NAAP v Minister for Immigration & Multicultural & Indigenous Affairs

The RRT's findings 10 The RRT did not accept that the applicant was arrested, detained and tortured in March 2000, and then released pending appearance before a Revolutionary Court. The RRT said that there were several aspects of that set of claims which the RRT found "implausible". Those aspects appear to be: · there was no plausible explanation for the sudden arrest; · on the applicant's account, by the time of his arrest a friend in the ILM had been released from prison and allowed to leave Iran for Dubai. The RRT said it was "highly implausible" that having released his friend, who was a known ILM member, and freely allowed him to leave the country, the authorities would be intending to mete out a far more drastic punishment upon the applicant for giving the ILM financial support; · the authorities would not release the applicant, thus taking the chance that he would escape Iran, if their intention was to pass a death sentence on him later. 11 The RRT did not accept the genuineness of the summons. As to this, the RRT said: "The Tribunal does not accept the genuineness of the summons. As earlier noted, it communicated its concerns to the applicant. The Tribunal advised that the dates on the summons do not accord with the various sets of dates proffered by the applicant. He claimed that he was arrested sometime between 21 and 30 March, detained for ten days and released, and that the summons was issued five days later. This would mean that he was released sometime between 31 March and 10 April, and that the summons was issued sometime between 5 and 15 April. However, the dates given on the summons itself indicate that it was issued on 18 March, that is at least three days before his claimed arrest, and that he was to appear before the court on 3 April, that is between two and 12 days before the dates given by the applicant. The Tribunal might have been prepared to accept that these anomalies were the result of poor memory on his part, but he was given several opportunities by the Tribunal orally and in writing to explain them and was still unable to do so plausibly, after the Tribunal carefully perused the summons after the hearing. In her submission replying to the Tribunal's letter about the summons, the adviser is not able to satisfy the Tribunal's concerns about the anomalies in the dates. She recounts the discussion at hearing and makes several points about what the applicant said, but does not address the discrepancies about the two dates. The Tribunal is unable to be satisfied that the summons is genuine." 12 The RRT accepted the authenticity of the documentary evidence as to the death of the applicant's son. According to the documents, the son died on 18 August 2000, the cause of death being internal brain haemorrhage as a result of an external heavy impact. The RRT said that it felt "obliged to note" that the cause of death assigned did not necessarily support the claim that the applicant's son was killed under torture, or that he was killed by the authorities in the circumstances claimed by the applicant. The RRT stated that the description as to the manner of death says nothing about the cause of the impact which resulted in the son's death. The RRT did not accept that the death of the applicant's son occurred in the manner and circumstances claimed by the applicant. 13 The applicant claimed that the passport on which he was travelling contained his photo. The RRT noted that the applicant's name was on the passenger manifest on the flight from Taipei to Sydney. As the name on the manifest would have come from the applicant's passport, the RRT inferred that the passport also bore his real name. The RRT found that it was "implausible"that he would have been provided with a passport intended to be false, but which bore his real name and photo. 14 The RRT found that the applicant left Iran on his own legal passport, and that he did not go to Dubai but travelled via Malaysia, Thailand and Taipei to Sydney. Amongst the documents taken from the applicant on his arrival at Sydney Airport was an Iranian departure tax receipt, and a hand-written itinerary relating to a different journey from that which the applicant claimed to have undertaken. The applicant's explanation for this was as follows: "The applicant does not recognise or know of the documents found in his bag on arrival in Sydney. During his stay in Thailand he was held in a room with six other Iranians. He was informed of the arrangements for him to leave for Australia just before he was required to depart and hurriedly gathered together his belongings. He guesses that he inadvertently took papers belonging to others in the room. The airport departure tax document does not refer to the applicant by name or any numbers which appear on his identification papers. Also there is no reference to the applicant in the itinerary documents." The RRT said that given its previous findings about the applicant's credibility, it did not accept that these documents belonged to somebody else. 15 The RRT found that the applicant was not of adverse interest to the Iranian authorities. Nor was it satisfied that the applicant fled to Dubai. The applicant had no evidence whatsoever of his claimed 13 month stay there. In addition, the RRT found that the applicant did not have a well-founded fear of persecution for a Convention-related reason in Iran. The RRT was thus not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The RRT therefore concluded that the applicant did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) ("the Act").

