SAAZ v Minister for Immigration & Multicultural Affairs

THE APPLICANT'S CLAIMS 5 The applicant claimed to have a well-founded fear of persecution by reason of political opinion imputed to him by the authorities. As appears below, the Tribunal also considered a claim that he may have a well-founded fear of being persecuted by reason of his religion, namely his conversion to Christianity whilst in Australia, and by reason of his illegal departure from Iran in conjunction with his application for a protection visa. 6 It appears that the Tribunal largely accepted his background. He was educated for 12 years, and then between 1996 and 2000 worked in a grocery shop for his father. From August 2000 he worked for his uncle in a printing business. The particular problems of which he complained occurred from about the end of October 2000 whilst working in that business. His claims relating to those problems were, in part, not accepted by the Tribunal. 7 He told the Tribunal that about the end of October 2000 he attended the printing business one morning to find anti-government slogans graffitied on the outside of the shop wall. He promptly cleaned them up. The same occurred the following day, and he again cleaned them up. On the third day, in addition to graffiti on the shop wall, which he cleaned up, he found some leaflets urging anti-government action. He took them inside and put them in the corner. Later that morning, the premises were raided by the authorities and the leaflets found. He and his uncle were arrested. He was questioned about his involvement in anti-government activities and then released. He believes that his uncle was questioned for some days and has since disappeared. The applicant has not seen him since. 8 The applicant then claimed that a few days after his release, he was re-arrested by the authorities, and was severely beaten, whilst they sought information from him about anti-government activities of himself and others with whom he was involved. He provided no information, because he had no information to give. He was again released after two days. However, he was later re-arrested by the authorities and again severely beaten as they sought information from him of a similar nature. He said he had a permanent back problem as a result. He was again released after a period of detention. 9 The applicant then fled his home town, and as he learned that the authorities were repeatedly making inquiries of him through his parents at his home, he was advised to and did arrange to flee Iran. He did so on a false Iraqi passport. He claimed that, if he were to return to Iran, he would be arrested and seriously mistreated and perhaps killed, especially as he had illegally fled Iran and had sought a protection visa in Australia. 10 He told the Tribunal further that, whilst in Australia, he had converted to Christianity. In response to questioning by the Tribunal, he said that, if detected, he feared significant problems by reason of his conversion to Christianity from the Muslim faith.

The tribunal's findings 11 The Tribunal noted that the applicant had been consistent in his claims and evidence as presented at his arrival interview, in his application for the protection visa, and his application before the Tribunal. However, it found his central claim that he has been imputed with an anti-government political opinion because of slogans painted on his uncle's printing shop and pamphlets found at his place of employment lacked credibility. It gave reasons for that view. It said: "The Tribunal accepts that the applicant's place of employment was graffitied, but that a person would graffiti anti-government slogans on their own place of employment - thereby drawing the adverse attention of the authorities to them - defies logic. More importantly, it further stretches the bounds of credulity, and the Tribunal cannot be satisfied, that the authorities would impute a political opinion to the owner or employees of the business which had been graffitied." Thus, while accepting that the authorities would be interested in finding the source of the graffiti, and that the applicant was questioned about that matter, the Tribunal was not satisfied that he was imputed with any political opinion because of the graffiti or that the authorities did anything other than question him briefly on one occasion. It noted in that regard the applicant had no prior political profile, and the independent country information available to the Tribunal indicated that the authorities are