WADJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 99 (24 February 2003)

Last Updated: 24 February 2003

FEDERAL COURT OF AUSTRALIA

WADJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 99

MIGRATION - appeal - protection visa refusal - whether federal magistrate in error of law in failing to review tribunal decision - Palestinian formerly resident in Syria - fears of persecution in Syria for reason of political opinion - whether fear well-founded - whether tribunal committed jurisdictional error - tribunal finding that standard of interpretation not breached

Migration Act 1958 (Cth) s 36(2)

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

Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 2 referred to

R v Hickman; Ex parte Fox v Clinton [1945] HCA 53; (1945) 70 CLR 598 referred to

APPELLANT WADJ OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W197 of 2002

RD NICHOLSON J

24 FEBRUARY 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W197 OF 2002

ON APPEAL FROM A FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPELLANT WADJ of 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	24 FEBRUARY 2003
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	W197 OF 2002

ON APPEAL FROM A FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPELLANT WADJ of 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	24 FEBRUARY 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

1 This is an appeal from a decision of a Federal Magistrate made on 20 June 2002. The decision dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 13 December 2001. The decision affirmed the decision not to grant to the appellant (and to his wife and three children) a protection visa pursuant to the provision of the Migration Act 1958 (Cth) ("the Act"). Although the decision of the Tribunal related to the appellant and those members of his family, only the appellant applied for review before the Federal Magistrate.

2 The application for review was lodged on 28 December 2001. Accordingly it attracted the provisions of the Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). The hearing of this appeal occurred shortly after the delivery of the reasons for judgment of the High Court in Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 2. It was there held that while s 474 is constitutionally valid, it does not protect from review decisions where jurisdictional error is relied upon as these will not be within the terms of its jurisdictional limitations. The Court therefore may exercise its jurisdiction to review such decision for jurisdictional error.

Relevant provisions

3 Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: "... to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression "Convention" will be used to mean the Convention as amended by the Protocol. The same criterion appears in Sch 2 of the Migration Regulations in which items 785 and 866 both include the same criterion.

4 Article 1A(2) of the Convention defines a "refugee" to be any 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it".

The reasons specified in Art 1A(2) are known as Convention reasons. The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned, gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Art 33 of the Convention.

Appellant's claims

5 It was found by the Tribunal that the appellant was born in Damascus, Syria of parents who had fled Palestine in 1948. The Tribunal accepted that he and his children are UNRWA registered. It therefore found that the appellant is Palestinian and a stateless person whose country of former habitual residence is Syria.

6 The appellant's claims were that he had a well-founded fear of persecution should he return to Syria arising from events which occurred in the period from 16 June 2000 to his departure from Syria on 21 July 2000. His claims were threefold. Firstly, he claimed that he had been reported to the security forces (the Mukhabarat) as a result of comments he had made after prayer in a Mosque on 16 June 2000. Secondly, he claimed he had been required to attend offices of the security forces on 18, 21, 29 June and 10 and 17 July 2000 where he had been detained, questioned and on one occasion physically tortured. Thirdly, he claimed that on 10 July 2000 he had been kept in custody for a week. Fourthly, he claimed he was only released from custody on signing an undertaking in which he agreed to act as an informant for the security forces. Finally, on his release he claimed to have fled the country illegally. His claim of well-founded fear of persecution based on these considerations had the effect that he could not enter Palestine and if returned to Syria he claimed would be arrested, tortured and would finally disappear.

Tribunal's decision

7 The Tribunal did not accept the claims of the appellant as credible. It found:

(1) it did not accept the appellants' claims about his conversation criticising the regime which he said was reported to the security forces;

(2) it did not accept the appellant's evidence about being detained and tortured by the security forces;

(3) the appellant's claim that he had been compelled to sign an undertaking to inform was confused and contradictory and had been fabricated;

(4) the Tribunal did not accept that the appellant had left Syria illegally.

8 As the Tribunal had found that the appellant did not have a well-founded fear of persecution in Syria it did not proceed to consider whether he was excluded from the operation of the Convention by the application of Art 1D. The Tribunal also considered that the fate of the appellant's dependents application depended on the outcome of his application so that it followed they should not be granted protection visas.

Reasons of Federal Magistrate

9 I accept the formulation in the submissions for the respondent of the circumstances in which the application was made to the Federal Magistrates Court and the manner in which that Court formulated its reasons. Those submissions read as follows and I see no reason to recast them:

"4. The application for review in the Federal Magistrates Court was on the stated ground:

"I am of Palestinian origin who was residing in Syria. I am Muslim Sunni. I was persecuted in Syria because I was from the Sunni religion."