The Migration Act 16 Section 36 of the Act establishes a class of visa known as protection visas, and prescribes as a criterion for the grant of a protection visa that the applicant is a person to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Minister (and thus the RRT) is bound to refuse to grant a protection visa if he is not satisfied that the criteria for that visa have been met (Act ss 65, 415). 17 The decision which is made by the Minister (or the RRT) is one of satisfaction or non-satisfaction regarding the status of the applicant as a refugee. The subjective nature of that decision does not immunise it from review on conventional administrative law grounds: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 273. 18 It is common ground that the decision of the RRT in the present case is a privative clause decision in terms of s 474(2) of the Act, and that the provisions of the new Part 8 of the Act will apply in respect of judicial review of that decision. Section 474(1) of the Act provides: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." 19 Section 474(1) is in substantially similar form to the privative clause considered in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. At 614-615, Dixon J summarised the well-established interpretation of such clauses as follows: "The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of [the privative clause] is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body." 20 The effect of a privative clause is not to oust the jurisdiction of the courts (which might not comply with s 75(v) of the Constitution) but to broaden the lawful authority of decision-makers protected by such a clause so that their jurisdiction is defined only by the three Hickman conditions. A decision-maker whose decision is protected by a privative clause will exceed jurisdiction only if one of the Hickman conditions is breached: see, for example, Mason CJ in O'Toole v Charles David Pty Ltd (1990-1991) 171 CLR 232 at 251: "[The privative clause] precludes any challenge to the validity of the award on non-constitutional grounds which falls within the Hickman principle; in other words, the award must be treated as valid if it satisfies the three provisos expressed in that principle." 21 The revised Explanatory Memorandum to the Bill for the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("the MLA (JR) Act"), par 16, indicates that the privative clause was inserted into the Act with the object of limiting the ambit of judicial review: "The intention of the provision is to provide decision-makers with wider lawful operation for their decisions such that, provided the decision-maker is acting in good faith, has been given the authority to make the decision concerned (for example, by delegation of the power from the Minister or by virtue of holding a particular office) and does not exceed constitutional limits, the decision will be lawful." 22 In his second reading speech, the Minister explained the intended effect of the Bill for the MLA (JR) Act, by which the privative clause was inserted into the Act, in the following terms: "The bill gives legislative effect to the government's long-standing commitment to introduce legislation that in migration matters will restrict access to judicial review in all but exceptional circumstances. This commitment was made in the light of the extensive merits review rights in the migration legislation and concerns about the growing cost and incidence of migration legislation and the associated delays in removal of non-citizens with no right to remain in Australia … … The result is to give decision-makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently. In practice, the decision is lawful provided: · the decision-maker is acting in good faith; · the decision is reasonably capable of reference to the power given to the decision-maker - that is, the decision-maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member, · the decision relates to the subject matter of the legislation - it is highly unlikely that this ground would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions; and · constitutional limits are not exceeded - given the clear constitutional basis for visa decision-making in the Migration Act, this is highly unlikely to arise." 23 In construing s 474(1), the Court is required to give the provision a construction that would promote the purpose or object underlying the MLA (JR) Act (whether that purpose or object is expressly stated in the Act or not) rather than a construction which would not: s 15AA of the Acts Interpretation Act 1901 (Cth).

