ABC v Minister for Immigration & Multicultural Affairs

14 The applicant made a number of criticisms of the Tribunal's decision which, it was submitted, indicated that the Tribunal made several reviewable errors. Those criticisms are: (a) Vigilante harassment before departure from Iran - the Tribunal failed to address ABC's claim that he and his wife had been subjected to harassment by vigilante groups prior to the applicants' departure from Iran; (b) Unofficial persecution - the Tribunal erred in considering ABC's claim that he would be persecuted because of the Woomera allegations in that it only considered whether he would be prosecuted. It did not consider whether he would be subjected to persecution by government authorities acting unofficially or by unofficial groups such as fundamentalist religious groups because of these allegations;

(c) No evidence - the Tribunal had no evidence for its conclusion that ABC's fear of persecution because of the Woomera allegations was not well-founded. The Tribunal was of the opinion that ABC could defend himself from such harm by producing the Minister's press statement referred to in [9] above; and

(d) Selective enforcement of a law of general application - the Tribunal erred in finding that any harm to ABC consequent on the Woomera allegations would merely amount to enforcement by Iran of a law of general application. It did not consider the possibility, given that the allegations were unfounded, that any enforcement of the law would be based on the applicant's political opinion or membership of a particular social group.

15 The applicant submits that the errors identified in (a) and (b) involve a constructive failure of jurisdiction within ss 476(1)(b) and (c) as well as error of law within s 476(1)(e) of the Act. The applicant claims that there is no evidence to support the Tribunal's conclusion in (c) and that the Tribunal based its decision on a fact that does not exist. In this regard, the applicant relies on s 476(1)(g) of the Act. In relation to the claim in (d), the applicant submits that the Tribunal made an error of law within s 476(1)(e) of the Act.

Vigilante harassment before departure from Iran 16 In relation to this issue, Mr Skinner, counsel for the applicant, referred me to submissions made to the Tribunal by the solicitors for the applicant containing the following statement: "The applicant was attacked by Basiji's and Ansar-e-Hezbollahi several times as a result of his imputed political opinions and religious beliefs. The applicant and his wife were also forced to move residence on occasion to escape persecution. The applicant did not complain to the authorities about the attacks as the justice system supports the vigilante groups." 17 Mr Skinner was unable to refer me to any evidence provided by the applicant in support of this claim or to any reference to it in his statement or in the transcript of the hearing before the Tribunal. The only reference to such attacks made before the applicants left Iran is in the written submissions prepared by the applicants' solicitors. The Tribunal did not specifically mention this claim in its reasons. The applicant submits that, by ignoring ABC's claim that he had previously been attacked by extremists, the Tribunal asked itself the wrong question and ignored relevant material. The applicant relied on Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ("Yusuf") in submitting that this failure means that the Tribunal exceeded its authority under the Act and/or was not authorised by the Act to make the decision. The applicant also submitted that the failure to make a finding in respect of this claim constituted an error of law within s 476(1)(e) of the Act. 18 It would seem that comments in Yusuf,recognising that a failure to make findings about claims of past persecution might be an indication of reviewable error, have led to some confusion about the nature of such error and its consequences. It is worth considering this issue in some detail. In Yusuf at [75], McHugh, Gummow and Hayne JJ said: "If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past)."

