3)       The Tribunal said it had insufficient information regarding the applicant’s dismissal from Customs to be satisfied as to the reasons for that occurrence.  It added:

   “If I accept that he was forced to resign because a political opinion was imputed to him, I do not accept that such a forced resignation amounts to persecution as now qualified by Section 91R of the Act. Under s91R(1) of the Act persecution must involve “serious harm” to the applicant, and systematic and discriminatory conduct. The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist. The applicant was able to earn a livelihood after his forced resignation. The evidence indicates nothing further happened to him, he lived in Iran and he worked in the bazaar for some 7 years until 1989. Therefore, I am satisfied he did not suffer serious harm amounting to persecution.”

   The Tribunal also found that the applicant’s resignation from that department in 1982 would not have any bearing upon the authorities treatment of the applicant if he were returned to Iran now, due to the passage of time. 

   (4)       The Tribunal was unable to place any weight on the documents provided by the applicant as evidence that he was imprisoned and tortured for a Convention reason.

   (5) It accepted his claim in relation to the 1989-1991 period relating to the conflict which he had with customs when returning there to obtain a report. It accepted that in 1989 a conflict had arisen between the applicant and the department over work entitlements; he had insulted the authorities and was involved in litigation in 1991 and a not guilty verdict was pronounced. However, it did not accept his account of the arrest, torture, confiscation of his belongings and subsequent suspended sentence. However, even if it accepted those events from 1991 to the claimed events of 1999, nothing further had happened and he retained his ID card so that such treatment would not now qualify as persecution, taking into account the provisions of s 91R of the Act.

   (6)       The Tribunal was not satisfied that any political opinion was imputed to the applicant.

   (7)       The Tribunal was not satisfied that his daughter’s lack of tertiary qualifications from an Iran university was due to any persecution of the applicant. 

   (8)       The Tribunal accepted that the applicant may have engaged in dress preferences as an expression of pro-monarchy position and may have been opposed to the revolution.  While accepting he belonged to a pro-monarchist group, it found no independent evidence to suggest that pro-monarchists suffered harassment or persecution in Iran.  Therefore it did not accept that the authorities sought to arrest the applicant because he had made financial contributions to monarchist parties.

   (9)       In relation to a letter provided from a Colonel Madani to persuade the Tribunal of the applicant’s pro-monarchical involvement, the Tribunal placed no weight on it.  It requested the witness attend the Tribunal, provide an acceptable identification and give evidence.  However, the witness had not done so.  In the absence of acceptable identification, the Tribunal was not prepared to accept that this person knew the applicant or had any information in relation to the applicant’s situation. 

   (10)     The Tribunal did not accept the applicant had left Iran illegally.  It reached that view in the light of independent advice to the effect that illegal departure does not give rise to a well-founded fear of persecution on return to Iran. 

   (11)     The Tribunal concluded that the totality of the evidence did not indicate the applicant had a well-founded fear for his ethnicity, religion or political opinion or imputed political opinion. 

   Grounds of review

7. The applicant appeared unrepresented.  No cognisable ground of review is listed in his application.  There is simply an assertion of error on the part of the Tribunal in relation to its disbelief of his involvement in riots against the Iranian Government in July 1999.  The same is true of matters set out in an accompanying “statement of claim”. 

8. The applicant’s principal concerns at the conclusions of the Tribunal were set out in a document which was translated for the Court.  At the hearing the applicant stated he had said all the things that he wanted to say in that document except an additional matter concerning his involvement in a fire at the Woomera Centre, to which reference will be briefly made.

   Effect of amending legislation

9. The provisions of the Act as they stood at the date of the lodgment of the applicant’s application reflected amendments made by the Migration Legislation (Judicial Review) Act 2001 (Cth). One of the effects of that amending legislation was that this Court does not have any jurisdiction with respect to the decision of the Tribunal other than that under s 39B of the Judiciary Act 1906 (Cth): see s 475A and s 483 of the Act. In respect of an application to the Court under s 39B in respect of a “privative clause decision” the application must be made within 28 days of the notification of the decision: s 477(1). The decision of the Tribunal is a “privative clause decision” within the definitions in s 474(2) and (3)(i) and is not among the excluded classes of decision in s 474(4) or (5). Additionally, s 477(2) provides that this Court must not make an order allowing, or “which has the effect of allowing” an applicant to lodge an application outside the time limit. No point has been taken that the application filed on 3 January 2002 was not within 28 days of the decision of the Tribunal on 21 November 2001. On the face of those unargued matters, the application would be incompetent for non-compliance with the requirements of s 477(1).

10. The effect of the amendments is to leave to the Court a very limited jurisdiction under s 39B of the Judiciary Act.  The scope of the jurisdiction is limited by the principles derived from the judgments of Dixon J in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 616 and R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399 – 400. These require that in order to impugn a privative clause decision as defined by the Act, an applicant for relief under s 39B of the Judiciary Act must establish one of three conditions:  (1)  the constitutional authority of the Commonwealth Parliament to define the powers of the decision-maker as being exceeded; (2)  the exercise of the power was unrelated to the subject matter of the legislation; or (3)  the decision made was, on its face, beyond power or was not a bona fide attempt to exercise the Tribunal’s power.

