Appellant WADX of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 126 (9 May 2002)

Last Updated: 15 May 2002

FEDERAL COURT OF AUSTRALIA

Appellant WADX of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 126

MIGRATION - appeal from decision of primary judge dismissing appeal from Refugee Review Tribunal - protection visa application - appellant claimed persecution from Iranian authorities because of participation in demonstration, breaches of the dress code and involvement with Iran Paad and workplace union - whether error of law - where appellant claimed his written submissions were not before the primary judge

APPELLANT WADX OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W13 OF 2002

BRANSON, GOLDBERG & ALLSOP JJ

9 MAY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W13 OF 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WADX OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	BRANSON, GOLDBERG & ALLSOP JJ
DATE OF ORDER:	9 MAY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT

1. The appeal be dismissed.

2. The appellant pay the costs of the respondent.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W13 OF 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

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

JUDGES:	BRANSON, GOLDBERG & ALLSOP JJ
DATE:	9 MAY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1 This is an appeal from a decision of a judge of the Court (Carr J). By an order dated 18 December 2001 his Honour dismissed the appellant's application dated 20 August 2001 for an order for review of a decision of the Refugee Review Tribunal ("the Tribunal"). On 16 August 2001 the Tribunal had affirmed a decision of a delegate of the respondent not to grant to the appellant a protection visa. The law to be applied on the appeal is the law in force prior to the coming into operation of the new judicial review scheme that applies to all visa-related decisions made on and from 2 October 2001 and all court applications made on or after the same date.

2 There has been no appearance today by or on behalf of the appellant. The Court had earlier been informed by an officer of the Court that the appellant had chosen not to avail himself of the opportunity given to him to fly from the detention centre to Perth for the purpose of the appeal hearing. Nor did he wish to utilise a video-link to conduct his appeal. Nonetheless, the Court considers it appropriate to give consideration to the merits of the appeal in the light of the material that is before it.

3 To obtain the protection visa that he sought, the appellant was required to satisfy the Tribunal that he is a person "... to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol" (s 36(2) of the Migration Act 1958 (Cth) ("the Act")). For the purposes of the Act, 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 Refugees Convention as amended by the 1967 Protocol will hereafter be referred to simply as "the Convention". For present purposes the appellant is a person to whom Australia has protection obligations under the Convention if he is a person who:

"... owing to a 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; ... ."

CLAIMS OF THE APPELLANT

4 The appellant, a citizen of Iran, arrived in Australia on 1 October 2000 on a boat which had sailed from Indonesia. He was interviewed with the assistance of a Farsi interpreter on 22 October 2000. The report of that interview records that the appellant made complaint of being underpaid at work and of being prejudiced in his work by reason of his having complained. It further records the appellant's claim that he was involved in a demonstration in his home city of Abadan to protest the poor quality of the water. The report does not suggest that the appellant was arrested, or feared being arrested, because of his participation in the demonstration. The report also contains reference to his having been detained for a period of two to three hours apparently because of a breach of the dress code by either himself or his wife and of being stopped and questioned when walking with his wife. The reason that the appellant apparently gave at that time for leaving Iran was because of economic and social pressure.

5 On 6 March 2001 the appellant, again with the assistance of a Farsi interpreter, made a more detailed statement. This statement asserts that the appellant was detained many times by the authorities because of incidents such as wearing a short-sleeved shirt or walking out with his wife and daughters. It also refers to his joining with other workers at his workplace to form a union to defend their rights and of his taking part in a strike which was violently dispersed by anti-riot police. In addition the statement contains details concerning the demonstration to protest the quality of Abadan's drinking water. It asserts that many people who attended the demonstration were identified by the authorities and that the appellant had been informed that he had been identified as one of the leaders and that if he were arrested he would be killed. The section of the statement dealing with why he left Iran concludes:

"So I went to Avhaz, about 140 ks from Abadan and stayed with a friend, and through him I found out the Government Intelligence agents had raided my house to arrest me, and that most of colleagues had been arrested, disappeared. I was scared, and with his help found a smuggler to arrange for my exit from the country, he said he could take me to Australia. I left for Tehran and the smuggler paid at the airport for my safe passage."

