NBKS v Minister for Immigration and Multicultural and Indigenous Affairs

The application and its disposition 31 The amended application raised the following grounds of review:

[The Tribunal] fell into jurisdictional error in that it did not consider the applicant's application in accordance with the requirements of s 36 of the Act. [The Tribunal] failed to apply s 36(2) by failing to consider whether the applicant continued to be a refugee within the meaning of the Convention in accordance with its terms at the date of the determination. [The Tribunal] erred by holding that s 36(3) allowed it to reconsider entirely the basis upon which the applicant had conferred upon him the status of a refugee under Article 1A(2) of the Convention.
[The Tribunal] fell into jurisdictional error, and the exercise of its jurisdiction and power was affected in that the Prosecutor was denied procedural fairness: The Tribunal did not put to Dr Nair the questions proposed by the applicant; The Tribunal put to Dr Nair a leading question which did not allow the applicant the opportunity to adduce from Dr Nair an opinion which would assist his case; The Tribunal did not allow the applicant to comment on the further report of Dr Nair; The Triunal did not inquire into the whereabouts of the applicant's first wife and brother; The Tribunal drew adverse inferences to the applicant from the evidence of the applicant's wife taken from the transcript of the AAT hearing without giving the applicant an opportunity to respond; The Tribunal relied upon its own searches of the applicant's own name under the Google and MSN search engines without putting those matters to the applicant for comment.
Further and in the alternative, [the Tribunal] fell into jurisdictional error, and the exercise of its jurisdiction and power was affected in that the Tribunal did not comply with the requirements of s 424A, 424B or 425 of the Migration Act in that: The Tribunal did not put to Dr Nair the questions proposed by the applicant; The Tribunal did not allow the applicant to comment on the further report of Dr Nair; The Tribunal relied upon its own searches of the applicant's own name under the Google and MSN search engines without putting those matters to the applicant for comment.
Further and in the alternative, [the Tribunal] failed to exercise its jurisdiction in that it did not consider the applicant's claim to be a refugee sur place by reason of imputed political opinion having been granted asylum by the UNHCR and a protection visa by Australia.
Further and in the alternative, [the Tribunal] failed to exercise its jurisdiction in that it took into account irrelevant considerations, namely: The experience of those with protection visas who returned to Iran, whilst holding those protection visas; The experience of failed asylum seekers being returned to Iran; and The experience of people having made applications for asylum which had not yet been determined returning temporarily to Iran.
Further and in the alternative, [the Tribunal] failed to exercise its jurisdiction in that it failed to take into account relevant considerations, namely it did not consider the applicant's claim to be a refugee sur place by reason of imputed political opinion having been granted asylum by the UNHCR and a protection visa by Australia.
[The Tribunal] has failed to exercise the jurisdiction conferred on it by the Migration Act in that it did not consider the substance of the Applicant's claims. 32 Counsel for the applicant submitted and the Minister conceded, the applicant could apply for a Protection (Class XA) visa notwithstanding he has held and continues to hold a Refugee visa. Counsel for the applicant explained the rationale behind the application for the protection visa and the proceedings that have flowed from that application, including these proceedings. Essentially, the applicant sought to obtain a decision from the Tribunal that he continued to be a person in respect of whom Australia had protection obligations (both because of his claims leading to the grant of a Refugee visa and his further sur place claim), for the purpose of fortifying an application to the Minister to revoke the deportation order made by the Minister in 1997 and affirmed by the AAT in 1999. The Tribunal process for determining whether there is a further protection obligation gives the applicant the opportunity to attend a hearing, present evidence and put submissions. Counsel for the Minister submitted that if the applicant established jurisdictional error on the part of the Tribunal, I should, for discretionary reasons, refuse to grant relief. 33 In relation to the first ground of review in the application, the applicant's argument focussed on two aspects of the Tribunal's approach. The first was whether the Tribunal could, by recourse to s 36(3), go behind, in effect, the initial recognition of the applicant as a refugee under the Convention. Counsel for the applicant submitted that s 36(2) as qualified by subs 36(3) and (5) did not allow the Tribunal to freshly determine those claims which were made in 1990 to the UNHCR. The Tribunal used subs 36(3) as a way of circumventing the operation of Article 1C(5). The applicant submitted that implicit in subs 36(3) was the qualification that it did not relate to the country in respect of which the person claimed a well founded fear of persecution. Subsection 36(3) provided that Australia would not have obligations under the Convention where that person has a right to enter and reside in, whether temporarily or permanently, and subs 36(4) preserved Australia's protection obligations in respect of that country where the applicant has a well founded fear of persecution for a Convention reason. In particular, the applicant referred to the judgment of Selway J in SWNB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1606 at [12] where his Honour noted: Section 36(3) of the Act should be interpreted in its usual and ordinary meaning. So interpreted, it adds little to the terms of section 36(2) of the Act where the issue involves the return of the applicant to his country of nationality. The applicant submitted that Australia's protection obligations had not ceased in accordance with the terms of the Convention. 