consideration of grounds of review
24 It is convenient to deal with the second ground of review at this point. In my judgment, it must fail.
25 Since the hearing of this matter, the Full Court has delivered reasons for decision in NAAV v Minister for Immigration & Multicultural Affairs [2002] FCAFC 228. The majority (Black CJ, Beaumont and von Doussa JJ, Wilcox and French JJ dissenting) decided that, once the Tribunal's jurisdiction is enlivened by a valid application under s 414 of the Act, the manner of exercise of its authority and powers falls within the expanded area of authority and powers brought about by s 474(1) of the Act. In effect, although the statutory and common law procedural obligations applicable to it should be complied with (per von Doussa J at [674]), its expanded jurisdiction means that failure to comply with those obligations does not result in it exceeding its jurisdiction. The sort of jurisdictional error referred to in Yusuf is no longer appropriately the measure of jurisdictional error on the part of the Tribunal, because the effect of s 474(1) is to expand its jurisdiction: per von Doussa J at [639]. The Tribunal no longer commits jurisdictional error by wrongly identifying the applicable law, or by wrongly applying the applicable law, or by asking itself the wrong question, or by not addressing all the claims of a visa applicant, or by failing to accord procedural fairness to a visa applicant, or by failing to comply with the procedural prescriptions in Part 7 Div 4 of the Act: per Beaumont J at [91]-[104], [113]-[114], [188], [229] and [274] and per von Doussa J at [636]-[639], and [648]-[651]. Black CJ agreed generally with von Doussa J at [4], although his Honour disagreed with Beaumont J and von Doussa J in identifying what constituted "jurisdictional facts" upon the proper construction of the Act in two of the five matters under appeal.
26 Of course, as von Doussa J pointed out in NAAV at [674], the Tribunal's failure to comply with those directory obligations may be relevant to whether the Tribunal did make "an honest attempt to deal with a subject matter confided to the Tribunal and to act in pursuance of the powers of the Tribunal …": R v Murray: Ex parte Proctor (1949) 77 CLR 387per Dixon J at 400. It is to the first ground of review, therefore, that I now turn.
27 In SBAP v Refugee Review Tribunal [2002] FCA 590, Heerey J said at [49]:
"Good faith or what I think is the same thing, the absence of bad faith, is not a term of art. In the context of administrative decision-making bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such, it is an allegation not to be lightly made and must be clearly alleged and proved: Ayan v Minister for Immigration & Multicultural Affairs [2002] FCA 470 at [8]. The ways in which bad faith can occur are infinite and no comprehensive definition is possible. Nevertheless it can be said that the presence or absence of honesty will often be crucial. So also will be a purpose to achieve some end (perhaps even one not in itself reprehensible) which is not an end for which the statutory power was conferred. The principles which the common law has developed in relation to malice in the law of defamation, while by no means an exact analogy, may provide some helpful concepts: see for example Horrocks v Lowe [1975] AC 135 at 149-153."
That passage was quoted with approval by Hely J in NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 805 at [25]. SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 is an illustration of a case where the Court found that the end of the exercise of the statutory power was to decide the claim adversely to the applicant, rather than to address the question which s 36(2) of the Convention predicates.
28 In SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 at [35] I pointed out that the circumstances in which the Court might find an administrative decision-maker has not acted in good faith are likely to be rare and extreme. That is particularly so, in my view, where the only attempt to demonstrate a lack of good faith on the part of the administrative decision-maker is by reference to the reasons for decision themselves. See e.g. the observations of von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]. Hely J in NAAP was confronted with such a claim, and it failed.
29 It is, of course, axiomatic that the Court cannot undertake a review of the merits of the Tribunal's decision; see e.g. Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611. It is a matter for the Tribunal as to the weight to which it attributes to various aspects of the evidentiary material before it. The Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning: per Kenny J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]. Mere error or irrationality or apparent irrationality does not of itself demonstrate a lack of good faith. However, it may do so in conjunction with other factors or in all the circumstances of the case.
30 In Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Brennan CJ, Toohey, McHugh and Gummow JJ at 276 said:
"Whether the decision of the authority under such a statute can be effectively reviewed by the Courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously."
