WADK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 48 (18 February 2003)

Last Updated: 21 March 2003

FEDERAL COURT OF AUSTRALIA

WADK v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 48

MIGRATION - refusal to grant protection visa - treatment of documentary evidence and evidence of witnesses - no obligation to set out in great detail what documentary material contained - no obligation upon Tribunal to make findings of fact concerning matters dealt with in witness testimony - no evidence that Tribunal distracted by particular `mindset' in approach to documentary evidence and oral testimony - appeal dismissed.

Migration Act 1958 (Cth) s 474, s 414, s 420(2)(b)

Judiciary Act 1903 (Cth) s 39B

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 cited

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449 cited

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 cited

Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 cited

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 cited

WADK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W 270 OF 2002

FRENCH, HILL AND MARSHALL JJ

18 FEBRUARY 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W270 OF 2002

BETWEEN:	WADK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	FRENCH, HILL AND MARSHALL JJ
DATE OF ORDER:	18 FEBRUARY 2003
WHERE MADE:	PERTH

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	W270 OF 2002

BETWEEN:	WADK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	FRENCH, HILL AND MARSHALL JJ
DATE:	18 FEBRUARY 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

FRENCH J:

1 I am grateful to Hill J who has set out in his reasons the facts of the case and comprehensively referred to both the Tribunal's decision and the decision of the learned magistrate. I agree with the proposed disposition. I would like to add the following remarks.

2 The amended notice of appeal identifies two matters of complaint in the particulars to the first ground of appeal. The first complaint is that the Tribunal failed properly or at all to ascertain the meaning of documents dated 16 March 2000, 15 February 2001 and 14 March 2001 when, on the appellant's evidence to the Tribunal, the contents of those documents were probative of his claim that he was unwilling to return to the country of his nationality owing to a well-founded fear of being persecuted for a convention-based reason. The second complaint is that the Tribunal, having adverted to the evidence given by two friends of the appellant, which evidence on its face was probative of the appellant's account, failed properly or at all to make findings of fact as to the matters disclosed by that evidence and to determine whether such findings alone or together with the totality of material before the Tribunal, satisfied the Tribunal that the criteria for a protection visa were met.

3 These two failures, said to have been committed by the Tribunal, were then characterised variously for the purposes of the four grounds of appeal, each of which represents a different characterisation of contentions set out in the particulars to paragraphs (a) and (b) of the first ground. The first characterisation is that the Tribunal, by reason of those matters, had committed a jurisdictional error. Reliance was placed on s 420(2)(b) of the Migration Act 1958 (Cth) which requires the Tribunal to act according to substantial justice and the merits of the case. The second characterisation was set out in the second appeal ground as a failure to conduct a review of the application as required by s 414(1) of the Act. The third characterisation of the two matters complained of was error of law constituted by the failure to take into account relevant material, by erroneous findings of fact and by a mistaken conclusion on the material before the Tribunal. This was said to affect the purported exercise of power and to give rise to jurisdictional error. The fourth characterisation was that the Tribunal had failed to give proper, genuine and realistic consideration to the application for a protection visa and had thereby committed jurisdictional error.

4 It is sufficient to say that none of these characterisations can be made out. This is because the failures asserted in the particulars to the first ground of appeal are not established for the reasons which have been given by Hill J. Like his Honour, I have reservations about the correctness of the learned magistrate's analysis, particularly of the application of s 420 in the light of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611. Nevertheless the learned magistrate, by reason of that analysis, gave the most favourable possible construction to the grounds of review available in this case and, in the light of NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449, was unable to find any ground for review made out.

5 In my opinion the result was correct albeit the reasoning may have been questionable and the appeal should be dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: March 2003

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W270 OF 2002

BETWEEN:	WADK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	FRENCH, HILL AND MARSHALL JJ
DATE:	18 FEBRUARY 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

HILL J:

6 The appellant appeals from a decision of a Federal Magistrate dismissing the appellant's application for judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth) made relevant in migration matters by s 474 of the Migration Act 1958 (Cth). The appellant in his application sought orders in the nature of prohibition coupled with certiorari to quash a decision of the Refugee Review Tribunal ("the Tribunal"), which had affirmed the decision of a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs refusing to grant to him a protection (class XA) visa.

