WACT of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 177

FEDERAL COURT OF AUSTRALIA

WACT of 2001 v Minister for Immigration & Multicultural Affairs

[2002] FCAFC 177

MIGRATION – application for protection visa – where applicant is Iranian national who submitted articles for publication in which he expressed views critical of the Iranian regime – whether primary judge erred in concluding that the applicant did not make prospective claim Migration Act 1958 (Cth) s 476 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 distinguished WADZ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 118 cited Kioa v West (1985) 159 CLR 550 cited WACT OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 564 OF 2001 SPENDER, O'LOUGHLIN and GYLES JJ CANBERRA (HEARD IN PERTH) 20 JUNE 2002

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 564 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WACT OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

COURT: SPENDER, O'LOUGHLIN and GYLES JJ

DATE OF ORDER: 20 JUNE 2002

WHERE MADE: CANBERRA (HEARD IN PERTH)

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the costs of the respondent. 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 564 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WACT OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

COURT: SPENDER, O'LOUGHLIN and GYLES JJ

DATE: 20 JUNE 2002

PLACE: CANBERRA (HEARD IN PERTH)

REASONS FOR JUDGMENT SPENDER J: 1 The facts, curial history and submissions made on this appeal are set out in the reasons for judgment of O'Loughlin and Gyles JJ, which I have had the benefit of reading. Unfortunately, I disagree with their Honours' conclusion as to the proper disposition of this appeal. Since I am in dissent I can shortly state the reasons why I would have allowed the appeal. 2 It is clear that O'Loughlin and Gyles JJ accept that the Tribunal did not consider whether the appellant would face persecution in the event that he was returned to Iran and continued to express his political opinions through his writing. The primary judge held that the appellant did not put to the Tribunal that he would continue to express political opinions which would put him in harm's way if he was returned to Iran. The majority are of the view that no appellable error is demonstrated in the primary judge so concluding. 3 I am of a different opinion. In my view, it is simply not correct to say that the focus of the appellant's contentions was entirely upon the possible consequences of his past conduct in having written and submitted politically-provocative articles for publication, were he to be returned to Iran. In my opinion, on a fair reading of the appellant's response on his application to the question, "Why did you leave your country of nationality?", and on the other material that was before the Tribunal, the appellant was clearly making a claim that was not limited to fear of punishment for his activities up to the time of his departure. 4 It is true that the arrest and imprisonment of the editor of Asrah Azadagan and the fact that the appellant had submitted articles to that paper with details which could identify him was a cause of real concern to him, but the material before the Tribunal, in my opinion, was not confined to a claimed fear of persecution for his past activities. His claim was in part prospective. His answer to the question, "Why did you leave your country of nationality?",concludes with: "My personal details were submitted with the articles which were confiscated by the authorities, also the crackdown on the opposition newspaper has been severe recently so this is why I fear for my life. Basically this is the main reason why I left Iran, the situation described has scared me." (Emphasis added) 5 Further, the written submissions for the applicant, which was part of the material before the Tribunal, included the claims: "His fear of persecution is based on a change in media legislation in which every writer is held accountable for his/her article." And: "Since there was power struggle at the time between the two major factions of the Iranian government, particularly on the media issue, journalists and writers did not have a safe and secure future in Iran. However, due to their political belief they chose to continue their activities until the time that they had to stop. This was why my client stayed in Iran and tried to closely follow the changes in the media legislation with the hope that he would be able to continue his activities." (Emphasis added) 6 It is acknowledged that the Tribunal failed to consider whether there was a real chance that the appellant would face persecution in the event that he was returned to Iran and continued to express his political opinions through his writing. 7 In my opinion, the Tribunal was obliged to consider that question on the material before it, and its failure to do so amounted to jurisdictional error in the sense referred to by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, particularly at [84]. I am in respectful disagreement with the conclusion of the primary judge that the appellant did not make any claim of risk of persecution for what he might do on his return. The Tribunal failed to consider the appellant's claim of a real chance of persecution, as that claim is properly to be understood. The primary judge erred in not recognising and giving effect to this omission. 8 I would allow the appeal, but O'Loughlin and Gyles JJ are of the contrary view.