NAAC of 2001 v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2002-10-31|Before: Beaumont J

INTRODUCTION 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("The Tribunal") made on 15 August 2001, whereby the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The application for judicial review was filed on 8 October 2001. The application therefore falls within the period of operation of the "privative clause" regime enacted in s 474 of the Migration Act 1958 (Cth) ("the Act"). 2 Four grounds for judicial review were originally stated in the application: "1. That procedures required by the Act or the regulations to be observed in connection with the making of the decision were not observed. 2. The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision. 3. The Tribunal based the decision on the existence of a particular fact and the fact did not exist. 4. The Tribunal Member refused to accept that the applicant has a well-founded fear of persecution for Convention reasons." 3 However, as will be seen, the grounds for review were subsequently amended. 4 The respondent filed a Notice of Objection to Competency on 16 October 2001 contending that the decision is a "privative clause decision", that the decision in question was subject to the constraints on review imposed by s 474(1); and that the grounds relied on by the applicant were framed by reference to provisions in the Act since repealed. 5 On 10 April 2002, the applicant filed an amended application specifying these grounds: "1. If the decision of the Tribunal is a 'privative clause decision' within s474 of the Migration Act 1958 (Cth) ('the Act'), it is subject to review for a constructive failure to exercise jurisdiction. 2. The decision is infected by the following errors amounting to a constructive failure to exercise jurisdiction: (a) rejection of the evidence of the applicant's son with regard to issues critical to the exercise of its jurisdiction, on a basis which was not logically probative; (b) an appearance of bias arising from the rejection of the son's evidence; (c) failing to take into account relevant material which was central to the issue of persecution on the ground of religion and political opinion, by reason of an error of the interpreter at the hearing; (d) other failures to take into account matters central to the Tribunal's consideration of the question before it. 3. There is an appearance of bias in the Tribunal's rejection of the son's evidence, amounting to a lack of bona fides on the part of the Tribunal, with the result that s 474 of the Act does not protect the decision fromreview." 6 As will be seen, these grounds were developed in written argument. 7 The applicant arrived in Australia on 3 October 1998. On 3 September 1999 she lodged an application for a protection visa. On 5 November 1999, the Minister's delegate refused to grant the applicant a protection visa and, as noted, on 15 August 2001, the Tribunal affirmed that decision.

Claims made to the Department 8 The Tribunal noted that the applicant had made the following claims to the Department: · The applicant is a 65 year old Palestinian widow. Her Iraqi husband died in 1975. She resided in Iraq until 1998, when she travelled to Australia via Jordan. She currently holds a Jordanian passport, valid until 2004. She attended school in Jerusalem between 1942 and 1948. She had a childcare business in Iraq which was "confiscated" by the owner of the building when she travelled to Jordan in 1998. · As a widow, she had no protection. She had been harassed and mistreated (in Iraq) because she was a Christian and of Palestinian origins. As a Christian, her situation deteriorated after the Gulf War. In Iraq, Christians are denied basic human rights. · Because all of her family live in Australia, she cannot return to Iraq.