only concerned with those who are attempting to co-ordinate or are participating in organised political opposition. It also regarded the fact that the applicant had removed the graffiti at the first opportunity as contributing to the conclusion that the authorities would not consider him to be a political suspect. It accordingly did not accept as credible the applicant's claims that he had been detained on three occasions and had been physically mistreated. It was not satisfied that the authorities had imputed a political opinion to him or had any ongoing adverse interest in him. 12 The Tribunal also found it implausible that the authorities would go to the effort of searching the print shop, given that the graffiti on the previous occasions had been promptly removed. It was not satisfied that the print shop premises were searched by the authorities, or that any pamphlets were found. It expressly found that the applicant's claims regarding the existence of pamphlets and the discovery of such pamphlets was a fabrication, made up to enhance his claim to be a refugee. 13 It concluded: "The Tribunal cannot be satisfied that the applicant's claim - that he has been imputed with a political profile by the Iranian authorities simply because there was graffiti on his place of employment - is credible. The Tribunal finds this claim to be so far-fetched as to be fanciful and it cannot give weight to this claim." 14 The Tribunal then addressed the significance of the applicant's conversion to Christianity. A fear of persecution by reason of such conversion was not the subject of a claim before the delegate of the respondent, nor indeed in the documents submitted to the Tribunal. It appears to have emerged in the course of the hearing. That it was nevertheless a claim which the applicant requested the Tribunal to address is confirmed by his migration agent having provided to the Tribunal, after the hearing before the Tribunal, a letter confirming his conversion provided by Sister Anne Higgins, Chaplain at the Woomera Immigration Reception and Processing Centre. The Tribunal said: "Given the timing of the applicant's raising of this claim - namely after his primary decision and at his Tribunal hearing, the Tribunal has significant concerns about the credibility of the applicant's claimed conversion." It took that finding no further. It proceeded to consider whether, on the assumption that his conversion to Christianity is genuine, he might face a well-founded fear of persecution if he were to return to Iran by reason of his religion. The applicant told the Tribunal he had not informed anyone in Iran of his conversion, and that upon his return to Iran he would be discreet and would hide his conversion. Independent evidence available to the Tribunal suggested that those who convert without making it publicly known and who keep a low profile are not subject to harassment by the Iranian authorities, and those who worship privately and maintain a low profile will be very unlikely to suffer any adverse attention from the authorities for their conversion. In such circumstances, as there was no real risk that the applicant would evangelise, or make his conversion public, the Tribunal was not satisfied that the applicant has a well-founded fear of harm in Iran in the foreseeable future by reason of his conversion to Christianity. 15 Finally, the Tribunal addressed the applicant's claim that, by reason of his illegal departure from Iran and his application for refugee status in Australia, he has a well-founded fear of persecution upon his return to Iran. The Tribunal referred to information provided by the Department of Foreign Affairs and Trade of March 1996 that the most likely penalty for an Iranian who has left Iran illegally is a fine. It was satisfied that the treatment the applicant would undergo upon return to Iran as the result of his illegal departure did not amount to persecution within the meaning of the Convention, because, without more, such punishment would involve the ordinary enforcement of a law of general application and did not make the applicant a refugee. It noted that nothing in the applicant's evidence suggested that, in his case, any punishment would be greater by reason of actual or imputed political opinion. Consequently, it was not satisfied that the applicant would face harm amounting to Convention persecution because he left Iran illegally or because he had applied for refugee status after arrival in Australia, or for a combination of those reasons.

