SBAC v Minister for Immigration & Multicultural & Indigenous Affairs

the claims and the tribunal's reasons 7 The applicant claimed that he had a well-founded fear of persecution by reason of his political opinion. He claimed that he was known as an active dissident against the ruling fundamentalist Islamic system by reason of views expressed as a teacher in the classroom. He also claimed that he was believed to be a political dissident because of association with the Mojahedin-e-Khalg organisation (MKO). His claims were explained in interviews with officers of the respondent on 9 January 2001, in his application for a protection visa, in a subsequent interview including his wife on 14 February 2001, and at a hearing before the Tribunal on 16 May 2001 at which his wife also gave oral evidence. 8 The Tribunal accepted the starting point of the applicant's claims, namely that in 1985 he had been arrested and detained, and that his arrest and detention at that time could have been for criticising the government. However, it was not satisfied that the applicant was arrested because of his suspected support for the MKO or that he was imputed with a political opinion of supporting the MKO. Nor was the Tribunal satisfied that, after 1985, the applicant was of any interest to the authorities or was regarded as a political threat, or that the authorities imputed any political opinion to him. It said that it was not satisfied that any of the events after 1985, as claimed by the applicant, were credible. 9 The Tribunal gave its reasons for those conclusions in some detail. The independent country evidence indicated that if the applicant had been suspected of involvement with the MKO in 1985, he would have been very substantially mistreated, and many suspected MKO supporters were arrested and summarily executed in the preceding few years. Because the applicant did not claim to have been physically mistreated at that time, and was held for only two weeks, the Tribunal was not satisfied that the Iranian authorities genuinely believed he was involved with the MKO. His release indicated that, even if he had been detained in 1985 for criticising the government, he was not then considered to be a political threat to the Iranian authorities. After a short period of detention he was able to return to his employment as a teacher at a government school. 10 The applicant claimed that he had then been placed on a reporting requirement to the authorities. The Tribunal was not satisfied that that had occurred, partly because of inconsistencies in his evidence about the length of that reporting period, and partly because his detention had been so brief and he had been able to return to a responsible position as a teacher at a government school. 11 The Tribunal also did not accept as credible the applicant's claims that he had had any involvement with the Mojahedin or the MKO between 1985 and 2000, or that the authorities in Iran had sought to arrest him in November 2000 as he had claimed. He had not made such claims when he was first interviewed on 9 January 2001. His explanation for that failure was that he had had insufficient time to mention the claim. That explanation was not accepted by the Tribunal. He had also modified his claims regarding his support for the Mojahedin over time. It was not satisfied that he was ever involved in any manner with the Mojahedin. The Tribunal dismissed that claim "as being self-serving, as a means to bolster the claim for refugee status". 12 The Tribunal also rejected as not credible the applicant's claim that the Iranian authorities had come to his school in November 2000 and sought to arrest him for anti-government statements he made in the classroom. Given the applicant's evidence of the trauma he experienced as a result of his detention in 1985, the Tribunal found it "extraordinarily implausible" that the applicant many years later would jeopardise his safety and his future by instructing his students in anti-government politics. 13 The applicant's description of how he then managed to avoid arrest, in effect by being excused from the classroom to tell his principal of what was happening and being free simply to leave the premises, was described by the Tribunal as being "so far fetched as to be fanciful". The independent evidence regarding the practices of the authorities in arresting persons such as those within the category of persons in which the applicant claimed to fall made it implausible that the applicant would have been able to avoid arrest in that way. 14 Consequently the Tribunal concluded: "The Tribunal is not satisfied that after 1985 the applicant was of any adverse interest to the Iranian authorities. The Tribunal cannot be satisfied that the Iranian authorities imputed a political opinion to him either in 1985 or any time thereafter. He was detained in 1985 for a short period of time, but was not physically mistreated and returned to work at a government institution where he worked for a further 20 years. The Tribunal is satisfied that the applicant does not have a well-founded fear of harm in the reasonably foreseeable future for reasons of his political opinion.' 15 The Tribunal also considered whether the applicant might have a well-founded fear of persecution because of his illegal departure from Iran or because of his act of applying for refugee status. On the basis of independent evidence, it was not satisfied that the applicant had a well-founded fear of persecution for either of those reasons. 16 The Tribunal dealt separately with the claims of the applicant's wife that she feared harm in Iran because of her husband, which it categorised as possibly falling under the Convention reason of membership of a particular social group. It is not necessary to refer to those reasons, as the applicant's wife is not now separately an applicant before the Court.