Written Claims made to the Tribunal 9 The Tribunal noted that, in a written statement dated 19 November 1999, the applicant claimed that although she had a Jordanian passport, she was not a Jordanian citizen. She claimed that she had resided in Iraq since 1965, when she moved there with her late husband, and that she was a permanent resident of Iraq. She was seeking protection as an elderly widow. Her son, who used to live with her in Baghdad, had left for Northern Iraq. Her eldest daughter and son reside in Australia, and her brothers, sisters and "many relatives" reside in Australia. 10 The Tribunal further noted that in a supplementary written statement, unsigned and undated but translated on 16 June 2001 and forwarded to the Tribunal on 18 June 2001, the applicant claimed that she had finished school in Jerusalem in 1951. Upon her marriage in 1965, she moved to Baghdad. Because she did not hold Palestinian citizenship, she was issued with a Jordanian passport to enable her to enter Iraq. 11 There were four children of her marriage. 12 She had experienced problems at the Iraqi border in November 1995, when she attempted to return to Iraq after travelling to Jerusalem for her daughter's wedding. At that time, she was asked whether her son Ghassan, who was working overseas at the time, had travelled to a country which had participated in attacking Iraq. She claimed that she and her other son, Khaled, were threatened at the border. 13 The applicant claimed that the Party Organisation in her area knew that her son Ghassan had travelled to Australia and was sending her money. She claimed that the Party Organisation began sending one of her neighbours, a member of the Ba'ath Party, to her house to ask questions. She claimed that she and her son Khaled were called to attend the "Partisan Suburb" in November 1997, that they were insulted and humiliated, and that she was forced to "disavow" Ghassan. 14 The applicant claimed a few days after this event, a neighbour came to her house and abused her in front of others, saying that she was an infidel because she did not wear a veil. After this, the applicant claimed, a man called Abu Laith, began coming to her house to demand money or "donations" for the Party. The applicant said that she paid the "donations", until one day she was asked to pay a large amount of money that she refused to pay because she did not have the money. She claimed that the people who had come to collect the money began insulting and abusing her and insisting that her son Ghassan was sending her money from Australia. She also claimed that they threatened to harm her. 15 After these events, the applicant claimed, Khaled was detained for a week in New Baghdad Police Station. After his release, Khaled decided to leave Iraq with his wife. Following this, the applicant also decided to leave Iraq. In August 1998 the applicant left Iraq for Jordan and then travelled to Australia. 16 The applicant claimed that, after she left Iraq, she learnt from a relative that the Ba'ath Party had confiscated her childcare business and all of her properties and that someone had moved into her home. 17 The applicant claimed that, although she is a permanent resident of Iraq, she has no home or employment to go back to in Iraq. If she returned there, she would suffer persecution.

(a) The applicant's evidence 18 The applicant's oral evidence to the Tribunal, on 19 June 2001, was explained in the Tribunal's reasons. 19 The Tribunal, in asking the applicant about the claims in her supplementary statement (translated on 16 June 2001), questioned why she had waited three years to make these claims, noting that the applicant had not made them in her initial written statement to the Tribunal in 1999. The applicant stated that she did not know that she should tell a story and her adviser had told her that the Tribunal should be satisfied with her story. 20 The Tribunal noted from the applicant's passport that she had previously travelled to Jerusalem and to Australia in 1988. The applicant said that she had no difficulty in returning to Iraq. 21 The applicant was asked by the Tribunal if she had ever been a member of any political group or party. She indicated that she had not. 22 The applicant said that members of the local branch of the Ba'ath Party had questioned her in her house on several occasions in 1997. They wanted money. A lady from the Party spat on the applicant and asked why the applicant did not cover herself. 23 The applicant gave evidence that she had left Iraq in August 1998. However, when the applicant was asked when she had closed her childcare business, she stated that she closed her business in March 1998. When asked about the circumstances of the closure of her business, the applicant stated that there were two reasons, because she was unwell and because Khaled had been detained for a week because she did not give money to the Ba'ath Party. 24 The applicant said that she regularly attended Church in Iraq at the Syriac Orthodox Church in Baghdad. When asked to comment on the independent evidence indicating that Christians were not discriminated against by Saddam Hussein's regime, the applicant replied that she was not claiming persecution by the regime, but by her neighbours. Her neighbours made life difficult for her. They verbally abused her, saying that she was an infidel, and she was spat on: "[T]he neighbours are the problem". 25 The Tribunal put to the applicant independent country information indicating that "elderly returnees" are excepted from Iraqi interrogation procedures. The applicant stated that everyone would be interrogated irrespective of age, but "the government wouldn't care about her because she is Palestinian". However, she is afraid of the local party members. 26 Although she has a Jordanian passport, she is not a Jordanian citizen, has no Jordanian ID card and has not lived in Jordan. 27 When asked why she could not return to a different suburb, the applicant replied that she had no-one to care for her in Iraq.

