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. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 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: 20 JUNE 2002 PLACE: CANBERRA (HEARD IN PERTH) REASONS FOR JUDGMENT O'LOUGHLIN and GYLES JJ: 9 This is an appeal from a judgment of French J delivered on 10 October 2001, by which his Honour dismissed an application by the appellant, now referred to as WACT of 2001, for an order of review in relation to a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs to decline an application by the appellant for a Protection Visa pursuant to the Migration Act 1958 (Cth) ("the Act"). The appeal is to be decided upon the Act (and in particular s 476) as it stood prior to the 2001 amendments. 10 The point which arises on this appeal is short, but it needs some introduction. The appellant is an Iranian national, who arrived in Australia by boat from Indonesia, without lawful authority, on 27 December 2000. He had left Iran on 11 November 2000, and spent time in Malaysia on the way to Indonesia, the journey having been arranged by a person who he described as a smuggler. On arrival, he said that he had left Iran with a valid passport, but had given it to the smuggler. His claim to protection (shortly summarised) was based upon the holding of views critical of the Iranian regime which he had expressed in articles which he had written. The principal articles had not been published but were signed and were presumably held by the publisher which had been raided by the authorities, and he feared they would come to the attention of the authorities which would lead to his arrest. The Tribunal, in its reasons, considered the claims and evidence put forward by or on behalf of the appellant, considered country information to which it referred, and concluded that, even if the authorities became aware of the articles to which he referred, it did not accept that the authorities would have any interest in pursuing the appellant and, indeed, had not done so over many months. In the course of coming to that conclusion, the Tribunal did not accept a claim by the appellant that his father had been detained, after the appellant's departure from Iran, on account of the appellant's activities. 11 Following amendment shortly prior to hearing, the grounds of the application to the Court were: "(a) The Tribunal's decision contains errors of law that involve an incorrect application of the law to the facts as found by the Tribunal or an incorrect interpretation of the applicable law. PARTICULARS (i) The Tribunal failed to consider whether there was a real chance that the Applicant would face persecution in the event that he returned to Iran and continued to express his political opinions through his writing. (ii) The Tribunal failed to consider whether the Applicant had a well-founded fear of persecution as a member of a social group, namely reformist writers, journalists and editors in Iran. (iii) The Tribunal erred in law in [not] finding the denial of a freedom of expression in Iran in the case of the Applicant amounted to persecution. (b) The Tribunal acted in excess of jurisdiction. PARTICULARS (i) The Tribunal failed to consider whether there was a real chance that the Applicant would face persecution in the event that he returned to Iran and continued to express his political opinions through his writing. (ii) The Tribunal failed to consider whether the Applicant had a well-founded fear of persecution as a member of a social group, namely reformist writers, journalists and editors in Iran. (iii) The Tribunal erred in law in [not] finding the denial of a freedom of expression in Iran in the case of the Applicant amounted to persecution." 12 A written submission filed by counsel for the appellant prior to the hearing before French J included the following: "1. The Tribunal focused solely on whether the applicant faced persecution by reason of a past event namely the submission of the articles to Assre-Azadegan and the question of whether there was a real chance that the Applicant would be arrested for those articles. It did not consider as it was obliged to do whether, having regard to the oppressive press laws in Iran, there would be a real chance the Applicant, given his political opinions and his activities as a writer, would face persecution in the form of jail and detention in the foreseeable future on his return to Iran. 2. In the alternative the Tribunal should have found that the Applicant was a member of a social group, namely reformist writers, journalists and editors and assessed whether or not he had a well-founded fear of persecution for that reason." 13 The primary judge examined the history of the matter in some detail, and, after considering the submissions for the appellant, concluded as follows: "The applicant did not, in my opinion, put to the Tribunal a case that the applicant would be expressing political opinions if returned to Iran which would put him in harm's way. The focus of the applicant's contentions, notwithstanding the reference to the subject matter of the articles, was entirely upon the consequences of his having written them and submitted them for publication and the possible consequences of that past conduct were he to be returned to Iran. He certainly did not present through the written material as somebody contending that he would be seeking to exercise the expression of his political opinions if returned, which would subject him to persecution. It is not surprising, therefore, that the Tribunal did not have regard to that hypothesis in its reasons and, in my opinion, it did not err in law in failing to do so. That basis for rejecting, as I do, the primary contention also underpins the rejection of the second contention that the applicant is to be regarded as part of a particular group of reformist writers, journalists and editors in Iran. That is again a prospective basis for persecution. It cannot be sustained having regard to the Tribunal's finding that the authorities have no interest in the applicant by reference to his past conduct, which I cannot impugn." 