FEDERAL COURT OF AUSTRALIA

WAAC v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 193

MIGRATION – protection visa – appeal from Federal Magistrates Court dismissing application for a review of decision of Refugee Review Tribunal – Magistrate applied the Hickman principles – in view of decision in Plaintiff S157/2002 v Commonwealth of Australia, should an appellate court constituted by single judge determine whether Tribunal committed jurisdictional error – whether matter should be remitted to Federal Magistrates Court for re-hearing.

Migration Act 1958 (Cth), s 474(1), (2)

Judiciary Act 1903 (Cth), s 39B

Federal Court of Australia Act 1976 (Cth), s 25(1A)

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 referred to

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 referred to

Applicant NAOB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 33 referred to and distinguished

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 19 followed

SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 followed

WAAC V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W239 of 2002

CARR J

14 MARCH 2003

PERTH

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.         The appeal be allowed.

2.         The decision and orders of the Federal Magistrate, made on 11 July 2002, be set aside.

3.         The application be remitted to the Federal Magistrates Court either for re-hearing or further hearing.  Whether the application is to be the subject of a re-hearing or further hearing is to be at the discretion of that Court.

4.         There be no order as to the 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 11 July 2002.  His Honour’s decision was to dismiss the appellant’s application for an order of review of a decision by the Refugee Review Tribunal, made on 10 September 2001, to affirm a decision of a delegate of the respondent not to grant to the appellant a protection visa.  The Chief Justice, acting under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) directed that the appeal be heard by a single judge. 

factual and procedural background

2                     The appellant arrived in Australia by boat without any visa documentation on 18 December 2000.  When initially interviewed by an officer of the respondent’s department, on 29 December 2000, he claimed that he was a citizen of Iran born in that country in Ahvaz, Khozistan.

3                     On 1 June 2001, the appellant made an application for a protection visa.  In the papers supporting that application the appellant claimed that he was born in Alashar, a suburb of Basra in Iraq, where he had lived until the age of about eight when the family was forced to leave Iraq because their ancestors were Iranian.  This was shortly before the outbreak of the Iran-Iraq war.  The appellant claimed that he could not live a normal life in Iran, being always under pressure of being deported to Iraq.  He made other claims which, at this stage, it is not necessary to describe. 

4                     On 27 June 2001, the respondent’s delegate made a decision refusing to grant a protection visa to the appellant.  On 2 July 2001, the appellant applied to the Tribunal for review of that decision. 

5                     On 13 July 2001, the Tribunal wrote to the appellant, pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”), advising him that it had information which would, subject to any comments which he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa.  In summary, the matter raised in that letter was the difference between the claims made by the appellant at the initial interview, including the fact that he was an Iranian citizen born in Ahvaz, and those made in his application for a protection visa. 

6                     The appellant’s explanation was that he had feared being returned to Iraq if he admitted his true nationality.  He had been persuaded by a fellow traveller on the boat en-route to Australia to state on his arrival that he was an Iranian.  He was concerned that the Australian authorities might alert the Iraqi authorities and that if he were extradited back to Iraq he would face persecution (or worse) there because he had been resident in Iran for many years and was a Shi’a muslim.  

7                     The Tribunal conducted an oral hearing by video-link on 19 July 2001 and 24 July 2001 at which the appellant gave oral evidence which was similar to the claims made in respect of his application for a protection visa.  In summary, he said that he left Iran because of very limited employment opportunities, not being permitted citizenship and constantly living in fear that at any time he could be sent back to Iraq where he could face the death penalty.

8                     The Tribunal asked the appellant about documentation issued by the Iranian authorities to Iraqis who were deported from Iraq to Iran because they were considered to be Iranian.  These were referred to as “Green Cards”.  There was evidence that a Green Card entitled a person to work and live indefinitely in Iran.  The appellant said that his family had been issued with Green Cards.  He also mentioned a card which he had used to travel from one point to another in Iran which would show that he was Iraqi.  I shall refer to that card as “the Travel Card”.  The appellant told the Tribunal that he would try to get the original of that card.

9                     The Tribunal said that, after taking into account the two months in which the appellant had advice from a firm of solicitors, it was only prepared to grant a further 20 days for him to obtain the Travel Card.  His solicitor, who was at the hearing, agreed that that was reasonable.