consideration of the grounds of review 16 It was accepted that the decision of the Tribunal is a "privative clause decision" as defined in s 474(2) of the Act. Consequently, the applicant had to confront the provisions of s 474(1) of the Act which provide: "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." The applicant by counsel contended that the decision of the Tribunal should be declared invalid, notwithstanding the apparent width of s 474(1), for two principal reasons: (1) The obligation of the Tribunal under s 414(1) of the Act is to review the decision of the delegate of the respondent, and not to re-hear that decision afresh. It was contended that the review of the decision of the delegate involved addressing the delegate's decision to see if the delegate had erred in some way in reaching the decision to refuse to grant the protection visa. The Tribunal did not in fact address the delegate's decision at all to see whether it was erroneous in significant ways. It had simply re-heard the application for the protection visa, and having done so, rejected it. (2) Section 474(1) must be read consistently with Art 16 of the Convention. It provides:

"A refugee shall have free access to the courts of law on the territory of all contracting states." As the Tribunal is not a "court of law", Art 16 must, it is contended, refer to those courts within Australia entitled to exercise jurisdiction under s 39B of the Judiciary Act. Moreover, the "free access" requires that review by the Court cannot or should not be constrained by provisions such as s 474(1). In other words, the argument was that s 474(1) must be read consistently with the obligation which Australia undertook by acceding to the Convention, and that s 474(1) must be read down to accommodate the right for which Art 16 of the Convention provides. An alternative way of presenting that argument was that Australia, by ratifying the Convention, and then by incorporating the Convention into the Act, particularly by reference to the definition of "refugee" in s 36(2) of the Act, has exercised the external affairs power under s 51(xxix) of the Constitution, and by doing so has limited its sovereign power to legislate inconsistently with the rights which the Convention creates. It was described in argument as a partial surrender of sovereignty. It was argued that s 474(1) must be read down to accommodate rights which exist under Art 16 of the Convention. 17 Either avenue of attack led to the proposition that the grounds of review available under s 39B of the Judiciary Act are those which amount to a want of jurisdiction on the part of the Tribunal as identified in Craig v South Australia (1995) 184 CLR 163 at 196 and in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. 18 In my judgment each of those contentions must be rejected. 19 The meaning of "review" in s 414(1) of the Act must be seen in the context of the Act as a whole. See per Toohey J in Australian Telecommunications Commission v Colpitts (1986) 67 ALR 301 at 309. In my judgment, that context indicates that the review which the Tribunal is directed to undertake is one involving it standing in the shoes of the delegate of the respondent and considering afresh the application for a protection visa. An analysis of the relevant provisions clearly shows that intention. 20 Section 415 contains the powers of the Tribunal upon review. It is expressly empowered to exercise all the powers and discretions conferred on the primary decision-maker. It may affirm, vary or set aside the decision. Section 418 ensures that, once an application for review is made to the Tribunal, the Tribunal receives from the Secretary of the Department all relevant documents considered by the primary decision-maker. But the Tribunal is not directed to conduct its review restricted to the material before the primary decision-maker. Divisions 4 and 5 of Pt 7 of the Act contain very detailed provisions as to procedures which it must follow. The applicant for review, and the Secretary, may give the Tribunal written arguments. The applicant for review may submit to the Tribunal a statutory declaration in relation to "any matter of fact that the applicant wishes the Tribunal to consider". The Tribunal is empowered to seek "any information that it considers relevant", and then to "have regard to that information in making the decision on the review": s 424. It must give to the applicant particulars of any information that would be a reason for affirming the decision under review and to invite comments upon that information, provided that the information is specifically about the applicant or another person: s 424A. Generally, the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425. The applicant is entitled to request the Tribunal to give consideration to obtaining oral evidence from other persons: s 426. To ensure those powers may be adequately exercised by the Tribunal, it is empowered to take evidence on oath, to summons persons to give evidence or to produce documents, and to procure any investigations or medical examinations that it considers necessary with respect to a review: s 427. Section 430(1) provides: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." As can be seen, it contemplates that the "Tribunal's review" would involve the Tribunal making findings on material questions of fact and referring to the evidence or other material upon which those findings of fact were based. Finally, I note s 65(1) which directs the Tribunal, if it is the relevant decision-maker, to grant the visa if it is satisfied the criteria for the grant of a visa are met, and to refuse the visa if it is not so satisfied. 