FEDERAL COURT OF AUSTRALIA

WACX v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1538

Migration Act 1958 (Cth), s 474

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 applied

WACX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND

INDIGENOUS AFFAIRS

W149 of 2002

CARR J

11 DECEMBER 2002

PERTH

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

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.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

introduction

1                     This is an appeal from a decision of a Federal Magistrate given on 10 May 2002.  His Honour dismissed the appellant’s application, filed on 14 December 2001, for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 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 also set out at some length in his Honour’s reasons.  There is no need to repeat the details of the claims, but I will summarise them. 

3                     The appellant is a citizen of Iran.  His claim for refugee status was based primarily on persecution feared by him by reason of imputed political opinion.  The appellant feared that he would suffer persecution for reasons of his involvement with a political candidate, which included providing that candidate with material which might damage significant political figures in the Iranian regime. 

4                     The Tribunal did not believe the appellant.  It found that he had fabricated his claims after his initial arrival interview.  It gave its reasons for that conclusion which were principally based upon inconsistencies between answers which the appellant had given at that interview and information which he had given subsequently.  The Tribunal referred to the appellant’s work history.  It disbelieved certain aspects of his evidence in that regard.  In particular it did not accept that the appellant had been sacked from the Iranian Ministry of Agriculture because police files on him had been found.  The Tribunal reviewed certain other matters which led it to the conclusion that the appellant had not come to the adverse attention of the authorities, as he had claimed, before his departure from Iran.  The Tribunal also found that the appellant had left Iran openly, by air, and using a passport in his own name. 

grounds of review

5                     The grounds of review at first instance were as follows:

“1.       Procedure that were required by the migration act to be observed in connection with the making of the decision were not observed.

  2.       That the decision involved an error of law being an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the person who made the decision.”

6                     The Magistrate treated the application as being one made pursuant to s 39B of the Judiciary Act 1903 (Cth). 

7                     His Honour’s decision was given before the decision of a Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.

8                     His Honour took the approach of first considering whether an examination of the Tribunal’s reasons indicated any error which might enliven the Court’s powers under s 39B of the Judiciary Act, deferring consideration of the effect of s 474 of the Migration Act 1958 (Cth) (“the Act”).  His Honour’s reasons concluded:

“I am unable to find in the Tribunal’s reasons any matter which would disclose error under s 39B of the Judiciary Act and I have not been assisted in doing so by any of the representations made by the applicant to me at the oral hearing of this application.” 

the appeal

9                     The grounds of appeal were as follows:

“1.       The Court erred in finding that the Refugee Review Tribunal had not acted in violation of an imperative duty or an inviolate limitation upon it by section 424(1) of the Migration Act. 

  2.       The Refugee Review Tribunal failed to take into account information of a human rights watch world report - 1999 and other independent evidence as United States Country Report on Human Right Practices for 1999 of the bundle of relevant document filed in this matter on the subject of harassment and disappearance and killings and executions of imputed or anti-government political profile.

  3.       Procedure that were required by the migration Act to be observed in connection with the making of the decision were not observed.

  4.       That the decision involved an error of law being an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decisions. 

  5.       There was no evidence or other material to justify the making of the decision.”

10                  As I have mentioned, his Honour’s decision was made before the Full Court’s decision in NAAV.  In those circumstances, I see no error in the course which his Honour took – i.e. to consider whether there was any reviewable error on the Tribunal’s part before considering s 474 of the Act as amended by the Migration Legislation Amendment (Judicial Review Act 2001) (Cth).  Now that NAAV has been decided, as I see the position (subject to the qualification stated immediately below), I may only grant relief to the appellant if he shows that the Tribunal fell into any error of the types explained by the majority of the Full Court in the five cases which are cited together as NAAV.  It may be that in exercising the appellate jurisdiction of this Court, as I am, I am not bound to follow NAAV if I think that the majority were clearly wrong.  It is not necessary for me to decide that point because I do not hold that view.  Accordingly, in disposing of this appeal I shall apply the principles explained in NAAV.  As the respondent contended in his written submissions, only Ground 1 above raises a possible ground of review. 

