W 194 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 39 W 194 v Minister for Immigration & Multicultural Affairs [2002] FCA 198 NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation. * All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. * All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only. FEDERAL COURT OF AUSTRALIA W 194 v Minister for Immigration & Multicultural Affairs [2002] FCA 198 Migration Act 1958 (Cth) s476 W 194 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 432 OF 2001 HEEREY, MARSHALL AND DOWSETT JJ PERTH 5 MARCH 2002 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 432 OF 2001 BETWEEN: W 194 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: HEEREY, MARSHALL AND DOWSETT JJ DATE OF ORDER: 5 MARCH 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed 2. The appellant pay the respondent's cost of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 432 OF 2001 BETWEEN: W 194 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: HEEREY, MARSHALL AND DOWSETT JJ DATE: 5 MARCH 2002 PLACE: PERTH REASONS FOR JUDGMENT THE COURT 1 This is an appeal from the judgment of a single judge of the Court, French J, given on 10 August 2001. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal ("the RRT") made pursuant to s476 of the Migration Act 1958 (Cth) ("the Act"). 2 The appellant is a citizen of Iran who arrived in Australia on 22 December 2000. On 8 January 2001, with the assistance of solicitors, he applied for a protection visa. A delegate of the respondent Minister determined to refuse the visa application on 22 February 2001. The next day the appellant lodged an application for review of the delegate's decision by the RRT. 3 On 1 May 2001 the RRT decided to affirm the decision of the delegate to refuse the appellant a protection visa. An application for review of the RRT's decision was made to the Court. The application came before French J on 10 August 2001, when his Honour dismissed it. Prior to the hearing before French J, pro bono counsel for the appellant prepared an amended application for review and written submissions in support. 4 On 21 September 2001 the appellant filed a notice of appeal from the judgment of French J. The order of the Court, subject to appeal, was made on 10 August 2001 but was not stamped with the seal of the Court until 5 September 2001. No issue was taken by the respondent concerning the competency of the appeal. 5 The notice of appeal is in handwriting and fails to specify a ground other than an "objection to (the) answer of (the) Federal Court …". The appellant appeared for himself at the appeal, assisted by an interpreter. 6 The appellant's claim to be recognised as a refugee arose from his having come to the attention of Iranian authorities by reason of his agitation for a better water supply in the town of Ahvaz, where he worked as a dentist. The appellant claimed to be concerned that the poor state of the town's water supply was affecting the health of the local community. The appellant claimed that he attempted to start a strike of health professionals in Ahvaz to draw attention to the poor quality of the water supply. He alleged that he would be at risk of persecution if returned to Iran because of those activities and because he was an intellectual who was educated overseas. 7 The appellant claimed that he left Iran to save his life. He said that after speaking to a patient about his concerns in relation to water quality he was abducted from his home by security forces and interrogated. He told one of his interrogators that he had a relative in the security service. The relative was a friend of the interrogator. The interrogator required him to sign an undertaking that he would not cause further problems. The appellant claimed that the interrogator contacted the relative and told him that he would delay processing the file for a couple of days to give the appellant time to leave Iran. 8 The RRT considered that several aspects of the appellant's claims were inherently implausible, especially those concerning the suggested strike and the alleged detention and release by the security service. The RRT did not consider the appellant to be a credible or reliable witness but someone who fabricated his claims in order to create for himself the profile of a refugee. The RRT considered that the alleged detention and release of the appellant did not occur and that the appellant was of no interest to the Iranian authorities at the time of his departure. 9 Before French J the only ground of review relied upon by the appellant was that contained in s476(1)(g) of the Act which provided at all material times that: "Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: … (g) that there was no evidence or other material to justify the making of the decision." 10 His Honour held that the no evidence ground had not been made out. At [21] French J said that: "It was open to the Tribunal to reason, as it did, from the period of his employment and from his status that his account of instigating a strike of health professionals in Ahvaz was not to be accepted." 11 Although his Honour saw some difficulties with some aspects of the RRT's reasoning he held that it was entitled to come to the view it did on the material before it. His Honour said at [24] that: "There are difficulties, I think, with some of the Tribunal's reasoning, particularly its reasoning from the reaction of the authorities to demonstrations about water quality in Abadan in July 2000, to their likely reaction to a person seen as instigating or inciting a strike by health professionals providing services to the community. It is certainly arguable that the second is a more threatening scenario than the first from the point of view of an authoritarian government. However, this is a matter of competing inferences which are open. Given that the alternative inference is open and is also related to other factors concerning the inconsistencies, confusion and illogicality of the account of the applicant's alleged detention and release the Court cannot interfere with the conclusion which the Tribunal has come to, that the applicant is not at risk of persecution on account of his alleged instigation of the strike if he were to be returned to Iran." 12 In our view his Honour did not err in coming to the view that the no evidence ground was not made out. There was evidence or material before the RRT to justify its decision in the sense that the inferences it drew from the evidence were ones which were open to it to draw. The contrary approach essentially invites the Court to reconsider the merits of the application. 13 In our opinion the appeal should be dismissed. There is no reason why costs should not follow the event. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Marshall and Dowsett JJ. Associate: Dated: 5 March 2002 The appellant appeared in person. Counsel for the Respondent: Mr A A Jenshall Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 March 2002 Date of Judgment: 5 March 2002