WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1180

FEDERAL COURT OF AUSTRALIA

WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1180 MIGRATION – judicial review – want of bona fides – jurisdictional error – asserted breach of natural justice – failure to conduct review – alleged failure to consider materials submitted by applicant – grounds not made out – application dismissed Migration Act 1958 (Cth) s 414 s 424 s 474(1) NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 Craig v South Australia (1995) 184 CLR 163 SBBK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 565 WAEJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W31 OF 2002 FRENCH J 20 SEPTEMBER 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 31 OF 2002

BETWEEN: WAEJ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 20 SEPTEMBER 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 AUSTRALIA DISTRICT REGISTRY W 31 OF 2002

BETWEEN: WAEJ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 20 SEPTEMBER 2002

PLACE: PERTH

REASONS FOR JUDGMENT

Introduction 1 The applicant was born in Iran on 22 September 1972. His father and mother and four siblings still live in that country. He arrived in Australia on a boat called the "Helidon" on 8 November 2000. His arrival was unlawful. He had no visa. On 8 November 2000 he was interviewed, through an interpreter, by an officer of the Department of Immigration. Asked why he had left Iran, he said he had been a member of a group called the Movement for Freedom (Marz-e-Porgohar) whose leader was one Farahanipour. His role within the group was to distribute flyers. He said Farahanipour was arrested at the time of a demonstration involving the group and he himself was arrested on 16 September 1999 and detained for eleven days. He said his brother, who was an ex-serviceman from the war against Iraq, had secured his release on bail from prison. The applicant said he was supposed to appear in court three months thereafter but decided instead to leave Iran. 2 The applicant also told the Department's interviewer that he wrote articles for a monthly publication put out by the Sanatee Amir Kabir University. This was not an anti-government publication but raised current issues for discussion. He wrote under an alias. He said he was fed up with life in Iran. There was no freedom of speech or of ideas. By writing articles for the monthly magazine he could express some of his feelings but this was dangerous. Some famous writers had been killed. He did not know what would happen to him if he went back. 3 On 16 November 2000, the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. A delegate of the Minister refused his application on 20 December 2000. On 21 December 2000, the applicant applied to the Refugee Review Tribunal ("Tribunal") for review of that decision. On 22 February 2001, the Tribunal affirmed the delegate's decision refusing to grant a protection visa. The applicant sought judicial review in the Federal Court on 9 March 2001. On 5 November 2001, by consent, the Tribunal's decision was set aside and the matter remitted to the Tribunal differently constituted for redetermination. 4 On 22 January 2002, following a second hearing, the Tribunal again affirmed the delegate's decision to refuse a protection visa. The applicant filed an application for review of the Tribunal's decision on 22 January 2002. The initial application contained two unparticularised grounds of review asserting that there was no evidence for the Tribunal's decision and that the decision involved an error of law. Subsequently, upon the applicant securing legal representation, leave was given to file a substituted application on 30 April 2002. The hearing in this Court proceeded on 1 and 10 May 2002 but judgment was deferred pending the outcome of the Full Court's consideration of the effects of s 474 of the Migration Act 1958 (Cth) in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.