WABK v Minister for Immigration and Multicultural Affairs [2002] FCAFC 115

FEDERAL COURT OF AUSTRALIA

WABK v Minister for Immigration and Multicultural Affairs [2002] FCAFC 115 MIGRATION – appeal from decision of primary judge dismissing appeal from Refugee Review Tribunal – protection visa application – appellant claimed well‑founded fear of persecution in Iran because of involvement with Pan Iranist Party – whether error of law – where appellant sought review of factual findings of Refugee Review Tribunal. WABK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 510 of 2001

BRANSON, GOLDBERG & ALLSOP JJ 8 MAY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 510 of 2001

ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF AUSTRALIA

BETWEEN: WABK

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: BRANSON, GOLDBERG & ALLSOP JJ

DATE OF ORDER: 8 MAY 2002

WHERE MADE: PERTH

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 510 of 2001

ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF AUSTRALIA

BETWEEN: WABK

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: BRANSON, GOLDBERG & ALLSOP JJ

DATE: 8 MAY 2002

PLACE: PERTH

REASONS FOR JUDGMENT

THE COURT: 1 The appellant is a citizen of Iran. He arrived in Australia on 20 December 2000 and on 9 January 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs under the provisions of the Migration Act 1958 (Cth) ("the Act"). On 27 February 2001, the delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant the appellant a protection (Class XA) visa. The appellant applied to the Refugee Review Tribunal ("the Tribunal") to review the decision of the delegate. The Tribunal conducted a hearing and on 28 June 2001, affirmed the decision of the delegate not to grant the appellant a protection visa. The appellant made an application to the Court to review the decision of the Tribunal and on 17 October 2001, French J ordered that the application be dismissed with costs. The appellant now appeals from the decision of French J. 2 The appellant in his notice of appeal set out the following ground of appeal: "He is a person to whom Australia has protection obligation under conventions and protocol relating to status of refugee." Although this ground does not disclose any point of law raised for consideration or any ground in respect of which an error of law on the part of the primary judge is identified, we have determined the appeal on the basis of considering whether the primary judge fell into error, irrespective of whether such error is raised by the notice of appeal. 3 The appellant claimed that he left Iran because of his involvement with the Pan Iranist Party ("the Party"). In the submission accompanying his protection visa application he explained his involvement with the Party, although he said he had not become a member of the Party. He claimed that he would be persecuted by the Iranian government as it did not allow people to have different political opinions than those of the government. 4 In its findings the Tribunal said that it had grave concerns about the credibility of the appellant. The Tribunal noted that in his application for a protection visa he pointed out that he was not a member of the Party and the Tribunal referred to a letter from the Party's office in the Netherlands stating that he was a member of the Party and giving the date upon which his membership commenced. The Tribunal observed that at the hearing the appellant was unable to provide the Tribunal with little more than very general and platitudinous information about the Party. The Tribunal was not satisfied that the appellant performed any activities for the Party and was not satisfied that he was a member of the Party because of the discrepancy between the appellant's claim and the statement by the Party. 5 The Tribunal did not accept the appellant's claim that the fact that he left Iran on his own valid passport did not indicate that he left legally and it referred to the evidence that exit processes at Tehran's airport were stringent. The Tribunal concluded, after reviewing the evidence, that the authorities had no interest in the appellant and the Tribunal did not accept that he would face any real chance of persecution for his political opinion should he return to Iran. 6 In his Reasons for Judgment, the primary judge set out in some detail the appellant's claims and the evidence upon which they were based. 7 Having reviewed the appellant's claims and evidence, the primary judge observed that the appellant challenged the Tribunal's findings and had invited him to review the Tribunal's decision on the basis that it was wrong in fact. His Honour pointed out, in our view correctly, that the Court did not have the power to undertake that task and he dismissed the application for review with costs. 8 We have been unable to discern any error in the primary judge's Reasons for Judgment. It was not the role of the primary judge, and it is not the role of this Court on appeal, to revisit the Tribunal's findings of fact. It is the Tribunal which has the function of making findings of fact in relation to claims made by the appellant and in relation to the evidence he placed before the Tribunal. 9 The primary judge could only review the decision of the Tribunal for the purpose of determining whether there was any legal error in the Tribunal's reasons or the processes by which it undertook its review. The primary judge found no such error, nor have we been able to find any such error on this appeal. 10 In his submissions on the appeal, the appellant said that he refused to accept what the Tribunal said about how he left the airport in Iran. It was open to the Tribunal to make the finding it did and it was not for the primary judge or this Court to re‑consider that factual finding. It is not the point that the Tribunal in other applications reached different conclusions in relation to other applicants for protection visas. This is not, as the appellant submitted, a double standard adopted by the Tribunal. In any event, the decision of the Tribunal did not turn on the issue whether the appellant had to bribe an official in order to leave Iran. 11 The appellant also asserted that he was a member of the Party. However, the Tribunal made a finding of fact to the contrary. It was open to the Tribunal to make that finding and, again, it was not for the primary judge or this Court to make a different finding of fact. 12 The appeal from the decision of French J will be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Goldberg & Allsop.