WACD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 187 (14 June 2002)

Last Updated: 14 June 2002

FEDERAL COURT OF AUSTRALIA

WACD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 187

Migration Act 1958 (Cth) ss 5(1), 36, 476(1)(e), 48A, 48B, 417, 476(1)(g)

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 referred to

WACD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 532 of 2001

GRAY, RD NICHOLSON AND EMMETT JJ

14 JUNE 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 532 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WACD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	GRAY, RD NICHOLSON AND EMMETT JJ
DATE OF ORDER:	14 JUNE 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 532 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WACD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	GRAY, RD NICHOLSON AND EMMETT JJ
DATE:	14 JUNE 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

Introduction

1 This is an appeal from a judgment of a single judge of the Court, who dismissed an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) ("the Migration Act") of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refusing to grant to the applicant a protection visa.

2 Section 36 of the Migration Act provides that there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom Australia has protection obligations pursuant to the Refugees Convention as amended by the Refugees Protocol. The term "Refugees Convention" is defined in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The term "Refugees Protocol" is similarly defined to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments together the "Convention". For present purposes, it is sufficient to note that the effect of the Convention is that Australia has protection obligations to a 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".

3 The appellant is a citizen of Iran. He arrived in Australia on 6 January 2001. On 26 January 2001, he lodged an application for a protection visa pursuant to the Migration Act. On 6 March 2001, a delegate of the Minister refused to grant him a protection visa. The appellant applied to the Tribunal for review of that decision. On 21 May 2001, the Tribunal published its decision and its reasons for decision. The Tribunal affirmed the decision of the delegate not to grant a protection visa. The appellant applied to the Court for judicial review of the Tribunal's decision. On 26 October 2001, the learned primary judge dismissed the application with costs. The appellant has appealed to this Court from that judgment. Because of the history of the matter, it must be dealt with pursuant to the provisions of s 476 of the Migration Act as they stood prior to amendments which came into operation on 2 October 2001.

The appellant's claims

4 The appellant claimed to have a well-founded fear of being persecuted, if he should return to Iran, by reason of his political opinion, real or imputed. He claimed that, on 6 July 2000, he and a close friend joined a mass demonstration in his home town, Abadan. The cause of the demonstration was the poor quality of the drinking water supplied to the public in that city. The demonstration became violent and public and private property were damaged. The appellant claimed that his friend was arrested soon after the demonstration, but that the appellant had avoided arrest by going to Isfahan and staying with an uncle. Subsequently, his father told him that the authorities had been to his home with a photograph of the appellant and had asked his father if he knew the person in the photograph. Similar inquiries were made in the neighbourhood. The appellant left Iran through the airport at Teheran, travelling on an Iranian passport.

The Tribunal's reasons

5 The Tribunal identified the appellant's participation in the demonstration in early July 2000 as the only basis on which he could claim that there was a real chance that he would suffer persecution in Iran. The Tribunal relied on information from the Department of Foreign Affairs and Trade, the United Nations Food and Agriculture Organization, the Netherlands Ministry of Foreign Affairs, the United States of America State Department and various newsagencies. It also relied on what the appellant said in his initial interview on arrival in Australia, his application for a protection visa, his interview by the delegate of the Minister and his evidence to the Tribunal at its hearing on 17 April 2001.

6 It found that the demonstration in early July 2000 was violent and involved destruction of property. In such a situation, the Tribunal said, it was understandable that any responsible government law enforcement agency would take action and arrest those responsible. Two hundred and thirty people were arrested, all but thirty or so of whom (those with prior criminal convictions), were released subsequently. The Tribunal found that the arrests and detentions were for reasons of damage to public property and not for participation in the demonstration.

7 The Tribunal rejected a claim that the appellant had made at a late stage, that he had damaged government posters by tearing the heads off the images of senior government officials. As the appellant had joined in the demonstration as a normal participant, the Tribunal found that he did not face a real chance of persecution for reasons of that participation. On the basis of an unexplained period of one month, the Tribunal found that a discrepancy existed in the appellant's evidence and that he did not go into hiding as he had claimed.

8 The Tribunal also identified inconsistency between different accounts of the appellant as to when he had applied for and received his passport. At one point, the appellant had said that his passport was issued at Abadan a month prior to his departure. He told the Tribunal that his passport had been issued to him prior to the demonstration on 6 July 2000. The Tribunal found that the appellant had applied for his passport prior to the demonstration, but that it was not issued until shortly before his departure, and that it was issued in Abadan. It did not accept that the authorities in his home area would have issued a passport to the appellant if the law enforcement or intelligence authorities were looking for him. If he was of concern, the Tribunal did not accept that he would have been able to leave the country using the passport and travelling under his own name. Even if his friend had been arrested, as the appellant claimed, the Tribunal found that there were no adverse consequences for the appellant and that there would be no prospective adverse consequences.