14 The appellant has not been represented at any stage of the appeal process. The grounds of appeal are: (1) the decision is contrary to law; (2) the decision places the applicant at serious risk of being forcibly returned to Iran, where he has a well-founded fear of being persecuted. On the appeal the appellant addressed various grievances with little, if any, relevance to the issues. He did, however, put forward the argument that his nature was such that he could not refrain from writing about his opinions and that if he returned to Iran this would place him at risk of persecution. This, in substance, is the principal case which was put by counsel on his behalf to, and was rejected by, the primary judge in the passage quoted above. The short question for this Court is whether appealable error is demonstrated in the primary judge concluding that the appellant did not make a claim that he would express political opinions if returned to Iran which would put him in harm's way. 15 We shall set out the material before the Tribunal which might possibly support the view that the appellant put his case as is now contended. In the record of the first interview with the appellant, which took place on 31 December 2000, his answer to the question "Why did you leave your country of nationality?" was "Because I do not have my basic human rights in Iran". His explanation for leaving Iran related to what had happened up to that time, including the statement "Also, the crackdown on the opposition newspaper has been severe recently so this is why I fear for my life". His answer to the question "Do you have any reasons for not wishing to return to your country of nationality?" was "It's not possible to live in a country when you know its political, social and economical problems. The Iranian society is based on lies and corruption." 16 He submitted a statement, dated 20 January 2001, prepared by a legally qualified migration agent in support of his application for a Protection Visa. The explanation of why the appellant had left Iran turned upon the events which had taken place prior to his departure. The statement continued: "What I fear might happen if I go back to my country: I fear I will be imprisoned if I go back to Iran. Who I think will harm or mistreat me if I go back: The authorities – the Iranian government. Why I believe they will harm or mistreat me if I go back: Because of my controversial articles and my political opinions about the separation of religion and politics which are against the government of Iran. Why I believe that the authorities in my country will not protect me if I go back: It is the authorities that are persecuting me, so I cannot expect protection from my country." 17 A submission was also made on behalf of the appellant by an immigration consultant in connection with the proceedings in the Tribunal. That submission was mainly responsive to findings by the delegate of the Minister in the course of rejecting the application for the Protection Visa. The submission included the following: "We accept that at the time that Asre-Azadeghan's editor was arrested, other writers were not arrested, however this did not mean that all the writers of the above paper were left without any punishment. 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. … Moreover, we submit that the applicant started his journey as a writer, by writing articles with "civil-spirited", "humanitarian" concepts as it was suggested by the primary decision-maker. However, he did not stop there, those articles were only a beginning for him. He continued his writing articles with a very serious critical theme of Islam and the Islamic Republic. These articles that he has mentioned in his interview were strongly opposing the Islamic Regime and Islamic values promoted by them. … We submit that any political activists including writers and journalists may start their activities at a low level. However, some choose to stop there and some choose to go for a higher level of activities knowing that it may have some adverse subsequent for them. The applicant was one who started his writing journey with articles with social theme and ended it with highly political critic's articles. Therefore, his situation was only normal." The submission concluded: "In the light of the above reports, it is submitted that the applicant would be imputed with an anti-government political opinion due to his articles being found amongst other materials in the Asre-Azadeghan building." It will be noted that one aspect which the appellant claimed was an important issue to him was a change in the law in Iran, in July or August 2000, whereby the writer of an article becomes responsible for the article, rather than the publishers of the newspaper or magazine. 