Earlier in their Honours' reasons, their Honours said at 266:
"A statement of reasons for a decision reviewable under the AD(JR) Act is not invalid merely because it employs a verbal formula that is routinely used by persons making similar decisions. If the formula is used to guide the steps in making the decision and reveals no legal error, the use of the formula will not invalidate the decision. On the other hand, if a decision maker uses the formula to cloak the decision with the appearance of conformity with the law when the decision is infected by one of the grounds of invalidity prescribed by the Act, the incantation of the formula will not save the decision from invalidity. In such a case, the use of the formula may even be evidence of an actionable abuse of power by the decision maker."
Of course, in this matter, I am mindful not to scrutinise the reasons for the decision of the Tribunal over zealously. To do so might turn a review of the reasons of the decision of the Tribunal upon proper principles into a reconsideration of the merits of the decision.
31 It is not the function of the Court to cure administrative injustice or error. But, ultimately where the matter is raised, it is the duty of the Court to determine whether it is persuaded that the decision of the Tribunal results from a bona fide attempt to perform the function of reviewing the decision of the delegate of the respondent. The Court must consider all the circumstances, including the reasoning of the Tribunal. Errors of fact or law apparent in its reasons will not of themselves demonstrate a lack of good faith on its part, at least other than in exceptional circumstances. Illogicality in its reasons also will not of itself demonstrate a lack of good faith on its part. But such errors or illogicality might, either alone or in conjunction with other matters, demonstrate or tend to demonstrate a lack of good faith on its part. They may show such capriciousness on the part of the Tribunal that only one conclusion is open to the Court.
32 Ultimately whether there is a failure to attempt to address the question which the Tribunal's review requires it to address in good faith is a matter of fact. The Court must make a judgment about whether the fact asserted is made out. Almost invariably, it must do so by inference from what the Tribunal has done or has failed to do, or from what its reasons disclose as to how it approached its task or a combination of such factors. If, allowing for the need for the Tribunal's reasons not to be read over-zealously with an eye attuned to the perception of error, and having regard to the serious nature of the claim that the Tribunal did not approach its task in good faith, the Court is firmly persuaded that the Tribunal did not approach its task in good faith, it is the duty of the Court to so conclude. It would be shirking its duty to do otherwise. Although the nature of its decision must be borne in mind, as noted in R v Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 514 where Lord Bridge explained (at 531):
"The limitations on the scope of [the court's power to review] are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."
That passage was cited with approval by the Full Court (Lee, Carr and Finkelstein JJ) in W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379 at [16].
33 In Sevendram v Minister for Immigration & Multicultural Affairs (2000) 182 ALR 290 at 298 [2000] FCA 1910 at [28], Lee J said:
"The decision maker's satisfaction [as to a well-founded fear of persecution if returned to the country of nationality] is a legal pre-condition determined upon factual matters, and is the foundation for the exercise of the administrative power. The decision maker cannot be satisfied as a matter of discretion, accepting or rejecting material at will, nor may the requisite satisfaction be arrived at in the absence of good faith. It must be formed reasonably upon the material before the decision maker; see Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [113], [119], [136], [137], and [145]; approved in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]."
I do not think his Honour was saying in that passage that the step from unreasonableness on the part of the Tribunal in its decision upon the material before it to a finding of the absence of good faith is a simple one. For the reasons I have given above, it is not. Unreasonableness and a lack of good faith are not correlatives. The finding of a lack of good faith on the part of the Tribunal is an independent determination, formed upon all of the relevant material before the Court.
34 In the light of those considerations, it is now appropriate to address the contentions of the applicants.
35 I have very considerable difficulty in understanding the cogency or rationality of the Tribunal's reasons for rejecting the events asserted to have occurred on 20 February 2001 and thereafter, and consistently and unanimously described by the applicants.
36 The applicants' sons claim that, as soon as the women started shouting, a crowd gathered. Why, in such circumstances, the Tribunal considered it "most improbable" that the sons were accused of assaulting the women is not explained by the Tribunal. It is not self evident. Indeed, the contrary, in my view, is quite likely. The crowd which gathered was likely to be of Muslim religion rather than Sabian Mandean religion. The independent country information indicates that Muslims generally discriminate against Sabian Mandeans. The Tribunal acknowledged that. Why then would it be "most improbable" that Muslim women claiming to have been assaulted by Sabian Mandeans in a shop should not lead to the sons being accused of assaulting the Muslim women?
