WZATG v Minister for Immigration
[2014] FCCA 2730
•26 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATG v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2730 |
| Catchwords: MIGRATION – Judicial review – Refugee Review Tribunal – Iranian citizen – whether all claims considered – whether jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.12.02, 12.03 Migration Act 1958 (Cth), ss.46A(2), 474, 476 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA |
| Applicant: | WZATG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 257 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 11 August 2014 |
| Date of Last Submission: | 11 August 2014 |
| Delivered at: | Perth |
| Delivered on: | 26 November 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr B Dube |
| Solicitors for the First Respondent: | Sparke Helmore |
| For the Second Respondent: | Submitting appearance, save as to costs. |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 257 of 2013
| WZATG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 25 September 2013 the applicant seeks judicial review under s.476 of the Migration Act 1958 (Cth)[1] of a decision of the second respondent, the Refugee Review Tribunal.[2] The Tribunal affirmed a decision of a delegate[3] of the first respondent, the Minister for Immigration & Border Protection,[4] to refuse to grant a Protection (Class XA) visa[5] to the applicant.
Background
[1] “Migration Act”.
[2] “Tribunal” and “Tribunal Decision”. The Tribunal Decision is at Court Book (“CB”) 223-248.
[3] “Delegate” and “Delegate’s Decision”. The Delegate’s Decision is at CB 133-156.
[4] “Minister”, then the Minister for Immigration, Multicultural Affairs & Citizenship.
[5] “Protection Visa”.
The applicant
The applicant:
a)was born on 21 March 1983 and is a citizen of Iran who arrived in Australia as an irregular maritime arrival on 17 May 2012;[6] and
b)applied for a Protection Visa on 24 August 2012[7] after the Minister lifted the bar under s.46A(2) of the Migration Act.[8]
[6] CB 48.
[7] CB 32-65.
[8] CB 31.
Applicant’s claims
The applicant claimed:
a)to fear harm from the Iranian authorities and their supporters by reason of his:
i)actual and imputed political opinion of being opposed to the Iranian government; and
ii)membership of particular social groups comprising: “failed asylum seekers”; spies for a western country; and his family;
b)that in 2008, his wife’s sister’s husband, his brother-in-law, was murdered because he actively campaigned for Rafsanjani[9] against the Iranian government;
c)that he was very close to his brother-in-law prior to his death and helped him campaign against the Iranian government as part of the 2008 election campaign;
d)that as a result of his association with his brother-in-law and opposition to the Iranian government, the applicant was threatened on numerous occasions at work and at home; and
e)that he campaigned for Mousavi[10] in the lead up to the 2009 election.
[9] Akbar Hashemi Rafsanjani is a former Iranian president associated with the Green Movement: CB 140.
[10] Mir-Hossein Mousavi (or Musavi) was defeated in the June 2009 presidential election and is the leader of the political opposition group known as the Green Movement: CB 114, 139 and 141.
Delegate’s Decision
On 17 December 2012 the Delegate refused to grant the applicant a Protection Visa.[11]
[11] CB 129-156.
On 24 January 2013 the applicant applied to the Tribunal for a review of the Delegate’s Decision.[12]
[12] CB 157-162.
Tribunal Hearing
The applicant was invited to, and did attend, Tribunal hearings on 12 and 26 April 2013 which he attended with his representative.[13] The applicant gave evidence and presented arguments at the hearings with the assistance of a Persian interpreter.[14]
[13] CB 167-169, 201-203 and 205-211.
[14] CB 201-203 and 209-211.
Tribunal Decision
In the Tribunal Decision of 28 August 2013 the Tribunal affirmed the Delegate’s Decision refusing the Protection Visa.[15]
[15] CB 223-248.
The Tribunal:
a)found that the applicant had provided a “generally consistent” account of his claims for protection but found that his claimed involvement in campaigning or supporting Rafsanjani or Mousavi and being opposed to the Iranian government was not “believable”;[16]
[16] CB 225 at para.9.
b)found that it was “difficult to believe” that despite the applicant’s claimed close relationship with his brother-in-law, he was not told the details of alleged threatening telephone calls that his brother-in-law received;[17]
[17] CB 225 at para.13.
c)identified numerous inconsistencies in the applicant’s evidence, including:
i)his involvement in the 2009 election campaign where he initially told the Tribunal that he did nothing and then told the Tribunal that he went out on the street promoting Mousavi;[18]
ii)that he went out and protested afterwards against the election result, but was cautious because of his job, but stated that he liked his job and did not do anything during the last election because of his job;[19] and
iii)that he and his brother-in-law worked for the “greens” and he wore green and protested after the election in the streets, whereas the Tribunal put to him that the campaigns with Mousavi supporters wearing green were in May and June 2009, but that the evidence he provided was that his brother-in-law was killed in March 2008;[20]
d)did not accept on the available evidence that the applicant had any political association or involvement in Iran as claimed;[21]
e)whilst accepting that the applicant’s brother-in-law had died, did not accept on the available evidence that he had been threatened or killed because of his political opinion by the Iranian government,[22] and did not accept as plausible that the applicant’s brother-in-law was able to exert “considerable influence” in helping the applicant obtain a good position in the military and government whilst actively campaigning against the Iranian government;[23]
f)was not satisfied on the available evidence that, in view of the oppressive nature of the Iranian regime, the applicant would have been able to retain his job, be paid bonuses and offered promotions if he was associated with a known opponent of, and actively campaigned against, the Iranian regime, or that he would be able to avoid those consequences solely on the basis that he possessed certain specialised skills;[24]
g)did not accept that the applicant had experienced threats because of an association with his brother-in-law several years after the brother-in-law’s death;[25] and
h)found that the applicant’s claimed work-related issues were simply the actions of jealous rivals in the workplace that had been “overstated” to enhance his claims for protection.[26]
[18] CB 225-226 at para.15.
