SBAC v Minister for Immigration & Multicultural & Indigenous Affairs

Reasons of the Tribunal 5 The Tribunal accepted that the appellant was arrested and detained for two weeks in 1985 and that the reason for this detention could have been that the appellant was believed to have criticised the government. However, the Tribunal was not satisfied that the appellant had been suspected of supporting MKO or that he was imputed with a political opinion of supporting MKO. The Tribunal was satisfied that the appellant was not considered to be a political threat to the Iranian authorities in 1985 and was of no adverse interest to the Iranian authorities thereafter. The Tribunal found that the appellant's claim about the attempt to arrest him in 2000 was not credible. The Tribunal was satisfied that the appellant did not have a well‑founded fear of harm in the reasonably foreseeable future by reason of his political opinion and that he was not a person to whom Australia had protection obligations.

Reasons of the Primary Judge 6 The appellant sought an order that the Tribunal's decision be set aside under section 39B of the Judiciary Act on the ground that the Tribunal did not exercise good faith nor provide natural justice to the appellant. The basis for this allegation was the appellant's claim that the Tribunal used out-of-date country information, rather than more recent information that might have been more favourable to the appellant. The appellant complained that the old information was not provided to him for comment. The appellant also complained that the Tribunal did not properly address the questions dictated by the Migration Act 1958 (Cth) ('the Act') and that the Tribunal did not deliver its decision until after the privative clause came into effect. The appellant was represented by counsel before the primary judge. 7 The primary judge dismissed the application. His Honour did not accept that the Tribunal failed to review the appellant's claim in good faith or that it failed to accord him procedural fairness. His Honour did not accept that the country information used by the Tribunal was 'out of date' or that it failed to give the appellant an opportunity to address any independent country information that would potentially tell against the acceptance of the appellant's claims. His Honour noted that following the hearing before the Tribunal both the appellant and his migration agent respectively made further submissions to the Tribunal. 8 His Honour rejected the contention that the Tribunal had not identified and determined the issues which the Act required the Tribunal to consider and determine. Further his Honour stated that even if there had been a lack of procedural fairness this 'would not have entitled the Court in this matter to set aside the Tribunal's decision under section 39B of the Judiciary Act in the face of 474(1) of the Act'. The primary judge rejected the contention that the Tribunal deliberately delayed making its decision for the purpose of rendering its decision less susceptible to judicial review.

Notice of Appeal 9 The notice of appeal identifies two grounds of appeal. First, that the primary judge was wrong in his interpretation of the law with respect to the granting of refugee status. Secondly, that the primary judge should have found that the Tribunal committed jurisdictional error which was not validated by the privative clause. No particulars of the grounds are provided in the notice of appeal. 10 When the appeal was first came before this Court the appellant was unrepresented. He raised the issue that he had been denied the opportunity to appear before the primary judge, even by telephone, and to instruct properly the barrister who appeared on his behalf before the primary judge. He also complained that he was denied the opportunity which he expected to have to address the primary judge himself. Some oral evidence was taken and the appeal thereafter adjourned to allow further evidence to be placed before the Court. A reference under Order 80 of the Federal Court Rules was made to ensure that the appellant was represented when the appeal again came on for hearing. 11 Today the barrister instructed by the appellant abandoned reliance on any issue arising from the appellant's absence from the hearing before the primary judge. She did, however, tender the tapes of the hearing before the Tribunal. Counsel for the respondent raised no objection other than relevance to the receipt of the tapes into evidence before this Court. There is nothing to suggest that the tapes were tendered before the primary judge although a transcript of the Tribunal hearing was before his Honour. Although we were advised that the appellant's solicitor had listened to the tapes, no particular portion of the tapes was able to be identified as having a relevance to any ground of appeal. The appellant, who addressed this Court after his counsel, indicated that the tapes would assist the Court in understanding the negative manner which the Tribunal adopted towards him. In the circumstance that the appellant's barrister did not place the tapes before the primary judge I do not consider that they have been shown to have any relevance to this appeal. I would not receive them in evidence. 12 In my view, nothing in his Honour's reasons for judgment suggest that his Honour failed properly to interpret the relevant provisions of the Act or, to the extent that the Act incorporates the provisions of Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (together 'the Convention'), the Convention. To the extent that it was contended that his Honour should have found that the Tribunal erred in not considering the possibility that certain events, which the appellant claimed had occurred, had in fact occurred, I consider that his Honour's approach to this issue was, for the reasons which he gave, the correct approach. 13 Nothing, in my view, has been put before this Court which demonstrates any error on the part of the primary judge or indeed any ground upon which the decision of the Tribunal could have been reviewed under section 39B of the Judiciary Act. In my view the appeal should be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

WHERE MADE: SYDNEY (Part heard in Adelaide) (Part heard in Sydney via video link)

stone j 14 I agree with orders proposed by Branson J for the reasons which her Honour has given. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 23 December 2002 Counsel for the Applicant: Ms A Macdonald

Date of Hearing: 4, 5 November 2002 (Adelaide) 18 December 2002 (Sydney via video link)