37 It is also not apparent, examining the second of the four steps taken by the Tribunal about these claimed events, why it should be implausible that the father would not know the whereabouts of his sons for two weeks. It notes that there were witnesses who could have told the father, who is blind, who was alleged to have taken his sons. That assumes that witnesses knew who precisely had taken the sons, and those in the vicinity would have known where they had been taken, and that if the eye witnesses were Muslims believing two Muslim women had been assaulted by his sons they would assist him. The father said he heard his sons had been taken by the "moral police". He went to the police station and lodged a complaint about the taking of his sons. His sons were not there. He went to other places but was unable to find them. The Tribunal has expressly recited that evidence of the father in the course of its reasons, but has not explained why it is inherently unlikely. Why that course of conduct should be disbelieved, or why it is implausible that he would not know precisely the whereabouts of his sons again is not explained. It is not inherently unlikely.
38 The Tribunal's third reason for rejecting those claims is simply wrong. It noted country information about Muslims having an advantage in the court system over Sabians, but concluded that the information does not indicate that the court system is corrupt in dealings with Sabians "such that it would condone the wrongful conviction of someone". The independent country information specifically quoted by the Tribunal included the following:
"Religious minorities suffer discrimination in the legal system, receiving lower awards in injury and death law suits, and incurring heavier punishments, than Muslims." (US Department of State, 2000 Annual Report on International Religious Freedom: Iran.)
It also included:
"In some respects Sabians do not receive the same level of protection from the authorities that other Iranians enjoy. The police will generally protect Sabians and generally do not discriminate against them, but Sabians often have problems in the court. If there is a legal dispute involving Sabians and Muslims, the courts will often side with the Muslim party, especially if the Judge is religious." (Department of Foreign Affairs and Trade, Country Information Report No 165/01, 11 June 2001, Background Information on the Sabians (Mandeans) and their situation in Iran.)
Later in that same document, the document indicates that Sabians experience "discrimination in employment and education and in the way the legal system operates".
39 The fourth reason for rejecting those claims relates to what happened when the sons returned home. The Tribunal does not refer to the explanation proffered by the migration agent of the behaviour of the two brothers once they returned home. It was that they began to recount their treatment at the hands of the moral police, telling of the torture and interrogation they faced, and revealing the bruising and scaring on their bodies from the beatings they had endured. The brothers were distraught and their voices became raised as they criticised Khomeini and the Islamic regime. It was then that the neighbours overheard and entered the house and began to beat the whole family for criticising the Islamic regime. The Tribunal did not accept that the sons, upon returning home, would yell so loudly as to attract the attention of the neighbours and cause a fight to occur in their house. It regarded it as improbable that the sons would come home and cause such a disturbance in the neighbourhood as to attract the attention of the neighbours. It also said that it did not make sense to the Tribunal that, having then escaped, the two sons could not return to the house when things quietened down. The submission of the migration agent, not referred to by the Tribunal in its reasons on this topic, puts those matters in a different context. It also seeks to explain why the applicants, having then been recognised as critics of the government, and given the way in which Sabian Mandeans are treated generally including in the courts, were fearful of their continuing safety even if they returned home. The Tribunal's failure to address these explanations does not demonstrate error on its part. On the view it took as to the sons' conduct, I think it was open to regard the behaviour as inherently unlikely. Its failure to address the explanations of itself does not in my mind suggest any lack of good faith on its part. It may have overlooked that material, or considered it inconsequential. But it is an aspect of its failure to address a number of other claims made by the applicants to which reference is made below. Moreover, that conduct was but one feature of the claimed events of 20 February 2001. Even if that conduct did not occur, it does not follow that the sons had not been arrested unfairly or did not face unfair treatment in the courts, or that they had not been mistreated.
