WABC v Minister for Immigration & Multicultural Affairs [2002] FCA 436

FEDERAL COURT OF AUSTRALIA

WABC v Minister for Immigration & Multicultural Affairs [2002] FCA 436

Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) 91R(1), s 474, Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 followed Walton v Phillip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839 considered Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 considered NABL v Minister for Immigration & Multicultural Affairs [2002] FCA 102 considered NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 considered WABC v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W499 of 2001 RD NICHOLSON J 2 APRIL 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRLIA DISTRICT REGISTRY W499 of 2001

BETWEEN: WABC

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 2 APRIL 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRLIA DISTRICT REGISTRY W499 of 2001

BETWEEN: WABC

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 2 APRIL 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant seeks review of a decision of the Refugee Review Tribunal ("the Tribunal) which was made on 4 October 2001. The Tribunal in that decision affirmed the decision of a delegate of the respondent not to grant to the applicant a protection (class XA) visa. 2 The applicant's circumstances are as follows. He is a citizen of Iran. He arrived in Australia in December 2000. Initially, in his first interview he said that he was a chicken farmer until his chicken farm burned down in 1997 - 98. He applied for a reconstruction loan from a Ministry and was told to wait his turn, and in the meantime he obtained work as a driver. He alleged that he was approached by an official in the Ministry to which he had applied for a loan and was asked for a bribe to expedite his application. He said that he had become embroiled in an altercation with the official and security personnel as a consequence of which he was taken to the basement of the building of the Ministry where he was detained for a day, tortured and insulted. He was released only upon signing a document. Two days later he was ordered to report to the police and was told to report to them. That was the substance of his claim in his first interview in which he said he had decided to leave Iran after he received the letter from the police requiring him to report. 3 In a later interview he claimed he then decided to approach a powerful local Imam for help. He claimed to have become involved in an argument with the Imam which led to violence and involved the smashing by him of a photograph of Ayatollah Khomeini and the striking of the Imam and his clerk. The claim of striking the Imam was, however, denied by him in his interview with the delegate. He claimed to have gone into hiding and eventually left Iran illegally and came to Australia. 4 The applicant claimed that he had a well-founded fear of persecution if he were to return to Iran as a consequence of the search of his house during his absence and the discovery there of photographs implicating him in monarchist sympathies. Furthermore, he said that he had been accused of attempted murder of the Imam so that he feared for his life if he returned. 5 The Tribunal did not accept the applicant's claims that he had assaulted the Imam or that during the claimed altercation the incident with the pictures had occurred. The claims were not accepted because of the failure of the applicant to mention them when he was first interviewed on arrival in Australia. This finding was reached after consideration and rejection of the reasons the applicant gave for not mentioning the altercation during his first interview. In particular he claimed that he had been interviewed soon after his arrival following a perilous journey and that it was unfair to him. However, the Tribunal did not consider it unreasonable to expect the applicant to have mentioned the claimed altercation with the Friday prayer leader if that incident was, as he claimed, what prompted him to flee Iran. The claim in relation to the incident with the picture extended also to a picture of President Khatami, but that was likewise not accepted by the Tribunal. 6 The Tribunal accepted the account which the applicant gave when first interviewed. However, even there it did not accept that he was taken to a basement of the building where he was detained for a day and tortured, although it did accept that he was sent to a protection section. The Tribunal also accepted that the applicant left Iran illegally, crossing over the border into Pakistan. It accepted that after arrival in Australia he had telephoned his family and had been told of the raid on his house and the seizure and confiscation of the monarchist portraits. It considered the raid was prompted by the applicant's failure to report to the police as required by the letter. 7 The Tribunal then addressed whether there was a real chance that on the basis of the facts it had accepted, the applicant would be persecuted for a convention reason if he returned to Iran now or in the reasonably foreseeable future. It did not accept there is a real chance that the applicant will be beaten, falsely accused of being anti-government and sent to court merely because he accused an official of demanding a bribe. It did not accept that the pictures or photographs which were found in the raid on the applicant's home will lead the authorities to conclude he is anti-government or anti-revolutionary. 