WABL of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 267

FEDERAL COURT OF AUSTRALIA

WABL of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 267

WABL of 2001 v Minister for Immigration and Multicultural Affairs W 511 of 2001 BRANSON, GOLDBERG & ALLSOP JJ 27 AUGUST 2002 SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 511 of 2001

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

BETWEEN: WABL OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BRANSON, GOLDBERG & ALLSOP JJ

DATE OF ORDER: 27 AUGUST 2002

WHERE MADE: SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's taxed costs of the appeal. 3. The respondent be granted liberty to apply within 7 days to vary the order for 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 511 of 2001

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

BETWEEN: WABL OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BRANSON, GOLDBERG & ALLSOP JJ

DATE: 27 AUGUST 2002

PLACE: SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

THE COURT: 1 This is an appeal from the orders of a Judge of the Court made on 17 October 2001 that the application for review of the decision of the Refugee Review Tribunal (the Tribunal) made on 28 June 2001 be dismissed with costs. The decision of the Tribunal was to the effect that the appellant did not satisfy the criterion in subs 36(2) of the Migration Act 1958 (Cth) (the Act) for the grant of a protection visa. The application to the Court for review of the Tribunal decision was filed on 18 July 2001 and so it came (and the appeal comes) to be determined on the substantive law in force prior to the amendments to the Act taking effect on 2 October 2001. 2 The grounds of appeal in the notice of appeal disclose no appellable error. They are as follows: He is a person to whom Australia has protection obligations under Refugee Conventions and Protocol Relating to Status of Refugee [sic]. 3 The appellant appeared without legal representation. 4 The appellant is an Iranian national born on 25 September 1960. He arrived in Australia on 20 December 2000. On 9 January 2001 he lodged an application for a protection visa. On 27 February 2001 a delegate of the Minister refused to grant the visa. On 28 February 2001 the appellant applied for review of that decision to the Tribunal. A hearing took place on 23 May 2001 at which the appellant gave evidence with the assistance of a Farsi interpreter. Written submissions were made to the Tribunal on behalf of the appellant. 5 The claims of the appellant were that he feared persecution, specifically being killed, if he was returned to Iran because of his activities in a political party in Iran, the Pan Iranist Party. Subject to the matter concerning what happened before the primary judge, the claims of the appellant are substantially accurately summarised in the written submissions filed on behalf of the respondent in the appeal, as follows: (a) the appellant was involved in the Party as early as 1987, but only became a member as such in 1997; (b) he became involved in the co-ordination of writing anti-government slogans on the wall of buildings, and distribution of the party's pamphlets; (c) in September 2000, whilst attending a funeral at Ahvaz, two of his friends who were also involved in the Party were arrested in the appellant's home town for writing anti-government slogans on the walls of the town; (d) following the arrest referred to at (c) above, the appellant's house was raided on three occasions, and a summons issued for him to present himself to court on 30 September 2000; (e) after the appellant's departure from Iran, his wife and brother were arrested and detained for three weeks until they posted the deeds of their property; and (f) the appellant left Iran on a false passport, his departure being organised by the Party. 6 The Tribunal comprehensively rejected the appellant's claims. It found that he was not a member of the party and had not carried out any illegal activities as claimed. The Tribunal did not accept that the Iranian authorities were interested in the appellant at the time of his departure and found that there was not a real chance that the appellant would be persecuted because of his claimed political activities or illegal departure (if that is what did occur, which was not accepted), upon his return. 7 Specific findings were made underpinning these basal findings, including: a) the rejection of the reliability of a letter from the Dutch office of the party indicating his party membership; b) the rejection of his claim to be related to a person (said by the appellant to be his uncle) said to be the leader of the party; c) the implausibility of the evidence of the timing of his joining of the party; d) the contrived and unacceptable nature of his evidence about the arrest of his friends; e) the rejection of the claim of a second summons issue against him; and f) the rejection of the claim of leaving Iran illegally. 8 The primary judge refused to interfere with the fact finding of the Tribunal. His Honour examined the factual claims of the appellant and the manner in which those claims were dealt with by the Tribunal. He expressed, correctly, that it is not the role of the Court to rehear the factual questions involved. 9 In his handwritten application for review, the appellant invoked pars 476(1)(a), (e) and (g) of the Act (in its then form). No particulars of these grounds were given in the application for review. The primary judge could find no legal flaw reflected in s 476 in the fact finding process. Nor can we. 10 When this matter was called on the appellant addressed the Court. Various matters were raised. The first group of matters concerned the appellant's complaints about the letter referred to in [7(a)] above, which was said to be reliable and probative; the question of the date of his joining of the party referred to in [7(c)] above; the question of his cousin's membership of the party; the alleged misunderstanding by the Tribunal of material put to it by the appellant about the friends and their arrest referred to in [7(d)] above; and the position and treatment of the person he said was his uncle referred to in [7(b)] above. 11 Secondly, there was a suggestion that the Tribunal should have made inquiry of the Dutch office of the party in order to verify the genuineness of the letter referred to in [7(a)] above. 12 Thirdly, the appellant said that various matters were overlooked by the Tribunal in its findings, including material going to the correct date of the appellant becoming a supporter of the party. 13 Fourthly, the appellant complained about the lack of currency of the country information relied on by the Tribunal in dealing with the identity of the leader of the party. 14 Fifthly, the appellant complained about what he said was the inconsistency of findings in the Tribunal concerning leaving Iran illegally, and, in particular, the ability to bribe officials to effect illegal departure. It was claimed that some members of the Tribunal in some decisions found one way and others another. 