The application also contained the claims that the Applicant was a member of the Islamic Brotherhood, which the member had failed to recognise; and that when the Appellant left Syria he was under investigation from the Syrian intelligence.

5. The decision of the Tribunal was a privative clause decision under s 474 of the Migration Act 1958. Although the application did not seek relief or set out grounds applicable to an application for relief under s 39B of the Judiciary Act 1903, it proceeded as though it was an application for prerogative relief under that Act.

6. The application was heard and determined before the hearing of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. In the light of the differences in approach in the decisions of single judges of the Federal Court, and with an unrepresented applicant, the learned Federal Magistrate approached the application by seeking to first identify reviewable or potentially reviewable errors which may be amenable to an order under s 39B of the Judiciary Act, and then to consider the effect of s 474(1) of the Migration Act and whether the Court had power to grant relief and should do so.

7. The learned Federal Magistrate referred to four matters raised in the Appellant's submissions before him.

(1) there had been an error in interpretation before the Tribunal and more generally there had been difficulty in understanding the interpreter;

(2) the Appellant had been hampered in his appearance before the Tribunal by the state of his health;

(3) the Appellant's adviser had failed to put particular matters before the Tribunal; and

(4) the Appellant did not have documents to enable him to re-enter Syria.

8. His Honour examined the assertion regarding the interpreter from the perspectives of both failure to comply with s 425 (failing to give the Appellant an effective opportunity to give evidence and thus not giving him a hearing as required) and as an issue of natural justice. He found:

(1) The particular error of which the Appellant complained, a discrepancy in dates, was considered by the Tribunal and the incorrect translation drawn to its attention and the correct dates taken into account;

(2) By reference to the decisions of the Federal Court on the issue of standards of interpretation, (in particular, Perera v Minister for Immigration & Multicultural Affairs (1999) FCA 507), the Appellant had not identified errors in translation or understanding such that it could be said there were material errors resulting in a miscarriage of the decision making process;

(3) The Appellant had not been denied natural justice - in particular, he had been provided with an Arabic interpreter, told the Tribunal that he understood the interpreter, and had been provided with the tapes of the hearing and given the opportunity to comment before any decision was made.

9. His Honour was not satisfied that the Appellant's state of health, which was brought to the attention of the Tribunal before the decision was made, was such as to constitute a ground of review. The Tribunal had been provided with the Appellant's medical reports, and it was entitled to reject his state of health as an explanation for the discrepancies in his accounts.

10. The Court found that the complaint about matters not being passed on to the Tribunal by the adviser to the Appellant did not ground review. First, the particular matters had been drawn to the Tribunal's attention in the Appellant's response to the notice under s 424A. Second, the failure by an adviser to pass on material to the Tribunal did not establish a ground for review of the Tribunal decision.

11. Finally, his Honour found no reviewable error in the finding by the Tribunal that the Appellant could return to Syria. The Appellant was otherwise seen as complaining about the merits of the Tribunal decision and not raising matters for which review would lie.

12. His Honour found the Tribunal had not committed a potentially reviewable error. As there were no sustainable grounds for review, it was unnecessary to determine whether in the light of s 474(1), the Court could grant relief."

Grounds of appeal

10 Not surprisingly, given the appellant was not legally represented, the notice of appeal identifies no error in the decision of the Federal Magistrate. It repeats the claim made in the application to review that the appellant is a member of the Muslim Brothers and makes the further claim that the appellant has been imprisoned for a month. The claim that the appellant is a member of the Muslim Brothers was not before the Tribunal. The claim that he had been imprisoned for a month does not appear to have been before either the Tribunal or the Federal Magistrate.

Appellant's contentions at hearing

11 The appellant was assisted by a McKenzie Friend. She submitted to the Court, without objection on behalf of the respondent, an outline of submissions based on matters which the appellant had raised with her. These were as follows:

"1. The Appellant is a Palestinian, and he is a Muslim Sunni. He cannot return to Syria because he fears for his life.

2. The Appellant has experienced considerable difficulty with interpreters during the processing of his asylum claim:

The interpreter provided at the initial meeting with his case officer was Syrian. Although grateful for the provision of an interpreter, the Appellant was afraid that this one might be an informer. Accordingly he told them that he had been in jail in Syria for one month and that he had not been treated badly, but he was really in jail for three months and he had been tortured. Interpreter's name: Elias Salloom. The Appellant was afraid for the safety of his siblings who remain in Syria. While imprisoned the Appellant was interrogated about his wife and her activities with the communist party.

