WAFD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2002-11-01|Before: Nicholson J, Jacobson JJ

THE COURT 1 This is an appeal from a judgment of R D Nicholson J in which his Honour dismissed the appellant's application to review a decision of the Refugee Review Tribunal ("the RRT"). The RRT decided that the appellant was not entitled to a protection visa. The application before his Honour was filed in July 2001. It was dealt with in accordance with the provisions of the Migration Act 1958 (Cth) ("the Act") which applied prior to amendments to the Act which took effect on 2 October 2001: see Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). It follows that this appeal does not raise for consideration the effect of the "privative clause" provisions inserted by that Act.

2 The appellant is a citizen of Iran. He is of Bakh Teeyar ethnicity and is a Shiite Muslim. He entered Australia on 27 December 2000. On 20 January 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. He claimed that he feared that he would be killed if returned to Iran on account of a political opinion imputed to him by the Iranian authorities.

10 Before engaging the services of Davityan, the appellant was represented by Macpherson & Kelley. By letter dated 12 April 2001, Macpherson & Kelley wrote to the RRT advising that they no longer acted for the appellant. The first Davityan submission was also sent to the RRT by letter of the same date.

11 During the appeal, the appellant claimed that he was sent by Macpherson & Kelley, a copy of the submission which had been forwarded by that firm to the RRT. He stated that the RRT decision made no reference to that submission. We accepted from the appellant, for the purposes of identification only, a copy of a letter to him from Macpherson & Kelley dated 26 March 2001. The letter stated that: "We…enclose for your attention, submissions we have prepared in support of your application and forwarded to the Refugee Review Tribunal on your behalf." A submission consisting of 14 pages was included with the letter. 12 It seemed to us that it was possible that the RRT, in not referring to the Macpherson & Kelley submission, may not have dealt with all the claims made by the appellant. It may thereby have fallen into jurisdictional error: SBAB v Minister for Immigration & Multicultural Affairs [2002] FCAFC 161 at [30]. There a Full Court said: "The RRT is under a duty to consider and assess each claim made by an applicant for a protection visa. It is not entitled to ignore a claim as if it had not been made. In our view, a failure to deal with a claim of persecution for a Convention reason amounts to the RRT "ignoring relevant material … in a way that affects the exercise of power"; see Yusuf at [82]. Accordingly, the RRT has made an error of law and its decision is reviewable as one which involved a jurisdictional error under s 476(1)(b) of the Act." 13 We appointed pro bono counsel for the specific purpose of assisting the appellant to determine if the submission prepared by Macpherson & Kelley, had been send to the RRT. If that submission had been sent, and received by the RRT, we expected counsel to identify any points of distinction between what was contained therein, and the first and second Davityan submissions. That would enable the Court to determine whether there had been a breach of the duty referred to in SBAB.

14 The RRT accepted that the appellant had been briefly questioned by the Basiji when he was unable to identify himself by producing an ID, when leaving Khoramabad. His release after questioning led the RRT to conclude that he was not of any significant interest or concern to the authorities.

15 The RRT found it implausible that he would risk carrying a banned book in an area where there were significant numbers of Basiji. However, even if it were wrong in that conclusion, and the appellant did have the book, and it was found by the Basiji, the matter could not have been of serious concern because he was released forthwith. 16 The RRT rejected the appellant's claim to have been dismissed from his employment as a consequence of investigations into his political status and problems associated with two of his cousins. It concluded that the authorities would have raised any concerns about his links with the Mojahadin long before the time of the alleged dismissal from employment, had they had any such concerns. A further reason for not accepting the appellant's claim was that he said that he had appealed to the government against his dismissal. Had he been dismissed for political reasons, he would not have done so. 17 In its reasons for decision, the RRT said: "At the departmental interview in regard to the Applicant's protection visa application the Applicant claimed that he had voiced his opposition to the government at work from 1998. Those claims were general and without substance. At the Tribunal hearing his claims were that he had spoken out against corrupt practices and that his problems at work were not political."

