FEDERAL COURT OF AUSTRALIA

Mehrabani v Minister for Immigration and Multicultural Affairs [2001] FCA 1693

MIGRATION – appeal from review of a decision of Refugee Review Tribunal refusing a protection visa – matters not raised before Tribunal or primary judge – leave not given to amend notice of appeal nor to adduce fresh evidence – grounds raised only dispute factual findings – no error of law – appeal dismissed.

Migration Act 1958 (Cth) s 476

Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421    referred to

Coulton v Holcombe (1986) 162 CLR 1    referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259     referred to

Minister for Immigration and Multicultural Affairs  v Epeabaka (1999) 160 ALR 543     referred to

Thanh Phat Ma v Billings (1996) 71 FCR 431    referred to

Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719     referred to

Chan v Minister for Immigration and Ethnic Affairs  (1989) 169 CLR 379     referred to

Ali Reza Mehrabani v Minister for Immigration and Multicultural Affairs

W327 of 2001

NORTH, GYLES and ALLSOP JJ

PERTH

29  NOVEMBER 2001

On appeal from a decision of a single judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1.       The application to amend the notice of appeal be dismissed as to grounds 2, 3, 4, 5, 7 and 8.

2.       Leave is granted to the appellant to amend the notice of appeal to raise ground 1 set out in the document headed “Amended Notice of Appeal”.

3.       The application to adduce fresh evidence is dismissed.

4.       The appeal is dismissed.

5.       The appellant is to pay the respondent's costs including costs of the application to amend the notice of appeal and the application to adduce fresh evidence.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from a decision of a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

NORTH J:

1                     I agree with the reasons of Allsop J and the orders which he proposes.

Associate:

Dated:              12 December 2001

On appeal from a decision of a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

GYLES J:

2                     I also agree with the reasons of Allsop J and with the orders which are proposed.

Associate:

Dated:              12 December 2001

On appeal from a decision of a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

ALLSOP J:

3                     This is an appeal from orders of a judge of the Court dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal) which affirmed a decision of a delegate of the respondent not to grant a protection visa.  The appellant is a single male Iranian national of 27 years.  His claims are set out at length in para [2] of the primary judge's reasons.  I do not repeat them here save to give a brief summary so as to give context to these reasons.

4                     The appellant claimed to have supported a reformist candidate in recent elections in Iran, to have criticised the government for political and religious oppression, to have been physically beaten for political reasons, to have retaliated in kind later against his politically motivated attackers, to have had his shop near a mosque closed down for a period of time, allegedly because of his lifestyle and differences of view with the local imam, to have been detained and questioned by the intelligence service and to have left Iran illegally on an Iraqi passport.

5                     He also had a claim sur place by reason of the fact that since his arrival in Australia his lawyers had apparently accidentally sent a facsimile to the Iranian authorities requesting a police clearance in relation to him.  In a telephone call to Iran shortly before the hearing before the Tribunal he had been told that his father had been taken to the information ministry for questioning and one of his sisters had also been interrogated about his location and why there was no record of his departure.

6                     The Tribunal rejected his claims.  It accepted that he had campaigned for a reformist candidate in recent elections but, relying upon available country information, found that this put him at no risk of persecution.  It accepted that he had been beaten just before the election but found that the incident was isolated and out of character with treatment of reformist supporters.  The Tribunal was not satisfied that the appellant could not avail himself of the protection of the authorities in respect to any such violence.  Any further violence arising from his retaliation was characterised by the Tribunal as criminal and not persecutory for the purposes of the Refugee’s Convention 1951.  The Tribunal accepted that he had occasional conflict with the local imam who disagreed with the appellant's lifestyle and mores. 

7                     The Tribunal found that what he had experienced and would experience fell short of persecution, being occasional discrimination.  The Tribunal was not satisfied that he left Iran on a false passport.  As to the communication with the Iranian authorities the Tribunal, utilising available country information, found that while his family may have been questioned, the Iranian authorities' attitude to citizens who unsuccessfully claim foreign asylum was not such as to indicate that the appellant faced a real chance of persecution.

8                     Before the primary judge, after argument about amending the application, one ground of review only was contended for as follows: 

The Tribunal erred in law in that it directed its mind to the question of whether the questioning of the applicant's family by the Iranian authorities amounted to a real chance of persecution whereas it should have directed its mind to the question of whether the arrest and detention of the applicant's father by the Iranian authorities amounted to a real chance of persecution.

9                     The primary judge correctly concluded that there was no error of law or jurisdictional error in the ground argued.  The Tribunal addressed the sur place claim.  It considered the evidence concerning the questioning of his family, weighed up country information and came to a conclusion rationally open to it and supported by probative material.  The primary judge was correct in his conclusion.

