WADF v Minister for Immigration & Multicultural Affairs

Federal Court of Australia (Full Court)|2002-05-22|Before: Emmett J, Emmett JJ, Gray J

REASONS FOR JUDGMENT GRAY J 1 I ask Emmett J to deliver the first judgment. EMMETT J 2 The appellant is a national of Iran. He arrived in Australia on 23 December 2000. On 21 January 2001 he applied for a protection (Class XA) visa pursuant to the Migration Act 1958 (Cth) ("the Act"). A delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant a visa on 12 February 2001. On 14 February 2001 the appellant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. The Tribunal, by a decision made on 30 April 2001, affirmed the decision to refuse the appellant a protection visa. By an application to this Court, filed on 21 May 2001, the appellant sought an order of review of the Tribunal's decision. On 22 November 2001, a judge of the Court ordered that the application be dismissed with costs. On 20 December 2001, the appellant filed a Notice of appeal from those orders. 3 Under O 52 r 15(a) of the Federal Court Rules, the appeal was therefore brought out of time, since the twenty-one days allowed by the rules expired on 12 December 2001. However, no objection was raised to an order extending time for the filing of a Notice of appeal. Accordingly, the Court ordered that the time for filing the notice of appeal be enlarged to the date on which it was filed.

Grounds of appeal 4 After correction of spelling and grammatical errors, the notice of appeal sets out the following grounds: 1. that the appellant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees; and 2. that procedures required by the Act to be observed in connection with the making of the decision were not observed. The orders sought are: "for appeal to Full Federal Court". 5 As framed, the Notice of appeal is unhelpful in that it does not identify an error that it would be open to the Full Court to correct. Nor does it ask for orders that would be of utility to the appellant, even if the appeal were upheld. Nevertheless, since the appellant is unrepresented, the Court has looked beyond the form of the Notice of appeal to determine whether reviewable error exists within the reasons of the primary judge. It is necessary to consider the findings made by the primary judge in relation to the grounds of review before him.

THE APPELLANT'S CLAIMS 6 The appellant made a number of claims before the Tribunal as follows: · That between November 1997 and August 2000 he had worked as a driver for the Komiteh Jostejodyeh Mafghoodin ("the Committee for Searching for Missing Persons") a group that recovered bodies of people killed during the Iran/Iraq war. A cousin of the appellant was also involved in that work. · That the appellant had discovered that some ten members of the group with whom he worked, rather than recovering bodies of soldiers, were exhuming the corpses of civilians and executed political prisoners and outfitting them with false identification tags, in order to make up the requisite number of bodies recovered. · That, at around the same time, the appellant discovered that "the authorities" were constructing concrete buildings across the border in Iraq, and that he had seen people being taken to the buildings in "covered cars". · That both the appellant, and his cousin, became so concerned by these discoveries that they reported them to some officials. The next day, his cousin vanished and was killed because of what he knew. · That the appellant, fearing that his own life was in danger, went to his sister's home and lived there for around three months before arranging to have himself smuggled out of Iran into Pakistan.

the findings of the tribunal 7 The Tribunal accepted that the appellant had worked for the Committee for Searching for Missing Persons, and that its purpose was to search for the remains of soldiers who were killed in the Iran/Iraq war. However, the Tribunal rejected the remainder of the appellant's claims as being inherently implausible and internally inconsistent. 8 The Tribunal did not believe that the alleged group of the appellant's fellow workers existed. Further, the Tribunal did not believe that the appellant discovered the activities of the alleged group in the manner he described. The appellant claimed that he and his cousin were told to drive an ambulance to a particular town and to wait. He said that, during the hours in which they were waiting, they saw two or three people go to a cemetery to dig up graves. The appellant claimed that he drove the ambulance back to the tent where the dug up remains were kept. The Tribunal found that, if the operation of the group were indeed secret, it was implausible that his cousin and he would have been put in a situation where they could even have guessed what was going on. The Tribunal rejected the appellant's explanation that he was needed to drive the ambulance because he was a "better driver than other people" or alternately that he was "trusted". 9 The Tribunal also found the appellant's evidence regarding the disappearance of his cousin lacked credibility. It found it implausible that his cousin alone should have been captured and not the appellant. The Tribunal rejected the appellant's claim that his cousin's captors would have been unaware that he possessed the information known to his cousin. 10 Additionally, the Tribunal considered that the appellant's claims as to the fate of his cousin changed during the course of the interviews conducted in relation to his visa application. Initially, he had said that his cousin had been killed. Later he claimed that he had been told that his cousin had disappeared and "would be killed". Further, the Tribunal did not find it plausible that the appellant, if he were of interest to the people who had captured his cousin, could not have been located by them whilst living with his sister for over three months. The Tribunal was of the opinion that "some basic investigative work would have revealed the names and addresses of the [appellant's] close relatives", and that anyone searching for him would obviously have looked at the homes of his nearest relatives, including his sister. In short, the Tribunal simply did not believe the appellant's claims. That was a course open to the Tribunal in the circumstances.