(b) Ghassan's evidence 28 The Tribunal noted that in his evidence, Ghassan said that in April 1998 his brother Khaled informed him that he had been interrogated in Iraq by Ba'ath Party members. "Donations" had been asked for. The "family" (Khaled and the applicant) had been "verbally abused". 29 Ghassan stated that he feared that if the applicant were to return to Iraq, she would be interrogated and tortured.

(c) Adviser's comments 30 The Tribunal noted that the applicant's adviser, Dr Al-Jabin, suggested, inter alia, that "the possibility of her being arrested and detained cannot be ruled out", and spoke of his own personal experiences in Iraq.

Evidence from Other Sources 31 The Tribunal referred to a body of independent evidence on the following topics: Human Rights; Return to Iraq; Christians in Iraq; and Treatment of family members of dissidents. 32 On the issues of human rights and the treatment of Christians in Iraq, the independent evidence mentioned by the Tribunal indicated that, although human rights are systematically violated in Iraq, Iraq is an essentially secular society in which Christians have been established for 2,000 years. 33 On the issue of returning to Iraq, the Tribunal referred to independent evidence which indicated that, although, in general, Iraqis are interrogated upon return to Iraq, this is not the case with elderly people. 34 On the issue of the treatment of family members of dissidents, the Tribunal cited independent evidence indicating that retribution against family members of political dissidents is common in Iraq.

The Tribunal's Decision 35 Being satisfied that the applicant was a permanent resident of Iraq, the Tribunal proceeded on the basis that Iraq was her country of habitual residence; that notwithstanding that she held a Jordanian passport, she was not a citizen of that country; and that she had departed Iraq legally. 36 However, the Tribunal did not accept as credible certain of the applicant's claims of harm suffered in Iraq. The Tribunal could not accept as credible the claims, made in her supplementary statement. It noted that a number of the claims made in this statement were not made in her initial statement to the Tribunal dated 19 November 1999. The Tribunal found that it was implausible that claims of arrest, detention and interrogation of her son and extortion by the Ba'ath Party would not have been mentioned in her initial statement to the Tribunal. 37 In relation to the applicant's childcare business, the Tribunal did not accept that it was closed by others, but found that the applicant had closed it herself because she was unwell. 38 In relation to the issue of the applicant's religion, her Christian faith, the Tribunal did not accept that the applicant faced a well-founded fear of persecution on this ground. The Tribunal noted that the independent evidence indicated that the broad spectrum of Christian communities in Iraq are not discriminated against or persecuted by Saddam Hussein's regime and that Iraq is an essentially secular society. When asked to comment on this information, the applicant said that she was not claiming persecution by the regime, but by her neighbours, who made life difficult for her, by verbally abusing her, calling her an infidel and spitting on her. She said that the neighbours are the problem. The Tribunal said that the applicant attended Church in Iraq every week, and that there was no evidence to suggest that the applicant was prevented from practising her religion in Iraq. The Tribunal, however, accepted that the applicant may have been verbally abused and spat at by her neighbours because she is Christian. But, citing McHugh J in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, the Tribunal did not consider that such treatment amounted to "serious punishment or penalty" or "significant detriment or disadvantage", and therefore did not amount to persecution for the purposes of the Convention. 39 In relation to the applicant's membership of a particular social group, the Tribunal reviewed the applicant's claim that she feared harm because she was an elderly widow without male protection. The Tribunal also considered the applicant's fear of harm because of her connection with her family under this Convention reason. The Tribunal found that, even if it were to accept that "elderly widows without male protection" were a particular social group, it could not be satisfied that the applicant had faced harm in the past or faced harm in the future for this reason. In relation to the question of the applicant's family, the Tribunal accepted that members of a family can constitute a particular social group within the meaning of the Convention. However, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution because of her family. Apart from the applicant's claims in her supplementary statement, which the Tribunal did not accept as credible, the Tribunal found that there was no evidence before it to suggest that the applicant's family were of any interest to the Iraqi authorities. In this regard, the Tribunal noted that the applicant had left Iraq legally and without difficulty. The Tribunal accepted independent evidence that family members of dissidents - or suspected dissidents - are treated with severity. But the applicant resided in Baghdad for thirty two years, during which time she established a successful business (which she closed of her own volition in March 1998), and apart from being harassed by her neighbours and the Moslem "rank and file", the applicant suffered no harm. 40 The Tribunal next addressed the question whether the applicant was likely to face harm upon her return to Iraq because of her absence from Iraq, considered in the context of the Convention reason of imputed (perceived) political opinion. On the basis of the independent evidence, given the applicant's age, the facts that she had never been a member of a political party, had no history of difficulties with the Iraqi authorities, and had been absent from Iraq for extended periods in the past, it was not satisfied that the applicant would be imputed with a political opinion in Iraq because of her absence. The Tribunal was not satisfied that, for this reason, she faced a well-founded fear of persecution. 41 In relation to the applicant's claim that she would face harm in Iraq because of her Palestinian nationality, the Tribunal found, on the basis of its review of information from independent sources, that there was no evidence that Palestinians are persecuted by the Iraqi authorities. The Tribunal noted that the applicant had not mentioned any specific incident in which she was harmed by Iraqi authorities because of her Palestinian nationality. 42 As to Ghassan's evidence, in support of his mother, the Tribunal said: "Given their relationship, it is not unreasonable to suggest that the applicant's son would be willing to do what he could to assist his mother in this application. The Tribunal notes the witness's stated concern about his mother. In light of the fact that the witness cannot help but have a bias [in favour of his mother], it cannot accept his evidence as impartial or objective and cannot give any weight to his evidence." 43 Accordingly, the Tribunal found that the applicant did not satisfy the criterion set out in s 36(2) of the Act.