15 The matters in [10], [12] and [13] above are no more than complaints about the fact finding of the Tribunal. What are said to be the errors are not such as to fall within par 476(1)(g) or subs 476(4) of the Act. Nor do they display an approach of the Tribunal which could be said to amount to a failure to attend to the mandated task of reviewing the claims of the appellant. We can see no jurisdictional error. 16 The matters in [11] above do not, of themselves, raise any real issue of the breach of any legal duty. Whether or not the factual circumstances of any particular case could give rise to a duty to make further inquiries or to consider doing so, as an incident of the mandated task of review, need not be addressed here. The Tribunal had reasons for coming to the view it did about the lack of reliability of the letter. No circumstances arose to make it incumbent upon, or logical for, the Tribunal to make any further inquiry. 17 The matters in [14] above reveal no legal error. The fact that the Tribunal differently constituted has come to different conclusions about similar factual questions is in one sense a by‑product of the independent review of each claimant's case by the Tribunal with different constituent members. It is not an indication that on any one occasion the Tribunal has fallen into error of the kind set out in s 476. 18 The appellant may disagree with the findings of the Tribunal. We cannot revisit those in the absence of a proper ground of review reflected in s 476 flowing from legal error. No such error or ground appears. This is not to say, as the appellant put on one occasion, that the Court has no role. Its role is limited, though real. The Parliament of Australia laid down in s 476 of the Act (in its then applicable form) the bases for judicial review. That section makes plain that, with the exception of circumstances of the kind not made out here (pars 476(1)(g) and (4)(a) and (b) and jurisdictional error in pars 476(1)(b) and (c)), the final arbiter of factual questions is the Tribunal. 19 Finally, in oral address, the appellant claimed that he had been denied a fundamental attribute of independent judicial process by the primary judge. He made the clear and specific allegation in Court on 8 May 2002 that the primary judge announced his decision by video link without hearing from the appellant, that the judge was called back as he was leaving the courtroom and then, after listening to the appellant, gave the reasons he did. Of course, if this were so, it would raise the most serious question of pre-judgment and thus the question of bias. In the light of this most serious allegation, maintained in the face of the transcript of the hearing before the primary judge, which did not disclose any such approach of his Honour, we directed the Registrar to obtain the original of the tape recording of the hearing. Directions were made allowing either party to put on further evidence, including the tape recording. The appellant filed a declaration dated 17 July 2002 and the solicitor for the respondent filed an affidavit. The respondent requested the Court to listen to the tape recording. We take this as a tender of the relevant recordings. We admit the tape recordings into evidence. 20 The transcript of the proceedings before the primary judge revealed that the appellant's matter was heard together with an applicant of the same surname. The primary judge, after coming into Court, taking appearances and ascertaining the identity of the interpreter, made the following statement which was interpreted by the interpreter for the appellant and the other applicant as the statement was made: "Thank you. Mrs Gregory [the interpreter], would you tell Mr [X] and [the appellant] that I am Justice French and I'm hearing their applications today? We will hear both applications together. I will invite each of you to tell me in a moment why you think the Tribunal decision in your case was wrong. I will start with Mr [X] and you can just tell me in your own words but there are some things I want to explain first. This Court has a very limited power to interfere with the Tribunal's decisions. This Court can only set aside the Tribunal's decision if the Tribunal has made a mistake about the law or about procedure. I can't interfere with the Tribunal's decision about the facts of your case. If the Tribunal decided not to believe you, I can't interfere with that decision. All right, now Mr [X], I will ask you to speak first. Would you like to tell me why you think I should --- why the Tribunal made a mistake in your case?" 21 The other applicant then outlined his complaints about the Tribunal's decision. French J then said: "Thank you. I will now ask [the appellant] to say why you think the Tribunal made a mistake in your case." This statement was interpreted by the interpreter. 22 The appellant then outlined to the primary judge his complaints with the Tribunal's decision. These complaints of the appellant take up four and a half pages in the transcript. They reflect substantially all the matters put to us. The primary judge having heard all these submissions, then delivered his reasons ex tempore. He did this by first explaining, in simple language, why he could not interfere with factual findings. He then delivered reasons in both matters. After his Honour had delivered his reasons, the following exchange took place: His Honour: Thank you. The Court --- The [appellant]: Could I ask a question? His Honour: What is it, yes? The [appellant]: What I produced to RRT and it wasn't accepted – this is not breaking of the law? His Honour: No. The Tribunal is not obliged to accept your evidence. It can reject your evidence or not believe it if it wishes. Would you explain to him I'm not going to enter into any further discussion. The Court will now adjourn. 23 The appellant was provided with a copy of the tape recording. He has continued to maintain his allegations. In a declaration dated 17 July 2002 the appellant in effect claimed that the whole of the proceedings before his Honour was not recorded. 24 The Court has listened to the tape recording of the proceedings before his Honour. The Court is satisfied that the transcript is an accurate and complete recording of the proceedings before his Honour. 25 There is no foundation whatsoever for the claims made by the appellant about the conduct of the hearing before the primary judge. They should not have been made. There has been no ground identified to criticise the decision of the primary judge. The appeal should be dismissed with costs. Also, we will grant the respondent liberty to apply within seven days to make an application for a special order for the costs incurred after 8 May 2002, if the respondent wishes to do so. I certify that the preceding twenty five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices of this Honourable Court.