NAAP v Minister for Immigration & Multicultural & Indigenous Affairs

The appellant's claims 5 According to the appellant, at the time of the 1979 Islamic revolution in Iran, his family had a farm there. As a landholder, his father was given a summons to attend court. He refused to go and instead went into hiding, returning only later when the situation had become calm. The appellant took over management of the farm in the summer of that year. On one occasion, while leaving home for the fields, he was fired on by Pasdaran intelligence authorities. He was taken to their headquarters, held for a few days and tortured. The farm land was confiscated, except for twenty-three hectares out of 300. In 1985, the family started a cattle feedlot and the appellant became involved in real estate. In about 1996, the family bought back another twenty hectares of their land to start a poultry farm. 6 In 1996 or 1997, the appellant was taken in for questioning by the authorities about his involvement with the Liberation Movement of Iran. He had to fill in some forms and was then released. He had two friends who were active in the Liberation Movement, but he was not involved with that political party. 7 In March 2000, government forces raided the poultry farm and detained the appellant. They accused him of collaborating with the Liberation Movement and tortured him daily for ten days. He denied the charge. Some security officials whom he had known previously told him that the intention was to kill him even if he appeared before a revolutionary court, because he represented capitalism and was against the revolution. The appellant was required to provide documents about the ownership of the business, give up his passport and undertake not to leave his home area. He was released and told that he would soon receive a summons to appear before the revolutionary court. 8 The appellant then drove to Bandarabas and engaged a smuggler who took him by boat to Dubai. After his departure, a summons was sent to his home. When the appellant did not appear, one of his two sons was detained and told that he would be held until the appellant presented himself to the authorities. The son was tortured and killed. On 18 August 2000, the authorities called the appellant's family and said the son's body could be collected for burial. The appellant learnt this through friends in Dubai. He contacted his family who told him the poultry business had been confiscated. 9 The appellant lived in Dubai illegally. He did not work. He was fearful of being caught and did not go out much. Relations between Iran and Dubai are good and he was concerned that people would be looking for him. He remained in Dubai for about thirteen months. He then travelled to Australia on a false passport, which he returned to the smuggler who assisted him before the last leg of his journey to Australia. He was in transit in Malaysia for three or four days, Thailand for forty-five days and Taiwan for eight hours. 10 The appellant's claim was therefore that he had a well-founded fear of being persecuted if he should be returned to Iran, for the reason of his political opinion. He had given financial assistance to the Liberation Movement and agreed with that party's views because it was not involved in terrorism or violence and had a nationalist outlook.

The Tribunal's reasons 11 The Tribunal accepted the appellant's claims regarding the treatment of his father immediately after the 1979 revolution. It accepted that the appellant was shot at, detained and tortured after his father fled, that most of the family's property was confiscated, and that he had developed various agricultural enterprises on the remaining land and in the city over the next seventeen years. The Tribunal accepted that the appellant gave financial contributions to the Liberation Movement. It did not accept that he was taken in and questioned in 1996 or 1997 about whether he had ties to the Liberation Movement. Nor did it accept that he was arrested, detained and tortured in March 2000 and then released pending appearance before a revolutionary court. 12 The Tribunal did not accept the genuineness of the summons, which the appellant claimed had been sent to him after his departure from Iran. It found that the dates on the summons did not accord with the various sets of dates that it said were proffered by the appellant. 13 The Tribunal was prepared to accept the authenticity of the documentary evidence relating to the death of the appellant's son, but found that it did not necessarily support the claim that he was killed under torture or that he was killed by the authorities in the circumstances claimed. It did not accept that the death of the appellant's son occurred in the manner and circumstances claimed by the appellant. 14 Finally, it found that the appellant left Iran on his own legal passport, did not go to Dubai, but travelled via Malaysia, Thailand and Taiwan to Sydney. It concluded that the appellant was not of adverse interest to the Iranian authorities. It therefore found that he did not have a well-founded fear of persecution for a Convention-related reason in Iran.

The grounds of the application to the Court 15 By his second amended application, filed on 27 May 2002, the appellant challenged the validity of s 474 of the Migration Act on the ground that it purported to oust the judicial power of the Commonwealth and was inconsistent with s 75(iii) and s 75(v) of the Constitution. He also contended that s 474 is not effective to oust judicial review of an administrative decision made by a Commonwealth officer where the ground for review is failure or constructive failure of jurisdiction and, or including, "jurisdictional unreasonableness". Some nine findings of the Tribunal were referred to as representing a failure or constructive failure of jurisdiction or jurisdictional unreasonableness. Finally, it was said that the Tribunal's decision was made in breach of an inviolable pre-condition to the exercise of jurisdiction, or lacked bona fides, so that it fell within two of the exceptions to the central principle enunciated in Hickman per Dixon J.