Their Honours indicated, however, that they did not intend by the above comment to expand or redefine the concept of a relevant consideration for the purposes of judicial review of administrative decisions by continuing: "It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well-established limits … Rather, the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations." 19 The circumstances in which a decision maker's failure to take into account a relevant consideration or taking into account of an irrelevant consideration will constitute judicially reviewable error were authoritatively summarised by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41: "(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision …. (b) What factors a decision-maker is bound to consider in making the decision is determined by the construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard…. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision…. (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned…." 20 In cases such as this where the administrative action under challenge is the failure to grant a protection visa it is necessary to refer to the Act to identify what considerations the Tribunal is bound to take into account and those it is entitled to take into account. Section 65 of the Act requires the Minister to grant a visa if the criteria prescribed by the Act and Regulations have been met. Otherwise it must be refused. In this respect, the Tribunal is in the same position as the Minister; s 415(1). Section 36(2) states that a criterion for a protection visa is that the applicant is "a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol ("Convention") provides that a refugee is any person who: "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 21 In determining if the applicants are refugees within this definition what is likely to occur if they are returned to Iran is clearly a relevant consideration that the Tribunal is obliged to take into account. In doing so it will need to consider what has occurred in the past and the evidence before it on that point. However, this obligation does not detract from the entitlement of the Tribunal to assess the evidence presented by the applicant and accord that evidence such weight as it thinks fit - even if it gives certain evidence no weight at all. 22 In their joint judgment in Yusuf, McHugh, Gummow and Hayne JJ commented at [69] that s 430 of the Act "entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material". Accordingly, the failure of the Tribunal to refer to the solicitor's submissions concerning vigilante harassment before the applicants left Iran entitles me to infer that the Tribunal regarded this issue as immaterial. The question then arises whether this assessment raises an inference of jurisdictional error as claimed by the applicant. 23 Given that the only mention of this issue in the material before the Tribunal is a bald assertion in submissions without there being any evidence in support, it is not surprising that the Tribunal regarded this issue as immaterial to the consideration of whether the applicants would be persecuted if returned to Iran. The position would be different if there was significant evidence on this issue to which the Tribunal had failed to refer. In that case an indication that the Tribunal regarded the issue as immaterial might well have supported an inference of jurisdictional error. However, as the matter stands, it is my opinion that the claim of jurisdictional error must fail. Similarly the claim that the Tribunal erred in law by failing to apply the real chance test to this issue must also fail.

Unofficial persecution 24 The applicant submitted that the Tribunal's consideration of the applicants' claim to fear persecution from official groups in Iran because of the Woomera allegations was based on an erroneous understanding of the law. It was submitted that the Tribunal failed to consider whether the authorities in Iran might persecute the applicant other than by way of prosecution, for example by inflicting some serious punishment, penalty, detriment, disadvantage, threat to life or freedom or course of selective harassment; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan") at 388 per Mason CJ, 399-400 per Dawson J, 429-431 per McHugh J. In other words, it was argued that, in relation to actions by Iranian authorities, the Tribunal misdirected itself as to the meaning of persecution. 25 It is clear from the Tribunal's reasons, however, that it correctly directed itself as to the meaning of persecution. The Tribunal referred to the views of Mason CJ and McHugh J in Chan. The Tribunal also referred to McHugh J's comment in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258: "Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group…as long as the discrimination constitutes persecution and is inflicted for a Convention reason, the person will qualify as a refugee." 26 The Tribunal's reasons show that it did in fact consider whether ABC would be persecuted other than by prosecution (see [12] above). In its discussion under the heading, "Official harm", the Tribunal accepted that there was a possibility that Iranian authorities may have linked the applicants with the Woomera allegations and therefore specifically considered whether "there is a real chance either applicant might be persecuted in Convention terms by the Iranian authorities." Given that the ABC would, in such circumstances, be able to produce the Minister's press statement (see [9] above), the Tribunal concluded the chance ABC would be prosecuted was remote. The Tribunal stated that, when this view was put to ABC, he "did not dispute this, instead responding that 'unofficial people' might still want to punish him". 27 The Tribunal also considered the question of persecution as a result of the Woomera allegation under the heading "Harm by 'unofficial' sources". Under this heading the Tribunal dealt with ABC's claims that he might be harmed by Basiji, Hezbollah or other hardliner groups. Mr Skinner, counsel for the applicant, submitted that the Tribunal did not deal with the possibility of harm by members of the government acting outside the law. In my opinion, this criticism involves subjecting the Tribunal's reasons to the excessively fine scrutiny that the High Court specifically warned against in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 28 In my opinion, the Tribunal's consideration of the possibility of persecution resulting from the Woomera allegations comprehensively covered all possible sources of such harm. The possibility that members of the government or government agencies might act outside the law and attempt to harm the applicants in some unauthorised way is covered by the Tribunal's analysis of "harm by unofficial sources". 29 In any event, as the respondent pointed out, even if the applicant is right, the Tribunal's finding that any persecution to which ABC would be exposed following the Woomera allegations would not be for a Convention reason (see [11]-[12] above) is sufficient to justify the Tribunal's conclusions on this point.