34 Counsel for the Minister submitted the question for the Tribunal to determine was whether, at the time of its decision, the applicant had an existing well founded fear of persecution. Further, counsel submitted the Tribunal was entitled to revisit factual matters considered at the time the previous visa was granted, and referred to the judgment of Emmett J in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 1373 and more generally SWNB (supra) and NBEM v Minsiter for Immigration and Multicultural and Indigenous Affairs [2005] FCA 161. 35 On 27 July 2005 and while judgment was reserved in this matter, a Full Court handed down judgment in QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136. I invited submissions from the parties on the effect, if any, of that judgment on the present application. In that matter, an Afghani national had been granted a temporary Protection (Class XA) visa in 2001. While it is unnecessary to detail what occurred before he applied for a permanent protection visa, the question arose as to how the permanent protection visa application was to be assessed. The leading judgment was given by Wilcox J (with whom Madgwick J agreed). His Honour said at [65] and following: It follows that, although, literally, s 36(2)(a) poses the question to be determined by the Minister (or her delegate) or, on review, the Tribunal as being whether Australia has protection obligations, to the particular applicant, under the Convention, the real question is whether the person falls within the Convention's definition of 'refugee'. As Lord Brown explained, if the person has not previously been recognised as a refugee, the inquiry required by the definition will be whether the person satisfies Article 1A(2) of the Convention; only if the person satisfies Article 1A(2) will Australia have any protection obligation to him or her. If the person has previously been recognised as a refugee in Australia, again as explained by Lord Brown, Australia has a protection obligation to that person, by force of the Convention itself, unless and until Article 1C(5) has caused cessation of that obligation. Interpreted in this way, there is a symmetry between Australia's Convention obligations and the availability of protection visas. That would not be the case if the present issue was resolved in the manner suggested by counsel for the Minister. If an already-recognised refugee was in the same position, in relation to a permanent protection visa application, as a person who had not previously been recognised as a refugee, a person might fail to satisfy the decision-maker of facts bringing his or her case within Article 1A(2), and so be denied a permanent protection visa, yet there had been no cessation of Australia's protection obligations to him or her, Article 1C(5) not having been applied to the case. Once the temporary protection visa expired, the person would be left without protection despite that person's continuing status as a refugee. It seems inherently unlikely that Parliament would have intended to leave such a potentially embarrassing lacuna in Australia's ability to fulfil its international obligations. Later in his reasons Wilcox J said at [83] and following: It is important to distinguish between recognition of a person as a 'refugee', within the meaning of the Convention, and the grant to that person of protection. Recognition is a function of the Convention; protection is a function of the Act. Recognition is necessarily of indefinite duration; protection may be for a limited period, or until the happening of a particular event. A person may continue to have refugee status (because the person has successfully invoked Article 1A(2) and Article 1C(5) has not yet operated against him or her) notwithstanding the expiration of a temporary protection visa. It seems to me, with great respect, that Lander J, and those who have shared his view, have overlooked the significance of the distinction just made. They interpret the requirement of s 36(2)(a) of the Act (and reg 866.221), that the Minister be 'satisfied Australia has protection obligations' under the Convention, as necessarily requiring the Minister (or her delegate or the Tribunal) to make a de novo decision that the particular applicant for a permanent visa then satisfies Article 1A(2) of the Convention; even though that applicant might have obtained such a decision at an earlier point of time, and thus achieved the status of being a 'refugee' within the meaning of the Convention, and that status has not ceased pursuant to Article 1C(5) of the Convention. Although this might have led to failure by Australia to give full effect to its Convention obligations, it would have been constitutionally possible for the Parliament to have enacted such a requirement. However, it chose not to do this. Parliament chose, in s 36(2)(a) of the Act (and reg 866.221), to tie the selected criterion directly to Australia's protection obligations to the person. What emerges from this case is that, in relation to a refugee seeking asylum, the Convention contemplates that a Contracting state first determines whether the asylum seeker is a refugee for the purposes of the Convention and if it does then its protection obligations are enlivened. If enlivened, the protection obligations continue until circumstances identified in the Convention arise which result in the obligations ceasing. In the present case the relevant circumstances identified by the Tribunal which result in the obligations ceasing is Art 1C(5) of the Convention. 