11                  At the hearing of the appeal Mr D Vujcich, a law student, sought leave to assist the appellant as a “McKenzie friend”.  Mr Vujcich donates his time to the Refugee Appeals Project.  I took into account the fact that the appellant would otherwise have been totally bereft of any legal assistance and that his presence in Court was only by means of a video-link from a detention centre.  In those circumstances I gave Mr Vujcich leave to take a somewhat larger part in the proceedings than normally permitted for a McKenzie friend.  He passed up to me some typewritten submissions.  The respondent had no objection to this course.  I also allowed the appellant to speak on his own behalf. 

12                  One complaint which was raised on behalf of the appellant was that he was neither physically or mentally sound at the time of his appearance before the Tribunal.  He said that whilst he was in detention, he was bitten by a poisonous spider and, as a result, was made very ill.  His solicitors had written to the Tribunal, on 12 April 2001, requesting an adjournment of the hearing scheduled for 19 April 2001.  The adjournment was not granted and, as a result, the appellant believed that he was unable to answer the Tribunal’s questions to the best of his ability.  He submitted that, given his mental state at the time, the questions were “confusing and digressive”.  The appellant advanced this factor as a reason why the Tribunal erred in finding that some of his evidence lacked credibility. 

13                  The letter dated 12 April 2001 from the appellant’s solicitors to the Tribunal is in evidence.  From that letter it appears that the main basis upon which an adjournment was sought was for the recently-appointed solicitors to have time to obtain a copy of the relevant file.  However, there was a statement in the letter that the appellant was “very ill having been bitten by a spider”. 

14                  On 17 April 2001, the appellant’s solicitors sent to the Tribunal a detailed set of submissions.  In fact, on 18 April 2001, the appellant’s former solicitors also sent to the Tribunal even more detailed submissions.  In neither of those letters was there a request for an adjournment on the basis of the appellant’s physical or mental incapacity to give evidence.  Nor was there any evidence of such a request having been made at the hearing before the Tribunal. 

15                  Even if a denial of procedural fairness still constituted a ground of review (and the weight of the authorities, including NAAV, is against that proposition) there is insufficient evidence, in my opinion, upon which to found such a ground. 

16                  The remainder of the submissions made either by or on behalf of the appellant amounted, in my view, to an impermissible attempt to revisit the merits of the appellant’s case before the Tribunal. 

17                  In relation to Ground 1 the appellant did not provide any particulars of the allegation that the Tribunal had acted in violation of “… an imperative duty or an inviolate limitation upon it by s 424(1)” of the Act.

18                  Mr R L Hooker, counsel for the respondent, very fairly, took me to part of the evidence being a letter dated 14 May 2001, sent by the Tribunal to the appellant after the hearing, in which the Tribunal raised what it considered to be significant differences between the appellant’s claims at his arrival interview and those which he had made subsequently.  The Tribunal invited the appellant’s comments which were to be made by 21 May 2001.  On 18 May 2001, the appellant’s solicitors requested an extension of time in which to respond.  The Tribunal, although formally refusing an extension of time, stated that it would not finalise the matter before 30 May 2001, thereby effectively granting an extension.  On 29 May 2001, the appellant’s solicitors sent a letter containing submissions responding to the Tribunal’s letter dated 14 May 2001.  It is clear from p 17 of the Tribunal’s reasons that it gave consideration to the letter dated 29 May 2001 from the appellant’s solicitors. 

19                  Even if s 424(1) imposes an inviolable condition on the exercise of the Tribunal’s jurisdiction, which it is not necessary for me to decide, the evidence does not establish any failure to comply with that section.

20                  I have examined the Tribunal’s reasoning.  In my opinion, it is quite clear that the Tribunal’s decision was a bona fide attempt to exercise its power.  Its decision related to the subject matter of whether the appellant was entitled to protection as a refugee in accordance with the provisions of the Act.  The decision was reasonably capable of reference to the power given to the Tribunal.  Furthermore, in my opinion, the Tribunal’s decision did not contravene a final limitation (whether “inviolable”, “jurisdictional” or “structural”) upon its powers duties and functions.  As no reviewable error was shown to his Honour, and as no error of law on his part has been demonstrated, the appeal must be dismissed. 

Associate:

Dated:              11 December 2002