While in prison he had a heart attack. When he got to Australia on the 20^th of July 2000 he had to have the operation which was then postponed.

The Appellant also experienced some problems when he was provided with a Yemeni interpreter.

3. The Appellant was afraid to tell the case officer of the length of his imprisonment in Syria as he was afraid that they would think him a criminal, and therefore unsuitable for refugee status.

4. The Appellant is concerned about his fate as a returned asylum seeker. Under Syrian law he committed an offence when he destroyed his travel documents and on return to Syria would either be punished, or he would not be allowed back in again.

5 The humanitarian situation in Syria has been drastic for some time, and shows little sign of improving... Palestinian refugees are particularly vulnerable to human rights abuses, and many have been imprisoned for long periods without charge or trial, and without confirmation by the government of their fate. The Appellant appeals to the court to take into consideration these matters." (Emphasis added)

12 None of these submissions assist the appellant for the following reasons:

* Paragraph 1 is a statement of fact according with the findings of the Tribunal.

* Paragraph 2 refers to difficulties with interpreters which was a matter addressed by the Tribunal so far as it applies to the Yemeni interpreter. The allegation that the interpreter for the case officer was told the appellant was imprisoned for one month when he had been imprisoned for three months is a new allegation which was not before the Tribunal or the Federal Magistrate. The health matters referred to in the paragraph were taken into consideration by the Tribunal. Counsel for the respondent undertook to bring these to the attention of the respondent to the extent they may become relevant to the deportation of the appellant in the event his appeal was unsuccessful.

* Paragraph 3 refers only to the appellant's own conduct and cannot found error by either the Tribunal or the Federal Magistrate.

* Paragraph 4 refers to facts known and before the Tribunal.

* Paragraph 5 is admitted without objection together with a statement on "Human Rights Developments" in relation to Syria on the basis that it cannot provide any basis for error on the part of the Tribunal or Magistrate because it is fresh evidence.

13 In the course of his oral submissions the appellant complained he had not been believed by the Tribunal and there had been credibility findings against him. That was within the jurisdiction of the Tribunal.

14 The appellant also stated there was an injustice to his wife in being part of his case and there was an unfairness involved in that way. Whether or not his spouse and children's applications are dealt with together with his application is dependent on the mode of application and whether or not any separate applications or separate appeals have been lodged. That is determined as a matter of law and form and does not give rise to any error on the part of the Tribunal or the Federal Magistrate.

15 The appellant also referred to the fact that he had been in detention three years, had become tired psychologically and could not be returned to Syria. In particular he could not be detained there without adverse impacts on him because of his health considerations. Additionally, the adverse impacts of his return to Syria on his family were referred to. None of these ground any basis for finding an error of law in the reasoning of the Tribunal or the Federal Magistrate.

16 The critical question facing the appellant is to establish that the Federal Magistrate was in error of law in finding that there was no issue of jurisdictional error arising in relation to any of the matters raised by the appellant before the Tribunal. Fundamental to that view was the Federal Magistrate's conclusion that the standard of interpretation required had not been breached. No contention was made on the hearing of the appeal that there was error in that respect. Nor am I satisfied that the Federal Magistrate was in error in that respect.

17 In my opinion the Federal Magistrate was not in error of law in finding that the Tribunal was not in error of law and in finding also that much of what the appellant had to say for his case amounted to a complaint about the merits of the Tribunal decision.

18 It was also part of the reasoning of the Federal Magistrate that there was nothing in the material before the court establishing that the Tribunal's exercise of its function was open to relief on the ground that it was not a bona fide attempt to act in the course of its authority or that it involved a jurisdictional error or breach of a provision imposing an enviable limit or restraint: R v Hickman; Ex parte Fox v Clinton [1945] HCA 53; (1945) 70 CLR 598 at 616, considered by the High Court in Plaintiff S157/2002.

Conclusion

19 For these reasons I consider that the Federal Magistrate was correct in the conclusion which he reached that the application for review required to be dismissed and the Tribunal was not in error of law in the findings it reached.

20 The appellant on several occasions threw himself on the "mercy of the Court". However, it was explained to him that this Court is a court of law obliged to apply the law and not to engage in merits review involving the application of other considerations. It is in the application of the law that I find that the appeal should be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson .

Associate:

Dated: 24 February 2003

The Appellant represented himself.
Counsel for the Respondent:	Mr A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 February 2003
Date of Judgment:	24 February 2003