36 Ground one of the amended application for review alleges jurisdictional error because the decision of the Tribunal was not made under s 36 of the Act. Underpinning this contention was an assumption that it had been determined by or on behalf of Australia (as a contracting state to the Convention) that Australia owed the applicant protection obligations because he was granted a Refugee visa in 1991. 37 The Refugee visa is an off-shore visa. In 1991 the material criteria for a Refugee visa were set out at reg 101 of the in the Migration Regulations:
The additional criteria in relation to a refugee visa are the following criteria: (a) the applicant is a person subject to persecution; (b) the applicant is living: (i) outside the country of which the person is a citizen; or (ii) if the person is not usually a resident of that country-outside the person's usual country of residence; and (c) the Minister is satisfied that: (i) permanent settlement in Australia is the appropriate course for the applicant; and (ii) such settlement would not be contrary to the interests of Australia. Of importance is the first criterion, the applicant is a person subject to persecution. That criterion does not require consideration of whether the applicant has a well founded fear of persecution as that notion arises in the definition of refugee in the Convention, nor is the first criterion limited to persecution for the reasons identified in the Convention: see Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 47 at [9] and [22]. 38 The present criterion for a Refugee visa is discussed in R Germov and F Motta Refugee Law in Australia Oxford University Press, 2003 at pp 62-64. However, that discussion relates to the relevant criteria of a Refugee visa found in the current Migration Regulations 1994 (Cth). While the criteria for such a visa under the Migration Regulations 1994 (Cth) differ from those operative in 1991 (and set out at [38] above), the authors' comments are, in my opinion, apt to describe the criteria for a Refugee visa in 1991. They say at 63-64: These requirements are clearly narrower than those set out under Article 1A(2) of the Refugees Convention - in that the decision-maker does not have to consider whether the applicant has a fear of persecution and whether this fear is 'well-founded'. Indeed, the regulations require consideration by the Minister or his delegate…as to whether the applicant is outside their home country and is actually subject to persecution. The Minister can also have regard to the 'degree of the persecution' to which the applicant is subject - meaning that, even though the applicant has suffered 'persecution', the Minister may not consider it severe or grave enough to qualify the applicant for the grant of this particular visa. … Furthermore, there is no right of appeal against a decision to refuse a Subclass 200 (Refugee) Visa. In this regard the off-shore Refugee Visa, despite employing the term 'refugee', is only loosely connected with the Refugees Convention, since, strictly speaking, the Refugees Convention only operates to ensure non-refoulement to a refugee recognised according to its definition once they are in the territory of the protecting state. In other words, a person cannot claim refugee status under the Refugees Convention outside the territory of the state concerned (and in Australia's case, outside the migration zone) - and this is reflected in the requirements of the Subclass 200 (Refugee) Visa. (Emphasis original) The significance of this is that the grant of the Refugee visa in 1991 did not involve a determination or assessment by Australia as a contracting state to the Convention that the applicant was a refugee to whom Australia owed protection obligations. It is true that some assessment was made by UNHCR. However that assessment does not, on the material presently before me, suggest it was made on behalf of Australia. There is, in that material (as reproduced in the Tribunal's reasons), a letter from the principle migration officer at the Australian High Commission in New Delhi in March 1991. However all the letter reveals is that the officer appeared to be satisfied that the applicant had suffered persecution in Iran. In so far as the letter evidences any assessment by that officer, it was that the applicant's "claims" were "acceptable under Class 202". This is probably a reference to a global special humanitarian program visa dealt with, specifically, by reg 103 of the Migration Regulations in force at the time. The Tribunal proceeded on an assumption that was not correct. That is, the Tribunal assumed that because of the name attaching to the visa granted to the applicant in 1991, there had been an assessment, in the applicant's favour, of whether Australia owed him protection obligations under the Convention. 