WADP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 328 (31 October 2002)

Last Updated: 3 July 2003

FEDERAL COURT OF AUSTRALIA

WADP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 328

APPELLANT WADP OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W182 of 2002

FRENCH, CARR & FINN JJ

31 OCTOBER 2002

PERTH (AND BY VIDEO-LINK TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W182 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WADP OF 2002 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGES:	FRENCH, CARR & FINN JJ
DATE OF ORDER:	31 OCTOBER 2002
WHERE MADE:	PERTH (and by video-link to Canberra)

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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	W182 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WADP OF 2002 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGES:	FRENCH, CARR & FINN JJ
DATE:	31 OCTOBER 2002
PLACE:	PERTH (and by video-link to Canberra)

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 This is an appeal from a judgment of a judge of this Court given on 31 May 2002. The learned primary judge dismissed the appellant's application, filed on 3 January 2002, for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 21 December 2001, affirming a decision of a delegate of the respondent not to grant the appellant a protection visa.

THE APPELLANT'S CLAIMS

2 The appellant's claims to be entitled to protection as a refugee were set out in the Tribunal's reasons. They were substantially repeated in the primary judge's reasons. There is no need to repeat the details of the claims, but we will summarise them.

3 The appellant is a citizen of Iran. His claims for refugee status were based on persecution feared by him by reason of political opinion. That in turn was based upon the appellant's claims to belong to a pro-monarchist group and to have taken a prominent part in demonstrations in Iran. The Iranian authorities had also discovered that he had financially supported the pro-monarchist group. The appellant claimed to have been tortured over a period of 3 months in 1989, to have received a 3 year suspended prison sentence in 1991 and to have been placed on a black list. He fled Iran, via Turkey, soon after taking part in the student demonstrations in Shiraz in July 1999. This coincided with the discovery by the Iranian authorities of the fact that he had been a financial supporter of the monarchist party.

THE TRIBUNAL'S REASONING

4 The Tribunal was satisfied that the appellant was an Iranian national.

5 It did not believe the appellant's claims to have participated in riots in July 1999. It gave its reasons for that disbelief. One reason was his failure to inform Australian authorities on arrival that he fled Iran because of his involvement in the July 1999 riots. Another reason was that although the appellant had travelled to Turkey in November 1999, he had made no attempt to claim refugee status in that country or to make inquiries about remaining there. This was despite the fact that Turkey was a country where some of his family lived and one which granted protection to undocumented Iranians fleeing persecution. The Tribunal had regard to independent country information about Turkey in relation to that aspect. The Tribunal also relied upon independent country information about the current treatment of pro-monarchists in Iran.

6 The Tribunal said that it was satisfied that the appellant had created his claim of involvement in the July 1999 riots in order to enhance his claim for refugee status. Accordingly it did not accept him as "a witness of truth".

7 The Tribunal did not believe the appellant's claims about other matters on which he claimed to fear persecution.

GROUNDS OF REVIEW

8 The application at first instance does not appear to have been drafted by a person with legal training. It did not contain any grounds of review.

9 The primary judge treated the application as being one made pursuant to s 39B of the Judiciary Act 1903 (Cth). The notice of appeal, which also does not appear to have been drafted by a lawyer, does not identify any error of law on the primary judge's part. The grounds set out in that document read as follows:

"I had sent my submissions for his Honour but no one of those issues were considered properly."

10 The appellant appeared in person at the hearing. He made oral submissions to the Court. In our view, there was nothing in those submissions which raised a possible basis for review of the Tribunal's decision.

11 We have examined his Honour's reasons for decision.

12 His Honour's decision was given before the Full Court decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. His Honour proceeded on the basis that the principles explained in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 at 616 and R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387 at 399-400 did not preclude jurisdictional error or procedural unfairness as grounds of review. In that context his Honour examined the submissions made by the appellant and concluded that there was nothing in those matters to give rise to any arguable jurisdictional error or procedural unfairness. His Honour went further and considered the application of the Hickman conditions. He found that there was nothing to suggest that the Tribunal's decision was beyond power or was not a bona fide attempt to exercise its powers. His Honour then concluded that there was no basis for the Court to conclude that it had jurisdiction pursuant to s 39B of the Judiciary Act to review the Tribunal's decision.

13 In our respectful opinion, his Honour was quite correct in his conclusion that even if there was still scope for review on the basis of jurisdictional error or like error of law, those grounds have not been demonstrated in this matter.

14 Furthermore, a reading of the Tribunal's reasons confirms that none of the conditions giving rise to review under s 39B of the Judiciary Act under the Hickman principles applies to the Tribunal's decision.

15 In our opinion, there is no substance in the appeal and we will dismiss it with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 31 October 2002

The Appellant appeared in person
Counsel for the Respondent:	Mr M T Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 October 2002
Date of Judgment:	31 October 2002