WAFA of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 248 (20 August 2002)

Last Updated: 22 August 2002

FEDERAL COURT OF AUSTRALIA

WAFA of 2002 v Minister for Immigration & Multicultural

& Indigenous Affairs [2002] FCAFC 248

MIGRATION - no error disclosed - appeal dismissed

Migration Act 1958 (Cth)  s 424A(3)

Migration Legislation Amendment (Judicial Review) Act (Cth) 2001

WAFA OF 2002 -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W59 OF 2002

MARSHALL, WEINBERG AND JACOBSON JJ

20 AUGUST 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W59 OF 2002

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WAFA OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MARSHALL, WEINBERG and JACOBSON JJ
DATE OF ORDER:	20 AUGUST 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	W59 OF 2002

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WAFA OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MARSHALL, WEINBERG and JACOBSON JJ
DATE:	20 AUGUST 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from a judgment of R D Nicholson J in which his Honour dismissed the appellant's application to review a decision of the Refugee Review Tribunal ("the RRT"). The RRT decided that the appellant was not entitled to a protection visa by reference to the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ("the Convention").

2 The application before R D Nicholson J was filed in June 2001. It was dealt with in accordance with the provisions of the Migration Act 1958 (Cth) ("the Act") which applied prior to amendments to the Act which took effect on 2 October 2001; see Migration Legislation Amendment (Judicial Review) Act (Cth) 2001 ("the 2001 Act"). It follows that this appeal does not raise for consideration the effect of the "privative clause" provisions inserted by the 2001 Act.

Factual background

3 The appellant is a citizen of Iran. He entered Australia on 3 November 2000. On 22 November 2000, he lodged an application for a protection visa. The basis of his claim, as first formulated, was that he feared persecution upon return to Iran on account of imputed political opinion. He claimed that the Iranian authorities consider that he is an anti-government political activist principally upon the basis that the number plates from a military vehicle which he had been driving whilst in military service had gone missing after the vehicle was involved in an accident. The appellant said that he had been accused by the authorities of staging the accident so that the plate or plates could be stolen, apparently for the purpose of then being used for anti-government activity. Put shortly, the appellant relied upon the following matters in support of his application:

* he was detained for one and a half months and bashed after the motor vehicle accident;

* he was harassed by security forces when standing in front of a shop;

* he was periodically questioned by the authorities, especially if there was a disturbance or a terrorist attack;

* he was unable to work in Iran because the authorities refused to give him a military discharge certificate until the missing number plates issue was resolved;

* in March 2000 he was questioned by authorities about the missing plates and given six months to recover them or be reported to the Central office of the security forces;

* he was questioned by authorities about demonstrations which occurred in July 2000, in the city of Abadan, and was told that one of the vehicles involved had the missing number plates on it;

* he then left Iran, travelling on a false Iraqi passport. His wife left with him, travelling on her own valid Iranian passport;

* he faced persecution if returned to Iran given that he had departed the country illegally.

4 On 22 December 2000, a delegate of the respondent refused the appellant's application for a protection visa. An application for a review of that decision was made to the RRT. On 18 June 2001, the RRT decided to affirm the decision of the delegate not to grant a protection visa to the appellant.

The RRT decision

5 The RRT accepted that the appellant performed his military service with the elite security force, the Sepah, from 1995 to 1997.

6 The RRT did not accept that the appellant was or will be imputed with any political opinion as a result of any difficulty arising out of the missing registration plates. It found that "the opposite conclusion can be drawn from the fact that the appellant was given six months to find the missing registration plates". The RRT viewed the time given by the authorities to the appellant to find the plates as an indication that they did not consider the matter to be very serious and accordingly the authorities' conduct did not give rise to a fear of persecution by the appellant for a Convention related reason.

7 The RRT found that the appellant may have difficulty finding certain types of employment without his military discharge certificate. It was not satisfied that this problem for the appellant arose from any imputed political opinion or was in any other way Convention related.

8 The RRT dealt with a further claim which was made by the appellant in the hearing before it. The claim was that he had been charged, in 1994, with various criminal and political offences because of an insulting remark he made which was directed at the Iranian leadership. The RRT considered that such charges would be inconsistent with the appellant having served in the Sepah, given that such service required a good record and loyalty to the ruling regime. The claim was rejected.

9 The RRT rejected the appellant's claim that he would encounter difficulty because of an alleged association with demonstrations in the city of Abadan. It considered that his questioning about the number plates being sighted on a vehicle at the demonstration did not amount to persecution for a Convention reason.

10 The RRT accepted that penalties apply in Iran for those who depart the country illegally, but it did not accept that such penalties amount to persecution for a Convention related reason. The RRT said at p 22 that:

"[I]f he does encounter difficulty ... any penalty will result from a law of general application that will not be applied in a discriminatory manner for any Convention reason."

