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[2002] FCAFC 345
Federal Court of Australia (Full Court)
2002-11-19
Jacobson JJ
Original judgment source is linked above.
the court: 1 This is an appeal from a decision of a Judge of this Court delivered on 29 April 2002, which dismissed an application of review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 30 October 2001. The Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations within the meaning of s 36(2) of the Migration Act 1958 (Cth) ("the Act") and the Convention Relating to the Status of Refugees done at Geneva 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). The appellant now seeks leave to amend his Notice of Appeal so that the sole ground of appeal would be that the primary Judge should have found that the Tribunal did not make a bona fide attempt to exercise its powers as that expression is used in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, which falls for consideration in this case due to the provisions of s 474 of the Act. 2 The case before the primary Judge was not advanced on the basis that there had been a failure on the part of the Tribunal to make a bona fide attempt to exercise or perform its functions and this gives rise to a consideration by this Court as to whether leave should now be granted to allow the amendments sought to be made to the Notice of Appeal. The matter was heard on the basis that if the Court considered there was no substance in the substituted ground of appeal, the appeal would be dismissed.
The tribunal decision 3 The Tribunal accepted that the appellant is a national of Iran who arrived in Australia on 20 April 2001. His application for a protection visa was lodged with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") on 21 June 2001. The delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused the application for a protection visa on 23 August 2001. On the application for review before the Tribunal, the appellant's claims primarily concerned his alleged mistreatment during an incident in 1985, when he and his wife were arrested and held for a period of six hours by the Iranian authorities. The appellant stated that he was searched and interrogated by the authorities whilst in detention, before he and his wife were released. The Tribunal accepted the appellant's description of this incident. The Tribunal also accepted that the appellant was outspoken with his colleagues in the police force following his detention by the authorities. It recognised that this had a harmful effect on his career, following a report by some of the appellant's colleagues to the Iranian authorities informing them of the appellant's complaints as to the lack of freedoms in Iran. The appellant resigned from the police force as a result of pressures put on him and was forced to take a lower level pension than his previous rank would have warranted. However, the Tribunal noted that although the appellant was subsequently forced to take up employment as a delivery driver, there was no further action taken against him by the authorities over the ensuing fourteen years, despite the fact that he and his family could have been readily located over that fourteen year period. 4 The Tribunal considered his claim that his situation changed in the year 2000 when he again became an interest to the authorities. The appellant stated that a former colleague had informed him that a government file which had been kept on the appellant had resurfaced. However, this was rejected, the Tribunal not accepting the claim that the authorities were interested in taking action against him. No specific reason for such renewed interest was given to the Tribunal. It referred to the fact that he did not have a high political profile and that he had not been in serious or constant trouble with the Iranian authorities at that point in time or during the years preceding. The Tribunal also relied on country information concerning the Iranian parliamentary elections in 2000 to reject the appellant's suggestion that his open support for President Khatami may have been the reason why the authorities sought to pursue the appellant in 2000. 5 The Tribunal considered a letter from the appellant's brother in which it was stated that it was too dangerous for the appellant to return to Iran, but was not satisfied that it genuinely corroborated his case because it was not accepted that the appellant needed to "escape" the authorities. It relied on his lack of a high profile as one basis for rejecting the letter as corroboration of his claims. The Tribunal also referred to inconsistencies in the accounts given by the appellant as regards his departure from Iran. It found that even if all different accounts were considered, the appellant would not be at risk of persecution for a Convention reason because of his departure from Iran. The same conclusion was reached by the Tribunal in relation to his claim based on religious grounds, the Tribunal finding that this had no substance. The Tribunal concluded that the subjective fear of persecution which the appellant entertained was not well-founded.
the appellant's case 6 The first matter relied on before this Court to demonstrate lack of bona fides or bias is that the Tribunal accepted, without requiring corroborative material, the evidence of the appellant concerning his beating by the police in 1985, and the pressure put on him to resign from the police force and that he was forced to take a pension at a lower level and abandon his career. It is submitted at this point that having accepted his evidence on the above matters, the Tribunal was compelled to find that he is at risk of persecution for a Convention reason. 7 Secondly, it is said that because the Tribunal rejected a letter submitted by his brother which stated that the authorities were interested in the appellant and the evidence that a well placed policeman had informed the appellant that he was at serious risk of harm from the authorities, the Tribunal had ignored his claims of continuous persecution since 1985. 8 Thirdly, the Tribunal, having found that the 1985 events occurred and that his career in the police force had suffered, did not need to identify reasons why the authorities would continue to have an interest in him. It is argued that the authorities had known of his attitude on matters of freedom of religion since 1985. 9 Fourthly, it is said that the Tribunal reached adverse conclusions without any proper foundation.