9 The Tribunal also identified inconsistency in the appellant's accounts of his departure from Iran. The appellant had said that he was able to leave through the airport because he used an agent whose wife was employed at the airport and that she removed the appellant's name from a black list. At the hearing, the Tribunal put to the appellant material suggesting that an official would not take the risk of removing a name from the black list. The appellant then agreed that his name probably was not on the black list at that time, but said he believed that it would be by the time of the Tribunal hearing. The Tribunal did not accept that, if the authorities had not included the appellant's name on a black list four months after the demonstration of early July 2000, they would include it at a later time in the absence of any other incident or further action by the appellant. It found that the appellant was able to pass checks at the airport, using a passport in his own name and with accurate personal details, because he was of no adverse interest to the authorities.

10 The Tribunal also found that the appellant could return voluntarily to Iran without any difficulty. Even if he were returned involuntarily, the Tribunal found that, although he may be questioned, he would not face a real chance of persecution for a Convention reason.

11 The Tribunal was therefore not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention.

The application for judicial review

12 The appellant's application to the Court appeared to have been drafted without the assistance of legal representation. It raised two grounds. The first was that there was no evidence or other material to justify the making of the Tribunal's decision (s 476(1)(g)). The second was error of law (s 476(1)(e)).

13 In the course of the hearing before the learned primary judge, the appellant raised a matter which the learned primary judge thought warranted closer attention. At the hearing before the Tribunal, the appellant told the Tribunal that he had been advised by telephone by his mother about two months before that hearing that his father had been detained by the Iranian authorities. The Tribunal's reasons for decision did not record any finding in relation to that matter. The learned primary judge adjourned the matter to enable further submissions to be made on this point. The Minister made further submissions, but the appellant did not.

The primary judge's reasons

14 In his reasons for judgment, the learned primary judge referred to a passage in the Tribunal's reasons for decision in which it mentioned the appellant's evidence about the detention of his father. The passage was in the following terms:

"The Applicant agreed that he probably was not on a blacklist at the time that he left, but he believed that he was now. He said that about two months ago he had phoned to Iran, and through a friend had spoken to his mother who had told him that his father had been detained.

I asked if he had told anyone about this. He said he hadn't.

I said I was surprised that he wouldn't tell anyone such as his representative.

The Applicant said that he had not been able to phone his representative as he didn't have the money to do so.

I said that since it was two months ago that he heard this news that he could have written.

The Applicant said that he had written to his representative and had been told to leave it in a box to be faxed, but he said that this and material that others had put in the box had not been sent."

15 His Honour referred to the fact that the Tribunal had said that it had considered the appellant's claims over the period of the application. His Honour inferred that the Tribunal considered the detention claim. He also referred to the Tribunal's statement that the appellant's claims had been considered "as a whole" and it had found that neither he nor any member of his family had a political history which would be adverse to him. His Honour took the view that it was sufficiently clear from reading the Tribunal's reasons as a whole that it did not accept the claim that the appellant's father had been detained, although it did not make any express finding on the point. In reliance on Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1, at [68] and [75], his Honour held that the Tribunal is not under a duty to make a finding on every fact which might be considered material to the decision it was required to make. It is only obliged to set out its findings on those questions of fact which it considers to be material to the decision and to the reasons it had for reaching its decision.

16 His Honour said:

"The question is whether, either by implicitly deciding not to make further enquiries about whether the applicant had attempted to notify his adviser about the detention claim or by not rejecting the detention claim in specific terms, the Tribunal made either an error of law in its understanding of the concept of well-founded fear of persecution or fell into other jurisdictional error.

In my view, it did not do so. I think that it is sufficiently clear that the Tribunal had in mind the detention claim and that it either implicitly rejected it as part of its credibility assessment or that it did not consider it to be material to the decision which it had to make.

In my view, its approach to the detention claim and its approach generally to the applicant's claims, as reflected in its reasons, do not suggest any error of law or jurisdictional error. In my opinion, its failure to make a specific finding on the detention claim did not affect the exercise of its power."

17 His Honour drew attention to the Tribunal's implicit finding that the arrests and detentions following the demonstration of early July 2000 were for reasons of causing damage to public property and not for participation in the demonstration. He referred to the Tribunal's finding, adverse to the credit of the appellant, in relation to his belated claim that he had damaged government posters by tearing the heads off pictures of senior officials. He also drew attention to the Tribunal's adverse finding on the question whether the appellant had gone into hiding.