7 It is a criteria for the grant of a protection visa that the Minister, or, in the event of a review of his decision by the Tribunal, the Tribunal, be satisfied that the applicant is a person to whom Australia owes protection obligations. Generally speaking, it may be said that Australia owes protection obligations to a person who falls within the definition of a "refugee" in the Convention relating to the Status of Refugees, done at Geneva on 28 July 1951, as affected by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 ("the Convention").

8 Article 1(A)(2) of the Convention provides that a refugee 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;..."

9 The appellant was a citizen of Iran. His case was that he had a well-founded fear of persecution by reason of an imputed political opinion against the present regime in that country.

10 The appellant had resided in Shoosh in Iran where he worked as a self-employed businessman operating a computer training centre. He also had worked as a soccer coach. He claimed that four students at his computer training centre had attended a demonstration which was held in the lead-up to the elections in February 2000. There was, he said, a further demonstration about 10 days after those elections in front of the local government headquarters.

11 Vote-rigging had aroused, he claimed, the ire of the protesters. Buildings were set on fire and six demonstrators had been killed and many injured. He claimed that the students with whom he was acquainted took refuge in his work premises. He said that the police came to the premises looking for the students and that he had told them that no-one was there. He said that no search was thereafter undertaken and that he had helped the students later in the night to escape.

12 He claimed that security forces two days later had checked the premises and found anti-government literature left behind by the students. He claimed that in consequence he had been detained and mistreated over a period of some 10 days, after which he had been released on bail. The appellant claimed also that he had been interrogated and kept under scrutiny. He said that the authorities had forced him to close down his shop, even though he was not politically aligned.

13 He said that the authorities suspected that his centre was used as a base for a political network by an electoral candidate who was supported by the students. He claimed that the authorities had discovered that newsletters had been produced at the centre. He said that he had no knowledge of this, but he claimed that he had been sentenced in absentia to imprisonment for a term of 10 years.

14 The appellant claimed that he had left Iran through the International Airport assisted by a people smuggler to whom he had paid a bribe. He said that he had left Iran only four days after a summons against him had been issued and in consequence his name had not yet been posted on the blacklist.

15 The Tribunal rejected the appellant's case and, indeed it could be said, rejected virtually all of the relevant claims which the appellant had made.

16 The Tribunal accepted that a demonstration had occurred in the applicant's home area, although it was of the view that the appellant exaggerated both the size and outcome of it. The Tribunal had some country information which indicated that there had been a demonstration in Shoosh where some 15 persons had been injured. It was, however, of the view that any search of the appellant's premises to apprehend participants was a consequence of searching for those involved in the violence, but was not for reasons of the political opinion of the participants.

17 The Tribunal did not accept that the authorities would have been easily dissuaded from the search had they suspected that the appellant had harboured students there who had participated in the violence. It regarded also as quite unsatisfactory the suggestion that the authorities would wait until after an election if they were intent on investigating the students' involvement in the election and said it was implausible that the appellant would know nothing about the use by students of his computers for producing, for example, election material for bulk distribution.

18 It therefore rejected the claim that the students used the premises or that the premises had been searched by the authorities. Further, it said that even if the students had used the premises, they were doing so for a legitimate election campaign in support of an official candidate. The Tribunal said "the proposition that they would be sought for such activity after the conclusion of the election is far-fetched".

19 The Tribunal found also that the claim by the appellant that he had been detained and mistreated as a result of the fact that his premises had been used by the students "lacked credibility". Likewise, it found the claim that the business was closed down for political reasons and that the appellant's job as soccer coach had been terminated lacked credibility. It did accept that the business was closed down, but did not accept that the closure was related to a Convention reason. While making no direct finding that the appellant had been dismissed as a soccer coach, it likewise found that if he was, this was not a matter which related to his political opinion.

20 The Tribunal then considered the written material which the appellant had produced. This consisted of photocopies of documents relating to the charges which the appellant suggested had been brought against him, the warning by the Revolutionary Court before he was sentenced and details of the outcome of the proceedings. The subject matter of the court documents was, on any view, highly relevant but, if not genuine, could hardly assist the appellant's case.

