WAFX of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 263 (22 August 2002)

Last Updated: 28 August 2002

FEDERAL COURT OF AUSTRALIA

WAFX of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 263

MIGRATION - no error disclosed - appeal dismissed.

Migration Act 1958 (Cth)

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

WAFX OF 2002 v MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

W 100 OF 2002

MARSHALL, WEINBERG AND JACOBSON JJ

PERTH

22 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 100 OF 2002

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WAFX OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MARSHALL, WEINBERG AND JACOBSON JJ
DATE OF ORDER:	22 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	W 100 OF 2002

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WAFX OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MARSHALL, WEINBERG AND JACOBSON JJ
DATE:	22 AUGUST 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from a judgment of a judge of the Court, R D Nicholson J, dismissing an application by the appellant for judicial review of a decision of the Refugee Review Tribunal ("the RRT"). On 28 June 2001 the RRT affirmed a decision of a delegate of the respondent not to grant a protection visa to the appellant.

2 The application before R D Nicholson J was filed on 29 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 2001 (Cth) ("the 2001 Act"). This appeal consequently does not raise for consideration the effect of the "privative clause" provisions inserted into the Act by the 2001 Act.

Factual background

3 The appellant is a citizen of Iran. He entered Australia on 24 March 2000. On 1 June 2000 he lodged an application for a protection visa. One basis of his claim was that he feared persecution upon return to Iran on account of his political opinion, which was antagonistic to the ruling regime. The other aspect of his claim was that he was a member of an unrecognised religion, Al Hagh. It was contended that he feared persecution on that account. It was further claimed that he feared persecution if returned to Iran because he had departed that country illegally.

4 The primary judge described the salient details of his claims as follows:

"The applicant claimed to fear persecution if returned to Iran for the following reasons:

(1) He belonged to a religious minority group called Al Hagh which was not recognised by the Iranian Government, and as a consequence of which its members were not allowed to study in higher education, work in government positions, or be represented in Parliament;

(2) He was involved with the Nahzat Azadi Party, which he claimed was illegal;

(3) He distributed newsletters for the Nahzat Azadi Party while he was in military service as a consequence of which he was arrested, tortured and interrogated. He claimed that he was in prison for 2 years and 3 months;

(4) He took part in student demonstrations at Tehran University in July 1999. His photograph was taken at the demonstration and published in a magazine;

(5) He took part in election campaigning in February 2000 by distributing posters against the incumbent President Rafsanjani. In 1997 the applicant and his brother joined the SECBDI Party. A Party member called Pirooz Davani was abducted and the applicant claimed he was associated with Davani in such a way that it placed him at risk of persecution and he was forced to flee the country;

(6) The applicant was associated with a number of reformist newspapers carrying out research and putting together news items;

(7) He was advised by letter from his sister in Iran that his brother and father had been arrested and tortured."

The RRT decision

5 At [6] of his reasons for judgment R D Nicholson J set out the relevant findings of fact and the central reasons for the RRT's decision. They were as follows:

"(a) The applicant's claim that he was discriminated against because he belonged to a religious minority was not accepted. The applicant stated in the hearing that he gave up practising his religion when he became involved in politics and that he does not currently practise his religion. The Tribunal did not accept that there was a real chance of the applicant facing persecution by reason of his religion on his return to Iran. The Tribunal also noted independent evidence that religious minorities are barred from university and military service, whereas the applicant's evidence was that he attended technical college and served in the military;

(b) The applicant's claim to be a member of the Nahzat Azadi Party was accepted. The Tribunal found that the applicant was a member of the Party from 1984 to 1990 during which time, according to independent information, it was the sole opposition party in Iran with a degree of official recognition and it only became illegal in 1991. The Tribunal found that membership of the Party at this time would not of itself be sufficient to attract adverse attention of the authorities;

(c) The applicant's claim to have been tortured and imprisoned for 2 years in 1987 to 1989 for handing out political materials, was not sustained. The Tribunal noted that at the time the applicant claimed to have been imprisoned, his military service record disclosed that he commenced service on 17 October 1986 and completed it on 19 April 1990. Since the applicant's military record incorporates the period of his supposed imprisonment, the Tribunal did not accept that the applicant was in prison as he claimed;