18 The RRT rejected the appellant's claim to have been detained for twenty days and tortured. It regarded that claim as a recent invention. It concluded that he had no political profile which was of any interest to the authorities, and that he had never been involved with any political party. It accepted that upon his return to Iran he might face questioning and possible verbal harassment by reason of his unlawful departure from that country. He might also be exposed to a fine, but he did not face a "real chance" of persecution, and any fears that he might hold in that regard were not well founded.

The reasoning of the primary judge 19 His Honour observed at [17] that: "In his application for review [the appellant] relied on grounds commonly used from the place where he is detained and based on s 476(1)(g) (no evidence) and s 476(1)(e) (error of law and interpretation and application). However, being unskilled in law he was entirely unable to nor could be expected to, support the grounds by way of legal argument."

20 It is pertinent to observe that the same grounds have been relied upon on the appeal.

21 His Honour, at [18] and [19], described the appellant's submissions before him as follows: "The principal thrust of the applicant's submissions was that his campaign against corruption was a political activity. He said this was the case because corruption was so wide-spread among the leadership of his country that any action against corruption must be taken as a political activity. The other principal thrust of the applicant's submissions was that the Tribunal, approaching the matter negatively, had ignored the significance of matters which he had put to it. In effect, his submissions were inviting the Court to remake findings of fact made by the Tribunal by giving a different weight to the evidence which had been before the Tribunal." 22 The primary judge characterised the appellant's complaints about the RRT's decision as an attempt to have the Court "remake findings [of] fact made by the Tribunal": see at [20].

23 His Honour found that there was evidence before the RRT to support the findings of fact it had made and its conclusion that the appellant did not have a well-founded fear of persecution if returned to Iran. His Honour held that the RRT's conclusion was open to it on the material before it.

24 We are unable to discern any error in the reasoning of the primary judge. The only additional matter raised on the appeal was the what may be described as the Macpherson & Kelley issue, referred to at [10] to [13] above.

25 The agreed statement of facts, concerning that issue, disclosed that the Macpherson & Kelley submission had been sent to the RRT, but had not been given to the member who heard the application for review.

26 Pro bono counsel for the appellant, Mr Hooker, submitted that what the first and second Davityan submissions did not do was "incorporate any clear and consistent reference to the nature of the Sepah Pasdaran and the connection that that entity has with the control and abuse of power in Iran". It was contended that unlike the Davityan submissions, the Macpherson & Kelley submission dealt comprehensively with the nature of the Sepah, and its connection with the control and abuse of power in that country.

27 In comparing the Macpherson & Kelley submission with the Davityan submissions, it is necessary to keep in mind the reason why that comparison is being undertaken. It is to determine whether the Macpherson & Kelley submission made a claim of persecution for a Convention reason that was not contained within the Davityan submissions.

28 It is insufficient for that purpose merely to assert that the Macpherson & Kelley submission gave greater emphasis to an aspect of a claim also contained within the Davityan submissions. To delve into subtle differences in wording, within these submissions, is to miss the point made in SBAB, recorded in the passage quoted at [12] above.

29 The first Davityan submission contended that the appellant should not have been disbelieved by the delegate when he claimed that he had been persecuted at his place of employment because of the opposition to the authorities which he had expressed. According to that submission, the delegate had erred because he failed to realize that when the appellant had first been employed, the company which employed him was not, at that stage, owned by the Sepah.

30 That submission was made in the context of a claim that the appellant suffered persecution at work on account of imputed political opinion.

31 The Macpherson & Kelley submission also made the point that the appellant had worked for his employer for two years before the company had been taken over by the Sepah. The submission was, for the most part, general in nature. For example, at p 3 thereof, the contention was made that:

"It is submitted that the applicant's claimed harm is sufficiently grave to constitute persecution."

32 On the issue of the ownership of the appellant's employer by the Sepah, the Macpherson & Kelley submission said that:

"He worked as a quality controller for a construction company. After the (appellant) had worked there for two years it amalgamated with another company owned by the Sepah Passdaran [sic]."

