WAMN v Minister for Immigration
[2008] FMCA 520
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAMN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 520 |
| MIGRATION – Refugee – application for protection visa – whether well-founded fear of persecution – no jurisdictional error. |
| Migration Act, 1958 (Cth), s.424A |
| Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Eshutu and Anor (1999) 197 CLR 611; [1999] HCA 21 Minister for Immigration and Multicultural Affairs v Rajalingam & Ors (1999) 93 FCR 220; [1999] FCA 719 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 SZJAO v Minister for Immigration & Anor [2007] FMCA 1102 The State of Queensland and Another v JL Holdings Pty Ltd (1997) CLR 146 |
| Applicant: | WAMN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 197 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 31 January 2008 |
| Date of Last Submission: | 31 January 2008 |
| Delivered at: | Perth |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr P R Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Applicant’s application to amend the grounds of the Application be dismissed.
The Application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG197 of 2007
| WAMN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The application in this matter was made on 9 October 2007.[1]
[1] “Application”.
There was a single ground for the Application, namely that the decision of the Refugee Review Tribunal[2] “was made without jurisdiction and was not authorised by the Migration Act[3] and is accordingly void and of no effect”.[4]
[2] “Tribunal”.
[3] The Migration Act 1958 (Cth) (“Migration Act”).
[4] Application, ground 1.
Detailed particulars of the application were provided as follows:
a)The Tribunal applied the wrong test in determining that “the relevant facts of the individual case must be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision maker to establish the veracity and merits of the claim”. Such test is inappropriate and misdirects the Tribunal as to its task. Ultimately the Tribunal must determine whether the Applicant has a well founded fear of persecution for a convention reason if returned to Iran. The Tribunal must reach such conclusion even if the Tribunal is not satisfied as to the merits or the veracity of an applicant’s claims and also in circumstances where an applicant is unable to provide any individual information in support of his or her claims.
b)Given the country information quoted and apparently accepted by the Tribunal that persons who distributed pamphlets or even mere sympathizers of the MEK risked being executed and also that persons returning from abroad faced interrogation for political activities, which interrogation might be likely to establish any involvement with the MEK, meant that the Applicant could be at severe risk even if the Applicant’s family was not under suspicion and the Tribunal in those circumstances needed to consider whether if [sic] could be wrong in its assessment of the risks faced by the Applicant and that the Tribunal needed to assess the Applicant’s claims by reference to the risk of persecution that would arise to the Applicant if the claims might be true.
c)The Tribunal thereby misunderstood and failed to apply the correct test for “well founded fear of persecution”.
d)Alternatively, the Tribunal thereby misunderstood and failed to apply the correct test in order to be “satisfied” whether the Applicant has a well‑founded fear of persecution for a Convention reason.
e)The Tribunal failed to consider and determine the Applicant’s claim that he would be identified interrogated subject to torture and forced to confess and subject to persecution on his return to Iran.[5]
[5] Application, ground 1, particulars (a)-(e). The particulars will be treated as separate grounds for consideration in these Reasons for Judgment, that is, as grounds 1(a) to 1(e).
The orders sought against the First Respondent ask that the First Respondent do show cause why writs of prohibition and certiorari ought not issue.
It appears that a copy of the Tribunal’s decision handed down on 12 September 2007 was attached to the Application.
First court date
The matter came before this Court on 5 November 2007 for a First Court Date. On that date the Court made the following relevant orders:
2. The applicant shall file and serve on or before 19 December 2007:
(a) any amended application; and
(b) any affidavits upon which he intends to rely at hearing of this matter.
3. A hearing under rule 44.12 be dispensed with and the application be listed for final hearing at 2.15pm on 31 January 2008.
4. The applicant file and serve an outline of submissions at least 5 clear working days before the hearing.
5. The respondent Minister file and serve an outline of submissions at least 2 clear working days before the hearing.
6. There be liberty to apply.[6]
[6] “First Court Date Orders”.
The Applicant did not file any amended application or any affidavits upon which he intended to rely at the hearing of the matter, and did not file a written outline of submissions.
Application to amend application made at hearing
At the hearing on 31 January 2008 the Applicant sought to amend the grounds of the application. The basis for doing so is set out more fully below.