21 In my judgment, that constellation of provisions indicates that the Tribunal's function by its review was to determine the correct or preferable decision on the material before the Tribunal in relation to the application for a protection visa. 22 That approach is consistent with the decisions of the Full Court in Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 in relation to a review of a decision of a delegate of the respondent to the Administrative Appeals Tribunal, in particular per Bowen CJ and Deane J at 589. It is also consistent with the discussion by the Full Court in Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at [68]-[72] in which the Court said that "the review is by way of re-hearing de novo". 23 In a similar context, the High Court (Kitto, Taylor and Owen JJ) in Phillips v Commonwealth of Australia (1963) 110 CLR 347 at 350 said of an appeal under the Commonwealth Employees' Compensation Act 1930-1959 (Cth) in the nature of a re-hearing: "What the section does is to provide for the judicial review of administrative decisions of a particular character and upon any such review it is, we think, for the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it." See also the discussion by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620-621. 24 The "review" provided for under the Administrative Appeals Tribunal Act 1975 (Cth) has similarly been held to involve a review de novo: see Re Brindle; Ex parte FB & FA McMahon Pty Ltd (1992) 108 ALR 470; 48 FCR 111; Colpitts v Australian Telecommunications Commission (1986) 70 ALR 554; Woss v Jacobsen (1985) 60 ALR 313. 25 The second of those contentions is rejected, because in my judgment the source of power for the Act, including the provisions relating to protection visa decisions, is not confined to the external affairs power. I have found in SAAS v Minister for Immigration & Multicultural Affairs [2002] FCA 726 that the source of that power also resides in the immigration power and in the aliens power, respectively in s 51(xxvii) and (xix) of the Constitution. I also found in that case that, because the Act including the provisions relating to the grant and review of protection visa decisions can be characterised as a law with respect to immigration and as a law with respect to aliens, the Parliament had the power to enact provisions in the Act which are not necessarily entirely consistent with provisions of the Convention. In that case, the particular provision under consideration was s 91R(3) of the Act. However, in my view the reasons which led to my conclusion in that case apply with equal force in relation to the present issue, namely the proper construction of s 474(1) of the Act. If it is the intention of the Parliament that the jurisdiction of the Court under s 39B of the Judiciary Act may be exercised only in the circumstances which s 474(1) of the Act legitimately permits, I do not consider that Australia's ratification or accession to the Convention or Art 16 of the Convention requires that s 474(1) be further read down in some way. 26 In addition, I do not accept that there is an implied limitation upon the content of the heads of legislative power in s 51 of the Constitution that a law must conform with international obligations whether imposed by treaty or by customary international law: Polites v Commonwealth (1945) 70 CLR 60 at 69 and 78; Horta v Commonwealth (1994) 181 CLR 183 at 195; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 303-306. 27 I turn to consider the particular complaints of the applicant about the process of the Tribunal's reasoning. 28 It is accepted by the respondent that s 474(1) of the Act must be read subject to what is commonly called "the Hickman principles": see R v Hickman; Ex parte Fox & Clinton (1954) 70 CLR 598 per Dixon J at 517-518. There may be some scope for debate as to the extent to which those principles are applicable, or the circumstances in which, in the light of s 474(1) of the Act, the Court may make orders under s 39B of the Judiciary Act. However, before determining those questions, it is appropriate to discern whether the errors asserted by the applicant in the Tribunal's decision would enliven the Court's power to make an order under s 39B of the Judiciary Act if s 474(1) of the Act did not exist. It is only if such power might be enlivened in the particular circumstances of this matter that the Court would need to address the application of s 474(1) of the Act, having regard to s 475A of the Act which preserves the Court's jurisdiction to make orders under s 39B of the Judiciary Act. 29 The applicant complained that the Tribunal erred in law in deciding that the applicant did not have a well-founded fear of persecution by reason of his conversion to Christianity, because it placed the test of what might amount to persecution too high. The basis upon which, it is contended, the Tribunal made that error is a passage in its reasons referring to a report of the Department of Foreign Affairs and Trade dated 11 January 1996 discussing the consequences of apostasy in Iran. The passage reads as follows: "In practice, there have been some executions especially in the early years after the establishment of the Islamic regime. However, as to the practice of the recent years, a distinction has to be made. Those who convert without making it publicly known and who keep a low profile, are not subjected to harassment, however, those who convert and who publicly practice their new faith, can be subjected to harassment. The said harassment may entail violation of their socio-economic rights, but normally does not entail execution. As to those Muslims who convert to Christianity and become priests, owing to the fact that they propagate another religion and become agents of conversion, their conversion is punishable with death. Two such cases have been reported in 1994." (Tribunal's emphasis) The submission is that the Tribunal thereby instructed itself that harassment which fell short of execution did not amount to persecution. 