consideration 17 In SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 at [33] - [35]. I considered the circumstances in which a decision of an administrative decision-maker might be found not to be a bona fide attempt to exercise its power, as that expression is used in the decision of Dixon J in Hickman at 615-616. In this instance, the grounds upon which the applicant contends that the Tribunal did not bona fide attempt to exercise its power are set out in [5] above. 18 Counsel for the applicant submitted that the combination of those factors demonstrated that the Tribunal had not bona fide attempted to exercise its power to review the decision of the delegate of the respondent under s 414 of the Act. To do justice to that submission, it is necessary to consider the several factors discretely. 19 The fact that certain of the independent country information relied upon by the Tribunal was dated between 1992 and 1996 does not demonstrate that that information was "out of date", or that more recent information might have presented a different picture of circumstances against which the applicant's claims might have been assessed. The only more recent independent country information said to have been available to the Tribunal is the US Department of State, 2000 Country Report on Human Rights Practices, Iran. The Tribunal had available to it the 1999 version of that report. It has not been shown that the information in the 2000 version of that report is different from that relied upon by the Tribunal, either in relation to the 1999 version of that report or in relation to other independent country information to which the Tribunal referred. Nor has it been shown that the Tribunal, by using so-called "out-of-date" material made its decision upon a view of circumstances in Iran relevant to the applicant's claims which was less favourable to the applicant's claim than the so-called "more current" information. It was not contended that the Tribunal used the independent country information available to it in a selective way, or that it might have chosen to refer to certain country information as against later country information so as to be able to assess the applicant's claims against a background which the Tribunal had reason to think was not correct. 20 Section 424A(1) of the Act obliges the Tribunal to give to an applicant for a protection visa particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. It also obliges the Tribunal to ensure, as far as is reasonably practicable, that the visa applicant understands why it is relevant to the review. The visa applicant must then be given an opportunity to comment upon the information. Those obligations are subject to the content of s 424A(3), which limits the information to which the obligations apply. It provides: "(3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." The applicant accepts that his complaint that he was not provided with the "old information", as explained in submissions that being the independent country information of and prior to 1996, does not involve any contravention of s 424A of the Act. It was not specifically about the applicant. 21 Nevertheless, the applicant contends that in the particular circumstances he was entitled to be notified of the independent country information to which the Tribunal had regard, and to be given the opportunity to comment on it. The particular circumstances identified are firstly that the independent country information was relatively "old", and secondly that the applicant in a statement submitted to the Tribunal on 24 May 2001 following the hearing before the Tribunal on 16 May 2001 had concluded: "Finally I ask the respected Presiding Member to put any questions or unclear point in my case to me so that I can clarify that." The Tribunal on 30 October 2001 wrote to the applicant about three particular claims that he had made for the first time either at the hearing or in his subsequent submission. The applicant responded on 2 November 2001. Those matters did not relate to independent country information considered by the Tribunal. That communication was said to add colour to the applicant's claim that the Tribunal's decision was not a bona fide attempt to exercise its power, and to support his claim that he was not afforded procedural fairness. 22 In Aala Gaudron and Gummow JJ (with whom Gleeson CJ agreed) said at 91-92: "Before considering the merits of the complaint of the denial of procedural fairness, it is convenient to turn to these threshold questions. We conclude that (i) the denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction in respect of which prohibition will go under s 75(v); (ii) if there has been a breach of the obligation to accord procedural fairness, the consequences of the breach were not gainsaid by classifying the breach as 'trivial' or non-determinative of the ultimate result - the issue is whether there has or has not been a breach of the obligation; (iii) the practical content of the obligation, and thus the issue of breach, may turn upon the circumstances of the particular case; and (iv) the remedy of prohibition under s 75(v) does not lie as of right, but is discretionary." Accepting that such an obligation lay upon the Tribunal, notwithstanding the express provisions directed to securing procedural fairness in Div 4 of Part 7 of the Act, for the reasons expressed above, I consider that the decision of Gyles J in NAAX now forecloses any contention in the face of s 474(1) of the Act that the breach of such an obligation would