21 There were also documents concerning the fact of closure of the centre. It may be noted that the Tribunal did find that the centre closed, as I have noted, although it was of the view that this occurred at a later time than the appellant said and for a reason which was unrelated to any of the reasons set out in the Convention. There may, as the learned Magistrate said, be some ambiguity about whether the Tribunal found all these documents to be not genuine - or only those relating to the warning and the sentence. Clearly to the extent it did not, it found the material contained in the copies vague on key matters and not to be relied upon.

22 The Tribunal, having regard to country information, formed the view that the appellant could not have been wanted by the authorities, otherwise he would have been unable to leave the country by air, even with the payment of a bribe. This confirmed its view that the appellant was not wanted by the authorities because of his political opinion, imputed or otherwise.

23 Finally, it rejected some evidence given by two witnesses who appeared at the Tribunal for the appellant upon the basis that the evidence was second-hand and, in the case of one witness, vague and, in the case of the other witness, vague and unconvincing. So far as the reasons indicate, the first witness apparently referred to the applicant being precluded from coaching soccer and also related some political incidents in the area and searches of premises of students. The second witness apparently gave evidence that, upon return, the appellant would be executed.

24 From the Tribunal's decision, the appellant applied to this court for judicial review. The application was transferred to the Federal Magistrates Court where it was heard.

25 The proceedings before the learned Magistrate were heard after the decision of five Judges of this court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449, but before the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24. It is now clear from the decision of the High Court in the latter case that the issues which were raised in NAAV and upon which the court was divided are no longer of great significance.

26 It follows that much of the discussion of the learned Magistrate so far as it concerned the doctrine of inviolable limitations and the reconciliation of the different views expressed in NAAV or that matter is no longer relevant to the disposition of the present case and need not be discussed here. It may also be said that much of what the Magistrate said on this question was, in any event, dictum. What is now clear is that, despite the terms of the Migration Act 1958 (Cth), the jurisdiction of the High Court to grant prohibition, and in aid thereof certiorari, and it would follow of this court, through s 39B of the Judiciary Act 1903 (Cth) has not been ousted by the use of the privative clause. Accordingly, both the High Court and this court may grant prohibition and consequent relief in a case where the Tribunal has committed jurisdictional error. While the High Court did not seek in that case to define the boundaries of jurisdictional error, it had to some extent earlier done so in cases such as Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 and, more recently in Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323. It may be that other grounds of review are also open in this court but there is no reason to consider that question here. Hence the concentration in the present appeal was reduced to the question whether the Tribunal, in reaching the conclusion it did, make an error which fell within the description of a jurisdictional error, forming a ground for relief by way of prohibition.

27 It is unnecessary here to consider the issue raised by the learned Magistrate of the significance of s 420(2)(b) of the Migration Act 1958 (Cth) as providing an inviolable limitation and thus outside the ambit of the privative clause. I should not, in taking this approach, be thought to be accepting what his Honour said on this issue, particularly having regard to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 which, with respect, would seem a rather insuperable objection to the argument espoused.

28 Before this court the appellant submitted that the following matters involved jurisdictional error and therefore founded relief under s 39B of the Judiciary Act 1903 (Cth), notwithstanding the privative clause:

(1) that the Tribunal did not attempt to set out what the documents which it rejected said and reached its conclusion as to their lack of genuineness without any proper attempt to understand what the documents said and how the content of them contributed to the Tribunal's assessment of the appellant's account of what he said had happened;

(2) that the Tribunal placed inappropriate weight upon the fact that the witnesses had no independent knowledge of the matters on which they gave evidence, made no attempt to set out the content of their evidence but was distracted by its previous finding that the appellant was not of any official interest, at least for any Convention reason; in summary it is said the Tribunal took an erroneous approach to the assessment of this evidence;

(3) that having regard in particular to the provisions of s 414 and s 420(2)(b) of the Migration Act 1958 (Cth) the Tribunal did not undertake a "review" as it was obliged to do.

29 This third submission referred back to the Tribunal's treatment of the documentary and oral evidence to which reference has already been made and in substance is not, in my view, an independent ground.