Conclusions on the application 44 On behalf of the applicant, it is submitted that the Tribunal's rejection of her son's evidence involved either apprehended, or actual, bias; and, further, that this amounted to a lack of bona fides on the part of the Tribunal, with the result that s 474 did not protect the decision from review. 45 It is submitted that the Tribunal rejected the son's evidence entirely, on the basis of an assumption regarding its probative value. This rejection was not because of the Tribunal's assessment of its content, or the witness's demeanour, but by making an assumption that any child of an applicant for a protection visa necessarily lacks impartiality and objectivity. This was a prejudgment by the Tribunal that the son's evidence was worthy of no weight, purely because he fell within this class of witness. This prejudgment, which showed an appearance of bias in the actual making of the decision in the case of the applicant, may be distinguished from the position in Re Minister for Immigration & Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 (at 140; [34]) where attitudinal bias, having been expressed by a Tribunal member in context apart from giving reasons for decision, was held not to give rise to an appearance of bias. 46 It is further contended that the Tribunal's reasons demonstrate actual bias within the test stated by the High Court in Minister for Immigration & Multicultural Affairs v Jia LeGeng (2001) 205 CLR 507 per Gleeson CJ and Gummow J (at 532; [72]) - "The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented." 47 It is submitted that the Tribunal's stated reason for refusing to accept the son's evidence, namely his relationship with the applicant, indicates that the Tribunal had already reached a conclusion, incapable of alteration, as to the probative value of his evidence. 48 In developing the related argument that this bias amounted to a lack of bona fides within the meaning of the Hickman proviso in the construction of provisions such as s 474, reference was made to the observations of Dawson J in O'Toole v Charles David Pty Limited (1990) 171 CLR 232 at 305; and of Gyles J in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 at [35]. Reference was also made to explanations of the application of the Hickman bona fides proviso in NAAV v Minister for Immigration & Multicultural Affairs [2002] FCAFC 228 (at [107] - [108]; [674]). 49 In this connection, reliance is also placed upon the provisions of s 425(1) of the Act - "(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review." 50 It is contended for the applicant that the Tribunal's prejudgment of the probative value of her son's evidence showed a lack of bona fides in the Tribunal, either because its treatment of that evidence showed actual bias, or because it made no genuine attempt to exercise its jurisdiction, or that it "blatantly disregarded" its duty under s 425(1) properly to consider the applicant's evidence, so that the "bona fides" Hickman proviso was not satisfied. 51 I cannot accept these arguments. 52 The question is essentially one of characterising the relevant conduct engaged in by the Tribunal. In essence, what the Tribunal did, relevantly, was to form a judgment about the weight to be given to the son's evidence. There was nothing improper, nothing in the nature of bias in doing this. It is a case, then, in my opinion, of making a judgment, in a legitimate area; that is, assessing, in the circumstances, the worth of a witness's evidence, hardly itself an exercise calling for criticism. In short, this is a case of making a judgment, not of having "a state of mind ... in the form of prejudgment ...". 53 So viewed, there was no actual, or perceived, bias, and no lack of bona fides involved; and this is not a case where there has been no genuine attempt to exercise jurisdiction. 54 Nor, in my view, was there any disregard of the provisions of s 425(1). The applicant was invited to appear. She, and her son, did appear, and were heard. 