39 In my opinion, the Tribunal erred in concluding that the question of whether Australia had protection obligations towards the applicant was to be determined by reference to Art 1C(5) and subs (3) of s 36. It is more likely than not that the Tribunal erred in the way it applied that subsection. The subsection requires a decision maker to consider whether the applicant has sought protection by entering and residing in a country other than Australia. However the subsection does not raise for consideration whether the applicant could have entered and resided in the country of nationality or habitual residence, being the country the applicant has fled and about which the well founded fear of persecution was said to exist. However by approaching the matter in the way it did, the Tribunal addressed the question it should have answered, namely whether Australia had protection obligations because the applicant was a refugee for the purposes of Art 1(2) of the Convention. The Tribunal sought to do indirectly (and erroneously) what it should have done directly. 40 The second challenge to the Tribunal's decision concerned the procedures it adopted in obtaining and evaluating certain evidence. The first argument concerned Dr Nair's report and the conclusion drawn by the Tribunal, namely, that it was not satisfied the applicant would express views against the regime were he to return to Iran, and the Tribunal's reliance, in reaching that conclusion, on the fact that Dr Nair had not said he would react this way. This was said to involve a failure to comply with s 424A and, in the alternative, a denial of procedural fairness. As to the alleged failure to comply with s 424A, it was submitted the Tribunal failed to provide particulars of relevant information, namely that there was no comment by Dr Nair in his report that the applicant would react in the way he was contending. As to the denial of procedural fairness, it was said that the applicant was not given an opportunity to deal with the failure of Dr Nair to comment on the way the applicant might react. 41 Counsel for the Minister responded by submitting that there was no relevant "information" which was not provided as required by s 424A and, in any event, the entire report of Dr Nair was provided to the applicant. It was submitted that there was no denial of procedural fairness because the representatives of the applicant were given a copy of Dr Nair's report and subsequently made a written submission relying on part of it. Further, the representatives did not repeat an earlier request that Dr Nair be asked to comment on how the applicant was likely to react when returned to Iran and how he would respond if placed under pressure by Iranian authorities. 42 In my opinion, the submissions of counsel for the Minister are correct. Without foreclosing the possibility that circumstances could arise where what did not appear in or was not referred to in a document was "information" for the purposes of s 424A, this is not such a case. What is "information" was discussed by a Full Court in Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212. Information must be provided to give an applicant an opportunity to demonstrate the information should not be relied on by the Tribunal. In the present case, the applicant was given Dr Nair's report. It was clear, on its face, that it did not specifically address the question of how the applicant would react in a confrontation with Iranian authorities even though it had been a specific matter the applicant had suggested that the Tribunal ask Dr Nair to address. That it did not address it, would have been obvious to the applicant or his advisers. Why it did not would have been also clear. It was because it was not a specific matter on which Dr Nair was ultimately asked to comment. In my opinion the Tribunal was not obliged by s 424A to provide particulars of what was obvious, namely the report did not discuss how the applicant would react in a confrontation with Iranian authorities. 43 Nor can it be said that the applicant did not have the opportunity to comment on this lacuna in the report. Quite plainly, something could have been said in the submission on behalf of the applicant made after the applicant's advisers were provided with a copy of the report. But nothing was. I accept that there is a troubling curiosity about the Tribunal failing to act on the request of the applicant's representatives that Dr Nair specifically address the likely conduct of the applicant were he to return to Iran and confronted by the authorities, and then point to the failure of the report to address that question as supporting its view that the applicant would not react as his representative submitted. However that is not the point raised and if it were, then the characterisation of any potential jurisdictional error would be problematic particularly in circumstances where the Tribunal had found, as matter of fact, that the applicant had not engaged in political activities before leaving Iran as he had claimed. 44 The next submission made by counsel for the applicant was that the Tribunal had denied the applicant procedural fairness having regard to the way it dealt with the evidence of the applicant's former wife and her brother given to the AAT. It is not entirely clear to me how the argument is put on behalf of the applicant. One complaint is that the Tribunal did not hear from or summons the applicant's former wife and her brother. But it was not obliged to do so, nor was it procedurally unfair to follow the course it did. A particular complaint was made that the Tribunal reconciled, in its opinion, the former wife's statement to the AAT with a statement she had given to the police at Kogarah. The basis upon which the Tribunal reconciled those two statements (in particular the reference in the police statement to her and her husband having left Iran because of "the political trouble in Iran" was a reference to the general political unrest in the country) was not the subject of evidence in the AAT