Reasoning on appeal 10 In deciding the question whether leave should be granted to file an Amended Notice of Appeal, it is appropriate to consider the prospects of success of the proposed ground of appeal: see Anderson v Minister for Immigration and Multicultural Affairs [2000] FCA 1730. Because the proposed ground of appeal in this case concerns the bona fides of the Tribunal in its attempt to exercise jurisdiction, an examination of the Tribunal's reasoning is warranted in considering the application for leave to amend. 11 The principles concerning the difficulty of establishing that there has been no bona fide attempt by the Tribunal to perform its functions or that it had a closed mind and the stringent requirements to make out such a ground are set out in NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] and NAML v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1190 at [27]-[28]. 12 In the present case, the issue whether the letter from the appellant's brother and the warnings from his former police colleague should have been accepted are for the Tribunal member to assess in light of all the evidence including any inconsistencies in the appellant's evidence, the fourteen years of inaction by the authorities, and the conclusions of the Tribunal as to the credibility of the appellant. The letter from the appellant's brother was rejected having regard to the foregoing considerations. The period of fourteen years without any adverse action by the authorities against the appellant is inaction over a substantial period which might reasonably be considered to discount the weight to be attributed to the incident in 1985. In so far as reliance is placed on the resignation by the appellant from the police force whereby he was forced to accept a lower level of pension, there is a question of fact and degree as to whether this did amount to persecution. This is a question for the Tribunal to resolve. Given the circumstances of the present case, it cannot be said that failure to treat this as being sufficiently serious to amount to persecution for a Convention reason is not an available conclusion to the Tribunal. 13 Simply because some parts of the appellant's evidence were accepted as credible without corroboration does not of course mean that all his evidence must be accepted without corroboration. It is often the case that witnesses are only believed as to a particular part of their evidence and other parts are rejected as not credible. 14 On the appeal hearing before this Court, counsel for the appellant drew the Court's attention to three questions posed by the Tribunal member and he pointed out that the appellant did not agree with the statements made in the questions. These questions and answers are as follows: "MS WOOD: I mean, certainly going back to the early 1980's, the regime appears to have been at its most oppressive then. The reports that we're getting now is that there's a very conservative element but that lots of Iranians now don't take that much notice of the Pasdaran and all the rest of them. INTERPRETER: There must be a reason, because my friend would not have taken such a great risk to come and let me know about it because it is even more dangerous for him, should this be found. This is something that one cannot risk it. … MS WOOD: There certainly seems to be a lot of what we call callous politics going on as key supporters of Khatami get arrested every now and then, but it tends to be the level of, like, the Mayor of Tehran and editors of newspapers rather than small, ordinary people. INTERPRETER: And those who also cooperate with these key elements, they are in danger of being arrested as well. … MS WOOD: Now, if I go back - if we look at the 1980's, there would have to be thousands, hundreds of thousands, probably, of ordinary citizens like yourself who were picked up and beaten and then released, so I can understand why citizens like yourself are quite frightened. But when I look at what's going on today, it does seem as though there's - the old oppressors have to be a bit more careful than they used to be. One of the things that's reported, for instance, is that young people like your son don't take too much notice of these old conservative forces any more. INTERPRETER: But when I was in Iran, still lots of events like that was happening." (Emphasis added) 15 It is said that the terms of these questions evidence a closed mind on the part of the Tribunal member as to the submissions of the appellant in relation to the circumstances in Iran at that time. It is submitted that the sources of independent information cited in the reasons for decision of the Tribunal do not provide any basis for the above assertions or the conclusions of the Tribunal. 16 The difficulty with this submission is that it overlooks the fact that the Tribunal referred to "sources" of information other than those expressly cited in the decision. It is apparent from the material before the Court that there were several other sources of country information apart from the United States Country Report on Human Rights Practice for 2000, which the Tribunal considered in its reasons for decision. This material is that which was before the Ministerial delegate and which must be taken to have been available to the Tribunal on review. There is no evidence to indicate that this material was not made available to the Tribunal in the course of its reconsideration of the delegate's decision. Accordingly, with the position being that the Tribunal had access to information other than that expressly cited in its decision, it is not a controlling consideration that one of those reports may not conclude that the position in Iran had not materially changed by the year 2000. Failure to act on the basis of one report without more would not of itself indicate a "closed mind" particularly when there are other sources of information available. 17 The Court has been provided with a transcript of the Tribunal hearing. On a reading of the transcript there is nothing disclosed which in our view evidences bias, prejudgment or any failure to attempt in a bona fide way to perform the decision-maker's function with an open mind. The transcript shows a concern by the member to give the appellant ample opportunity to present his case in full and a reasonable endeavour to come to terms with the appellant's case. 18 The Tribunal has given reasons for the rejection of the appellant's claims relating to his brother's letter and the information allegedly provided to the appellant by a close associate. It has considered these matters in its reasons and it cannot be said to have failed to exercise its function or to have been biased against the appellant on the basis of having rejected his claims. The submissions advanced fall far short of demonstrating a mind not open to persuasion or a failure by the decision-maker to make a bona fide attempt to exercise jurisdiction. 19 The submission for the appellant in the present case is, in substance, that the Tribunal reached the wrong conclusion on the facts and as to the weight it should have placed on evidence before it. From the above reasoning, it is clear that the submission has not been made out. Consequently no ground has been shown for the grant of leave to amend the grounds of appeal as it would serve no useful purpose in terms of advancing the appellant's case. 20 Accordingly, the application for leave to amend the Notice of Appeal is refused and the appeal is dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Mansfield and Jacobson.
Counsel for the Appellant: Mr J Kennan SC Mr Skinner
SAAT
Minister for Immigration and Multicultural and Indigenous Affairs