55 In oral argument, much reliance was sought to be placed for the applicant upon the decision of Mansfield J in SAAG v Minister for Immigration & Multicultural& Indigenous Affairs [2002] FCA 547. In setting aside a decision of the Tribunal because, within the meaning of the Hickman proviso, it was not a bona fide attempt to exercise its power, Mansfield J relied upon an "inference from ... consideration of the Tribunal's reasons as a whole" (at [36]). His Honour went on to say (at [36]): "In my judgment, its reasons go beyond the Tribunal making findings of fact or making observations which involve it making errors of fact or law, or simply reaching views which lack logic or which are wrong. The firm persuasion which I hold is that the Tribunal approached its review of the applicant's claims on the basis that it should look for reasons why it could reject those claims. In other words, in my judgment, its reasons overall show that it did not address the applicant's claims by asking whether he has a well-founded fear of persecution for a Convention reason, but in substance by asking whether there was evidence which would enable it to reject the applicant's claims." 56 Plainly, his Honour's reasons do not purport to lay down any general rule in this area. If they had, I would respectfully not assent. Whatever may be the scope of an inference of a lack of bona fides from a particular process of reasoning by the Tribunal, that inference is not available. When these reason are examined, all that appears is that the Tribunal, in the course of making an assessment of the weight to be given to the evidence of a witness, reasoned that because the witness was the son of the applicant, his evidence should be given no weight. No inference is available here that the Tribunal "approached its review of the applicant's claims on the basis that it should look for reasons why it could reject those claims"; nor did the Tribunal's reasons show that it proceeded "in substance by asking whether there was evidence which would enable it to reject [those] claims". 57 The operation of the Hickman "bona fide attempt" proviso has been recently explained by the Full Federal Court in NAGT of 2002 v Minister for Immigration & Multicultural& Indigenous Affairs [2002] FCAFC 319 where Sackville, Allsop and Jacobson JJ said (at [27] - [28]): "In Wu v Minister for Immigration & Multicultural Affairs [2002] FCA 1242, Sackville J summarised the approach taken in NAAV v Minister to the first of the Hickman conditions, in terms (at [59]) with which we agree: 'the touchstone that emerges from the judgment in NAAV [v Minister] is that a decision of the MRT will satisfy the first Hickman condition if it is the consequence of an honest attempt to act in pursuance of the powers of the tribunal. There may be cases where the disregard of statutory requirements or, indeed, of the evidence, is so 'blatant' (to use von Doussa J's word) that an inference can be drawn that the decision-maker has not honestly attempted to exercise the relevant statutory power. There may also be cases where the decision-maker has knowingly exercised a power for an improper purpose: Daihatsu Australia Pty Ltd v Federal Commissioner of Taxation (2001) 184 ALR 576, at 587, per Finn J. But the fact that the tribunal has misconstrued the legislation or committed procedural errors will not, of itself, ordinarily establish that it has not honestly attempted to exercise its power: Daihatsu v FCT, at 590.' There is no basis, in our view, for concluding that the RRT did not make a bona fide attempt to exercise its powers. The fact that the RRT may have misconstrued the Convention definition of 'refugee' does not demonstrate either bias or lack of good faith. The RRT plainly attempted to discharge its functions honestly and it did not attempt to exercise its powers for any improper purpose." 