18 The appellant gave evidence to the Tribunal and was represented at the Tribunal by a migration agent, who made submissions on his behalf. A transcript of what occurred was not in evidence before the primary judge. The account of the evidence of the appellant which was given by the Tribunal in its reasons includes the following: "The applicant gave evidence largely consistent with his statement. He stated that his main concern relates to the three articles he sent to the newspaper in Tehran. He produced a receipt relating to the delivery of these articles. The receipt was dated around mid February 2000. He stated that the newspaper was closed down by the authorities shortly after he dispatched the articles. … The applicant stated that he had some articles published before he sent those ones to the newspaper in Tehran. However these did not cause him any specific problems. He also stated that whilst he provided information about his situation at work this was not his main issue. The main issue was the articles he had written. The applicant stated that the main problem was the change in law which means that the authorities can bring allegations and charges against anyone. He stated that anyone who writes an article will be defined as a writer. He stated that if he had not come here he might have been one of the detained." 19 In our opinion, taking the case at its highest for the appellant, no appealable error is demonstrated as to the conclusion of the primary judge that the claim said to have been overlooked by the Tribunal was never put to it. We are satisfied that the substance of the appellant's claim was that he was a marked man for punishment on his return to Iran because of his activities up to the time of his departure. In our opinion, the claim that he would be likely to publish his anti-regime opinions regardless of the change in the law to which he referred was not made. The first time that claim was enunciated was in the amended grounds of appeal and submissions which appeared shortly prior to the hearing before the primary judge. In short, no claim of the type referred to in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [78] and [82]-[84] was made and overlooked. As this Court said in WADZ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 118, there are varying views as to the extent to which (if at all) the Tribunal is bound to consider a point not raised by an applicant and to make its own inquiries about such a point. It is for an applicant for a Protection Visa to make the claim for protection and endeavour to satisfy the decision-maker (including the Tribunal where appropriate) of its existence and validity (Kioa v West (1985) 159 CLR 550 at 587). In our opinion, whatever the limits of the duty of the Tribunal to act upon its own initiative may be, there was no occasion for it to do so here, where, in essence, the claim which was not put was essentially subjective in nature. 20 We should say something as to the contention in the amended application that the Tribunal failed to consider whether the appellant had well-founded fear of persecution as a member of a social group, namely, reformist writers, journalists and editors in Iran. This was rejected by French J in the passage set out above. No argument about it was put by the appellant. The Tribunal's findings are inconsistent with the Iranian authorities regarding the appellant in that light by reason of what had occurred prior to his departure. To be so regarded after his return would require some conduct on his part which would bring him to the notice of the authorities. His own contention was that the threat arose after the change in the law which made authors responsible for published articles. The primary judge held that he did not make any claim of risk of persecution for what he may do on his return. It is not irrelevant to bear in mind that the appellant was an accountant in a factory who, on his account, had written occasional articles for publication. There was no suggestion of any wider association between himself and reformist writers, journalists and editors. Again, this basis was first enunciated in the amended application shortly before the primary hearing. It provides no basis for overturning the decision. 21 The third contention in the amended application was that the Tribunal erred in law in not finding that the denial of freedom of expression in Iran in the case of the applicant amounted to persecution. This was rejected by the primary judge as follows: "The question whether denial of freedom of expression in Iran in the case of the applicant amounted to persecution is again a prospective matter. There is no doubt a generally repressive law affecting freedom of expression in Iran. In my opinion, however, the existence of a generally repressive law of that kind does not of itself establish a discriminatory denial of freedom of expression to a particular social group or to persons by reference to their race or ethnic origin or religious or political opinions which could amount to persecution. In the circumstances, I am not satisfied that any error has been made out on the part of the Tribunal and the application will be dismissed with costs." 22 The fact that this claim can be described as prospective may not be sufficient for it to be rejected. It may be regarded as implicit in the claims which were made by the appellant that upon return to Iran he would be inhibited from publishing his critical opinions. Even so, French J found that this would not be persecution. No ground of appeal is directed to that finding and no submissions have been made about it by either party. It is not obviously wrong. In those circumstances, we do not consider it appropriate to consider that issue for ourselves. 23 In our opinion, the appeal should be dismissed, with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices O'Loughlin and Gyles. Associate: Dated: 20 June 2002 The Appellant appeared in person Counsel for the Respondent: AA Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 May 2002 Date of Judgment: 20 June 2002