The reasoning of the primary judge

11 The appellant represented himself before R D Nicholson J. His submissions at first instance were primarily directed at the RRT's conclusions about his alleged charges in 1994. The appellant contended, at first instance, that no background checks were made in respect of people who enrolled in national service whether in Sepah or elsewhere in the Iranian military. He contended that those security checks only applied to new recruits seeking engagement in the military. He said that the RRT did not invite him to submit evidence on that issue and that it had failed to find the relevant information itself.

12 The primary Judge found that there was no obligation on the RRT to put "country information" about the Sepah to the appellant, having regard to the provisions of s 424A(3) of the Act. However, it was apparent from two places in its reasons that it in fact had done so.

13 The appellant also submitted, before his Honour, that the RRT failed to make inquiries to test the genuineness of the documents before it, being those that were in his file and those from the National High Court and Ministry of Justice. R D Nicholson J noted in response that no such submission had been put to the RRT. He also observed that the RRT was under no obligation to undertake inquiries to make out the applicant's case, or to test it.

14 R D Nicholson J rejected the submission that the RRT had failed to take into account the possibility that it might be wrong in its conclusion and what the risk might be to the appellant if it were wrong. His Honour noted that the, "what if I am wrong" test only applies if the RRT's findings contain any doubts, which was not the case in the instant matter.

15 The only other matter of substance put to his Honour was that the sentence imposed on the appellant as a result of the 1994 charges was not operative until 1998, after he had completed his military service. His Honour noted that the issue raised by the appellant was one of fact, which was not open to be canvassed on appeal. He said at [23] of his reasons for judgment as follows:

"A wrong finding of fact is not an error of law. There was evidence before the Tribunal of an order of the High Court sentencing the applicant to 10 years suspended jail sentence in respect of charges of "insulting the high position of his Excellency the Leadership, demeaning the sacred blood of the martyrs of the Revolution, disruption of public order, and creation of fear and panic". The same document recorded his acquittal on other charges with no relevant date. However, the evidence before the Tribunal showed that the charges the subject of the suspended sentence formed part of the Bill of Indictment No 7931, dated 7 October 1994. At the point of entry of the applicant into conscription with the elite security forces, he was then the subject of an indictment in respect of the matters to which the 10 years suspended jail sentence related. There was evidence before the Tribunal from which it would have been entitled to conclude to that effect. Consequently, the point has no relevant vitiating effect on the reasoning process of the Tribunal."

16 The primary Judge concluded at [24] that:

"In substance, each of the matters raised is an attack on the merits of the decision of the Tribunal. This Court cannot re-engage in deciding those merits: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [56]. Only in the event of established error of law within the permitted jurisdiction of the Court may the Court review the decision and commit the matter to a tribunal for further consideration of the merits."

The appellant's submissions on the appeal

17 The appellant's notice of appeal contains three grounds. The first is that there was a mistake made in the translation of a date from the Iranian to the Christian calendar and that the mistake had an important effect on the RRT's view of the appellant's credibility.

18 The second ground was that the RRT had no material before it to justify its decision.

19 The third ground was that the RRT's decision involved an error of law as a result of an incorrect interpretation of the applicable law by incorrectly applying it to the facts that it found.

20 In his oral submissions before the Court on appeal the appellant was unable to specify how grounds 2 or 3 had been established. We agree with R D Nicholson J, when such matters were ventilated before him, that those grounds essentially invite the Court to engage in an impermissible merits review. The appellant, however, relied on written submissions which were given to the Court at the commencement of the appeal. In those submissions it was contended that the RRT ignored relevant material in making its findings. We do not find those submissions persuasive. Even if the RRT failed to take into account relevant material, as the submissions suggested, it has not been shown that in doing so it erred in a way that affected the exercise of its jurisdiction. If there was an error as to the date on a particular document it was of no relevance to the RRT's reasoning process. The RRT rejected the appellant's account for a number of reasons and the date upon the document was of no significance in its reasons.

21 We now return to the three grounds in the appellant's notice of appeal.

22 The first ground seeks to attribute to the RRT a single reason for its failure to consider the appellant to be a credible witness. It is not clear that this submission was put to the primary judge. In any event we reject it as it is plain from the RRT's reasons for decision that its adverse view about his credibility did not come from any single piece of evidence but related to "various aspects of his claim"; see the RRT's reasons for decision at p 18 where it said that:

"I find that significant aspects of the applicant's evidence were internally inconsistent and inconsistent with the independent evidence. Overall, I did not find the applicant to be a credible or a reliable witness in relation to various aspects of his claims."

Disposition

23 There is no substance in any of the grounds of appeal raised by the appellant. The appeal will be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Weinberg and Jacobson.

Associate:

Dated: 20 August 2002

The Appellant represented himself.
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 August 2002
Date of Judgment:	20 August 2002