REASONS OF TRIBUNAL

6 Before the Tribunal the appellant said that he did not fear harm in Iran because of his involvement with the workplace union but that he did fear harm because of his activities with Iran Paad and because of his participation in the demonstration in Abadan.

7 The Tribunal accepted a photocopied, undated membership card as proof that the appellant had joined Iran Paad. However, it did not accept that he joined the organisation in 1996 as he claimed or that he was active in the organisation in Iran. It considered that if the appellant had been involved with Iran Paad in Iran he would have referred to it in his arrival interview, or, assuming that he had a reason not to refer to it at that time, that he would have disclosed his political activities once he had access to legal advice and representation. The Tribunal concluded:

"In my view, the failure of the applicant to make any reference whatsoever to having been involved in political organisation in his arrival interview or in his protection visa application suggests that the applicant did not join Iran Paad until after he arrived in Australia."

Additionally, the Tribunal concluded that, in any event, the appellant would not be at risk in Iran because he joined Iran Paad.

8 As to the Abadan demonstration, the Tribunal accepted that the appellant participated in the demonstration but it did not accept that the appellant is of interest to the Iranian authorities because of his participation. It took the view that if the appellant had taken a prominent role in the demonstration, as he asserted that he did, it would have been a straightforward matter for the authorities to arrest him while he was at the demonstration. The Tribunal did not consider that the independent evidence before it supported the appellant's claim that arrests were not made until a week after the demonstration. It noted that the independent evidence suggested that those who were arrested were arrested for offences involving property damage. The Tribunal concluded:

"In my view, if the applicant was not arrested at the demonstration itself, it was because he was an ordinary participant, and not a demonstration leader as he has claimed and because he was not involved in committing property offences."

9 The Tribunal also placed weight on the fact that, although the appellant claimed that he was wanted for arrest for several weeks before he left Iran, he was nevertheless able to leave the country through the airport in Tehran using a passport in his own name. The Tribunal was satisfied by independent evidence before it that it would be virtually impossible for a person who was wanted by the Iranian authorities to leave Iran through that airport using a passport in his own name.

10 The Tribunal additionally placed weight on the appellant's failure to mention his fear of being arrested because of his involvement in the Abadan demonstration in his initial interview despite his having been warned, in effect, about problems of credibility should he later raise new claims. It concluded:

"Overall, I am unable to be satisfied that the Iranian authorities wanted to arrest the applicant because he participated in the demonstration in Abadan in July 2000. I am of the view that the applicant has fabricated this claim in an attempt to enhance his claims to refugee status."

11 Although the Tribunal accepted that the appellant had been detained for a few hours on a number of occasions for such things as wearing a short-sleeved shirt or walking with his wife, it did not accept that this amounted to persecution or that it occurred for a Convention reason.

12 The Tribunal was not satisfied that the appellant has a well-founded fear of persecution for a Convention reason.

REASONS OF PRIMARY JUDGE

13 The primary judge noted that, in effect, the ground of review relied upon by the appellant was that the decision of the Tribunal involved an error of law (s 476(1)(e) of the Act).

14 His Honour's reasons for judgment record that during the course of the hearing before the Court, the appellant told his Honour that he had sent a five page handwritten set of submissions in Farsi to the Court, together with two documents each of which had been brought into existence since the date of the Tribunal's decision. One of the documents was a newspaper article which was said to show that, contrary to the Tribunal's findings, there had been arrests made some time after the Abadan demonstration. The second document was a letter of recommendation (in English) from Iran Paad.

15 His Honour decided against adjourning the hearing before him to allow the two documents to be placed before him. He did so because he concluded that in all probability the documents would be inadmissible in relation to the issues to be decided on the application. His Honour observed that the documents would be admissible, if at all, only if the appellant alleged that there was no evidence or other material to justify the making of the decision of the Tribunal within the meaning of s 476(1)(g) of the Act when read with s 476(4)(b). His Honour found that, even if the appellant could by the documents satisfy the requirements of s 476(4)(b), he would not have been able to satisfy the requirement of s 476(1)(g) by showing that there was no evidence or other material to justify the making of the Tribunal's decision.