40 The applicants contend, and I accept, the Tribunal also did not refer in its reasons to significant information in the submission from the migration agent of 7 November 2001 and in their evidence explaining further the events of 20 February 2001. The woman in question was accompanied by a friend, who was said to have gone outside to have made the complaint that the eldest two sons had tried to rape the Muslim woman. When people gathered, the two men were attacked and beaten and a trail of jewellery was lost in the commotion. The woman concerned was the wife of a prominent member of the Mafased, a fanatical section of the local security agency. Reference was specifically made to a passage in material before the Tribunal from the US Department of State Country Reports on Human Rights Practices - 2000: Iran:
"The court system is not independent and is subject to government and religious influence. It serves as the principal vehicle of the State to restrict freedom and reform in the society …
Trials in the Revolutionary Courts, in which crimes against national security and other principal offenses are heard, are notorious for their disregard of international standards of fairness. Revolutionary Court judges act as both prosecutor and judge in the same case, and judges are chosen in part based on their ideological commitment to the system. Pretrial detention is often prolonged and defendants lack access to attorneys. Indictments often lack clarity and include undefined offenses such as 'antirevolutionary behaviour', 'moral corruption' and 'siding with global arrogance'. Defendants do not have the right to confront their accusers …"
41 At the hearing, the father gave lengthy evidence. Then the oldest son gave evidence. It was brief. He completed secondary school despite constant harassment and abuse. He said many Sabian students drop out of school because they cannot tolerate the abuse of the people, but he persisted for the sake of his father. Whilst working, he suffered constant harassment and difficulties, being insult and abuse for his religion, and being pushed about and the like. He confirmed that, after being arrested, he was told he would be facing the death penalty. He confirmed his beating, harassment and torture and:
"that person later on told us that one of those females, one of those women, was actually his wife".
He gave the name of that officer. The interview with the second son was extremely cursory. He was asked whether he had agreed with what had been said. He was not asked about the incident on 20 February 2001. He was asked what happened whilst they were in detention. He too identified the particular official by name, and being told he would not be forgiven for having touched and assaulted a daughter of Mohammed. He was asked about the return home. Nothing was put to him to suggest that the incident in the house after being released from the Court did not occur. He described the neighbours coming in and being beaten and bashed, and having to run away. There was no suggestion in the hearing that the evidence being given was questionable. The reasons for decision do not refer to the evidence of the two sons given at the hearing at all.
42 The applicants contend further that the Tribunal did not approach its task with a mind open to persuasion because it understated, and so did not address, the substantive claims made by the applicants, (apart from the circumstances surrounding the events of 20 February 2001), about their treatment in Iran.
43 The Tribunal accepted that the Sabian Mandean religion is not recognised in Iran, although the religion continues to be practised there. It said:
"that the applicant or his sons do not state that they have been subjected to serious harm whilst engaging in religious ceremonies or have been prevented from engaging in religious ceremonies".
It accepted entrance to tertiary education as problematic, and noted that the harassment suffered at school was able to be put up with. It concluded that the discrimination they had experienced in the past was not serious enough to amount to persecution.
44 However, in my judgment, the Tribunal reached that view because it understated and so simply did not address parts of the applicants' claims of harassment and discrimination. The father claimed in his arrival interview that the Sabian Mandean cemetery had been desecrated, including family tombs. He said the attitude of the authorities, to whom complaints were made about such conduct, was that those who are not of the Muslim faith are against Islam. The Tribunal made no reference to any such claim.
45 The older son complained that:
"We have no safety for our lives … there is absolutely no safety in relation to me as I was detained for no reason, and the family were first to speak and learn their language only in secret. He complained that while conducting religious ceremonies at the river, Arabs threw stones and dirty objects at them to try to prevent them from conducting their ceremonies.
46 The father, in his application for a protection visa complained:
"We suffer severe discrimination from Muslims in Iran (both Government and community) who consider us unclean and non-believers. I understand that the Iranian Government espouse that we are recognised as a minority religion. However, the reality of a day to day basis is totally different. My experience in Iran as a Sabian is totally different, much of the discrimination is carried out by the religious Intelligence and the Muslim community. If we go to Government authorities for help they do nothing or they create problems for us.
My wife is suffering from a lifetime of being considered unclean and a woman who does not deserve the respect of Muslims. It has been very hard for her to articulate her claims for this application because she is suffering psychological and emotional damage. A person cannot go on hearing these bad things about them without it having a deep effect on their psychological development. We all suffer this, but it is particularly difficult for Sabian women in a Muslim society."
The Tribunal recited only the reference to the applicant's wife being considered unclean and not deserving of respect. It made no reference in its recital of the claims to the claim of the effect on her psychological and emotional damage. The father also complained:
"I had a hernia operation. Despite my many pleas to nurses to provide me a urinal for hours I was kept waiting. I waited for a catheter, as I wasn't able to pass urine. No one came to my rescue. They said 'You are a Sabian, you are unclean and we cannot touch you.' In the end they treated me like a dog and threw the instrument towards me and asked me to help myself. I did that with great difficulty. Due to this lack of attention, I was in [pain] the following morning in the area where the hernia was. The [hospital] released me the following morning in 3-4 days time I had to go back to him as I was still experiencing pain. After examination he maintained/diagnosed after the operation the bladder was not emptied in time it had caused the hernia to rupture."