18 His Honour referred to the Tribunal's findings on the issue of a passport to the appellant and the issue of the black list at the airport. His Honour expressed the view that it was open to the Tribunal to find that, as the appellant had managed to depart through Teheran airport, he was not of any adverse interest to the authorities. His Honour said that it was clear from the Tribunal's reasons that it well understood its task and the relevant law. In his Honour's view, it was open to the Tribunal, on the evidence before it, to reject the appellant's claims and reach the conclusion it did. His Honour could find no reviewable error, whether error of law or jurisdictional error or any other error upon which the Tribunal's decision should be set aside.

The grounds of appeal

19 The appellant's notice of appeal recites two grounds of appeal:

"1. The decision is contrary to law.

2. The decision places the applicant at serious risk of being forcibly

returned to Iran where he has a well-founded fear of being

persecuted."

20 The appellant was not represented on the hearing of the appeal. Through an interpreter, he made a number of submissions, mostly related to the facts of the case. These may be summarised as follows:

* The Tribunal found that the appellant's problem was with the Minister for Energy, whereas his problem was with the Iranian authorities generally, not just with one minister.

* The water supply in Abadan had been very bad for two years before the demonstration of early July 2000. Shortly before that demonstration, it became particularly bad as a result of pollution. Seven hundred children were taken to hospital suffering from diarrhoea. This was the result of Mr Rafsanjani starting a new system for farming in the area.

* The Tribunal regarded it as acceptable for the police and the authorities to act against demonstrators. The appellant accepted this view, but said that it could not extend to the killing of sixteen people and injuring many others. The demonstrators were filmed.

* The appellant confirmed, as the Tribunal had found, that neither he nor his family had a political record before the demonstration. He joined the demonstration because he was a member of the community and saw it as his duty.

* The appellant had applied for a passport before the demonstration and its issue was approved before the demonstration, but he received it afterwards, while he was in Isfahan.

* The appellant did bribe an agent in order to leave Iran and the agent's wife did take his name from the black list at the airport.

* The appellant could not inform his lawyer of his father's arrest by writing a letter or sending a fax, because of his detention. He told the Tribunal about it and cannot understand why the Tribunal did not mention it in its reasoning.

* The learned primary judge gave the appellant ten days in which to respond to written submissions filed on behalf of the respondent about the issue of his father's detention. He did not respond because he heard nothing, either from the respondent or from the judge.

* The appellant was with a friend at the demonstration. The friend was arrested and the appellant has heard nothing more about him.

The determination of the appeal

21 It is important to understand the role of the Court on judicial review of a decision of the Tribunal. The Court is not able to look at the matter afresh and to make its own decision about the merits of an application for a protection visa. It can only overturn a decision of the Tribunal if it finds that the Tribunal has made an error of a kind bringing the case within one of the grounds specified in s 476 of the Migration Act. Those grounds are very limited.

22 In the case of an appeal from a single judge, the Full Court must be satisfied that the primary judge has made an error, before it can set aside the judgment.

23 Most of the submissions put by the appellant on the appeal indicated an attempt by him to persuade the Court that the Tribunal should have taken a view of his case more favourable to him. Some of those submissions were apparently based on a misunderstanding of the Tribunal's reasons. For instance, although the Tribunal referred to statements quoting the Minister for Energy about the demonstration in Abadan, it plainly did not take the view that the appellant's case was that he feared persecution because of any attitude taken by that minister alone. The Tribunal rejected the appellant's case because it found on the basis of information supplied by the Department of Foreign Affairs and Trade that, as a normal participant in the demonstration, the appellant would not suffer any adverse consequences. It was not open to the Court to form a different view of the facts on any of the issues raised by the appellant's submissions.

24 Only in one respect did the appellant's submissions cause concern that the learned primary judge may have fallen into error. This was the submission that the appellant had not had any proper opportunity to respond to the submission made on behalf of the Minister about the issue of his father's arrest. On 3 October 2001, his Honour ordered that, on or before 12 October 2001, the Minister file and serve an outline of submissions relating to: whether the Tribunal dealt adequately with the allegation of the arrest of the appellant's father; whether the Tribunal was obliged to make a finding of fact on that allegation; and whether failure to make a finding of fact gave rise to reviewable error or jurisdictional error on the Tribunal's part. Counsel for the Minister informed the Court that, on 12 October 2001, the submission was sent by facsimile transmission, addressed to the appellant, at the Curtin Detention Centre, where he has been detained while his case is dealt with. In answer to a question from the Court, the appellant said that he did not receive the submission. Counsel for the Minister accepted this assertion as a fact, without requiring the appellant to swear to it. It thus appeared that there had been a failure to afford natural justice to the appellant in the proceeding before the learned primary judge. His Honour was plainly unaware of the fact that the appellant had not had an opportunity to respond to the submission. In his reasons for judgment, his Honour made reference to the fact that the appellant had not filed any written submission in reply. Because the appellant was not represented by a lawyer, his Honour was not surprised that no such submission had been filed.

