FEDERAL COURT OF AUSTRALIA

NANE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1200

NANE of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 644 of 2002

SACKVILLE J

SYDNEY

10 SEPTEMBER 2002

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application for judicial review of a decision of the Refugee Review Tribunal (“RRT”) made on 25 June 2002.  The RRT affirmed a decision of a delegate of the respondent (“the Minister”) not to grant the applicant a protection visa. 

2                     The application filed in this Court does not identify the source of the Court’s jurisdiction.  Mr Smith, who appeared on behalf of the Minister, did not dispute, however, that the application should be treated as having been made pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) (“Judiciary Act”). 

3                     The application specifies the following grounds:

“A.      The [RRT] exceeded its jurisdiction in determining the case.

B.               Error of judgment by the [RRT].”

As Mr Smith pointed out, these grounds provide no guidance as to the substantive complaints upon which the applicant seeks to rely.  No particulars of the grounds have been provided and the applicant, who has appeared in this Court without legal representation, did not comply with directions to file and serve written submissions.

background

4                     The applicant is a citizen of Iran, aged about 24.  He arrived in Australia on 26 February 2002 as a “ship jumper”.  He jumped ship in the company of a Mr B.  Both the applicant and Mr B subsequently applied for protection visas.  In the applicant’s case, a delegate of the Minister refused to grant the protection visa on 8 April 2002.  That decision, as I have noted, was affirmed by the RRT on 25 June 2002.

5                     At the time the applicant jumped ship, he was employed as a sailor by the Islamic Republic of Iran Shipping Line (“IRISL”).  The applicant claimed, both before the delegate and the RRT, that he had a well-founded fear of persecution by the authorities in Iran (including IRISL).  His fear was said to be based on the following claims:

• the applicant had refused to serve on the North Korea-Iran route because of his concerns that the vessels would be carrying weapons;
• the applicant had been arrested and detained for four months in 2001 because of his refusal to work on the North Korean route, and was required, during this period, to attend a “political/ideological” course;
• the applicant would be imprisoned in Iran because he had information about Iranian ships carrying weapons from North Korea;
• two of the applicant’s friends, who had served on the North Korea-Iran route, had disappeared and he feared the same fate;
• the applicant feared persecution in Iran because he had made a claim for refugee status in Australia; and
• the applicant feared persecution in Iran because he was a ship jumper.

6                     The applicant’s then legal adviser made written submissions to the RRT on his behalf.  The RRT held a hearing on 31  May 2002, at which the applicant gave evidence.  Apparently, the hearing of Mr B’s claim took place on the same day.

7                     On 5 June 2002, the RRT sent a notice to the applicant pursuant to s 424A of the Migration Act.  This provision obliges the RRT to give to the applicant, in a way that the RRT considers appropriate in the circumstances, particulars of any information that the RRT considers would be the reason, or a part of the reason, for affirming the decision under review.  The notice included the following:

“The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. 

The information is as follows:

            ‘At the hearing you indicated that you and the other people who did the political/ideological course at the same time as you did were directed to do the course because you had all refused to work on the North Korea route.  You further indicated that the course was your ‘last chance’ to show your willingness to work on ships carrying weapons.

            However, during his hearing Mr [B] indicated that from discussions between you it is clear that you both did the same course, albeit at different times.  Mr [B] stated that he and the other people who did the course at the same time as he did were all selected because of their excellent employment record.  Mr [B] stated that only people in whom the company had complete confidence would be chosen to do the course.

            At the hearing you indicated that because you had done the course you were considered to [be] a person who was likely to jump ship and for this reason you were initially not supposed to get off the ship in Port Lincoln.  You indicated, however, that the captain could not refuse to allow you to go ashore. 

            However, during his hearing, Mr [B] indicated that the reason you were both not supposed to go ashore was because the ship was only going to be in Port Lincoln for a short time.’ 

This information is relevant because it affects the credibility of your claim that you were perceived to be opposed to the Iranian government and its weapons trade before and after you were sent to do a political/ideological training course.”  (Emphasis in original.)

8                     The applicant responded to the RRT’s notice with written submissions, prepared on his behalf by a solicitor.

the rrt’s decision

9                     The RRT, in a detailed statement of reasons, found that significant aspects of the applicant’s evidence were “illogical, implausible, and inconsistent with the independent evidence”.  Overall, the RRT did not consider the applicant to be a reliable witness.

10                  The RRT accepted that the applicant had undergone a political/ideological course for four months in 2001.  However, it rejected key elements of the applicant’s claims: 

• The RRT did not accept the applicant’s claim that he had refused to work on the North Korean route.
• The RRT found, contrary to the applicant’s claims, that the course attended by him was not directed at those who had refused to work on the North Korean route, nor at those who had more generally refused to obey orders of the shipping company.  The RRT considered it highly likely that all Iranian merchant seamen at some stage were put through a political/ideological course and that participation in the course was neither a reward nor a punishment.
• The RRT rejected as implausible the proposition that merchant seamen participating in such a course would be given secret or sensitive information about Iran’s weapons trade.  In particular, the RRT considered it “highly implausible” that ordinary merchant seamen such as the applicant would be exposed to State secrets or other sensitive information.  The RRT therefore did not accept that the applicant had been given access to sensitive information during the course.
• The RRT did not accept that the applicant’s behaviour, either before or during the course, could have led the Iranian authorities to view him as a person who was opposed to the Iranian weapons trade.
• The RRT found that, had the applicant genuinely feared being asked to work on weapons-carrying ships on his return to Iran and had he feared persecution for refusing to do so, he would have made some attempt to jump ship and seek asylum while he was in South America prior to his arrival in Australia.