The learned primary judge's reasons 16 In one respect, Hely J found that the Tribunal had made an error. It made an incorrect finding that there were anomalies between dates given by the appellant and dates in the summons he said was given to his family after his departure. The Tribunal attributed to the appellant a claim as to dates that he had not made at the hearing. The Tribunal misconstrued or failed to understand what the appellant and his adviser were seeking to convey to it on that point. Its rejection of the genuineness of the summons amounted to "poor execution, poor decision-making and error". 17 His Honour held that the use of the word "implausible" as the Tribunal's reason for rejecting a number of the appellant's claims did not cloak a failure to make a finding of fact on a material issue. The Tribunal generally explained why it found the claim in question to be "implausible". Its use of "implausible" signified that it did not accept the matter to which that label was applied. 18 Hely J rejected a submission that the Tribunal had not applied its mind "in an intellectual sense" to the material that was before it. His Honour noted that counsel for the appellant had conceded that he relied on neither malice nor bias. His Honour said that these concessions negated, or almost negated, personal fault on the part of the Tribunal member. There was no absurdity in the Tribunal's finding that the appellant would not use a false passport with his own name and photo. It was open to the Tribunal to conclude that a false passport may be used where, if the appellant's identity were known to the authorities at the point of departure, he would not be allowed to leave the country. On the appellant's own account, he had given an undertaking to the authorities that he would not leave his own city. The Tribunal's poor execution, poor decision-making and error in its treatment of the authenticity of the summons was not sufficient to establish that the decision was not reached bona fide. 19 His Honour considered the appellant's claims cumulatively in deciding whether an inference of lack of good faith should be drawn. He held that a lack of bona fides was not established. 20 Hely J delivered judgment prior to the judgment of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, in which a Full Court of five judges considered the validity and meaning of s 474. His Honour rejected the appellant's challenges to s 474. In doing so, his Honour followed the judgment of Allsop J in NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713.

The grounds of appeal 21 The appellant's notice of appeal raised again the ground of lack of bona fides. It also challenged Hely J's adoption of the reasoning in NAAG. It raised the contention that s 474 of the Migration Act is constitutionally invalid, where the ground for review is jurisdictional unreasonableness or failure or constructive failure of jurisdiction, breach of an inviolable pre-condition to the exercise of jurisdiction and failure to attain jurisdiction by valid satisfaction as to the requisite jurisdictional facts. 22 At the hearing of the appeal, counsel for the appellant conceded that, so far as it challenged the validity, and concerned the construction, of s 474 of the Migration Act, the appeal was bound to fail, because of the view of the majority of the Full Court in NAAV. In NAAV, a majority of the Full Court approved the reasoning of Allsop J in NAAG. The submissions relating to those matters were made formally, so as to keep alive the appellant's chances of success, in case the High Court of Australia should hold that NAAV was wrongly decided. The appeal therefore proceeded on the basis that the appellant sought to argue want of bona fides, as one of the exceptions to the application of the primary Hickman principle, and also failure or constructive failure to exercise jurisdiction, or jurisdictional unreasonableness, in the hope that favourable conclusions on these grounds would enhance the appellant's chances of success should NAAV be found not to be good law. As the issues raised by the appellant went to all these grounds, it was convenient to hear counsel for the appellant in relation to all of them. In the light of the High Court's judgments in S134 and S157, the appellant withdrew his challenge to the validity of s 474 in his later written submissions. Also in those written submissions, the appellant contended that it was still open to him to rely on lack of bona fides on the part of the Tribunal, as a ground of error giving an entitlement to relief in its own right, and not merely as an exception to the Hickman principle. 23 It is necessary to note what counsel for the appellant meant by "jurisdictional unreasonableness". The starting point for the argument is the concept labelled by the appellant's counsel as "reasonableness as to jurisdiction". This was derived from what was said by Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 at [127] - [156]. From that passage, which was conceded to have been obiter dicta, counsel for the appellant drew the proposition that, where a decision-maker's jurisdiction is predicated upon satisfaction as to a particular matter or matters, unless the decision-maker is reasonably satisfied as to those matters, there is no jurisdiction to exercise the relevant power. Further, a failure to be reasonably satisfied will be established either where the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way and the decision went the other way, or where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds. 24 Counsel for the appellant challenged a number of specific findings of the Tribunal on the basis that they were contrary to the evidence or were conclusions based on no logical grounds or probative material. It is necessary to examine each of those findings individually. In doing so, it is necessary to bear in mind the comments made about the concept of jurisdictional unreasonableness in NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 at [27].