No evidence 30 The particular fact identified by the applicant as not existing is that ABC would not be persecuted in Iran on the basis of the Woomera allegations because he could produce a press release from the respondent which would ultimately have the consequence that ABC would neither be persecuted nor prosecuted in Iran. The relevant passage in the Tribunal's reasoning is "More importantly, he has in his possession the Australian Minister for Immigration and Multicultural Affairs' media release, which unequivocally confirms that the allegations about [ABC's] treatment of [DEF] are groundless." 31 The applicant submitted that, because the press release did not identify the applicants by name, the authorities would not necessarily take it as exonerating the applicant. Thus, it could not be said that the press release 'unequivocally confirms' that the allegations against ABC are groundless. 32 The respondent's first submission was that the 'particular fact' identified by the applicant is not a fact at all, but rather a conclusion. That is, whether or not a document 'unequivocally confirms' a state of affairs is a conclusion reached by an examination of the document in its context. Here, it is submitted, the Tribunal was entitled to conclude that the timing of the media release would strongly suggest that it related to the allegations against ABC. 33 The respondent also submitted that the Tribunal's statement, that the press statement confirms the Woomera allegations are groundless, is an accurate statement of fact. Mr Tracey, counsel for the respondent, submitted that the press statement had to be read in the context of the publicity surrounding the Woomera allegations. I agree that, even though ABC's name did not appear in the press statement, its contemporaneity with the Woomera allegations and its obvious reference to those allegations would be sufficient to establish that the allegations were groundless. Moreover, this position appeared to have been accepted by the applicant (see [26] above). ABC's response to the Tribunal's statement that he could rely on the press statement to clear his name was not to deny this because he is not identified in the press statement but to refer to the actions of unofficial people. This response, as Mr Tracey submitted, was indicative of the fact that ABC was accepting the Tribunal's conclusion concerning the effect of the press statement. 34 In any event, the no evidence ground of review can only succeed where there is no evidence justifying the making of the decision. In this case, the Tribunal concluded that the applicant did not have a well-founded fear of persecution by the authorities arising from the Woomera allegations. As noted in [11] above, the Tribunal reached this conclusion on several alternate bases, being that the applicant had seemed to accept that the press release could be used to prove his innocence, that a prosecution could not succeed under Iranian law due to the absence of eye-witnesses and that any criminal prosecution would not amount to persecution for a Convention reason.

Selective enforcement of a law of general application 35 This matter was not addressed in submissions although, at the outset of the hearing, Mr Skinner did say that he pressed the point. In any event, the submission has no substance and may be dealt with quite briefly. The claim, as I understand it, is that, notwithstanding that the Woomera allegations were confirmed as unfounded in the Minister's press statement, ABC might be spuriously charged with an offence based on these allegations. The Tribunal referred to the possibility that selective enforcement of a law of general application might constitute persecution (see [11] above). On the basis of the evidence before it, the Tribunal specifically stated that there did not exist in Iran a particular social group made up of individuals who sexually abuse minors. Further, the Tribunal found that any prosecution based on the Woomera allegations would not be motivated by the applicant's actual or imputed political profile. This, in turn, was based on its finding that the applicant had no such profile.

conclusion 36 For reasons set out above, I must conclude that the Tribunal's decision that the applicants are not persons to whom Australia has protection obligations under the Convention does not disclose any reviewable error. I must therefore dismiss the application with costs. Nevertheless, it should be said, that this case demonstrates the hardship and distress to which putative refugees can be exposed during their time in detention awaiting the outcome of applications for protection visas. In addition to the strains of dislocation and family separation that the applicants have suffered, they have had to endure the additional distress that must inevitably have flowed from the Woomera allegations and the subsequent investigation into those allegations. It is, to say the least, unfortunate that this should occur while the applicants were, directly or indirectly, in the care of Australian government authorities. Unfortunately it is not in the jurisdiction of this Court to alleviate or to compensate for this distress. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 20 July 2001 Counsel for the Applicant: Mr R Skinner

Solicitor for the Respondent: Australian Government Solicitor