10                  On 10 August 2001, a different solicitor from the same firm wrote to the Tribunal asking for a further extension as she had not received tapes of the delegate’s hearing which the appellant was apparently sending to her.  On 13 August 2001, the Tribunal responded by saying that it would not be making its decision until 20 August 2001 and would take into account anything sent in that period. 

11                  On 14 August 2001, the appellant’s solicitor wrote to the Tribunal requesting, as citizenship was in question, that it either obtain or provide the solicitor time to engage the services of a “cultural assessor” to provide an opinion in regard to the appellant’s nationality or citizenship. 

12                  The Tribunal responded by rejecting that request and giving its detailed reasons.

13                  Rather than attempt to summarise the Tribunal’s findings and reasons for affirming the delegate’s decision I set them out in full below.   

“FINDINGS AND REASONS 

Over the period of the application the Applicant has variously claimed to have been an Iranian citizen and an Iraqi citizen living Iran (sic).

While he has consistently claimed to be of Arabic ethnicity the first question before me is whether or not he is a citizen of Iran or of Iraq.

Although he has made claims against Iran when he first arrived he has effectively resiled from those claims and rests his claim to have a well-founded fear of persecution against Iraq and that he can not return to Iran and have effective protection against the harm he claims to face in Iraq.

In determining this matter I have firstly, considered what nationality/citizenship the Applicant holds.

I have then considered his claims in regard to that country to the extent that he has made them. 

The Applicant’s Nationality.

The Applicant has given two conflicting accounts in regard to his nationality.

On arrival he provided a name and an account of being an Arabic man of Iranian ethnicity. The claims he provided were such that he was assessed as not having made claims that would bring his case within the ambit of the Convention.

In fact, the only claim he made in respect of the Convention was that he was of Arabic ethnicity and was discriminated against on that basis.

However, if the claims are considered. His education, his position as a grocery shop proprietor and his situation which is based on his speculation rather than any actual adverse consequences this does not amount to persecution.

In any event, the department screened him out and no further action was taken in his matter. 

In evidence taken at the hearing, through questioning conducted by his representative the Applicant stated that in April 2001 he had informed a migration agent, Dr. Al Jabiri, that he was an Iranian national.

This means that about four months after his interview of 29 December 2001 he was still claiming to be an Iranian citizen and still using the name he entered Australia under and had lodged no different claims for consideration.

In June, six months after he arrived in Australia, the Applicant changed his account and claimed to be an Iraqi national of a different name to that he originally provided, living for over twenty years in Iran without status and without rights in Iran and with the potential of being expelled into Iraq.

This raises serious concerns as to the veracity of his claims and his credibility.

I put this to him in a letter under the terms of s.424A and he replied that he had provided this account because he feared he would be deported from Australia and be sent to Iraq if he had provided that as his country of nationality.

I consider that this is illogical since he claimed in his protection visa application that he had forfeited any right to re enter Iran, and thus, if he was Iraqi, the only place he could go from there would be Iraq so nothing would be gained by claiming to be a citizen of Iran rather than Iraq.

Further, I am of the opinion that it was obvious to him before he communicated with Dr. Al Jabiri that his claims were unsuccessful. I am therefore of the opinion that he would have provided an accurate and genuine account to Dr. Al Jabiri in April if that account was factual. I find that the Applicant informed Dr. Al Jabiri that he was an Iranian citizen because that is his nationality and not for any other reason.

Although his current representative has claimed that the evidence in regard to his admission to Dr. Al Jabiri should be disregarded because of the manner in which the department came by it. I am not persuaded that this would be appropriate, and in any event this evidence came to the Tribunal directly through the Applicant and his representative at the hearing.

The Applicant has also claimed that he had been born in Al Basra, in southern Iraq and remained there until he was eight or nine years of age. He claimed to have left when the area was still at peace and prior to the conflict between Iran and Iraq.

He was able to provide no information of any significance about Al Basra or name any features or landmarks in the city.

The river he named does not appear on any maps I have considered and variations of the name do not create any hits on internet sites.

The fact that the Applicant countered almost every question in this regard with "I don't remember", and his demonstrated inability to provide any information about the city he claimed to have lived in until the age of eight or nine, an age when childhood memories can reasonably expect to be lasting, leads me to find that the Applicant did not live in Al Basra as he has claimed.

In summary, the Applicant initially claimed to be a citizen of Iran and of Arabic ethnicity. His claims at that time did not bring him within the ambit of the Convention and the claimed harassment and discrimination he suffered was not at a level to prevent him from enjoying any basic human rights. If his account was factual he was able to study, work, open a small business and support himself, to travel and to return to Iran. This being the case, he did not suffer harm amounting to persecution.