or the Tribunal and was never put to the applicant. But the manner that the Tribunal reconciled these statements did not have to be the subject of evidence. The Tribunal had two detailed statements and it was entitled to form a view about what they meant. The Tribunal was not required to raise with the applicant its reasoning processes leading to its ultimate conclusion. It did provide the applicant with a series of propositions which squarely raised for comment by the applicant the gravamen of the evidence of the former wife and the brother. The response of the applicant was to seek to impeach the former wife's and brother-in-law's accounts and, in doing so, furnish the evidence actually given by them to the AAT. Whether the Tribunal's findings are correct are beside the point. The Tribunal gave the applicant an opportunity to answer the former wife's and former brother-in-law's accounts in their statements to the AAT, and the process adopted did not involve any procedural unfairness. 45 The applicant submitted he should have been given an opportunity to comment on the results of the web searches, and the failure to provide him with an opportunity to comment was a failure to comply with s 424A. This issue arose because it had been submitted on behalf of the applicant that the Iranian authorities would become more aware of his history in Australia. The particular submission made on behalf of the applicant was that his history would be apparent to the Iranian authorities because the AAT decision was on the Internet. The Tribunal undertook two searches on the Internet using the applicant's name which, it appears, revealed no electronic records available on the Internet containing his name. It did not invite the applicant to comment on this "information", namely that the two searches revealed no relevant electronic records. 46 On the present state of the authorities, the Tribunal almost certainly should have provided this "information" to the applicant if it was the reason or formed part of the reason for its decision. However counsel for the Minister submitted it was not of that character. In my opinion, this submission is correct. The central question raised on behalf of the applicant and addressed by the Tribunal was whether the applicant's history in Australia would become known to the Iranian authorities with the result that the applicant would be imputed with a particular political opinion critical of the regime in Iran. The Tribunal answered that question by pointing out that the AAT's decision recorded the applicant as not being a "witness of credit" and that there were "serious questions about the veracity of the refugee claim" made by him in India. Its rejection of this aspect of the applicant's claim (that the AAT decision would result in imputed opinions on his return) rested on what the AAT said, and not whether what the AAT said was readily available on the Internet. 47 The last matter raised on behalf of the applicant concerned whether the Tribunal had erred in its consideration of his "sur place" claim. It was submitted that the Tribunal had considered the circumstances of Iranians with protection visas who returned to Iran while holding those visas, returning Iranians who had unsuccessfully sought asylum and those who had sought asylum but whose applications had not been determined before they returned temporarily. It was said that the Tribunal's consideration of the evidence concerning all but the first category, involved irrelevant considerations and that the Tribunal failed to take into account a relevant consideration, namely the experiences of those returning to Iran having been granted refugee status but no longer having the protection of the state through recognition of that status. Whether there is a legal foundation for this submission may be doubted: see Applicant M185 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 230 at [8]-[9]. In any event, none of the evidence considered by the Tribunal was irrelevant. It considered the evidence as part of its evaluation of the attitude taken by Iranian authorities to individuals who asserted (whether successfully or not) imputed antipathy towards the Iranian authorities. My attention was not drawn to any evidence directly concerning the class the applicant claimed should have been considered let alone evidence the Tribunal did not take into account. 48 The last matter was also put on the footing that the Tribunal failed to consider the claim actually made by the applicant. It is true that a distinction might be able to be drawn between a person such as the applicant who had enjoyed the status of refugee in Australia for a number of years and someone who had simply sought asylum abroad. However, ultimately the applicant's claim was that he would be imputed with a political opinion were he to return. That claim was assessed by the Tribunal in the context of the applicant having volunteered that Iranians recognised as refugees had later visited Iran, and that such people did not have any difficulties there merely because they had been recognised as refugees. Plainly the applicant's case was not being put as highly as his circumstances necessarily setting him apart from other Iranians who had sought, both successfully and unsuccessfully, asylum abroad. The real issue he raised by his claim was that, because of his circumstances, he would be imputed with a political opinion and, in the result, he had a well founded fear of persecution. The Tribunal dealt with that claim. 49 The application should be dismissed the costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

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