11                  The RRT summarised the position as follows:

“I do not accept that [the applicant] has ever refused to work on routes on which weapons are transported.  I do not accept that the applicant was perceived as having refused to do so.  I do not accept that the applicant was sent on a political/ideological course because he was perceived to be opposed to the Iranian weapons trade, or because he was otherwise seen as politically suspect.  I do not accept that sensitive information relating to the Iranian weapons trade was disclosed to the applicant either during the political/ideological course or during the course of his employment as a seaman.  I do not accept that the applicant feared persecution in Iran after he completed the political/ideological course.  I do not accept that friends of the applicant have disappeared because they worked on the North Korean route or because they refused to do so.

I accept that the applicant does not wish to work on a shipping route in which weapons are carried.  However, as the applicant jumped ship, he has clearly breached his contract of employment with the shipping company.  I am of the view that the chance that [the] applicant will be re-employed by the shipping company in the future is remote.  In these circumstances, the applicant is clearly not going to be asked to work on ships carrying weapons, and therefore will not be in a position to either agree or refuse to do so.”

12                  The RRT then addressed the applicant’s claim that the Iranian authorities would know that he had applied for refugee status in Australia and that he was at risk of persecution for that reason.  The RRT did not accept that the Iranian authorities would be in any position to know that the applicant had applied for refugee status.  However, it acknowledged that the fact that the applicant had jumped ship was clearly known to IRISL.  It therefore accepted that the Iranian authorities were likely to assume that the applicant had applied for refugee status to try to remain in Australia.

13                  The RRT accepted independent evidence indicating that the Iranian government does not impute an adverse political opinion to a person on his or her return to Iran just because he or she has unsuccessfully applied for refugee status overseas.  In these circumstances, the RRT was not satisfied that there was a real chance that the applicant would be persecuted in Iran because he had applied for a protection visa in Australia.  Nor did the RRT consider that the applicant’s particular circumstances as a ship jumper made any difference.

14                  The RRT noted the applicant’s evidence that he had been interviewed by the Australian Security Intelligence Organisation (“ASIO”).  It did not accept, however, that the Iranian authorities would be aware that the applicant had been so interviewed.  Moreover, it did not accept that the applicant had had access to any politically sensitive information.  The RRT further found that the Iranian authorities would be aware that the applicant did not have access to such information.  Accordingly, the RRT was not satisfied that the Iranian authorities would impute the applicant with an adverse political opinion because of any dealings he might have had with ASIO.

15                  Finally, the RRT rejected the applicant’s claim that he had a well-founded fear of persecution for a Convention reason, merely because he had jumped ship in Australia.  The independent country information suggested that there was no specific penalty under Iranian law for ships’ deserters in foreign ports.  Any difficulty the applicant might have in finding employment upon his return to Iran, would not be for a Convention reason.

16                  The RRT concluded that, having considered the applicant’s claims individually and cumulatively, the chance that the applicant would face persecution for reasons of his political opinion if he were to be returned to Iran was “remote and insubstantial”.  Accordingly, the RRT was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.

reasoning

17                  In this Court, the applicant faces the difficulty that s 474(1) of the Migration Act, the so-called “privative clause”, applies to the RRT’s decision.  Section 474(1) provides as follows:

“474(1)           A privative clause decision:

(a)               is final and conclusive; and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

The RRT’s decision is a “privative clause decision” as that term is defined in s 474(2) of the Migration Act. 

18                  The construction of s 474(1) of the Migration Act has been addressed by a five member Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.  In Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108, I analysed the reasoning in that case, in particular that of the majority (Black CJ, Beaumont and von Doussa JJ).  I do not repeat that analysis in this judgment. 

19                  Nothing the applicant has said could justify concluding that the RRT failed to comply with the three so-called Hickman conditions (an expression referring to the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, at 614-615).  That is, on the material before me, the RRT made a bona fide attempt to exercise the powers conferred by the Migration Act, and its decision relates to the subject matter of the legislation and is reasonably capable of being referred to the relevant statutory powers.  Nothing has been put which suggests that the RRT infringed an “inviolable limitation” or “jurisdictional factor”, as those terms were used by the majority in NAAV v Minister.  In short, in the circumstances of the present case, s 474(1) of the Migration Act has the effect of protecting the RRT’s decision from any claim for relief by the applicant pursuant to s 39B(1) of the Judiciary Act.

20                  In essence, the applicant failed before the RRT because it simply did not accept the substance of his account.  Any submissions made by the applicant in this Court related only to the RRT’s findings of fact.  They therefore concerned the merits of the RRT’s decision.  Had s 474(1) not been enacted, the application for judicial review would have failed on the ground that the applicant had not established any jurisdictional error on the part of the RRT.

21                  I should also refer to the applicant’s complaint that some pages were missing from the “green book”, which the Minister’s representatives prepared in connection with this application.  Mr Smith indicated that, on his instructions, the green book contained all relevant material.  There was no evidence that any pages were in fact missing from the book.  In any event, even if some pages were missing, there was nothing to suggest that they had any bearing on the applicant’s case.

22                  The application must be dismissed.  The applicant must pay the Minister’s costs.

Associate:

Dated:              1 October 2002

The applicant was unrepresented.