If Hickman's case applies - lack of bona fides 24 If the rule in Hickman's case applies, the applicant submits that the decision is void for lack of bona fides on the part of the decision-maker. In oral submissions, counsel for the applicant submitted that the RRT's decision exhibited a "lack of intellectual honesty", particularly having regard to the number of occasions on which findings as to implausibility were made which were not supported by probative material, or made upon logical grounds. Counsel said that there was a failure to address the applicant's case. Counsel specifically abstained from making any suggestion that the RRT was actuated by malice against the applicant, or that it was guilty of bias, or that it acted mala fide. It was put that: "… the member could have done a lot better job and that is where intellectual dishonesty comes in." 25 In SBAP v Refugee Review Tribunal [2002] FCA 590 Heerey J said at par [49]: "Good faith or what I think is the same thing, the absence of bad faith, is not a term of art. In the context of administrative decision-making bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such, it is an allegation not to be lightly made and must be clearly alleged and proved: Ayan v Minister for Immigration & Multicultural Affairs [2002] FCA 470 at [8]. The ways in which bad faith can occur are infinite and no comprehensive definition is possible. Nevertheless it can be said that the presence or absence of honesty will often be crucial. So also will be a purpose to achieve some end (perhaps even one not in itself reprehensible) which is not an end for which the statutory power was conferred. The principles which the common law has developed in relation to malice in the law of defamation, while by no means an exact analogy, may provide some helpful concepts: see for example, Horrocks v Lowe [1975] AC 135 at 149-153." In the case of actual bias, it may only be a short step to the conclusion that the decision-maker did not exercise its function of deciding the application in good faith, but did so with a mind apparently directed to deciding the claim adversely to the applicant: SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591. 26 In SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 Mansfield J said at par [35]: "I am also mindful of the judicial strictures against making a finding of lack of good faith on the part of an administrative decision-maker too readily. The reasons for that approach are clear. Again, they are discussed by Finn J in Daihatsu at [32] and [36]. It will be a rare and extreme case in which an administrative decision-maker will be shown not to have acted in good faith. I am conscious that I should not: '…make the leap too readily from factual error or faulty reasoning (even serious factual error or misconceived reasoning) to a finding …' of lack of good faith. The reference is to the judgment of Sackville J in Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [32] in the context of an allegation of actual bias so as to enliven the former s 476(1)(f) of the Act, but is I think equally applicable to my present consideration. I have not made a finding of actual bias on the part of the Tribunal, but those strictures apply equally to the step of finding a lack of good faith on its part." 27 On the facts of that case, Mansfield J found that the reasons for decision disclosed a lack of good faith on the part of the RRT. The reasons which the RRT gave for its decision went beyond the RRT making findings of fact or making observations which involved it making errors of fact or law, or simply reaching views which lacked logic or which were wrong. His Honour was persuaded that the RRT approached its review of the applicant's claims on the basis that it should look for reasons why it could reject them. 28 In the present case, no attempt was made by the applicant to prove a lack of bona fides outside an examination of RRT's reasons. Lack of bona fides was said to be established having regard to the way in which the RRT dealt with the authenticity of the summons, and because the RRT: "simply proceeded to find against the other particulars of the applicant's claim … being: (i) re finding of implausibility in the context of the applicant being questioned in 1996 or 1997; (ii) re finding of implausibility that the applicant would have been treated far worse by the authorities than he claimed; (iii) re finding that he was not arrested, detained and tortured in March 2000); (iv) re finding of implausibility as to the applicant being released when a death sentence was anticipated; (v) re finding that the summons to the applicant was not genuine; (vi) re finding that the applicant did not anticipate that his son would be killed by the authorities if he did not answer to the summons; (vii) re finding of implausibility as to the applicant's false passport bearing his real name; (viii) re finding that the applicant did not go to Dubai; and (ix) re finding that applicant was not of adverse interest to the Iranian authorities." 29 The applicant submitted that an example of manifest absurdity in the RRT's reasoning, demonstrative of its determination to find against the applicant, is the RRT's finding that the applicant would not use a false passport with his own name and photo. The submission continued: "One needs only ask oneself the question, 'what better name and photo to use?' to appreciate the absurdity".