30 It can be said that there may be a case where what the Tribunal has done was not a review so that the court might set aside the decision reached. But that is not the present case. It is clear that the Tribunal considered the appellant's claims and the evidence said to support them and ultimately rejected the claims and gave reasons for doing such. The substance of the present attack is, as indicated, the way the Tribunal dealt with the documentary and oral evidence.

31 Before considering the submissions it is convenient to deal briefly with what was said by the learned Magistrate concerning the complaints about the documentary and oral evidence. The Magistrate took the view that the Tribunal found only that the documents relating to the court proceedings were not genuine, but made no finding as to whether the remaining documents were genuine. His Honour noted that the Tribunal had found simply that it was not assisted by these documents. His Honour accepted that the reasons for decision of the Tribunal on this matter were brief.

32 His Honour said, however, correctly in my opinion, that the Tribunal was under no obligation to have an official translation prepared. However, his Honour noted that the document had, in the course of the hearing, been translated by the interpreter assisting the appellant and it was not suggested that the interpretation was wrong. In essence his Honour said that it was open to the Tribunal to reject the evidence in the documents and in relation to the court documents, to hold that they lacked specificity and were not genuine. His Honour also found that the Tribunal had dealt with the evidence adduced from the two witnesses and that it was open for the Tribunal to conclude that their evidence was not useful to him. Further, the adverse conclusions which the Tribunal had drawn about that evidence were also, his Honour found, open.

33 In summary, the learned Magistrate held that the Tribunal had addressed the issues which the appellant had raised and that there had been no failure, constructive or otherwise, on the part of the Tribunal to exercise its jurisdiction of review. In my view the Tribunal did not commit any jurisdiction error such as to found the relief which the appellant seeks.

34 It is well established that there is no obligation upon the Tribunal to refer to each and every aspect of the evidence which is adduced before him. Particularly there is no obligation upon the Tribunal to set out in great detail what the documentary material, so far as it held it to be genuine, contained. Clearly the material was interpreted to the Tribunal member and one can infer understood by him. The substance of the information contained in the documents was set out by the Tribunal. To the extent that the material was regarded by the Tribunal as being vague or unhelpful, that was a matter for it. It was also open to the Tribunal to take into account the delay which had occurred in producing the documents, as well as the fact that they were photocopies, as going to the genuineness of the documents. It was also open to the Tribunal to consider that material against the view the Tribunal took on the credibility of the account which the appellant gave.

35 Likewise, it was open to the Tribunal to accept or reject the evidence which was adduced from the appellant's friends. There was no obligation upon the Tribunal to set out in detail the content of that evidence. It did briefly summarise that content. There was no obligation upon the Tribunal to make findings of fact concerning the matters that are dealt with in that evidence. The present is not a case where it is suggested that the evidence of the witnesses was ignored. The evidence was considered but found by the Tribunal not to be helpful to it. Nothing in the Tribunal's treatment of that evidence amounted to jurisdictional error.

36 Finally, it is submitted that the Tribunal approached both the documentary evidence and the oral testimony given before it with what was said to be a "mind set" which distracted it or perhaps led to its conclusions about that evidence. It was suggested that in the case of the documentary material the mind set was that the documents were not genuine.

37 In the case of the oral testimony of the second witness at least the mind set was said to be that it was designed to bolster the applicant's case. In my view the Tribunal's reasons do not provide evidence of either mind set.

38 It follows in my view that the appeal against the Magistrate's decision must be dismissed with costs.

I certify that the preceding thirty-three

(33) numbered paragraphs are a true copy

of the reasons for judgment herein of the

Honourable Justice Hill.

Associate:

Dated: March 2003

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W270 OF 2002

BETWEEN:	WADK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	FRENCH, HILL AND MARSHALL JJ
DATE:	18 FEBRUARY 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

MARSHALL J:

39 I agree with the reasons for judgment of Hill J and with the additional observations of French J. I would also order that the appeal be dismissed.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: March 2003

Counsel for the Applicant:	Mr RL Hooker (Pro Bono)
Counsel for the Respondent:	Mr AA Jenshell
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 February 2003
Date of Judgment:	18 February 2003