However, he has resiled from those claims and claimed to be an Iraqi citizen who has no status in Iran.

Having carefully considered those claims and given the Applicant every opportunity to respond to the doubts I hold in that regard I am not satisfied that he is an Iraqi citizen and find that his nationality is Iranian.

As has been discussed above, I am unable to be satisfied that he has a well-founded fear of persecution in his country of nationality, Iran as I find that he does not face a "real chance" of persecution in that country, and accordingly any fears he may hold in that regard are not well-founded.

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa.”

the federal magistrate’s decision

14                  The appellant had originally lodged an application for review of the Tribunal’s decision with this Court.  That application was transferred to the Federal Magistrates Court on 12 April 2002, pursuant to s 32AB of the Federal Court of Australia Act.  The only ground of review was stated in the following terms:

“I am an Iraqi who can’t go back to my country so I apply to the Federal Court.”   

15                  His Honour decided to treat the application as if it were framed in such a way as to seek relief pursuant to s 39B of the Judiciary Act 1903 (Cth).  

16                  His Honour set out in his reasons written submissions which the appellant had made to the Court.  They were as follows:   

“I would like to inform you that I am an Iraqi citizen residing in the Islamic Republic of Iran since 22 years ago.  My family with my self were deported from Iraq by the Iraqi government in 1979 accusing us being from Iranian ancestry.

Therefore we had no choice but to live in Iran, after that the Iranian government issued a decision to deport all Iraqi refugees back to Iraq which we will be persecuted, then I decided to leave Iran and look for a country to live and settle in peace. 

. . .

In the RRT’s decision state that they don’t believe about my Iraqi citizenship because I did not answer the questions in regards to my residency in Iraq, although I left Iraq very young I was just 8 years old and I don’t remember those incidents specially after all these years.

I was asked at the RRT’s hearing about the rivers in Iraq, my answer was the two rivers Tigress and Euphrates but the court’s decision was negative because they thought that Tigress and Euphrates were not in the Iraq’s map.

It could be some suspicions surrounding my nationality because during the initial interview I mentioned that I am an Iranian national and that is because of different reasons the most important are:

On my way to Australia I learned that the granting of refugees states in Australia its very difficult, also I learned that the Australian authorities return the Iraqis to their country, the advise from the people on board of the boat which brought us was to say that I am an Iranian citizen because I was scared to be sent back to Iraq. 

My fear to be sent back to Iraq was the reason behind me saying that I am an Iranian national, because when we arrived in Australia we were treated in an intimidated way, we were split from the external world all these led me to hide my real name and nationality. 

After I got a clearer picture and deep thinking I decided to confess and say the truth about my real name and real nationality.”

17                  His Honour expressed the view that the Tribunal’s decision was a “privative clause decision” within the meaning of s 474(2) of the Act and that accordingly, by reason of the provisions of s 474(1), there was only limited power to review the decision. 

18                  His Honour referred to R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 and then reasoned as follows:   

“30.     The applicant must establish one of three things if he is to impugn a decision covered by a privative clause:

            (a)        that the constitutional authority of the Parliament to define the powers of the decision-maker has been exceeded;

            (b)        that the exercise of power was unrelated to the subject matter of the legislation; or

            (c)        that the decision that was made was, on its face, beyond power or was not a bona fide attempt to act in the course of the RRT’s authority.

31.       The applicant has not shown that any of these conditions applies in this case.  Indeed, he has not argued any of those points.

Conclusions

32.       The applicant has not shown that there was any error in the decision of the RRT that would entitle him to relief under section 39B of the Judiciary Act.  The RRT has found that he is an Iranian citizen, and not a citizen of Iraq.  If that finding is mistaken, it would be a mistake of fact going to the merits of the decision and not an error of law going to jurisdiction.  An erroneous finding of fact would not, in any case, be a breach of any essential requirement of the Migration Act.

33.       I find that the applicant is not entitled to relief pursuant to section 39B of the Judiciary Act.  The application must be dismissed.” 

19                  His Honour then expressed some concerns about the fact that the appellant had not been legally represented before him, that the proceedings had been conducted by video-link with the appellant in detention in Derby, the Court being in Sydney, and the respondent’s legal advisers and the interpreter being in Perth.  

the appeal

20                  The grounds of appeal were in the following terms:

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

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

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 decision.”