11. In NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, Gyles J essentially accepted this was the position. In particular, he concluded that establishing that a tribunal had committed a “jurisdictional error” would be an insufficient basis to grant relief under s 39B with respect to a privative clause decision as defined by the Act. For a description of what constitutes “jurisdictional error” refer to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [82].

12. However, other decisions in the court have taken different views.  In Walton v Minister for Immigration & Multicultural Affairs [2001] FCA 1839 Merkel J, after consideration of the operation of s 474, concluded that, while unnecessary to decide, the grounds argued in that case in terms of jurisdictional error and failure to provide procedural fairness, if they had been made out, would be available notwithstanding the privative clause. The differences in view within a range of decisions in the court have now been referred to a Full Court for consideration.

13. In the interests of the applicant I will proceed on the basis that the Hickman conditions do not preclude the consideration of jurisdictional error or procedural unfairness (the widest understanding of the possibilities).  In the event that any of those matters are established in addition to the above stated Hickman conditions, it will be necessary for me to reach a view on which of the approaches to the effect of the amendments should be followed. 

    Reasoning

14. Turning to the matters raised by the applicant, the first was that in his first interview he had given a brief explanation of his political activity in relation to the events July 1999.  He asserted that what he had said was true and correct and he had always maintained the same case.  That submission cannot assist him because there was an adverse credibility finding against him in relation to his claims concerning his political participation in the July 1999 movement.

1. He then turned to a variety of mistakes which he said were apparent from the record of the Tribunal’s reasons.  He said the Tribunal had been wrong in the following passage:

   “Further, I note that the applicant did not make this claim of interpreting problems at the hearing.  I am satisfied the applicant understood the interpreter at his initial interview and was given sufficient time to answer questions asked, he was able to even inform the Department about his daughter’s tertiary educational qualifications.  I cannot accept there was no procedural fairness given to the applicant.”

   He asserted he had made his claim of interpreting problems at the hearing.  An error of fact by the Tribunal, however, would not give rise to an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 per Brennan J at 77. Furthermore, it was not the foundation of the Tribunal’s reasoning on the matter; the issue of procedural fairness was considered on factors other than whether a claim had been made at the hearing concerning the unsatisfactory nature of the interpreter.

2. Then the Tribunal placed weight on the failure of the applicant to make inquiries in Turkey or to apply for asylum there.  The applicant seeks to reargue this on the merits.  The same is true of the Tribunal’s finding in relation to his involvement in the July 1999 riots and his participation in the Nahzat Azadi Party and Iran National Party and in relation to his reasons for leaving the Customs Department.  It equally applies to his submissions concerning documents listing charges against the applicant.  This Court simply does not have jurisdiction to re-make findings of fact made by the Tribunal within its jurisdiction.  Nor do any of these matters relied on for the applicant give rise to arguable jurisdictional error or procedural unfairness. 

3. In the course of argument other matters arose from what had been put by the applicant. The first set of considerations was directed to whether the Tribunal had not sought to verify whether documents he produced were false. As the submissions for the respondent pointed out, s 424 gives to a Tribunal a power to seek additional information which it considers to be relevant. However, there is no mandatory requirement to engage in the sort of procedures referred to by the applicant in his submissions.

4. In relation to the Tribunal’s decision in relation to the witness Colonel Madani, it is the case that s 426(2) of the Act provides that an applicant may, within 7 days after being notified of an invitation to appear before the Tribunal, give to the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. However, subs (2) of s 426 provides that if the Tribunal is so notified by an applicant, it must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice. Here the position was that the Tribunal gave the applicant an opportunity to have Colonel Madani present himself. He failed to do so. There was no non-compliance with any requisite procedure or procedural unfairness.

5. The applicant also expressed concerns that his involvement in reporting on alleged criminality at Woomera Detention Centre had reacted adversely on him and were utilised in the proceedings of the Tribunal.  I accept the submission for the respondent there is plainly nothing on the materials before the Court to indicate that whatsoever.

6. I therefore reach the view that there is nothing in the matters raised by the applicant to give rise to any arguable existence of either “jurisdictional error” or procedural unfairness, if those matters were to be encompassed within the Hickman conditions.  Patently, there is nothing that gives rise to the “traditional” Hickman conditions.  There is nothing to suggest the constitutional authority of the Commonwealth Parliament has been exceeded or that the exercise of the power was unrelated to the subject matter of the legislation.  Furthermore, there is nothing to suggest that the decision was beyond power or was not a bona fide attempt to exercise its power by the Tribunal. There is nothing therefore present on which to conclude that if this Court has jurisdiction pursuant to s 39B of the Judiciary Act (that is, if the application to it was competent) there is any basis for it to review the decision of the Tribunal.

   Conclusion

7. For these reasons it follows that the application must be dismissed.

   Post-script

8. In the course of the hearing the applicant asked for humanitarian reasons to be sent to a country other than Iran if he is to be deported from Australia.  It would appear appropriate that this request receive consideration by the authorities within whose jurisdiction it may lie.

I certify that the preceding twenty – two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:             31 May 2002

The Applicant represented himself:
Counsel for the Respondent:	Mr M Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 March 2002
Date of Judgment:	31 May 2002