30 I do not accept that the Tribunal made that error. The passage relied upon to demonstrate the error is in that section of the Tribunal's reasons where it is reciting evidence from other sources. The Tribunal's reasons for rejecting the applicant's claim that he feared persecution if he were to return to Iran by reason of his conversion to Christianity indicate that it did not apply that measure of persecution in the determination of his claim. It found that he has not informed anyone in Iran of his conversion, and that upon his return to Iran he would be discrete and would hide his conversion. It then found, on the basis of independent evidence, that such persons who convert without making it publicly known and who keep a low profile are not subject to harassment and would be very unlikely to suffer any adverse attention from the authorities by reason of the conversion. The applicant fell into that category. The Tribunal's reasons do not indicate that it took the view that persecution by reason of the applicant's conversion would need to involve a real risk of execution before the criterion specified in s 36(2) of the Act would be met. It applied, in my view, an appropriate test to determine what might happen to the applicant if he were to return to Iran by reason of this conversion, in his particular circumstances. It is not shown to have incorrectly understood the meaning of "persecution" in Art 1A(2) of the Convention in determining that issue. 31 It is next contended that the Tribunal erred by failing to "fairly" weigh the evidence before it and by failing to accord to the applicant substantial justice and to determine his claim in accordance with the merits of his case. Both of those matters are, it was submitted, demonstrative of a contravention of s 420 of the Act. It is not necessary to determine whether, as a fact, those particular assertions are made out. That is because the High Court in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 has decided that s 420 was intended to be facultative, not restrictive. Its purpose is to free the Tribunal to some degree from constraints otherwise applicable to courts of law, and regarded as inappropriate to the Tribunal: see per Gleeson CJ and McHugh J at 628. 32 The remainder of the applicant's contentions sought to demonstrate jurisdictional error as discussed, for instance, in Craig and Yusuf. It is contended that the Tribunal, in making its decision, took into account irrelevant considerations, and failed to take into account relevant considerations, in a way which affected the exercise of its jurisdiction. Counsel for the applicant contended that the Tribunal wrongly took into account, in considering the applicant's claim, that he was not of adverse interest to the Iranian authorities prior to his departure from Iran because of independent country information about airport departure procedures and checks. Although the Tribunal raised that issue with the applicant in the course of its hearing, its reasons do not indicate that it took that matter into account in reaching the conclusion that the applicant was not of any adverse interest to the Iranian authorities prior to his departure from Iran. It reached that conclusion in the light of the view it took about the reliability of his evidence generally, for the reasons referred to above. In addition, had it taken that information into account, I am not persuaded that it was an irrelevant consideration. The other "irrelevant" consideration said to have been taken into account by the Tribunal was the applicant's suggestion at the hearing that his uncle may have been involved in political activities, and that it was for that reason that he may have been further the target of investigation by the authorities. The Tribunal said: "Whilst the applicant suggested at hearing that his uncle may have been involved in political activities, his evidence in this regard was vague and unconvincing. In fact, the applicant stated that he knew nothing of his uncle's political views or activities. The Tribunal finds that the applicant's claims and evidence regarding his uncle's 'political activities' are unsupported allegations and pure conjecture and gives these claims no weight." I do not discern from that passage in the Tribunal's reasons that it was taking into account, adversely to the applicant's claim, an irrelevant consideration. It was dealing with an answer which he provided to the Tribunal at its hearing as to why the authorities may have persisted in pursuing him, in the light of his story about having been arrested on several occasions. It explained why that speculation upon the part of the applicant was of no particular significance to the Tribunal. 