[19] CB 225-226 at para.15.
[20] CB 225-226 at paras.15-16.
[21] CB 227 at para.22.
[22] CB 227 at para.23.
[23] CB 227 at paras.23-25.
[24] CB 227 at para.26.
[25] CB 227-228 at paras.27-28.
[26] CB 228 at para.29.
For the above reasons, the Tribunal found that the applicant:
a)was not a credible witness;
b)did not have an actual political opinion opposed to the Iranian government and would not be imputed with one; and
c)had not ever received any adverse attention from the Iranian government because of his relationship with his brother-in-law.
Accordingly, the Tribunal rejected the applicant’s claims to fear harm arising from his political involvement, association with his brother-in-law and actual or imputed political opinion.[27]
[27] CB 228 at paras.9 and 30-31.
In light of the Tribunal’s adverse credibility findings, it also found the applicant’s claim that he would be deemed to be a spy on return to Iran because he worked with confidential information to be an “embellishment” to enhance his claim for protection. The Tribunal was satisfied on the available evidence that the applicant did not have a profile that would cause him to come to the attention of the authorities if he returned to Iran.[28]
[28] CB 229 at para.35.
The Tribunal:
a)accepted on the available evidence that the applicant had departed Iran legally on a valid passport that had since been destroyed and that the Iranian authorities would have a “reasonable suspicion” that he had sought asylum in Australia, and whilst accepting that the applicant might be interrogated or questioned on return to Iran, found that this did not amount to serious harm;[29]
b)found that on the available Independent Country Information, being a failed asylum seeker returning to Iran did not give rise to a real chance of persecution without “anything more”;[30]
c)did not accept on the available evidence that the applicant would be imputed with an adverse profile because of his failed asylum attempt or would be accused of being a political opponent of the Iranian government or a spy;[31]
d)did not accept that the applicant’s “cumulative profile” gave rise to a real chance of harm as a failed asylum seeker;[32] and
e)was not satisfied that the applicant would be of interest to the authorities on return to Iran.[33]
[29] CB 229-230 at paras.36-39.
[30] CB 230 at para.41.
[31] CB 230 at paras.40-41.
[32] CB 231 at para.42.
[33] CB 231 at para.43.
Considering the applicant’s claims cumulatively, the Tribunal did not accept that the applicant faced a real chance of serious harm for any Convention reason if he returned to Iran.[34]
[34] CB 231 at para.44.
The Tribunal did not accept that the applicant faced a real chance of significant harm for reasons of his actual or imputed political opinion opposed to the Iranian government, association with his brother-in-law or status as a failed asylum seeker.[35] With respect to complementary protection, the Tribunal had regard to its factual findings, and found that the applicant did not satisfy the complementary protection criterion.[36]
[35] CB 231-232 at paras.47-50.
[36] CB 232 at para.51.
Application for judicial review
By an application filed with this Court on 25 September 2013 the applicant seeks judicial review of the Tribunal Decision. The order sought by the applicant in his application is:
I got the negative decision and please review my case because I’m not happy with reason for decision[37]
[37] Transcribed without amendment from the application.
The grounds of the application are:
Please review my cas because they made mistake about my case
I seek that a pro bono lawyer be appointed to assist me in my application for judicial review my case.[38]
[38] Transcribed without amendment from the application.
Orders made by a Registrar of the Court on 16 October 2013 allowed the applicant to file further affidavits, as well as submissions and authorities by a specified date. The applicant did none of these things. The affidavit filed by the applicant with his application does no more than attach a copy of the Tribunal Decision. At hearing, the applicant made submissions, but they were submissions with respect to the merits of his application, rather than submissions as to any jurisdictional error by the Tribunal.
Consideration
In order for this Court to undertake judicial review of the Tribunal Decision the applicant must establish that the Tribunal Decision was affected by jurisdictional error,[39] otherwise the Tribunal Decision will be regarded as a privative clause decision which is final and conclusive.[40]
[39] Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne.
[40] Migration Act, s.474.
The grounds relied upon by the applicant are without substance. No particulars are provided which identify what “mistake” was made by the Tribunal. Without particulars the application fails to raise an arguable case for the relief claimed, especially in circumstances where there is no obvious or egregious error made by the Tribunal on the face of the Tribunal Decision.[41] The Court was not assisted by the applicant’s failure to file any further affidavit, submissions or authorities in accordance with the Court’s orders, and there was no further elaboration of the grounds either in writing, or orally on the day of the hearing.
[41] WZATN v Minister for Immigration & Anor [2014] FCCA 861 at para.18 per Judge Lucev.
The application is essentially a plea for impermissible merits review.[42] The Tribunal Decision reveals that all of the claims made by the applicant were considered. It was a matter for the Tribunal to assess the weight to be given to the applicant’s claims and evidence.[43] The findings made by the Tribunal were open to it on the available evidence, and it is not for the Court to review the merits of the Tribunal Decision.[44]
[42] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”).
[43] Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[44] Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
As:
a)the application for judicial review does not raise an arguable case for the relief claimed; and
b)the Tribunal Decision is not affected by jurisdictional error,
the application must be dismissed.
The application for a pro-bono lawyer was seemingly not pressed at a directions hearing before the Registrar, and was not pressed at a directions hearing before the Court. In any event, whether an applicant is referred for pro-bono assistance is solely a matter for the Court, and a party has no right to a pro-bono referral,[45] and as such a non-referral does not give rise to any legal right.
[45] Federal Circuit Court Rules 2001 (Cth), rr.12.02 and 12.03.
Conclusion and order
The Court has concluded that the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 26 November 2014
2
4
3