The Tribunal did not refer to that complaint in its recital of the claims. It also did not refer to claims of being refused service in shops, of being prevented from touching food because they are considered unclean, of the deaths of about 25 Sabian Mandean people killed in jewellery shops and their stocks looted in the recent past, that one of the sons did not complete schooling due to constant taunts received at high school, or that the father (who was already blind) actually lost one eye when a member of the moral police threw a potato at him from a passing motor cycle. As noted, a number of those claims were referred to in the application, contrary to the Tribunal's assertion in the passage from its reasons quoted in [13] above. It did not refer to and reject any of those claims. Those matters were all said to be specific examples indicative of a pattern of general harassment and discrimination which the applicants have experienced throughout their lives, sanctioned by the regime. Those matters were referred to in the detailed written submission sent by the applicants' migration agent to the Tribunal on 7 November 2001. In general, they were confirmed by the information provided by the 19 year old son. There is no suggestion in the Tribunal's reasons of any inconsistency in the versions given by any of the applicants. The Tribunal might have overlooked them, but that is not consistent with its assertion that no such claims were made in the application. It might have neglected to read the migration agent's submission of 7 November 2001. But it is difficult to conceive of it doing so if it was bona fide attempting to review the delegate's decision. That was an important document, received only a short time prior to its decision.
47 The applicants further contend that the Tribunal has unfairly and selectively quoted from independent country information. The Tribunal referred to two passages in Sanasarian, "Religious Minorities in Iran"(Cambridge University Press, UK, 2000) which suggest that Sabian Mandeans are recognised as "legitimate" peoples, and that they may be among Christian fundamentalists who propagate falsehoods about mistreatment in Iran. In that text, the author says:
"In practice, however, the overall treatment of people in the book in the history of Islamic rulers fell short of the ideal. At the mercy of unjust rulers, they were more "helpless" than their Muslim counterparts and lacked the protection of Islamic law and the "feudal" customs, a general "political incapacity" that could have been overcome by converting to Islam."
However, both that passage and those cited by the Tribunal from the introductory chapter refer to the general view of non-Muslim minorities in Islamic interpretation over time, rather than to the circumstances in Iran in 2000 and 2001. In the introduction, the author also comments that legal rights pertaining to Muslims have never been the same as those for non-Muslims, and that differentiation and discrimination have been deemed natural and necessary. Hence, for example, a non-Muslim criticism of the prophet Mohammad or of Islam is seen as an action against the state. The second passage from that text quoted by the Tribunal does not have any direct relevance to the proceedings. It is specific to Zoroastrian or Christian fundamentalists and does not clearly relate to Sabian Mandeans. The applicants contend that, because it appears in that way, it is indicative of "the boilerplate" approach of the Tribunal supporting the claim of pre-judgment as indicating bias.
48 I do not consider the passages quoted by the Tribunal from that text tend to indicate pre-judgment on the part of the Tribunal. It described it as "not a definitive statement about the current status of Sabians in Iran". It proceeded to address the UK Home Office, Country Information and Policy Unit, 2000 "Country Assessment-Iran" (October 2000, par 6.42) and a 1998 UNHCR report indicating the same general picture that non-Muslims, including Sabian Mandeans, are ill-treated and discriminated against by the Iranian authorities, given that they fall into the category of undesirables.
49 The Tribunal referred also to an article by Dr Buckley "The Mandeans: An Unknown Religious Minority in the Near East", Institute of Near Eastern and African Studies internet site, 31 August 2001. The passages quoted indicate that the Mandeans are not an officially recognised minority religion in Iran. It is not a text which deals with how Sabian Mandeans have been treated in Iran in recent times. Although it is unclear why the Tribunal refers to it, the reference does not, in my view, tend to indicate any lack of good faith or pre-judgment on its part.
