NAAH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant NAAH of 2002 seeks review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the Refugee Review Tribunal (the Tribunal) made on 21 December 2001 which affirmed the decision of the delegate of the respondent Minister not to grant him a protection visa. 2 This matter was heard together with the application for review by applicant NAAG of 2002. At the time of making orders in this matter, I also made orders and delivered reasons in the NAAG matter: NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713. These reasons should be taken as incorporating what I said in NAAG as to the appropriate approach on review of a decision of the Tribunal made after 2 October 2001, taking into account the effect of s 474. 3 For the reasons there expressed, a decision of the Tribunal will be vulnerable to an order pursuant to s 39B of the Judiciary Act if it is not made in a bona fide attempt to exercise the powers of review under ss 414 and 415 of the Migration Act 1958 (Cth) (the Act) and to reach a view about the satisfaction or lack thereof contemplated by subss 65(1) and 36(2) of the Act, or if the decision did not relate to the subject matter of the legislation, or if the decision was not reasonably capable of reference to the power given to the Tribunal, or if the Tribunal has transgressed limits (if any) otherwise existing within the Act on its proper construction, including s 474, or if there has been the crossing of some boundary of a Constitutional character. 4 The applicant is an Iranian national. He is a dentist who was trained in India. He is married to applicant NAAG. His claims were that he had associated with an Iranian woman in 1992-93 in India who was a member of an opposition political group. He claimed that he had been questioned about her at the Iranian Consulate in Mumbai when he was attending to his own documentation. Later, in 1998, while in Iran, he claimed to have differences of a religious nature with the manager of the clinic at which he was working. He claimed to have been forced to leave the clinic, from where he went in 1999 to Ahwaz, and thence to Tehran. He claimed to have participated in the 1999 demonstration in Tehran. His friends were arrested and he was arrested, beaten up, interrogated and threatened, before being released. After resuming his profession, he came under further scrutiny by the authorities. He returned to Tehran for a time in 2000. He did not participate in the July 2000 demonstration, but his friends did and he claimed that he learned that the authorities were making enquiries of him again. However, he said that he demonstrated in May 2000 against the election of the Rafsanjani government. He arranged a fake passport and left Iran. The applicant also claimed that after arriving in Australia, he had converted to Christianity and that this was a further basis of his fears for return to Iran. This is a summary outline of his claims. 5 The Tribunal rejected the applicant's claim for protection. Whilst accepting some of the facts underlying his claims, it found that the Iranian authorities were not adversely interested in him in any way which would lead to any real chance of persecution upon his return to Iran. Some of his evidence was rejected as embellishment, and some was characterised as implausible. The Tribunal was not satisfied that he would be in any way politically active in the future. The Tribunal found that his conversion to Christianity while in Australia was not in good faith, but was for the express purpose of strengthening his claims for a protection visa. It therefore ignored the conversion in accordance with subs 91(3) of the Act. 6 I have examined the decision of the Tribunal and the attacks made on it in the submissions. None of these attacks nor the terms of the decision warrants or warrant the conclusion that the Tribunal has approached its task lacking bona fides. Indeed, counsel for applicant NAAH did not put to me that the decision was not a bona fide exercise of the power. Counsel for applicant NAAH analysed the findings of the Tribunal under the heading of 20 'key claims'. Some of these 'key claims' were accepted by the Tribunal; some were not accepted. Detailed criticism of the non-acceptance of the key claims was made in written submissions. 7 The attack made on these findings and the fact finding process is one which was founded on the necessity, it was submitted, for the state of satisfaction of the Tribunal to be reasonably reached in accordance with the cases discussed in [6] in NAAG. It was submitted that for the Tribunal to act on its lack of satisfaction there would be exhibited 'jurisdictional' error because, in law, there was no valid state of lack of satisfaction for the purposes of subss 65(1) and 36(2). The submission was variously expressed to be in terms of reasonableness review, constructive failure of jurisdiction and actual failure of jurisdiction. For the reasons which I expressed in NAAG none of these legal constructs frames a valid attack on a decision of the Tribunal such as this. As I said in NAAG, I do not think that it is appropriate to deal with the matter as if s 474 were not in the Act. In those circumstances, it is unnecessary for me to deal with the complaints as to the Tribunal's findings, otherwise than within the framework of analysis set by s 474 and R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. 8 As I have said, the reasons and the attacks on them do not justify a conclusion that the Tribunal lacked bona fides in undertaking its task, and no such attack was in fact made. 9 It was claimed that there had been a denial of natural justice. It was submitted that there had been a lack of procedural fairness accorded to the applicant by the failure of the Tribunal to give the applicant an opportunity to present further evidence about the demonstration in Tehran in May 2000 and about the bona fides of his conversion to Christianity. It is far from clear that the Tribunal was obliged to warn the applicant about the fact that it was intending to find adversely to the applicant about these matters: Kioa v West (1985) 159 CLR 550, 587; Abebe v Commonwealth; Re Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510 at [187]; and Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671. However, I need not decide whether procedural fairness was or was not accorded. If it was not, that did not take the decision outside the authorised boundary which I identified in NAAG and to which I referred in [3] above. In this respect, I also respectfully follow what Gyles J said in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263. 10 The decision was one which plainly related to the subject matter of the legislation and which was reasonably capable of reference to the power given to the Tribunal under ss 414 and 415 of the Act. It did not transgress any limits existing within the Act, including s 474. 11 There was also argument before me that s 474 was constitutionally invalid. I dealt with this in NAAG. I agree with Gyles J in NAAX that this attack fails. 12 For the above reasons the application must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.