The challenge to findings 25 The Tribunal reached the conclusion that the appellant was not of adverse interest to the Iranian authorities. It based this conclusion on its accumulated findings. In turn, the finding that the appellant was not of adverse interest to the Iranian authorities was one of the bases for the Tribunal's lack of satisfaction about the appellant's claim that he fled to Dubai. It is therefore necessary to look at the accumulated findings, and the other bases for the Tribunal's view about the appellant's Dubai claim.

The alleged arrest and questioning in 1996 or 1997 26 After expressing its acceptance of the appellant's claims about the treatment of his father immediately after the 1979 revolution, the appellant's experiences at the hands of the authorities at that time, the confiscation of most of the family's property and the appellant's subsequent history in agriculture and real estate, the Tribunal said: "The Tribunal is prepared to accept that the applicant gave financial contributions to the Iran Liberation Movement. However it is not able to accept that he was taken in and questioned, in 1996 or 1997, about whether he had ties to the Liberation Movement. The Tribunal notes the applicant's claim that he was not told why he was being questioned. The Tribunal finds this implausible. It is of the view that either he would have been told or else the reason would have been evident from the questioning. The Tribunal is, further, of the view that if, as the applicant speculated, he had been taken in because of his friendship with a convicted Movement member who was then in prison, that is, if the authorities suspected him of links with an opposition party, they would not simply have questioned him and let him go with an undertaking after he denied any connection. The Tribunal considers that he would have been treated far worse. The country information cited above attests to the arbitrary and extreme behaviour of Iranian law enforcement agencies and their disregard for procedural fairness and due process, particularly in cases of perceived political offences." 27 Counsel for the appellant contended that the Tribunal's finding that the appellant's claim that he was not told why he was being questioned was implausible was contrary to the evidence. The sole basis for this contention was a finding, earlier in the Tribunal's reasons for decision, that in his original application for a visa, the appellant had claimed that he was taken in for questioning about his involvement with the National Front (he later clarified that the reference to the National Front was an error in interpretation, and that he had referred to the Liberation Movement). As is obvious from the first of the paragraphs quoted above from the Tribunal's reasons for decision, the Tribunal was well aware that the appellant had claimed that he was taken in and questioned "about whether he had ties to the Liberation Movement." Plainly, the Tribunal was addressing itself to the substance of the questioning. It was acting on the obvious supposition that, if the appellant had been questioned, he would have been told expressly, or would have been able to discern from the tenor of the questions, the nature of the ties he was suspected of having to the Liberation Movement. 28 Counsel for the appellant also challenged the Tribunal's opinion that the appellant would have been treated far worse than he claimed if the authorities suspected him of links with an opposition party. The basis for this challenge was that the Tribunal relied on independent information as to the arbitrary and extreme behaviour of Iranian law enforcement agencies. It was said that the treatment the appellant received was consistent with such arbitrary and extreme behaviour. This argument is plainly an attempt by counsel for the appellant to persuade the Court to substitute its own view of the evidence for that of the Tribunal, something which the Court cannot do. The Tribunal's view is consistent with its interpretation of the independent information on which it relied. That interpretation is that the behaviour of Iranian law enforcement agencies is both arbitrary and extreme, not merely arbitrary. Plainly, the independent information was probative material, capable of supporting the Tribunal's finding.

The alleged arrest, detention and torture in March 2000 29 The Tribunal did not accept that the appellant had been arrested, detained and tortured in March 2000 and then released pending appearance before a revolutionary court. It found several aspects of that set of claims to be implausible. Counsel for the appellant pointed to three of the findings on which this conclusion was based and challenged them. The first was the Tribunal's finding that it was implausible that the authorities would release the appellant, thus taking the chance that he would escape Iran, if their intention was to pass a death sentence on him later. The second basis for the Tribunal's conclusion was its finding that the summons relied on by the appellant was not a genuine document. The third was said to be a finding that the appellant would not have anticipated that his son would be killed by the authorities if he did not answer the summons. 30 As the basis for its finding that the summons was not genuine, the Tribunal found what it believed to be some anomalies in the evidence as to dates, concerning the appellant's arrest and release and the date of the summons. Hely J found that the Tribunal made an error in this respect. At [38] - [39], his Honour said: "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. ... 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." On the hearing of the appeal, counsel for the Minister conceded the correctness of his Honour's conclusion on this point. Thus, we can accept as correct the appellant's contention that one of the findings on which the Tribunal based its conclusion about the claimed events of March 2000 was incorrect.