50 The Tribunal referred also to the US Department of State "2000 Annual Report on International Religious Freedom: Iran" at some length. Relevantly, it noted that religious minorities are, by law and practice, barred from being elected to any representative body. It noted that all religious minorities suffer varying degrees of officially sanctioned discrimination, particularly in the areas of employment, education and housing. It noted university access is effectively limited to most religious minorities, as well as how religious minorities suffer discrimination in the legal system. Although the section quoted by the Tribunal about governmental abuses of religious freedom deals principally with treatment of those of the Baha'i religion, Jewish religion and with apostasy, I do not think it has been made out that the Tribunal quoted selectively from that publication in any way which might inform the applicant's claim that it approached its task with pre-judgment.
51 The Tribunal also had in the material available to it a UNHCR "Background Paper on Refugees and Asylum Seekers from the Islamic Republic of Iran", January 2001. The paper reports under the heading "General Respect for Human Rights" that the human rights situation in Iran continues to give rise to concern, and that the government's human rights record remains poor. The UN special representative to visit Iran has not been permitted access since 1996. It expressed concerns about continuing human rights violations, including the high number of executions and cases of torture. It records a report that citizens continue to be tried and sentenced to death, in the absence of sufficient procedural safeguards. It records reports of serious torture and other abuse by prison guards to those held in prisons, and numerous credible reports that security forces and prison personnel continue to torture detainees and prisoners. It records many detainees, in the period immediately following arrest, are held incommunicado and denied access to lawyers and family. In the section headed "Right to Fair Trial" it records:
"The judiciary is subject to government and religious influence. It does not ensure that citizens receive due process or a fair trial. There is a continued absence of procedural safeguards in criminal trials.
52 The paper identifies religious minorities as among the particularly vulnerable groups in Iran.
53 I am not however persuaded that the Tribunal, by failing to refer explicitly to that material, has adopted a "boilerplate" citing of country information to reflect a pre-determination about information relevant to the persecution of Sabian Mandeans in Iran, in particular so as to exclude information relevant the applicants' claims. The information in that paper is generally consistent with other material to which the Tribunal did refer. Any difference appears to be only of degree or emphasis.
54 The Tribunal referred to reports from the Department of Foreign Affairs and Trade (DFAT) which confirm discrimination generally against religious minorities. None of the materials indicate systemic harassment or persecution of Sabian Mandeans in particular. Their particular position is not expressly dealt with. The response of DFAT (in Country Information Report No.77/01, 26 February 2001) titled "Treatment of Sabian Mandeans by Muslim Community in Iran" indicated the department is unable to comment on the willingness of local authorities to offer protection to Sabian Mandeans in Iran, as it has no evidence one way or the other. The issues inquired about "largely go to the state of mind and behaviour on a case by case basis of individual authorities", upon which the department declined to comment. It indicated it was reluctant to speculate "as this is a highly inaccurate means of providing input and may mislead refugee determination processes". The information therefore did not enhance or diminish the applicants' claims.
55 I am not persuaded that the independent country information which the Tribunal rehearsed in its reasons was selective in any way which might support any inference that it did not approach its task in good faith.
56 However, my consideration of its reasons for rejecting the applicants' claims in the light of the material before it, both of significant general discrimination and about the events on and following 20 February 2001, indicates:
(1) The Tribunal either overlooked or understated many of the claims of general discrimination or persecution in reaching its conclusion that the claims of discrimination were not so great as to amount to persecution under the Act. Its conclusion was based upon a degree of harassment significantly less than that claimed. Moreover, in the circumstances set out above, the failure to recognise the extent of those claims appears unlikely to have resulted from the Tribunal attempting to perform its review function in good faith.
(2) The Tribunal rejected the claims about what occurred on and after 20 February 2001 for reasons all but one of which, in my view, are not understandable. To the extent to which the Tribunal said such claims were implausible, its assessment of inherent unlikelihood is itself not understandable to me. In addition, in respect of the understandable reason, the Tribunal appears not to have had regard to the elements of the evidence given by the applicants to explain those circumstances which appears to render them more coherent and sensible. Its finding about the way the sons might be treated in an Iranian court is not consistent with the independent evidence to which it expressly referred and is not supported by any independent evidence to which it expressly referred or which appears in the materials before it.