33 The "relevant" considerations identified by counsel for the applicant which, it is submitted, the Tribunal failed to take into account were also two-fold. By reference to independent country information, the Tribunal questioned the applicant about his claim that he had been arrested on several occasions but released after only short periods. If the authorities genuinely believed he was involved in an anti-government organisation, the independent information indicated that the applicant would have been detained for an extended period and not released. The Tribunal recorded the applicant's response. That is in the part of its reasons recording the course of the hearing. It was not a matter which the Tribunal failed to take into account in determining the applicant's claims. The other consideration to which counsel referred concerns the applicant's actions in removing graffiti from the shop immediately upon seeing it. The Tribunal regarded that action as indicating that the authorities would not then have imputed him with a political opinion simply because graffiti had appeared on the shop, or that the authorities would then have suspected pamphlets within the shop. It is not entirely clear to me what "relevant" consideration it is claimed the Tribunal failed to take into account. It assessed the applicant's claims in that regard as implausible. I am not persuaded that it failed to take into account any consideration about the applicant removing graffiti from the shop in reaching that view. 34 Finally, the applicant contended through counsel that the Tribunal had improperly exercised its power by relying on "outdated" country information, and preferring it to sworn testimony of the applicant. The so called "outdated" independent country information was that contained in a 1996 Department of Foreign Affairs and Trade Country Profile, Islamic Republic of Iran, March 1996 (1996 DFAT report). There is no reason to conclude that the Tribunal did not receive from the Secretary the documents which were available to the delegate of the respondent when making the initial decision: see s 418(3) of the Act. The fact that the Tribunal did not then in its decision refer to the same country information as that referred to by the delegate is not evidence that the Tribunal did not receive or have regard to that country information. Nor am I persuaded that there is later country information which, in any material respect, is different from that which the Tribunal relied upon. The applicant's migration agent, in a detailed submission to the Tribunal dated 15 October 2001, referred to certain independent country information concerning Iran to which the Tribunal did not refer in its reasons. However, in relation to the Tribunal's findings about the applicant's particular claims as to what had happened to him in the past, that independent country information has no special significance. It would indicate clearly that the applicant, if he did have a high political profile and was perceived as an anti-government activist, would be at significant risk in Iran. But the Tribunal found as a fact that that was not the case in relation to the applicant. Its reference to the 1996 DFAT report in that section of its decision dealing with its findings and reasons concerns the treatment of persons who have converted to Christianity but whose conversion is not publicly known and who keep a low profile, and secondly the treatment of persons who have left Iran illegally and who then return to Iran, having applied for a protection visa overseas, when those persons are not of any adverse interest to the Iranian authorities prior to departure and do not have a "political profile". There is no more recent country information identified which presents a different picture to that which the Tribunal discerned from the 1996 DFAT report on those topics. 35 The migration agent of the applicant, in a detailed submission to the Tribunal dated 15 October 2001, referred at some length to independent country information concerning human rights abuses in Iran and the treatment of persons perceived as being actively anti-government. The Tribunal did not refer to that material in its reasons for decision. It was not necessary for it to do so, because it found that the applicant at the time he left Iran was not perceived as having an anti-government or political profile, and it found he is not a person who would practice Christianity in a demonstrative or proselytising way if he were to return to Iran. As noted, independent country information to which the Tribunal had regard, namely the 1996 DFAT report, indicated that such a person would not be of particular interest to the authorities because of having left Iran illegally and having applied for a protection visa in Australia, or by reason of conversion to Christianity. The independent country information referred to by the applicant's migration agent, or the other independent country information to which the Tribunal was referred by counsel for the applicant, did not present a different picture in relation to those circumstances. The Tribunal was not obliged to make findings about independent country information which was not directly applicable to the findings of fact it had made about what had happened to the applicant, and his political profile, or lack of it, prior to his departure from Iran or about how he would practise Christianity if he were to return to Iran. 36 Accordingly, I am not persuaded that the applicant has demonstrated error on the part of the Tribunal of such a kind as would, absent s 474(1) of the Act, lead to the Court making any order under s 39B of the Judiciary Act declaring the Tribunal's decision to be null and void. In those circumstances it is not necessary to address the proper construction of s 474(1) of the Act. In my view, for the reasons given, the application must be dismissed. I so order.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Solicitor for the Applicant: Jeremy Moore & Associates