grounds of review before and findings of the primary judge 11 The application to the Federal Court relied on the following grounds: "1. Procedures 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 and [sic] incorrect interpretation of the applicable law or an incorrect applic [sic] of the law to the facts as found by the person who made the decision' 3. There was no evidence or other material to justify the making of the decision." 12 Those grounds do not set out any particulars of a reviewable error. Rather they merely repeat the words of ss 476(1)(a), (e) and (g) of the Act. His Honour, correctly, disregarded the "grounds" and turned his attention to the oral argument of the appellant. 13 The hearing before the primary judge took place on two days, separated by over a month. At the initial hearing on 16 October 2001, the appellant advanced the following grounds: 1. that he had "pieces of paper" that showed that he was working "in those areas", [by which, his Honour presumed the appellant meant that he had worked with the Committee for Searching for Missing Persons], which he wanted to show to Tribunal and that he had been prevented from doing so; 2. that the Tribunal did not pay attention to the fact that the appellant had photographs that he wanted to show to the Tribunal. He told the primary judge that the photographs showed the difference between a corpse "...that belonged to a normal person and another one that belonged to a martyr"; 3. that the Tribunal had paid no attention to the statement of the appellant that he had telephoned Iran and been told that his cousin was dead; 14 After hearing those submissions his Honour adjourned the matter and gave leave to the Minister to file and serve affidavit evidence relating to the photographs and allowing the appellant to respond to any such affidavit. The Minister filed an affidavit annexing a transcript of the hearing before the Tribunal, at which the appellant was asked about the photographs, and what he intended them to demonstrate. 15 The exchange, as relevant, proceeded as follows: [Applicant]: "I wanted to say that my documents and photographs, I haven't received them as yet. My brother has sent them to me but I haven't received them. And in regards to the paperwork of my past, my brother has faxed them to my solicitor. And I would like to ask you to make a serious decision and a correct decision in regards to me because I truly cannot return". [Tribunal Member]: "So there is [sic] documents and photographs - I just want to see if I have got this right. These documents are documents confirming that you worked for the committee." [Appellant]: "The documents are actually ... in regards to my task working for this committee. And the photographs are both from the corpses, from the remains, as well as the place of my employment, place that I work." [Tribunal Member]: "Right. So these are photographs that you took during the course of your employment with the committee?" [Appellant]: "Yes". [Tribunal Member]: "Okay. Well, as I said to you, I accept that you worked for the committee. That is not the problem that I have with your case. Okay? Is there anything else that you need to tell me?" [Appellant]: "No". 16 That transcript shows that the appellant was asked about the purpose of the photographs and documents and that the Tribunal accepted his contention that he worked for the committee without need to see the documents or photographs themselves. It is not clear what the appellant meant to prove by his revised claim that the photographs showed the difference between the corpse of a soldier and a "normal person". His Honour surmised that perhaps he thought that they would add weight to his claim that some of his workgroup were substituting corpses of civilians. 17 The circumstances under which a decision by the Tribunal may be invalidated by failure to make inquires beyond the evidence available at the hearing are strictly limited. It is no part of the duty of a decision-maker to make an applicant's case for him. It is not enough that the Court might find that a sounder course would have been to make inquiries - see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170. The Tribunal had no responsibility to adjourn to allow a reasonable amount of time for the arrival of photographs from Iran as his Honour held. 18 There was no indication before the Tribunal either that the photographs actually existed, or when they might reasonably be available for review. In fact, the Tribunal specifically asked the appellant about the material and its nature, notwithstanding that he was unable to tender it to the Tribunal. In any event, no error is demonstrated on the part of the Tribunal in failing to look at the documents or photographs, since it was not until the hearing before the primary judge that the revised claim was made. The Court has no power or jurisdiction to review the merits of a claim. Since the claim relating to the differences between corpses was not raised before the Tribunal, no reviewable error was demonstrated. 19 The Tribunal is not obliged to analyse material submitted by an applicant, nor to give reasons for not accepting any of it that might be thought to be inconsistent with the conclusions it reaches - see Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 1726. The Tribunal did not refer to the telephone call to which the appellant claims insufficient attention was paid. However it did refer to what it described as the implausible circumstances and claims surrounding the disappearance of the appellant's cousin. No reviewable error is demonstrated by a failure to mention and specifically refuse to accept that piece of information as placed before the Tribunal. His Honour correctly found that there was no obligation for the Tribunal to delay making its decision pending location of the photographs. 20 On the second day of the hearing, on 22 November 2001, the appellant raised four further matters. They were: 1. that the Tribunal's reasons were inconsistent; 2. that the Tribunal had misunderstood the appellant's claims in relation to the substitution of bodies; 3. that the Tribunal's reasons failed to mention his claim that political prisoners had been taken into the area where he worked and were executed; and 4. that the Tribunal was mistaken as to how easily persons seeking him out in Iran could have obtained the address of his sister. 21 A careful reading of the reasons of the Tribunal gives no support for the first matter. However, even if the reasons did demonstrate a level of inconsistency such that the Court was satisfied that no reasonable decision-maker could have reached that decision, there would be no ground of review by reason of the operation of s 476(2)(b) of the Migration Act. 22 The second, third and fourth matters describe purported errors of fact that it is not open to this Court to review. The failure of the Tribunal to address and specifically reject every statement made to it does not constitute reviewable error. Further, even if the Tribunal made an error of fact regarding the ease with which the appellant could have been located whilst residing with his sister, that cannot form a ground of review unless the appellant demonstrates, pursuant to s 476(4)(b), that, in fact, it would have not have been easy to locate him. That he did not attempt to do.

Conclusion 23 In my opinion, there is no error apparent in his Honour's reasons and, accordingly, the appeal should be dismissed.

GRAY J 24 I agree with the reasons of Emmett J that the appeal should be dismissed.

RD NICHOLSON J 25 I also agree with Emmett J that the appeal should be dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray, the Honourable Justice RD Nicholson and the Honourable Justice Emmett.

Associate: Dated: 4 June 2002 Counsel for the Appellants: The appellant appeared in person with the assistance of an interpreter

Solicitor for the Respondent: Australian Government Solicitor

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Cited By (1)