The authenticity of the summons 30 In the applicant's original statement, he said: "Two months after I left Iran a summons was sent to my house. When I did not appear my son was taken by the authorities." 31 As earlier indicated, on 13 November 2001, the applicant's advisers forwarded to the RRT a faxed copy of a "Summons/Warning Notice issued by the Revolutionary Court" to the applicant and a certified translation of the document. The applicant was required by that summons to appear before the Revolutionary Court on 3 April 2000. 32 The RRT conducted a hearing in relation to the applicant's claim on 15 November 2001. The transcript reveals that the RRT was puzzled by the fact that it took the authorities two months to send a summons to the applicant. The RRT questioned the applicant on this topic. The applicant endeavoured to explain to the RRT that he was arrested on 21 March, released on 30 March, and that the summons required his attendance before the Revolutionary Court five days later on 3 or 4 April 2000. The applicant did not attend on that occasion. When he failed to appear, the authorities looked for him for two months, and then arrested his son as the applicant had failed to appear before the Revolutionary Court on the appointed date. 33 At the hearing, the RRT said that it was prepared to accept that the summons "came after five days", and the assertion in the applicant's original statement that it came two months after his release was an innocent, immaterial error. 34 On 29 November 2001 the applicant's advisers wrote to the RRT with respect to issues which were raised during the hearing. One such issue was the timing of the applicant's release from detention and "subsequent issuing of the summons". As to this the adviser stated: "It is our understanding that this matter was sufficiently resolved at hearing and it is accepted that the summons for [the applicant] to attend court was issued approximately five days after he was released from detention. It was a further two months until the authorities came to [the applicant's] house to take him and instead took his son." Strictly, the summons was not issued approximately five days after the applicant was released from detention. It was returnable at that time. 35 On 5 December 2001 the RRT wrote to the applicant on this topic. The letter included the following: "The Member deciding your case has asked that you comment on the following information which relates to the court summons your adviser, Ms Ryan provided to the Tribunal on 13 November. You stated in your written evidence that you were arrested at the end of March (2000) and detained for 10 days. You confirmed this period of detention at your hearing. In discussion at the hearing about the summons, you stated that it was issued on 3 or 4 April. You also stated that you were arrested some time between 21 and 30 March. Later in the hearing you stated that the summons was issued five days after your release from detention. You said it required you to appear before the revolutionary Court on 3 or 4 April 2000. The Member said at the hearing that he accepted that the summons was issued five days after your release. However, on closer examination of the summons, the Member notes that the dates on it do not match your claims. The date of issue on the summons is 18 March, that is, at least three days before you claim you were arrested. The date of appearance given on the document is 3 April, which again is not consistent with the dates you have given for your release, and is also not consistent with the information about dates which you gave at the hearing." 36 On 11 December 2001 the applicant's adviser sent a detailed response to this letter. The adviser made the point that the summons was not served on the applicant, but was only served on his family after he left the city upon his release. The adviser said the summons was sent to the applicant's house, and as it required his attendance before the Revolutionary Court on 3/4 April 2001, he assumed it was sent to his house before that date. At the hearing the applicant told the RRT that the Revolutionary Court wanted him on 3/4 April 2001. There was some confusion at the hearing between the date on which the summons was issued, and the date on which it was returnable. 37 The passage from the RRT's decision quoted in par [11] above contains errors: the applicant's claim at the hearing was that he was arrested on 21 March although in his original written statement, he placed his arrest as having occurred "about the end of March 2000". He did not claim that he was arrested some time between 21 and 30 March. He said that this was the period of his detention. At some points in his evidence (eg T p 8) the applicant says that the summons was issued on 15 Farvardin (3/4 April), and at other parts (eg T p 10) he says that he was supposed to attend the Revolutionary Court on 15 Farvardin. The applicant's evidence at the hearing was that he was released on 30 March. He did not claim to have been released some time between 31 March and 10 April. Nor did he claim that the summons was either issued or returnable some time between 5 and 15 April. 38 The RRT referred to "anomalies" in the applicant's account about "the two dates". One anomaly appears to be that the summons was issued on 18 March, which is three days before the applicant's claimed arrest. The other anomaly appears to be a claim that the summons was "issued" sometime between 5 and 15 April, whereas on the face of the document, the applicant was to appear before the Revolutionary Court on 3 April. This supposed anomaly arises simply because the RRT has misconstrued or misunderstood the claims which the applicant made at the hearing. He did not make a claim to the effect of that attributed to him by the RRT. 39 It may be right to say that the applicant never explained how or why it was that the summons was apparently issued three days before his claimed arrest, particularly having regard to his assertion that he was told on his release that he would soon receive a summons to appear before the Revolutionary Court. But I cannot agree that there was any failure on the part of the applicant or his adviser satisfactorily to explain the second supposed anomaly. If there were any doubt about the matter, the position was explained with reasonable clarity in the adviser's letter of 11 December 2001. There is nothing implausible about that account. The RRT has simply misconstrued or failed to understand what the applicant and his adviser were seeking to convey to the RRT on this point.