(3) The Tribunal did not have before it any independent information which dealt specifically with how Sabian Mandeans are treated in Iran, although as it noted the father had lived and conducted business in his area for many years. It (wrongly) said the father made no complaints of "specific events" in his life except for those on or about 20 February 2001 which could amount to serious harm, but appears to have reasoned from that (wrong) conclusion that therefore the applicants did not face a real chance of persecution should they return to Iran without considering whether other information might reveal the risk of persecution to the applicants, even if they had not in the past personally experienced it.
(4) The Tribunal rejected the claimed events on and after 20 February 2001 in part because the independent information did not indicate that the Iranian court system "would condone the wrongful conviction of someone", but (in addition to the question whether that attribution to country information is accurate) appears to have adopted a test of whether such a consequence is probably rather than considering whether there is a well founded fear of such a consequence.
57 Those matters, in my judgment, indicate the Tribunal failed to adequately address the applicants' claims that discrimination experienced by them as Sabian Mandeans amounts to persecution for a Convention reason. The Tribunal either accidentally or deliberately understated them, or chose to ignore them. The claims were given consistently in documents before the Tribunal. To the limited extent the Tribunal sought to ask questions about them at the hearing, the applicants responded consistently. They were repeated by the detailed and careful submission of the migration agent of the applicants in its letter of 7 November 2001. It is hard to see how the Tribunal could have accidentally overlooked those matters. Its finding that the discrimination which the applicants had suffered did not amount to persecution was based upon a limited recital of the particular discrimination which the applicants said they had experienced. It did not purport to reject any of those additional claims but simply did not record them. Those claims were not inconsistent with the independent country information.
58 In Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [65] McHugh J said persecution for the purpose of the Convention is:
"unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason which constitutes an interference with the basic human rights or dignity of that person or the persons in the group which the country of nationality authorize or does not stop and which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned."
The picture presented by the applicants, to which the Tribunal did not fully have regard, raised the question as to whether the discriminatory conduct to which they have been or might be exposed is so oppressive and likely to be repeated or maintained that they cannot be expected to tolerate it, so that flight from Iran was the understandable choice of the applicants. The Tribunal did not address that question. Nor, in that context, was s 91R(2) of the Act addressed.
59 The respondent's contention is that the respondent fairly and honestly considered the material, and made findings open to the Tribunal on the evidence. It did not contrive a result. He contends the criticisms of the Tribunal are simply as a result of doubtful fact finding. He accepts that, for the purposes of considering the argument, the Court may look not simply at the Tribunal's reasons but at the material to which the Tribunal had access.
60 The matters to which I have referred, in my judgment, are not explicable on the basis contended for by the respondent. The combination of factors to which I have referred, includes the understating or ignoring of the claims of harassment and discrimination when the Tribunal must have been aware of them, its attribution of inherent unlikelihood to events which on the contrary in my view are inherently likely, and its assertion that the legal system in Iran could not condone the wrongful conviction of a Sabian Mandean accused of assaulting a Muslim woman (and one who was the wife of a prominent local official) flying in the face of the country information it recorded. I consider, upon careful reflection, that the Tribunal embarked upon its review with a mind fixed upon rejecting the claims. Even if the Tribunal accidentally overlooked the more specific claims of harassment and discrimination made by the applicants both personally and through their migration agent, that indicates to me a degree of capriciousness in addressing the review which, together with the other factors I have mentioned, points firmly towards it failing to endeavour in good faith to review the delegate's decision. Its doubtful fact finding does not simply indicate possible legal or factual error. In my view it indicates in the circumstances a failure to attempt in good faith to undertake the review of the delegate's decision with which it was charged under the Act. Whether that is because it had a view that Sabian Mandeans in Iran are generally not persecuted in Iran for reasons of their religion, or for some other reason, it is not necessary to explore. But the applicants were entitled to their claims being addressed by the Tribunal without the Tribunal's mind being foreclosed against them. The conclusion I have reached, for the reasons given, is that this is one matter where the Tribunal did not undertake its task in good faith, but with a mind closed to acceptance of the claims.
61 Consequently, I consider the applicants must succeed in having the Tribunal's decision declared null and void. The consequence is that the Tribunal has before it the task of reviewing the decision of the delegate of the respondent. If it is necessary to do so, I will make an order directing it to do so. I anticipate, however, that such an order is not necessary.
62 I declare that the decision of the Tribunal of 11 December 2001 is null and void. I give leave to the parties to seek such further consequential orders as they may be advised.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.