WACK v Minister for Immigration & Multicultural Affairs [2002] FCAFC 122

FEDERAL COURT OF AUSTRALIA

WACK v Minister for Immigration & Multicultural Affairs [2002] FCAFC 122 MIGRATION – asylum seeker from Iran – application for a protection visa – whether the decision of the primary judge was contrary to law – whether the decision of the primary judge places the appellant at serious risk of being forcibly returned to Iran where he has a well-founded fear of being persecuted Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (1999) 74 ALJR 405; 168 ALR 407, cited WACK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS No W 547 of 2001 SPENDER, O'LOUGHLIN & GYLES JJ PERTH 9 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 547 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WACK

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: SPENDER, O'LOUGHLIN, GYLES JJ

DATE OF ORDER: 9 MAY 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. 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 547 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WACK

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: SPENDER, O'LOUGHLIN, GYLES JJ

DATE: 9 MAY 2002

PLACE: PERTH

REASONS FOR JUDGMENT SPENDER J: 1 This is an appeal from a judgment of a single judge of this Court (French J) made on 9 November 2001 dismissing an application to review a decision of the Refugee Review Tribunal (the Tribunal) made on 5 June 2001, which affirmed a decision by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) made on 18 April 2001 to refuse the appellant a protection visa. 2 Some nine months before that decision, on 1 July 2000, shortly after the appellant arrived in Australia on 19 June 2000, he was interviewed by an officer of the Department of Immigration and Multicultural Affairs (the Department) through an interpreter. In that initial interview, the appellant claimed that: "(i) his father was harassed in his occupation as a shopkeeper; (ii) the [appellant] was denied an opportunity to conduct a taxi business; and (iii) he feared returning to Iran without a passport. (the "initial claims") 3 In support of his application for a protection visa, in which he was assisted by a migration agent, the appellant made written submissions, which were lodged on 1 March 2001 and were the subject of an interview with the delegate of the Minister on 2 March 2001. The appellant's migration agent had provided to the delegate a general submission dated 31 January 2001 which had previously been made available to the Tribunal in relation to other cases. This general submission dealt with the position of asylum seekers from Iran who had been refused protection visas in Australia. 4 Before the hearing by the Tribunal, the Tribunal wrote to the appellant informing him that, because of the conflict between his initial claims and the later evidence which he had given to the Department, there might be cause to doubt the credibility of his later claims. The Tribunal attached a copy of the record of the initial interview and invited the appellant to comment on this information. The appellant made a statement by way of letter which was translated and supplied to the Tribunal in support of his application for review. The appellant supplied a more elaborate supplementary statement on 15 May 2001. 5 The claims made by the appellant in the written submissions lodged 1 March 2001, confirmed at an interview on 2 March 2001, and the post-Tribunal hearing submissions lodged 22 May 2001 included claims that: "(i) [appellant's] parents were members of the MKO – a political group in opposition to the Iran government; his parents were killed because of this; (ii) [appellant] distributed pamphlets, newspapers and propaganda for a political group; and (iii) friends of the [appellant] who were similarly engaged in such distribution activities were arrested; and (iv) one of these friends was tortured and killed; and (v) the [appellant] fears arrest for these activities should he return to Iran and thus torture and possible death." (the "later claims") 6 The Tribunal, in essence, considered that the appellant's true reasons for departing Iran were those stated during the initial interview. In respect of the later claims, the Tribunal said: "The Tribunal does not accept the later claims made by the [appellant] as credible for a number of reasons which will be discussed below." 7 In its reasons, the Tribunal placed significant weight on the fact that the initial interview was conducted very soon after the appellant's arrival in Australia and before he had any opportunity to talk with the other detainees and visitors to the detention centre who may have had an influence on his later claims. The Tribunal said: "The Tribunal finds that the only reliable evidence of the [appellant's] true reasons for departing Iran are the claims he made during the arrival interview. His later claims have become corrupted by the passage of time and his contact with others and the Tribunal places no weight on these claims." The Tribunal later said: "After considering the above matters, the Tribunal is unable to accept that any of the additional claims made by the [appellant] after his arrival interview are credible and places no weight on them." 8 It is for the Tribunal and not for the Federal Court to assess the credibility of the appellant's claims. As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (1999) 74 ALJR 405 at 416; 168 ALR 407, a finding on credibility is: "… the function of the primary decision-maker par excellence." His Honour continued: "If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed." 9 The Tribunal said it was not satisfied that the appellant had ever been discriminated against at the hands of the law in Iran for a Convention reason, nor to an extent that was serious enough to amount to persecution in the Convention sense, and that it was: "… not satisfied that there is a real chance that the [appellant] will be persecuted under the law for a