Issues
The issues in this matter are:
a)whether the application to amend the grounds of the Application ought to be allowed; and
b)if the application to amend is not allowed then whether the Tribunal decision was made without jurisdiction and not authorised by the Migration Act, as alleged by the Applicant.
Factual background
The Applicant is an Iranian citizen.[7]
[7] Court Book (“CB”) at 7, 13 and 20-25.
The Applicant arrived in Australia on 14 October 2005 holding a subclass 462 work/holiday visa valid until 14 October 2006.[8]
[8] CB 24.
The Applicant applied for a Class XA Protection Visa on 13 October 2006, a day before expiry of his work/holiday visa.[9]
[9] CB at 1-19 and 30.
The First Respondent made a decision refusing to grant the Applicant a Class XA Protection Visa on 8 May 2007.[10]
[10] CB at 59-60 and 65-95 (“Delegate’s Decision”).
The Applicant lodged an application with the Tribunal on 29 May 2007 seeking review of the Delegate’s Decision made on 8 May 2007.[11]
[11] CB at 96-100.
The Tribunal sent a letter to the Applicant on 14 June 2007 advising the Applicant that the Tribunal:
a)was unable to make a favourable decision on the basis of the information then before the Tribunal; and
b)inviting the Applicant to appear before the Tribunal to give oral evidence and present arguments at a hearing on 12 July 2007.[12]
[12] CB at 106-107.
The Tribunal conducted a video hearing on 12 July 2007. The Applicant gave oral evidence and was assisted by an interpreter and a registered migration agent.[13]
[13] CB at 155-159.
Toward the end of the 12 July 2007 hearing the Applicant told the Tribunal that he had received a letter from his brother. That letter had apparently been received about a week beforehand. The Applicant said it enclosed a warrant for the Applicant’s arrest. The warrant was said to be dated 27 September 2006. The Applicant claimed the warrant was given to his brother during a raid on their parents’ house.[14]
[14] CB at 155-159.
On 16 July 2007 the Tribunal wrote to the Applicant inviting him to comment on adverse information which the Tribunal considered would, subject to any comments he might make, be the reason or part of the reason, for affirming the Delegate’s Decision. The Tribunal did so under s.424A of the Migration Act.[15] The Applicant responded on 30 July 2007. [16]
[15] CB at 128-129 and 160.
[16] CB at 138-140 and 160-161.
In relation to further adverse information the Tribunal again wrote to the Applicant under s.424A of the Migration Act on 2 August 2007. [17] On this occasion, the Applicant did not respond to the invitation to comment on the further adverse information.[18]
[17] CB at 145-146 and 161-162.
[18] CB at 162.
On 4 September 2007 the Tribunal made a decision and gave reasons for affirming the Delegate’s Decision.[19]
[19] CB at 151-182.
Applicant’s application to amend the application
At the hearing on 31 January 2008 the Applicant made submissions which effectively amounted to an application to amend the grounds of the Application. Those amended grounds were as follows:
a)that his migration agent had not passed onto him the second letter from the Tribunal seeking his comment on further adverse information;
b)alleged mistranslation in the transcript of the record before the Tribunal; and
c)that the Application was not in the form the Applicant wished it to be.[20]
[20] Transcript at 1-2.
There was no evidence to support any of the Applicant’s submissions or proposed amended grounds. Indeed, there was no affidavit evidence at all from the Applicant in support of the Application.
The Court heard submissions from the First Respondent concerning the proposed amendments. Put shortly those submissions were that:
a)there was no evidence before the Court that the migration agent had failed to pass on the second adverse information letter;
b)there was no evidence of any mistranslation of the transcript of the Tribunal hearing, and the transcript was not in evidence and nor were any alleged mistranslations; and
c)
the Application on its face was signed by the Applicant, filed on
9 October 2007, and not the subject of any application to amend in the three and a half months between the filing of the application and the hearing.[21]
[21] Transcript at 3-4.
The Court refused to grant leave to the Applicant to amend,[22] saying at that time that:
“In essence, this is a matter which, on 5 November 2007 the court made orders, at that time allowing about six weeks for the applicant to file and serve any amended application or any affidavits upon which he intended to rely at this hearing. A further six weeks has followed since the time of the filing of those documents and nothing has been put for[ward] today by the applicant about the matters that he now raises.