21                  I made an order under Order 80 of the Federal Court Rules referring the appellant for legal assistance in relation to his appeal.  Dr J Cameron accepted the referral and gave some assistance to the appellant.  Dr Cameron later applied for leave to cease providing that legal assistance in accordance with Order 80 rule 8.  The District Registrar granted that leave.  Accordingly the appellant was unrepresented when the appeal came on for hearing. 

22                  However, Mr T Searle, a law student, prepared some written submissions on behalf of the appellant, the essence of which was as follows: 

·          The Tribunal had allowed the appellant insufficient time to obtain documentation from Iran;

·          He was unable to obtain the relevant documents within the 20 day period initially granted by the Tribunal.  This was a result of difficulties in contacting his family who did not have ready access to a telephone;

·          The appellant had, in part of his responses to questions from the Tribunal, mentioned two Iraqi rivers specifically the Tigris and Furat but this had not been accurately interpreted to the Tribunal;

23                  Annexed to the appellant’s submissions were photocopies of two documents in the Farsi language.  One was said to be an order to invalidate his Green Card and the other was a copy of his Travel Card.  Also annexed were photocopies of what was said to be translations of those documents, each of which refers to the appellant as being an Iraqi national. 

24                  Mr P R Macliver, counsel for the respondent objected to my receiving the annexed documents into evidence.  I reserved on the question of what use, if any, I should make of them. 

25                  I decided to receive the photocopy documents annexed to the appellant’s submissions into evidence, not as proof of their contents, but as being relevant to how the appeal should be determined. 

26                  I formed the view that the appellant was, in essence, seeking to raise a complaint of procedural unfairness of sufficient seriousness to warrant a finding of jurisdictional error.  The fact that the appellant had eventually managed to secure some documentation is, in my view, relevant if I were to allow the appeal, to the question whether the matter should be remitted to the Federal Magistrates Court for re-hearing or further hearing.  In the absence of such documentation it might have seemed futile to make such an order.  Futile because even after the lapse of a considerable period of time, it might otherwise have appeared that no such documents had been obtained. 

my reasoning in the appeal

27                  Although the Federal Magistrate’s decision was delivered before the Full Court decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 249, he decided the case substantially in accordance with what was held in that case i.e. by applying the Hickman principles.

28                  Subsequent to his Honour delivering his reasons, the High Court handed down its decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.  I take the following summary of the High Court’s decision from a decision of a Full Court of this Court in Applicant NAOB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 33 at [11]: 

“In summary, the High Court held that s 474 insofar as it rendered final and conclusive a privative clause decision and protected it from challenge, only did so in respect of “decisions made under … [the] Act”.  Thus, decisions which involve a failure to exercise jurisdiction or involve an excess of the jurisdiction conferred by the Act are not, as a matter of statutory construction, decisions made under the Act and are therefore not privative clause decisions protected by s 474.  Put shortly, s 474 does not apply to decisions which involve jurisdictional error, and does not apply, in particular, to decisions which do not comply with the principles of natural justice:  Plaintiff S157/2002 v Commonwealth of Australia (supra) at 47.”

29                  In my view, with the hindsight provided by Plaintiff S157/2002, it is clear that the learned Magistrate unwittingly erred in law by taking too narrow a view of what might constitute reviewable error on the part of the Tribunal. 

30                  Counsel for the respondent, in both written and oral submissions, argued that there was no basis for the appellant’s contention that he had been denied procedural fairness.  He took me to various factors in support of his argument.  He submitted, in essence, that I should dismiss the appeal because there was no substance in the underlying grounds advanced by the appellant. 

31                  However, if I were to form the opinion that there had been procedural unfairness on the Tribunal’s part, counsel for the respondent suggested that the appropriate course for me to take would be to allow the appeal, set aside the Tribunal’s decision and remit the matter to it for reconsideration. 

32                  It is reasonably clear from part of the submissions made to the Federal Magistrate (problems relating to the names of the two rivers, later in submissions on appeal said to stem from interpretation difficulties) and the submissions in this Court, relating to the limited time extended to him by the Tribunal to obtain documentation from Iran, that the appellant seeks to raise a case of a denial of procedural fairness of sufficient seriousness to amount to jurisdictional error or perhaps some other jurisdictional error. 