16 His Honour dealt with the handwritten set of submissions in Farsi by asking the appellant to extract from those pages the reasons why he contended that the Tribunal had erred. His Honour's reasons for judgment record that the appellant did this and that what he said was interpreted into English. The only matter raised by this procedure which his Honour considered of potential significance was a complaint that the Tribunal had not contacted Iran Paad to find out whether the appellant was a member of that organisation. However, in view of the Tribunal's findings that, although the appellant was a member of Iran Paad, it did not accept that he had joined it in 1996, or that he had been active in it in Iran, his Honour concluded that the Tribunal did not fall into error either in not considering the exercise of discretion to obtain further information (s 424 of the Act) or in failing to contact Iran Paad to obtain further information.

17 His Honour indicated that he had examined the Tribunal's reasons for decision and the papers in the Court Book. He noted that the Tribunal had accurately set out the relevant law and that there was no indication in its reasons for decision that it did not apply that law. His Honour concluded that the findings of the Tribunal were open to it and that there was sufficient evidence and material to justify the Tribunal's conclusion that it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention. The application for an order for review was dismissed.

APPEAL TO FULL COURT

18 The notice of appeal identifies two grounds of appeal. First, that the appellant's written submissions were not before the primary judge and second that the Court did not arrange legal assistance for the appellant. A certified translation of the five page handwritten submissions in Farsi of the appellant to which the primary judge referred was before this Court on appeal. We have given consideration to their content.

19 The submissions first complain that the Tribunal proceeded on the basis that the appellant had not, at his first interview, referred to the Abadan demonstration. The Tribunal's reasons disclose that it did not proceed on this basis. It referred expressly to the fact that the appellant had referred to the Abadan demonstration, and to a friend being shot in the leg at the demonstration, at his first interview. However, the Tribunal did attach weight to the fact that the appellant did not mention at the first interview that he was wanted for arrest because of his involvement in the Abadan demonstration. The Tribunal was entitled to attach weight to this omission.

20 Secondly, the submissions seek to modify an answer given by the appellant to the Tribunal. The appellant told the Tribunal that he did not fear harm in Iran because of his involvement with his workplace union. The submission asserts that one of the reasons that the government forces are after him is because he organised workers in demonstrations through the Labour Union and so his membership of the Labour Union is an additional fear that he has of returning to Iran. It is not open to the appellant before this Court to seek to modify his evidence before the Tribunal. The decision of the Tribunal can ordinarily only be reviewed by the Court in the light of the evidence and other material that was before the Tribunal.

21 Thirdly, the submissions seek to challenge the conclusion of fact reached by the Tribunal with respect to the appellant's membership of the Iran Paad. It is the responsibility of the Tribunal to make findings of fact. The terms of s 476 of the Act mean that it is a rare case in which this Court can interfere with a factual finding made by the Tribunal. This is not such a case.

22 Fourthly, the submissions complain about the failure of the Tribunal to contact the Iran Paad organisation. The primary judge dealt with this issue and concluded, correctly in our view, that the Tribunal did not fall into error in this regard.

23 The remainder of the submissions constitute arguments as to the merits of the appellant's claim to be entitled to a protection visa and criticisms of the fact-finding process engaged in by the Tribunal. They do not constitute a ground of review under s 476 of the Act nor do they support any such ground.

24 For the above reasons we are satisfied that no significance attaches to the fact that the appellant's written submissions were not before the primary judge.

25 We further agree, for the reasons given by the primary judge, that there would have been no point in his receiving into evidence the two documents which accompanied the appellant's written submissions.

26 The failure, or more accurately in the circumstances of this case, the inability, of the Court to arrange for legal assistance to be provided to the appellant is not a ground on which an application for review of a decision of the Tribunal may be made. Nor does it constitute a ground of appeal from a decision of a judge of the Court. The Court has power, in an appropriate case, in the interests of justice to take steps in an endeavour to obtain legal assistance for a litigant before the Court. However, no litigant has a legal entitlement to legal assistance provided by the Court.

27 Having given careful consideration to both the reasons for decision of the Tribunal and the reasons for judgment of the primary judge, we are satisfied that the appeal in this case is without merit.

28 The appeal must be dismissed. The appellant is to pay the costs of the respondent.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Associate:

Dated: 13 May 2002

There was no appearance for the Appellant

Counsel for the Respondent:	Mr R Lindsay
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 May 2002
Date of Judgment:	9 May 2002