58 For similar reasons, no lack of bona fides has been demonstrated here. Accordingly, I hold that the protection afforded by s 474(1) operates so as to exclude reliance by the applicant upon the approach taken by the Tribunal in its assessment of the weight to be given to her son's evidence. 59 Moreover, in my view, it is equally plain that this is not a case where the applicant was, for the purposes of s 425(1), denied any "real opportunity" to appear and give evidence (see Minister for Immigration & Multicultural Affairs v Cho (1999) 92 FCR 315 at 323; [33]). In any event, we are concerned here, not with the applicant's evidence, but with the evidence of a witness (see s 426(3)). 60 It is also submitted that the breach previously alleged of the provisions of s 425(1) should be characterised as a breach of an "inviolable limitation[ ] or restraint[ ] upon the jurisdiction or powers of the Tribunal" (per Mason ACJ and Brennan J in R v Coldham; Ex parte The Australian Workers' Union (1983) 153 CLR 415 at 419). Again, I cannot accept that there was any breach of s 425(1) here. 61 On behalf of the applicant, it was sought also to support her argument that s 425(1) had not been complied with, by reliance upon a suggested error in translation in the interpretative process during the Tribunal hearing in the following circumstances. 62 As has been mentioned, the Tribunal's reasons refer to the evidence given by the applicant to the Tribunal. However, although the tape-recording of that evidence is available, it was not transcribed. 63 The applicant here relies on the affidavit evidence of Omar Moussa, sworn 1 May 2002. Mr Moussa is the translator who listened to the tape and translated the portion now relied upon by the applicant as follows: "Q Independent evidence available to the department, department of Foreign Affairs - I Evidence dependent, independent from department of Migrant Affairs- Q suggest that Christian Community in Iraq are not discriminated against or persecuted by Saddam's Regime. I They say that Christians in Iraq do not face persecution or harm from Saddam Hussein. Q Do you want to comment on that? I Do you want to say any thing or comment on this information? A It is not Saddam Hussein. It is those who are around me. Those who are around me. I cannot go to different place to live. From those who are around me. I I am not saying that I was persecuted by the regime of Saddam, but from the people around me. The neighbours around me. Q So, they made life difficult for you? I Who? Saddam? Q No. The neighbours. I People around you made difficulties face you in your life? A Yes." 64 On behalf of the applicant it is submitted that the applicant did not state that her neighbours made life difficult for her; her evidence, rather, was that "those who are around me" made life difficult, and this was a reference to the members of the Arab Ba'ath Party who frequented the party's offices in the applicant's street. This error or misunderstanding, the argument runs, "seriously undermined" the applicant's ability to give evidence of the Convention grounds for the harm she suffered, resulting in a constructive failure of the Tribunal to exercise its jurisdiction. 65 Even if one were to assume (without accepting) that an incorrect impression of this part of the applicant's evidence were to have been created by the interpretation process and, even if one were further to assume (again without accepting) that it stood alone, I cannot accept that it fell outside the protection of s 474. Plainly, the three provisos are satisfied here. Moreover, there was no failure to comply with s 425(1) and no constructive failure to exercise jurisdiction.

ORders 66 The application is dismissed, with costs. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont J.

Counsel for the Respondent: Mr J Basten QC Mr J Smith

Date of Hearing: 10 April 2002, 28 May 2002, 15 October 2002

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