8 In relation to the applicant's claim that he would be punished for having departed Iran illegally, the Tribunal accepted there was a real chance of such punishment. However, such punishment would be as the consequence of the enforcement of a law of general application and not persecution for a Convention reason. It said there was nothing in the independent evidence to suggest that the applicant will be singled out for punishment for his illegal departure for a Convention reason. Nor is there anything to suggest he will be punished more harshly for a Convention reason, for example, his political opinion, when compared to others convicted of the same offence. 9 Furthermore, the Tribunal found it demonstrably the case that the applicant had never had a high opposition political profile. It found he had never attempted to engage in organised political opposition in Iran. It, therefore, found that it could not accept that he would be perceived as being anti-government or anti‑revolutionary, either because he accused an official of demanding a bribe or because he had monarchist pictures in his possession or because he had departed Iran illegally or applied for asylum in Australia. It accepted there was a real chance the applicant would be questioned if he returned to Iran in relation to any of those matters but that such questioning would fall short of serious harm as required by ss 91R(1) of the Migration Act 1958 (Cth) ("the Act"). 10 The applicant is illiterate and not surprisingly his application does not spell out any specific grounds of review beyond saying that the decision of the Tribunal does not consider the jeopardy of his situation if he were returned to Iran. With the assistance of a person in his place of detention, he prepared one and a half pages of written submissions in his language which were interpreted to the Court. These referred, firstly, to the impact of the voyage to Australia on him in giving his initial interview. I have already stated the Tribunal finding on that. Secondly, he said that given that the Tribunal accepted the substance of his initial interview and what he had been told by the family on the telephone, the Tribunal should have found that his life would be in danger. He said this was particularly so given the human rights position in Iran which was well known. Thirdly, he said that the confrontation with the Imam was enough to put his life in danger. Fourthly, the possession of the photographs of the monarchist family in the small town in which he had lived was enough to identify him as an activist against the government. 11 I have identified these matters because the identification of them shows that they are inviting this Court to remake the findings of fact which the Tribunal itself made. That is not part of the Court's jurisdiction. The applicant's application was lodged on 22 October 2001. On and from 2 October 2001 the Act was amended to significantly change the jurisdiction of this Court. In particular, s 474 in Pt VIII of the Act as amended and introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) seeks to have that effect. It is a privative clause designed to make the Tribunal's decision final and conclusive. This, therefore, limits the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth) because it broadens the validity of acts of decision‑making power so that such acts are confined only by certain preconditions. Those preconditions are set out in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 614-616. They are that the decision‑maker is required to have made, "a bona fide attempt to exercise its power." Next, the decision must relate to the subject matter of the legislation, and finally, the decision must be reasonably capable of reference to the power given to the decision‑maker. 12 These principles have been considered in some recent decisions of the court. In particular I have had regard to the decisions in Walton v Phillip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839; Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167; NABL v Minister for Immigration & Multicultural Affairs [2002] FCA 102 and NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263. In my opinion it is patent that there is nothing in this case to invoke the three Hickman preconditions to which I previously made reference. Furthermore, there is nothing which raises issues going to whether jurisdictional error arises or there is any breach of natural justice, so that it is not necessary to consider the conflicting views expressed in some of the decisions just cited on whether those matters can give rise to jurisdiction in the Court under s 39B of the Judiciary Act, nor does the application identify any requirement or limitation on the exercise of power by the Tribunal that it has not complied with and which, notwithstanding the terms and effect of s 474, is essential to a valid decision. 13 The consequence is that the effect of the Act as amended by Parliament is that the decision of the Tribunal is final and conclusive in this particular case. There is nothing which enlivens the jurisdiction of the Court to provide relief pursuant to s 39B of the Judiciary Act. It follows that the application must be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.