entitle the Court to set aside the Tribunal's decision under s 39B of the Judiciary Act. His Honour said at [35]: "In my opinion, s 474 operates according to its terms, which are inconsistent with the existence of implied duty to afford procedural fairness by supplying information going beyond the requirements of Div 4 of Pt 7 of the Act, no matter upon which theory any such implication would be drawn. This conclusion is reinforced by the passages from the Explanatory Memorandum and Second Reading Speech to which I have referred. In my opinion, it is not legitimate to construe the Act on the basis that s 474 did not exist, particularly in relation to a version of the Act which had radically different judicial review provisions, conclude that a duty to afford natural justice existed and then ask whether s 474 takes away the corresponding right." That view perhaps reflects certain comments of Gaudron and Gummow JJ in Aala at 101, where their Honours addressed the prospect of some statutory abridgment of the right to procedural fairness in the following terms: "It follows that, if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under s 75(v) of the Constitution." 23 In any event, I do not consider that the Tribunal has contravened any implied obligation to accord procedural fairness to the applicant. Its record of the hearing on 16 May 2001 indicates that it put to the applicant for his response independent country information which it regarded as potentially telling against the acceptance of his claims. In particular, it put to him that independent evidence suggested that, if in 1985 he was genuinely believed to be associated with the MKO, he would have been much more severely dealt with than he said. In other respects it also sought his response. Those matters included its concern that if he was suspected of MKO applications or sympathies then he would not have been able to return to his employment as a teacher and he would have been persistently or periodically harassed between 1985 and 2000, that the way he managed to avoid arrest in 2000 was hard to accept, and about inconsistencies or evolution of his claims over time. Following the hearing both the applicant and his migration agent separately made further submissions to the Tribunal in May 2001 and, in response to the Tribunal's inquiry by letter of 30 October 2001 the applicant made a further detailed submission to the Tribunal on 2 November 2001. In my view, the Tribunal gave the applicant adequate opportunity to put before the Tribunal that which he wished to present, and with one exception, signified to the applicant the matters about which, on the basis of independent country information, it had reservations about the applicant's claims. 24 The exception concerns the independent country information upon which the Tribunal relied in rejecting the applicant's claim that he has a well-founded fear of persecution as a result of his illegal departure from Iran and his application in Australia for a protection visa. The Tribunal's recital in its reasons about the course of its hearing does not include discussion about that independent country information. Although the applicant did complain about the lack of opportunity to address that material, he did not contend that the Tribunal erred in observing that the applicant had not claimed to fear harm because of his illegal departure from Iran or his act of applying for refugee status. The Tribunal considered that issue notwithstanding the absence of any such claim. The applicant did not raise that claim when asked why he feared returning to Iran when first interviewed on 9 January 2001, in his application for a protection visa dated 7 February 2001 provided through his migration agent, or in his lengthy written statement to the Tribunal sent on 15 May 2001 through his migration agent or his correspondence with the Tribunal subsequent to the hearing. His migration agent sent a detailed submission to the Tribunal on 3 June 2001, just after the hearing, apparently dated in error 9 February 2001. It too made no such claim on his behalf. It did, however, address the prospect that the applicant would be identified by reason of his past political activities upon his return to Iran because he would be on an "alert list", and that he might be harshly interrogated at the airport. In that context, the applicant also effectively addressed the independent country information to which the Tribunal had regard about any risks to refugees who return to Iran having left Iran illegally. It stated: "Firstly the use of a falsified passport to escape through Tehran Airport is a regular practice for people in Iran seeking to escape the cruel justice of the Islamic regime. Country Information to the contrary can be rejected by the Tribunal as not only outdated but woefully inaccurate. To confirm what the applicant has said, the overwhelming anecdotal evidence of hundreds of Iranian asylum-seekers is that either by deviousness or bribery, it is easy to get through the Departures blacklist procedure at Mehrabad Airport. We would strongly submit that the Tribunal should either reject such Country Information reports as irrelevant, unreliable and without weight - or at least go back to DFAT with a request for an accurate update based on factual observation rather than clumsy generalised inferences such as 'while there may be some corruption it would appear virtually impossible …' Secondly, we would also draw the Tribunal's attention to the proviso in the otherwise-outdated and no-longer-accurate 1996 DFAT country profile on Iran that even then, asylum-seekers who departed illegally and/or were fugitives from justice are among those whose application for asylum in other countries would become offensive to the regime, even though the act itself may not be punishable. The effect would be cumulative." 