In the circumstances I think that that constitutes a prejudice to the respondent and, further, in relation to each of the three issues, I note that there is no evidence upon which the court can act. Further, in relation to the letter that the applicant says he did not have an opportunity to respond to, that that was a letter sent quite properly by the tribunal to the person nominated as the authorised recipient of correspondence for the applicant. That in relation to the application itself, it is not an application made as it were, by a third party on the applicant’s behalf but appears to be an application signed personally by the applicant.
In those circumstances, I don’t propose to allow any leave to amend the application.”[23]
[22] Transcript at 4-5.
[23] Transcript at 5.
Those reasons adequately reflect the Court’s views, and do not require further elaboration, save to say that:
a)they are consistent with generally accepted case management principles;[24] and
b)the Applicant did not put forward any evidence of any prejudice to him arising from the failure of his application to amend the grounds of the Application.
Consideration of particularised grounds of application
[24] The State of Queensland and Another v JL Holdings Pty Ltd (1997) CLR 146 at 154 and 155 per Dawson, Gaudron and McHugh JJ, and at 166 per Kirby J.
Ground 1(a)
The Applicant alleges that the Tribunal applied the wrong test. The Applicant says that the test applied by the Tribunal is reflected in its statement that “the relevant facts of the individual case must be supplied by the Applicant himself or herself, in as much detail as is necessary to enable the decision maker to establish the veracity and merits of the claim”.[25] The Applicant says that test is not appropriate, and that it misdirects the Tribunal as to its task. The Applicant says ultimately that the Tribunal must determine whether the Applicant has a well-founded fear of persecution for a Convention reason if returned to Iran.
[25] CB at 181.
The Tribunal’s reasons need to be considered as a whole. When considered as a whole it is apparent that:
a)the Tribunal knew that in considering whether Australia had protection obligations to the Applicant under the Convention, it was necessary to consider whether the Applicant had a well‑founded fear of persecution for a Convention reason, and that is the test that it applied;[26]
b)in its “Findings and Reasons” the Tribunal considered:
i)whether the Applicant was a member of a politically active family;
ii)whether the Applicant was a member of the MKO;
iii)the alleged arrest of the Applicant’s alleged MKO contact;
iv)an alleged raid by Sepah operatives on the Applicant’s parents home; and
v)the Applicant’s sur place claims following his arrival in Australia.[27]
[26] CB at 152-153, 176 and 181-182, in accordance with authority: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 274-275 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Minister for Immigration and Multicultural Affairs v Eshutu and Anor (1999) 197 CLR 611 at 650 – 651 per Gummow J; [1999] HCA 21 at paras 128, 130 and 131 per Gummow J.
[27] CB at 176-181.
The Tribunal considered each of the above, formed conclusions about them, including conclusions concerning whether the Applicant faced a real risk of persecution if he returned to Iran.[28] The Tribunal observed that:
After carefully considering the applicant’s claims, the related evidence and, where appropriate, independent country information, the Tribunal does not accept that he is, or has ever been a member or associate of MKO (however designated), or involved in anti-government activities while in Iran. Nor does the Tribunal accept that since leaving Iran for Australia, his home was raided by Sepah operatives, he has been identified as an MKO member or sympathiser, that he is the subject of an arrest warrant, or that he has been anonymously warned against returning to Iran. The Tribunal finds the applicant’s claims lacking any credible evidentiary foundation, at odds with relevant country information, and as inconsistent and vaguely drawn in key areas.[29]
[28] CB at 181-182, and in doing so the Tribunal did what was required of it: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596-597 per Kirby J (“Guo”); Wu Shan Liang at 274-275 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[29] CB at 181.
The Tribunal then went on to conclude that having “carefully considered the available evidence” it found that the Applicant “has not suffered any harm in the past for reason of political opinion, membership of a particular social group of any other Convention reason, and that there is no real chance of his being persecuted now or in the reasonable foreseeable future for any Convention reason if he returns to Iran”.[30] The Tribunal was not therefore satisfied that the Applicant had a well‑founded fear of persecution for a Convention reason.[31]
[30] CB at 181-182.