10                  The appellant filed a handwritten notice of appeal.  It appeared to raise, once again, his sur place claim.  It also raised a fresh ground, not dealt with by the Tribunal, that the appellant had now converted to Christianity.  Leave has been sought on behalf of the appellant by Ms Giles, who appears pro bono, to file an amended notice of appeal and to file fresh evidence.  The fresh evidence concerns the appellant's conversion to Christianity which he says occurred 10 to 11 months ago; that is, after the Tribunal hearing and decision. 

11                  Matters raised by the amended notice of appeal have been argued subject to leave being granted.  I will deal with the grounds raised in the amended notice of appeal and then express my views as to what should occur in relation to the application to amend and to lead fresh evidence. 

12                  The first ground of the amended application in effect seeks, in my view, a merits review of the conclusion reached by the Tribunal on the sur place claim.  It does not in my view identify a ground of review under s 476 of the Migration Act 1958 (the Act).  It was argued that a wrong principle in relation to sur place claims either had been applied or that the facts had been wrongly applied so as to indicate some error of principle.  I disagree.

13                  The complaint about the sur place claim is essentially a complaint about the weighing of evidence.  The second and third grounds, but in particular the second ground, refers to the appellant's conversion to Christianity.  This Court exercises jurisdiction by way of legal review of decisions of the Tribunal and is confined by Part 8 of the Act.  It does not sit as a Tribunal to hear fresh claims for asylum. 

14                  The question of the appellant's conversion was not before the Tribunal.  It is not a matter which is available to be raised in this Court on appeal from a decision of the primary judge of this Court who was reviewing, under Part 8, an administrative decision.  Notwithstanding the approach of counsel, nothing in the comments of the various members of the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 on the nature of an appeal to a Full Court of this Court from a single judge affects what I have said.

15                  It is unnecessary to discuss Jia and the body of, in some respects conflicting, authority in this Court as to the nature of appeals to the Full Court.  Assuming appeals are by way of rehearing, this does not affect any principle identified in cases such as Coulton v Holcombe (1986) 162 CLR 1in relation to raising further points.  The third ground of the amended notice of appeal in the same sense asks this Court to look at the claim afresh on a new ground.  This is not this Court's function.

16                  The fourth ground seeks to raise a failure of jurisdiction but it is in truth nothing more than an attack of the factual findings of the Tribunal about how the appellant left Iran.  It discloses no reviewable error, in my view.  The fifth ground, which is allied to the fourth ground, seeks to raise para 476(1)(g) of the Act, that there was no material on which to base the finding that the appellant did not leave Iran illegally.  The Tribunal's approach to this question was that it was not satisfied of the appellant's version after examining relevant information and material concerning the practice of Iranian security and border control.  It was an available and rational approach to deal with the factual question and it was based on probative material.  The ground really is an attempt at a factual review of the relevant findings.

17                  Ground 6 in the amended notice of appeal is not pressed.  The seventh ground calls in aid paras 476(1)(b), (c) and (g) in effect to challenge a factual finding about the relationship between various organisations within Iran.  Once again the approach of the appellant is one of complaint about the weighing of factual material and the factual conclusions which were reached by the Tribunal.  The eighth ground complains of a failure to consider the cumulative effect of the harassment and discrimination of the appellant.  I have examined the terms of the Tribunal's decision and its approach to me shows no failure to appreciate the necessity to examine all the material before it in order to assess whether there is or will be a real and not remote chance of persecution and whether or not the appellant has a well-founded fear of persecution for a Convention reason.

18                  Nothing undertaken or expressed by the Tribunal appears to me to contravene the principles annunciated in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and esp 282 to 283, Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543, Thanh Phat Ma v Billings (1996) 71 FCR 431 at 436; Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 esp paras [34] to [67], or Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

19                  The Tribunal said expressly in at least two places that it was considering all the circumstances.  I do not think it should be assumed either from the way the Tribunal approached the matter or from the result that it should not be accepted at its word.  That being the case, the complaint really is one as to the factual outcome.  In my view no error has been shown either in the reasons of the primary judge or in the decision of the Tribunal. 

20                  As to what should be done about the matter, in my view apart from ground 1 the fresh grounds of appeal are, for the reasons I have identified, bound to fail, in particular the grounds seeking to raise the question of conversion. 

21                  For these reasons, in my view the orders of the Court should be:

1.    The application to amend the notice of appeal be dismissed as to new grounds 2, 3, 4, 5, 7 and 8, noting that ground 6 is not pressed.

2.    The application to amend the notice of appeal to raise ground 1 be allowed.

3.    The application to adduce fresh evidence be dismissed.

4.    The appeal be dismissed.

5.    The appellant pay the respondent's costs including the costs of the application to amend the notice of appeal and to adduce fresh evidence.

22                  Notwithstanding the fate of the arguments for the appellant, I wish to express my gratitude to counsel  for the appellant who appeared for the appellant pro bono.  Ms Giles put everything that could have been put on behalf of the appellant.

Associate:

Dated:              12 December 2001