(d) It accepted that the applicant took part in student demonstrations in Tehran University in July 1999. However it did not accept that a photograph identifying the applicant as a participant in the demonstration was published in Iran;

(e) The Tribunal did not accept that the applicant was actively involved in election campaigning in February 2000 by distributing leaflets against the incumbent President Rafsanjani. The Tribunal found the applicant's evidence to be inconsistent on this point and also noted that Rafsanjani was not a presidential candidate at the election in question;

(f) The applicant was not actively involved with Pirooz Davani and the party known as Union for Democracy in Iran. The Tribunal did not accept that the applicant was present at the abduction of Davani, nor was the applicant associated with him in a way that placed him at risk of persecution, such that he was forced to flee the country;

(g) The applicant's claim that his brother and father had been arrested and tortured, as disclosed in a letter that the applicant claimed to have received from his sister in Iran, led the Tribunal to conclude that these assertions had been fabricated to support the applicant's application for a protection visa;

(h) The Tribunal did not accept that the applicant was associated with a number of reformist newspapers which closed down in early 2000. The Tribunal concluded that inconsistency between the applicant's employment history as set out in his application for a protection visa, and his claim at the hearing to have worked with reformist newspapers, led it to conclude that he was not involved with the newspapers;

(i) The applicant made a further claim at the hearing that during the unrest at the Detention Centre at Woomera his photograph was taken, that this, along with his name and country of origin, were published in the Australian media, and the publication of his information would have brought the applicant's identity to the attention of the Iranian authorities. The Tribunal carried out an extensive search of Australian media coverage of the Woomera incident and located a reference to the applicant in the AAP newsfeed dated September, 2000. The Tribunal considers that even if the Iranian Embassy did know the applicant's name this would be of no significance unless they wished to detain the applicant. The Tribunal accordingly was not satisfied that the applicant had a political profile and was wanted by the authorities and therefore the authorities would not be concerned that the applicant was referred to in connection with the Woomera incident;

(j) The Tribunal accepted that the applicant left Iran illegally and went on to consider whether this fact would give rise to a fear of persecution on return to Iran. It noted independent evidence from the Department of Foreign Affairs and Trade that the most likely penalty would be a fine and the act of applying for asylum is not in itself an offence in Iran;

(k) Finally, the Tribunal considered the cumulative effect of the applicant's claims. While it accepted that the applicant had been a member of the Nahzat Azadi Party and taken part in the Tehran University demonstration in 1999 it did not accept that these events were of sufficient magnitude to impute to the applicant an adverse political profile, such that he would be wanted by the Iranian authorities."

The reasoning of the primary judge

6 At [7] to [27] of his reasons for judgment R D Nicholson J recorded various submissions that were put to him by the appellant. His Honour categorised them as submissions which invited the Court to form a different view from the RRT on matters of fact; ie. on the merits of the case. The primary judge was unable to discern any legal error in the RRT's decision.

The appellant's submissions on appeal and our conclusion

7 The appellant's notice of appeal did not contain any grounds of appeal. He was not represented before the primary judge, or before us on appeal. In his oral submissions he complained that the RRT had rejected his claim to have suffered persecution for reasons of his religion because it misunderstood the independent evidence regarding service by religious minorities in the military. He submitted that a member of a religious minority could not serve in the army, but that did not mean that he was exempt from national service. That submission invites this Court to engage in impermissible merits review.

8 The appellant was unable to advance any other submissions to support a conclusion that the RRT erred in law in its reasons for decision. We have examined, as the primary judge did, the reasons for decision of the RRT and, like his Honour, we do not consider that the RRT's decision is affected by judicially reviewable error.

Disposition

9 In our view the appeal should be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Weinberg and Jacobson.

Associate:

Dated: 22 August 2002

The Appellant appeared in person.
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 August 2002
Date of Judgment:	22 August 2002