25 In my judgment, in those circumstances, the Tribunal has not failed to accord procedural fairness to the applicant as he claims. In respect of his complaint that he was not given the opportunity to address independent country information concerning the prospects of him returning to Iran having left Iran illegally and having sought asylum in Australia, that claim was not made by him to the Tribunal. In addition, his migration agent on his behalf has addressed the independent country information upon which the Tribunal relied. 26 The contention that the Tribunal's delay in making its decision evidences its lack of good faith implies that its delay was deliberate, for the purpose of rendering its decision less susceptible to judicial review. I do not infer from the time between the Tribunal's hearing on 16 May 2001 and its decision that the Tribunal was doing other than conscientiously considering its decision. There is no reason to think otherwise. That is so, whether considered separately or in conjunction with the other matters to which the applicant refers. In addition, the timing of the amending Act does not support the implicit assumption in the submission. Section 474(1) came into operation as a result of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). It applies to all applications to the Court made from its commencement: see s 2 and Schedule Item 8(2). The Bill to so amend the Act was first read in the House of Representatives on 26 September 2001. Nothing before the Court indicates that there had been any announced policy to so amend the Act any lengthy period before that date. 27 The fifth contention of the applicant in substance amounts to the contention that the Tribunal did not properly address the question dictated by the Act whether the applicant has a well-founded fear of persecution for a Convention reason: see Guo v Minister for Immigration & Multicultural Affairs (1997) 191 CLR 559 at 575-576 and Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 220 at 240-241. There will be cases where the Tribunal, properly to address and apply the test predicated by s 36(2) of the Act and Article 1A(2) of the Convention, will have to engage in reasonable speculation to take account of the chance that past events may have occurred, even though it thinks that they probably did not. Lee J in W321/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 210 said at [30]: "The Tribunal cannot exclude an applicant's account from the material the Tribunal is obliged to consider, by relying upon a bare assertion that the applicant's account is "implausible". There must be facts found that are inconsistent with claimed events, or the claimed events must be so beyond the human experience of possibilities that they may be said to be inherently unlikely. As stated by the United States Court of Appeals in Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7th Cir. 1992) at 1131: 'A bare conclusion is not an adequate discharge of an administrative agency's responsibilities unless the ground or argument that it is rejecting is frivolous.'" In that case, his Honour considered the Tribunal had erred in not taking into account the possibility that certain events reported by the visa applicant had occurred, and the possibility that those events had occurred for a Convention reason. The Tribunal had fallen short of addressing those questions when it should have done so, having regard to its findings which, at their highest, recorded that it was not persuaded of the particular past events claimed. 28 In this matter, the Tribunal did not accept as credible the applicant's claims that he had any involvement with the Mojahedin, despite his arrest in 1985, or that the authorities had sought to arrest him in November 2000. The significance of the arrest in 1985 was explained by the Tribunal by reference to facts identified by it. The claimed involvement with the Mojahedin was rejected in firm terms. They do not leave any room for a finding that the Tribunal was in any doubt. Its reasons for its conclusion are explained in some detail. The Tribunal's reasons for its rejection of the claimed attempt to arrest the applicant in November 2000 are given, including that the claim was "inherently unlikely" (an expression used by Lee J in W321/O1A at [30]) and the reasons explain that view. In my judgment, in the circumstances, the Tribunal was not bound to consider the possibility that its findings on those matters might be wrong. The Tribunal appears to have had no real doubt that its findings were correct: see e.g. Guo at 576.

conclusion 29 For the reasons given, I am not persuaded that the Tribunal did not undertake its review of the applicant's claims in good faith. I am also not persuaded that it failed to accord common law procedural fairness to the applicant. I have also reached the view that any such failure would not have entitled the Court in this matter to set aside the Tribunal's decision under s 39B of the Judiciary Act in the face of s 474(1) of the Act. 30 I accordingly order that the application be dismissed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 8 May 2002 Counsel for the Applicant: Mr M Thangaraj

Solicitor for the Applicant: Jeremy Moore & Associates