31 It does not follow automatically that the Tribunal's conclusion about the March 2000 events was baseless. The reasoning of Hely J on this point was correct. Mere "sloppy" reasoning (a description accepted by counsel for the appellant in the course of argument on the hearing of the appeal) cannot, of itself, demonstrate either lack of bona fides, or unreasonableness going to jurisdiction. In fact, there were many factors that led the Tribunal to reach its conclusion about the events of March 2000, including the other two factors identified by the appellant. 32 The Tribunal posed the question why, after being left alone for three years, the appellant was suddenly arrested. At the hearing, the appellant speculated that it was because the Liberation Movement's activities had increased. Later in the hearing, he stated that he had been advised by some former school friends in the intelligence service that there was proof that he was a Liberation Movement financial supporter. In a subsequent submission, the appellant's advisor speculated that it may have been because parliamentary elections were held in February 2000 and a banned party such as the Liberation Movement was likely to come to the authorities' attention around an election period. The Tribunal was not persuaded by that speculation. It took the view that it would be more plausible for the authorities to harass opposition party members before an election than afterwards. The Tribunal was obviously troubled by the lack of adequate explanation for the sudden interest the appellant claimed the authorities had shown by arresting him in March 2000. 33 The appellant also told the Tribunal at the hearing that, by March 2000, his friend in the Liberation Movement had been released from prison and allowed to leave Iran for Dubai. The Tribunal considered it highly implausible that, having released the friend, who was a known Liberation Movement member, and allowed him to leave the country, the authorities would be intending to mete out a far more drastic punishment upon the appellant for giving the Liberation Movement financial support. Counsel for the appellant criticised this opinion, in the light of the Tribunal's view as to the arbitrary and extreme behaviour of Iranian law enforcement agencies. This is another attempt to persuade the Court to substitute its own view of the facts. It was plainly open to the Tribunal to disbelieve the appellant on the basis that his story was inconsistent with material showing that Iranian law enforcement agencies behaved in a way that was both arbitrary and extreme. 34 The Tribunal then expressed its finding that it was implausible that the authorities would release the appellant, taking the chance that he would escape Iran, if their intention was to pass a death sentence on him later. The Tribunal had apparently indicated to the appellant at the hearing that it was inclined to take this view. He had offered two further items of information to persuade the Tribunal to accept his claim. The first was that he was given the information about the death sentence secretly and the other authorities did not know of it. The second was that he was obliged to surrender the deed to his farm. The Tribunal took the view that these two items of information did not serve to make the overall claim any more plausible. That view was certainly open to the Tribunal. It was consistent with behaviour of Iranian law enforcement agencies that was both arbitrary and extreme to take the view that, if there were an intention to impose a death sentence on the appellant, he would not have been given the opportunity to escape. 35 The Tribunal then discussed the alleged anomalies in relation to the summons and made the error referred to above. It proceeded to deal with the issue of the death of the appellant's son. On this issue, the Tribunal said: "As to the death of the applicant's son, the Tribunal is prepared to accept the authenticity of the documentary evidence. While appreciating how tragic his son's death must have been for the applicant, the Tribunal feels obliged to note that the reference in the death certificate to the manner of death - brain haemorhage [sic] as a result of heavy impact - does not necessarily support the claim that he was killed under torture or that he was killed by the authorities in the circumstances claimed. Further, it says nothing about the cause of the impact which resulted in his death. The Tribunal does not accept that the death of the applicant's son occurred in the manner and circumstances claimed by the applicant. The Tribunal accepts that the applicant would not knowingly have risked the well-being of his family. However, it is unable to accept that the applicant thought that the worst that could happen as a consequence of his escape would be the confiscation of his business. The Tribunal is of the view that, given the widespread nature of serious human rights abuses committed by the authorities, as attested to in the independent evidence cited above, Iranians generally would be aware that the families of fugitives might be ill-treated. There is nothing in the evidence seen by the Tribunal to suggest that this is kept secret. Nor could it be." 36 Counsel for the appellant asserted that the Tribunal made a finding that the appellant would not have anticipated that his son would be killed by the authorities if he did not answer the summons, and then argued that there was no logic or probative material supporting the finding that the appellant would have anticipated that his son might be murdered. The finding attributed to the Tribunal by counsel for the appellant was not actually a finding made by it. It is difficult to understand the challenge to the Tribunal's reasoning on this issue. The Tribunal did not accept that the son had been murdered, although it accepted that he had suffered death from brain haemorrhage as a result of heavy impact. It was not obliged to accept the appellant's evidence that the death was the result of torture by the authorities, without more. The Tribunal was obviously sceptical of the appellant's story that he had escaped from Iran illegally, because, if he had done so, he would have anticipated that the family he left behind might suffer ill treatment by the authorities. 37 It cannot therefore be said that the Tribunal's rejection of the appellant's account of the events of March 2000 was irrational. It resulted from a detailed examination of the material before the Tribunal. The erroneous finding of fact in relation to the genuineness of the summons does not undermine the conclusion. It certainly does not require that the rest of the probative material and the reasoning on which the Tribunal relied be disregarded. Whatever is the meaning of "unreasonableness as to jurisdiction", it cannot consist of a single erroneous finding of fact, constituting one of several factors leading to a conclusion, which in turn has led to a failure of the Tribunal to be satisfied that the appellant fulfilled the requisite criteria.