Convention reason should he return to Iran." 10 In relation to the third of his initial claims, that the appellant would face difficulty upon return to Iran because he did not have a passport and would be remanded for questioning, the Tribunal found that the appellant had departed legally and was not satisfied he would face any penalty for illegal departure. The fact that the appellant no longer holds a passport, having destroyed it en route to Australia, is merely a procedural matter of the Australian authorities arranging travel documentation and is not a compelling claim. The Tribunal stated: "Independent information cited above (Country Report on Iran, Netherlands Ministry of Foreign Affairs, December 1998) indicates that Iranian embassies are cooperating by providing 'laissez-passer' documents for returnees. Upon return, the Iranian authorities appear to realise that Western countries are only returning those persons (who have exhausted all legal avenues), who have gone through a thorough procedure which ultimately determined that their request for asylum was not politically motivated. If an individual cannot prove that they left Iran legally a small fine may be imposed. The UNHCR does not object to the return to Iran of Iranian nationals who, after due consideration of their applications in full and fair asylum procedures, have been found neither to qualify for refugee status nor to be in need of international protection. In light of this evidence, the Tribunal is not satisfied that the [appellant] has a well-founded fear of persecution in Iran for a Convention reason in relation to this claim." 11 On the hearing of the application to review the Tribunal's decision, an amended application was relied on by Mr Rynne, who appeared pro bono for the appellant before French J. The amended application asserted that the Tribunal's decision was not authorised by the Act and involved an error of law, being an error involving an incorrect interpretation of the applicable law. The particulars of the ground were shortly stated: "In making its decision the Tribunal failed to properly consider if the [appellant] faced a real chance of persecution should he be returned to Iran without a passport." 12 It was argued before the primary judge that, in determining that the initial claims failed to support a finding that the appellant was a refugee, the Tribunal committed an error of law in failing to engage in reasonable speculation as to the real chance of persecution should the appellant be returned as a failed asylum seeker to Iran without a passport, and failed to give weight to the subsequent claims in making its decision. This was narrowed down in the course of oral submissions before the primary judge to the contention that the Tribunal did not consider the risk to the appellant if he were returned to Iran as a failed asylum seeker. 13 The primary judge found that the Tribunal had considered and rejected the subsequent claims and concluded that the Tribunal had considered the difficulty that the appellant claimed he would face being returned to Iran without a passport. His Honour said: "[The Tribunal] referred to his stated fears of being remanded for questioning upon return to Iran. And although it used the language of want of satisfaction that he would face any penalty for illegal departure from Iran, the Tribunal in context was finding that there was no real chance that he would face any such penalty. It elaborated this conclusion by reference to the independent country information. If there were some error of logic in its reasoning from that information, that is not a matter which provides a ground for review." 14 Having concluded that there was no basis for contending that the Tribunal had failed to carry out its function in determining whether or not the appellant had a well-founded fear of persecution for a Convention reason if returned to Iran, the application for review of the Tribunal's decision was dismissed with costs. 15 The appellant filed a hand-written notice of appeal which was obviously drafted without the benefit of legal assistance. The grounds specified in that notice of appeal are: "1. The decision is contrary to law. 2. The decision places the [appellant] at serious risk of being forcibly returned to Iran where he has a well-founded fear of being persecuted." No particularisation, further elaboration or elucidation of these grounds was made by the appellant, who appeared in person on his appeal with the assistance of an interpreter. His oral submissions to the Court included an allegation of mistreatment on his arrival in Australia, a complaint about the period and conditions of his detention of about nine months from the first interview to the second, and submissions against the Tribunal's rejection of his later claims and his explanation as to why they were not advanced at the initial interview. None of these matters provides a legal basis for review of the decision of the primary judge. There is no basis for thinking that legal error attended the dismissal by the primary judge of the application to review the Tribunal's decision. 16 The appeal should be dismissed with costs. O'LOUGHLIN J: 17 In my opinion the appeal should be dismissed and I agree with what the learned presiding judge has said. GYLES J: 18 I also agree. I just wish to add this: the appellant arrived in Australia nearly two years ago. Of that period, a little less than a year has been taken up with, first of all, the appeal which French J heard, judgment being given on 9 November 2001, and then in an appeal to this court. In my opinion the appeal was hopeless and in my opinion the application was always hopeless. The proceedings have taken, as I have said, nearly a year, all at the expense either of the public or of a pro bono practitioner. I agree that the appeal should be dismissed with costs. SPENDER J: 19 The order of the Court is that the appeal is dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, O'Loughlin and Gyles.