Findings of implausibility 40 The RRT described various claims made by the applicant as "implausible". There may be cases in which the use of that term may cloak a failure on the part of the decision-maker to make a finding of fact on a material issue: Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 1910; W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679; W321/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 210. I do not think that this is the case here, as the RRT generally explained why it found the claim in question to be "implausible". In the context, "implausible" signifies that the RRT did not accept the matter to which that label was applied. 41 It is not entirely clear what the applicant's submission that the RRT "simply proceeded to find against the other particulars of the applicant's claim" is intended to convey, having regard to the statements by his counsel that neither malice nor bias is relied upon. Nor, for that matter, is it submitted that the RRT acted in bad faith. A failure to act in good faith involves a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question: NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713. However, the concessions made by the applicant's counsel negate, or almost negate, personal fault on the part of the member. It was submitted that the RRT "simply hadn't applied its mind properly in an intellectual sense to the material that was before it". 42 The applicant has not made out a case (assuming that it intended to put such a case) that one can conclude from manifest absurdities in the RRT's reasoning process that it was determined to find against the applicant. There is no absurdity in the RRT's finding that the applicant would not use a false passport with his own name and photo, as it was open to the RRT to conclude that a false passport may be used where, if the applicant's identity were known to the authorities at the point of departure, he would not be allowed to leave the country. On the applicant's account he had given an undertaking to the authorities that he would not leave his own city. 43 The charge that the RRT did not apply its mind "in an intellectual sense" to the material before it is not made out. The RRT addressed each of the applicant's claims, and endeavoured to make an assessment of the claims. Bad faith is not just a matter of poor execution or poor decision-making involving error. There was poor execution, poor decision-making and error in the RRT's treatment of the authenticity of the summons. But that is not sufficient to establish that the decision was not reached bona fide. 44 In deciding whether an inference of lack of good faith should be drawn from the circumstances, regard should be had to the cumulative effort of the circumstances, even though no one of those circumstances may be sufficient to sustain the conclusion. But, for the reasons given, the applicant's complaints as to the RRT's findings regarding the implausibility of his claims do not establish a lack of bona fides on the part of the RRT.

Hickman and jurisdictional error Privative clauses and the Bill of Rights

45 The applicant submitted that Hickman (supra) does not exclude review for jurisdictional error where "the jurisdictional error is in the attainment of jurisdiction". The applicant's counsel submitted that the impugned decision is reviewable for jurisdictional unreasonableness or failure, or constructive failure, to exercise jurisdiction. 46 The Bill of Rights Act 1689 (UK) ("Bill of Rights Act") provides in Article 2: "That the pretended Power of dispensing with Laws, on the Execution of Laws, by regal Authority, as it hath been assumed and exercised of late, is illegal." Section 474 of the Migration Act, so the submission goes, "is precluded by Article 2 of the Bill of Rights Act, and by constitutional principles generally, from validating jurisdictional error, at least to the attainment of jurisdiction under s 65 of the Act, and, in any case, to excess of power where jurisdiction is lawfully attained pursuant to Statute". 47 I was informed by the applicant's counsel that similar submissions had been put by him to Allsop J in the matter of NAAG (supra). Judgment in that case was reserved at the time of argument in this case, but was delivered on 5 June 2002. 48 Allsop J rejected each of these submissions. In particular, his Honour rejected the submission that the Hickman principles did not provide protection for a decision involving jurisdictional error (at par [17]). His Honour also rejected the submission based on the Bill of Rights Act (at pars [19]-[21]). 49 Allsop J reached his decision after a consideration of conflicting decisions of single judges of the Court on the effect of the privative clause. So far as I can detect, the arguments put to me by the applicant's counsel on this question are the same as those which were put to his Honour. In those circumstances, I should follow the decision of Allsop J, and I reject the applicant's submissions in this respect for the reasons given by Allsop J. 50 After preparing the above reasons, I received a written submission from counsel for the applicant which contended that Allsop J misconstrued the argument as to the impact of the Bill of RightsAct. The submission covers three typewritten pages. It has been placed with the file and I will not reproduce all the steps in the argument here. The substantial thrust of the submission is that whilst Parliament might by a clear and unambiguous law allow the Minister to act contrary to Article 2 of the Bill of Rights Act, s 474 is not such a law. 51 At par [21] of his reasons, Allsop J said: "To the extent that Article 2 assists in informing the well known principles of construction that fundamental common law rights will not be invaded or affected by legislation without the clearest intent, for example Coco v R (1994) 179 CLR 427, so much can be accepted. However, here there is a body of High Court jurisprudence about the meaning and content of privative clauses of this kind and, indeed, in these terms. The Parliamentary intent, by a drafting mechanism, was plainly to invoke the widest application of those words as previously found by the High Court. That, it seems to me, is what Parliament (not the executive or the Crown) plainly intended." In my view, in this passage his Honour has both addressed and rejected the applicant's argument based on the Bill of Rights Act. 52 The application is dismissed with costs.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Solicitor for the Applicant: Ian D Graham & Associates

Solicitor for the Respondent: Australian Government Solicitor