The alleged false passport 38 The Tribunal found that it was implausible that the appellant would have been provided with a false passport bearing his real name. This finding was challenged by counsel for the appellant on the basis that there is manifest good sense in using the real name of a person on a false passport, because the person would readily and credibly answer to that name. It may be that this view could be taken. There can be no doubt, however, that it was open to the Tribunal to take the opposite view. Again, this is an attempt by counsel for the appellant to persuade the Court that the Tribunal should have made a finding of fact other than the one it made, on the material before it. There is nothing unreasonable about taking the view that it is highly unlikely that the appellant was in possession of a false passport in his own name. Hely J was undoubtedly correct in his reasoning on this issue. It must also be remembered that this finding was made in the context of the obvious scepticism of the Tribunal about the appellant's claim that he was able to return the false passport to the people smuggler after he had presented it to immigration officials at the airport at Taipei.

The alleged flight to Dubai 39 Finally, counsel for the appellant challenged the Tribunal's finding that it was not satisfied that the appellant fled to Dubai. Counsel for the appellant recognised that this finding was based on three grounds, namely the appellant's lack of credibility in relation to his other claims, the finding that he was not of adverse interest to the authorities and the fact that the appellant could produce no evidence of his claimed thirteen months' stay in Dubai. 40 The Tribunal's finding that the appellant was not of adverse interest to the authorities was based on its reasoning described above as to the claimed arrests and detention of the appellant. The failure of counsel for the appellant to challenge successfully the reasoning of the Tribunal in relation to those issues leads to the conclusion that the Tribunal's ultimate finding based on that reasoning must be regarded as sound. 41 Counsel for the appellant suggested that the Tribunal had not pressed for evidence in relation to the appellant's alleged stay in Dubai. In fact, in the course of the hearing, the Tribunal asked the question, "Do you have any evidence at all that you lived in Dubai?". The appellant replied in the negative. It was reasonable for the Tribunal to expect that someone who had lived in Dubai for more than a year would have been able to provide some evidence to support that fact. Given this, and the fact that the Tribunal was entitled to regard much of the appellant's story as lacking credibility and to reach a finding that the appellant was not of adverse interest to the Iranian authorities, it cannot be said that the Tribunal's finding was contrary to overwhelming evidence or was not based on logic or probative material.

Conclusion 42 The appellant has therefore failed to make out any ground that would lead to a conclusion that the Tribunal's decision was vitiated for any reason. It cannot be said to have been unreasonable in any sense, let alone a sense that would result in a conclusion that the Tribunal lacked jurisdiction to make the decision. There was plainly no failure, or constructive failure, to exercise jurisdiction. The decision was obviously a bona fide attempt to exercise the powers conferred on the Tribunal by the Migration Act. A single erroneous finding of fact is well short of what is required to constitute jurisdictional error, when the fact concerned cannot be characterised as a jurisdictional fact. Nor can a single erroneous finding of fact negate the bona fides of the Tribunal. Any detailed consideration of the state of the authorities is unnecessary. 43 The appeal must therefore be dismissed. In accordance with the normal rule that costs follow the event, the appellant must be ordered to pay the Minister's costs of the appeal.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Ian D Graham & Associates

Solicitor for the Respondent: Australian Government Solicitor