33                  I note that the appellant’s application for a protection visa was processed with considerable expedition.  Within a matter of some seven weeks from the date of that application he was facing questioning from the Tribunal, at the hearing of its review, about documentation which may have been issued to him by the Iranian authorities.  He was given, initially, 20 days to produce it.

34                  I note also that the Tribunal relied upon the appellant’s statement (at the time of making his application for a protection visa) that he had forfeited any right to enter Iran as somehow rendering illogical his explanation that he had originally (and falsely) stated that he was an Iranian because he feared deportation to Iraq if he disclosed his Iraqi nationality.  The explanation seems most logical when perceived from the appellant’s standpoint.  He feared being deported to Iraq if he disclosed his Iraqi nationality and he also feared being deported from Iran to Iraq if he was returned from Australia to Iran.  In those circumstances, whether Iran would let him into that country was not really a relevant concern.  Contrary to the reasoning of the Tribunal, the appellant had much to gain by claiming to be a citizen of Iran rather than Iraq – if he could persuade the Australian authorities not to send him back to Iran.  On the present state of the authorities, this sort of error of reasoning on the Tribunal’s part (if it be error) does not provide a ground of review.  But it may put one on inquiry whether there was a real exercise of the functions entrusted to the decision-maker, see Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 422.  I note further that the Tribunal, having rejected the appellant’s claims based on Iraqi nationality, does not appear to have made any factual findings about the appellant’s circumstances in Iran.  It referred to the fact that he had resiled from his original claims which it noted would not amount to persecution “[I]f his account was factual”.

35                  I do not think that it is appropriate to make any comment about the strength or otherwise of the appellant’s claims to have been denied procedural fairness or the likelihood of jurisdictional error being found, other than to say that it is not possible for me to find that his case is hopeless.  It was, I think, the Court’s assessment of the hopelessness of the appellant’s case in NAOB, which led the Full Court to dismiss the appeal.  In this matter I propose to follow the course taken by Mansfield J in SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74, a case which, in my view, has sufficient similarity to the present matter to warrant a similar outcome.  In SGDB his Honour reasoned, at 23-25 as follows: 

“I think it is also proper to remit the matter to the Magistrate for rehearing or further hearing according to law.  I do not consider it appropriate to determine the application myself, sitting as a Full Court.  Firstly, I have heard this appeal sitting as a Full Court of the Federal Court following a direction by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976.  The Chief Justice’s direction that the appeal should be heard by a single judge was given when the decision in NAAV would have been applied, whereas the decision in Plaintiff S157/2002 indicates the nature of jurisdictional error on the part of the Tribunal may involve complex and difficult questions of law.  Such matters may be more appropriately addressed by the Magistrate at first instance and, in the event of an appeal, by a Full Court constituted as normal by three judges.  It is not clear that, in the light of the High Court decision, the Chief Justice would have given such a direction, at least until the significance of the decision in Plaintiff S157/2002 has been explored in later cases.  As the appeal has been heard, it is not appropriate for the certificate given under s 25A of the Federal Court of Australia Act 1976 to be withdrawn.

Accordingly, I do not think it is fair to the appellant in the circumstances to be deprived of the normal judicial review processes available to him.  If I were to decide this matter myself, he would in effect be getting only one judicial determination in accordance with the decision in Plaintiff S157/2002 about the correctness in law of the Tribunal’s decision.  He has no further right of appeal, although he may seek special leave to appeal to the High Court.  Allied to that consideration is the fact that, on what is clearly a complex and difficult legal question, I would be giving a judgment as a Full Court of the Federal Court.  The precedential consequences of such a judgment in relation to single judges of the Court sitting at first instance has not yet been explored.

For those reasons, I allow the appeal and remit the matter to the Federal Magistrate who heard the application under s 39B of the Judiciary Actat first instance for rehearing or further hearing according to law.” 

36                  [With respect, while it is quite clear that his Honour was exercising the appellate jurisdiction of this Court, I do not think he was sitting as a Full Court.  But I agree, again respectfully, with all of the other views which he expressed in the passages set out immediately above]. 

37                  A similar course was taken, a few days later, by a Full Court in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 19.

Conclusion

38                  For the foregoing reasons the appeal will be allowed, the decision and orders of the Federal Magistrates Court will be set aside and the application will be remitted to the Federal Magistrates Court for rehearing or further hearing.  I will hear the parties on the question of costs.

Associate:

Dated:              14 March 2003