[31] CB at 182.
The Tribunal:
a)made findings which were open to it on the evidence, and which this Court cannot review as a matter of merit; and
b)applied the correct test, not the wrong test as alleged by the Applicant.
This ground is therefore not made out.
Ground 1(b) and (c)
The Applicant’s particularised grounds under ground 1(b) and (c) are to be considered together, particular (c) simply being a conclusion following the particulars set out in particular (b).
Essentially, the Applicant asserts that the Tribunal misunderstood and failed to apply the correct test because, on the facts, the Tribunal needed to consider whether it could be wrong in its assessment of the risks faced by the Applicant and the Tribunal needed to assess the Applicant’s claims by reference to the risk of persecution that would arise if the claims might be true.
The Tribunal’s findings demonstrate that it had no real doubt about its findings as to the past and possible future persecution of the Applicant. It is fair to say that the findings by the Tribunal, which were open on the evidence, were reasonably emphatic. Thus, this was not a case where the Tribunal was required, in considering whether the Applicant had a well‑founded fear of persecution for a Convention reason, to consider whether its conclusions might be wrong.[32]
[32] Guo at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Minister for Immigration and Multicultural Affairs v Rajalingam & Ors (1999) 93 FCR 220 at 240 per Sackville J; [1999] FCA 719 at para 62 per Sackville J. For a detailed discussion of these and other Federal Court authorities on this issue see SZJAO v Minister for Immigration & Anor [2007] FMCA 1102 at paras 33-53 per Lucev FM.
These grounds are therefore not made out.
Ground 1(d)
This ground essentially asserts that the Tribunal misunderstood and failed to apply the correct test in order to be satisfied as to whether the Applicant had a well‑founded fear of persecution for a Convention reason.
This ground is no more than a different expression of grounds 1(a), (b) and (c). For reasons set out above, the Court is satisfied that the Tribunal did apply the correct test, and did not misunderstand or fail to apply that test, when determining whether it was satisfied as to whether the Applicant had a well‑founded fear of persecution for a Convention reason.
This ground is therefore not made out.
Ground 1(e)
This ground asserts that the Tribunal failed to consider and determine the Applicant’s claim that he would be identified, interrogated, subject to torture and forced to confess and be subject to persecution on return to Iran.
As indicated above, the Tribunal considered the following matters:
a)whether the Applicant was a member of a politically active family;
b)whether the Applicant was a member of the MKO;
c)the alleged arrest of the Applicant’s alleged MKO contact;
d)an alleged raid by Sepah operatives on the Applicant’s parents home; and
e)the Applicant’s sur place claims following his arrival in Australia.[33]
[33] CB at 176-181.
The Tribunal did not accept that:
a)the Applicant was involved in anti-government activities while in Iran;
b)the Applicant had been a member or an associate of MKO;
c)since leaving Iran the Applicant’s parents home had been raided by Sepah operatives;
d)the Applicant had been identified as an MKO member or sympathiser;
e)the Applicant was the subject of an arrest warrant; or
f)the Applicant had been anonymously warned against returning to Iran.[34]
[34] CB 181, based on the findings and reasons set out in detail at CB 176-181.
This ground of review really seeks to attack the factual findings made by the Tribunal. As such it seeks impermissible merits review of the Tribunal’s decision. For that reason this ground cannot be made out.
In any event, given the Tribunal’s findings it was open to it to conclude that there was no real chance of the Applicant being persecuted now or in the reasonably foreseeable future for any Convention related reason if the Applicant returned to Iran.[35] That conclusion, read together with the Tribunal’s decision as a whole, sufficiently addressed the Applicant’s claim that he would be interrogated, subject to torture, forced to confess and be subject to persecution on return to Iran.
[35] Guo at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
This ground is also not made out.
Conclusion and Orders
The Applicant did not make out a case to amend the grounds of the Application, and there will be an order that the application to amend the grounds of the Application be dismissed.
The Applicant did not make out any of the grounds of the application, and has not, therefore, established jurisdictional error on the part of the Tribunal.
It follows that the Application must be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: Sandra Gough
Date: 24 April 2008
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