25 The question, then, was whether the denial of natural justice affected the outcome of the proceeding before the learned primary judge. The Court asked the appellant what he would have said if he had made a submission in reply on the question of his father's arrest. He then revealed that he had been told that his father had been released fifteen or seventeen days before the hearing of the appeal, having been detained since about two months before the Tribunal hearing (ie since about February 2001). The appellant said that his mother had told him of the release two or three days after it occurred. She had also told him that his father had been tortured and questioned while in detention. His back is scarred from lashes he has received, and both his kidneys have been damaged. He was asked about the appellant's whereabouts and replied that the appellant had left the country. His interrogators did not believe him. The appellant did not know whether his father had told the authorities that he was in Australia, or whether he had merely said the appellant was out of the country.

26 The information acquired recently by the appellant is plainly not something he could have conveyed to the learned primary judge in response to the submission on behalf of the Minister about the arrest of the appellant's father. This is because the information was not in the appellant's possession at the time when he would have made his submission in reply, if the Minister's submission had reached him last October. He would not have been able to do more in relation to the facts than to repeat that his father had been arrested. The Tribunal had been made aware of this allegation, and referred to it in its reasons for decision.

27 It is not apparent that the learned primary judge made any error in dealing with the issue of the arrest of the appellant's father. His Honour analysed correctly the reasons for decision of the Tribunal. No doubt, it would have been helpful if the Tribunal had made an express finding on the issue of whether the appellant's father had been detained two months prior to the Tribunal's hearing. As the learned primary judge said, however, it is plain that the Tribunal did not ignore the issue. It does appear from the Tribunal's reasons that it did not accept the evidence of the appellant on this issue. It should also be pointed out that, even if it had accepted that evidence, it is difficult to determine on what basis the Tribunal could have used the detention of the appellant's father in support of the appellant's case. It does not appear that the appellant gave the Tribunal any reason for his father's detention. That detention may have been for a reason unconnected with the Convention. Even if for a reason related to the Convention, the father's detention would not necessarily have impacted on the appellant's chances of being persecuted. If the detention were by reason of the father's political opinion, for example, it would be necessary for the appellant to show that his father and he shared such an opinion, or that the father's detention placed the appellant at risk by reason of his membership of a particular social group (his family). These steps do not appear to have been taken.

28 The fact that the appellant is now in possession of more recent information cannot form a ground for overturning the decision of the Tribunal. Nor can it result in the overturning of the judgment of the learned primary judge, when it does not appear that the inability of the appellant to make a submission in reply on the issue would have had any effect on that judgment.

Further action

29 The recent information does give rise to concern about the appellant's present plight. If it is true that his father has been held for fifteen months, and interrogated by means of torture as to the whereabouts of the appellant, that would be powerful evidence that the authorities in Iran have a real interest in finding the appellant. It would suggest strongly that the appellant faces a real and immediate risk of harm if he should return to Iran. It might cause a decision-maker to evaluate the claims of the appellant as to why he was likely to suffer that harm in a light different from that applied by the Tribunal in its reasons for decision. The recent information might therefore form the basis for the exercise by the Minister of his power under s 417 of the Migration Act to substitute for the decision of the Tribunal a decision more favourable to the appellant. Alternatively, the recent information might justify the exercise by the Minister of the power under s 48B of the Migration Act to determine that s 48A does not apply to prevent the appellant making a further application for a protection visa. These powers may only be exercised by the Minister personally: see s 417(3) and s 48B(2) of the Migration Act. The appellant would need to make a proper application for the exercise of either of them.

Conclusion

30 The grounds expressed by the appellant in his notice of appeal do not lay the basis for the appeal to succeed. The appellant did not present written submissions. Nor did he succeed in supplementing the grounds of appeal by oral argument, with the exception of the absence of a proper opportunity to make submissions about the way in which the Tribunal dealt with the issue of the arrest of the appellant's father. For the reasons we have given, we take the view that the giving of such an opportunity would not have resulted in judgment in favour of the appellant. An examination of the reasons for judgment of the learned primary judge does not indicate any error.

31 For these reasons, the appeal must be dismissed. The appellant should be ordered to pay the Minister's costs of the appeal.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 14 June 2002

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	L B Price
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 May 2002
Date of Judgment:	14 June 2002