33 The submission later referred to the appellant being questioned by the Sepah upon his return to work following a period of detention. References were made to the Sepah in lengthy quotes made in various "country information" documents and from a previous RRT decision. At p 12 of the submission, before dealing with the topic of illegal departure from Iran, the submission said that:

"In light of the above reports and the applicant's prior detention in Iran, it is submitted that he would be imputed with an anti-government political opinion and have a raised political profile as a result. The applicant's anti-government political profile would make it dangerous for him to return to Iran."

34 At p 13, the Macpherson & Kelley submission said:

"The applicant is surprised that the decision maker questioned the veracity of his statement and looks forward to the Tribunal's examination of the truthfulness of his claim."

35 Having carefully read the Macpherson & Kelley submission, and compared it closely with the Davityan submissions, we are of the view that there were no matters of substance contained in the one which were not also contained in the others. It follows that the reasoning in SBAB referred to at [12] above is not applicable in the present case. The fact that the RRT member concerned did not receive the Macpherson & Kelley submission did not affect the outcome of the review. As counsel for the respondent submitted, "at best", the failure by the RRT to consider that submission was "a failure to have regard to a piece of evidence in respect of which there is no legal consequence": Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236-237; ABC v Minister for Immigration & Multicultural Affairs [2001] FCA 955 at [19]-[23]; Wun, Chu Sing v The Minister for Immigration & Ethnic Affairs [1997] FCA 1017; and Dang v Minister for Immigration & Multicultural Affairs [1999] FCA 38.

36 The essential claim made in both the Macpherson & Kelley submission, and the Davityan submissions, was that there would be imputed to the appellant by those in authority a political opinion which was anti-government. That claim may have been given greater emphasis in the Macpherson & Kelley submission, by reason of the more detailed treatment accorded by that submission to the nature of the Sepah. However, the difference is one of emphasis only, and not one of substance.

37 The facts in the present case differ significantly from those in X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3. There, a Full Court found that the RRT had failed to take into account the contents of certain documents which had not been translated into English, upon which the applicant relied. It followed that the RRT had failed to carry out its statutory duty. No such consideration is applicable in the present case.

38 It cannot be denied that the RRT dealt with the claim by the appellant that he had a well-founded fear of persecution by reason of imputed political opinion. It rejected that claim because it found that he:

· had no political profile; · was not of concern to the authorities when he left Iran; and · had been dismissed for reasons other than those which were Convention related.

The RRT had earlier noted that the appellant had said during the course of the hearing that his problems at work were not political. His claim for refugee status, based on his political opinion, insofar as it related to the ownership of his employer by the Sepah, was therefore not sustainable.

39 The foregoing analysis shows that it cannot be said, as in SBAB, that the RRT failed to deal with any specific claim put to it or, as in X, that it failed to deal with any significant item of evidence put before it.

40 Having rejected the appellant's submissions on the Macpherson & Kelley issue, it is unnecessary to deal with pro bono counsel's request to amend the notice of appeal to have that issue formally raised in the appeal.

41 We note, before concluding our reasons for judgment that, on 18 September 2002, the appellant sent the members of the Full Court, by facsimile transmission, a photocopy of the law list on a day on which his application had been listed before the primary judge. The law list referred to him by name, rather than using a pseudonym, as it should have done, in accordance with s 91X of the Act. However, regrettable as that may have been, we do not consider that it raises any issue relevant to this appeal.

42 It follows that the appeal must be dismissed. The appellant must pay the respondent's costs. However, those costs should be limited to the second day of the hearing, on 21 August 2002. No costs will be ordered in relation to the first day of the hearing, on 20 August 2002. The matter had to be adjourned on that day for reasons which were in no way the fault of the appellant. Similarly, no costs will be ordered with respect to the preparation of supplementary written submissions arising out of the emergence of the Macpherson & Kelley issue. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Weinberg and Jacobson.

Counsel for the Appellant: Mr R Hooker appeared pro bono

Solicitor for the Respondent: Australian Government Solicitor

Dates of Hearing: 20 and 21 August 2002

Completion of Written Submissions: 24 October 2002

Date of Judgment: 1 November 2002

Migration Legislation Amendment (Judicial Review) Act 2001(Cth)

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