SBBA v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2003-05-09|Before: Jacobson JJ

REASONS FOR JUDGMENT THE COURT 1 On 15 November 2002, a judge of this Court dismissed the appellant's application under s 39B of the Judiciary Act 1903 (Cth) ('Judiciary Act')for review of a decision of the Refugee Review Tribunal ('Tribunal'). The Tribunal had affirmed the decision of the respondent's delegate not to grant the appellant a protection visa pursuant to the Migration Act 1958 (Cth) ('Migration Act'). 2 The primary judge carefully and accurately summarised the factual background to this appeal and the appellant's claims at pars [3] to [11] of his reasons for judgment; [2002] FCA 1401. We gratefully adopt that summary which it is not necessary to repeat here. In essence the appellant claimed that although he was born and has lived all his life in Iran he is an Iraqi national and that he fears persecution should he return to Iran for two reasons, namely his Iraqi nationality and his adherence to the Sabean Mandean religion. 3 The Tribunal, having regard to the independent country evidence available to it, did not accept the appellant's claim to be an Iraqi national but found him instead to be an Iranian national. Although it did not make an explicit finding on the point, the Tribunal appeared to accept the appellant's claim that he and his family are members of the Sabean Mandean religion. It decided, however, that although members of that religion experience discriminatory conduct in Iran, this discrimination does not amount to 'persecution' involving 'serious harm' as required by s 91R of the Migration Act. Accordingly, the Tribunal found that the appellant could have no well-founded fear that, now or in the reasonably foreseeable future, he would be persecuted by reason of his claimed Iraqi nationality or his membership of the Sabean Mandean religion if he were to return to Iran. 4 In this appeal the appellant alleges that the Tribunal made a number of errors both in regard to the issue of nationality and in regard to his religion. These were said to amount to jurisdictional error and to be so egregious as to demonstrate bad faith. Accordingly, it was said, s 474 of the Migration Act would not preclude the relief sought by the appellant.

The nationality issue 5 Counsel for the appellant accepted that the Tribunal's finding, that the appellant is an Iranian and not an Iraqi citizen, was open to it and could not be reviewed in this Court. He submitted, however, that one aspect of the appellant's nationality claim was not considered by the Tribunal. It was implicit in the appellant's claim, he submitted, that irrespective of his legal citizenship status, the appellant was perceived in his local community to be an Iraqi and for that reason was exposed to persecution. Counsel admitted that this point was raised before the primary judge less than directly and only in the written contentions. Be that as it may, the claim was fully articulated before us. 6 The Tribunal found, on independent evidence, that people in Iran are considered to be Iranian nationals unless they can prove otherwise. It stated 'I have independent evidence available to me which… indicates that a person like the Applicant, born in Iran to a father of foreign nationality and resident there for one year after reaching the age of 18, would be considered to be an Iranian national unless he took positive steps to renounce his Iranian nationality, something he could only have done after the age of 25 and which in any event he does not claim to have done.' 7 The appellant submits that the Tribunal, in focusing on his legal citizenship status, was blinded to the issue of how the appellant might have been perceived in his local community. He submitted that the Tribunal was obliged to explore the issue, even if it was not directly raised by the appellant and that a failure to do so amounted to jurisdictional error. 8 It is well established that all substantive issues raised by the evidence before the Tribunal must be considered even if an applicant does not articulate all such claims; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 294; and Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 at [24]. It is, however, no part of the Tribunal's function 'to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim.'

Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 at [13]. 9 In this case there is a difficulty in that nowhere in the material that the appellant put before the Tribunal was the issue of perception, as distinct from the actuality, of the appellant's citizenship directly raised. Even if we were to accept that it was implicitly raised, which is by no means clear, there is nothing in that material to support such a claim. The Tribunal comprehensively rejected the appellant's evidence on the subject of his nationality as a fabrication designed to enhance his application for a protection visa. That being so there was no evidence that could in any way support a claim of persecution arising from a false perception of such citizenship. We do not find any error in the Tribunal's treatment of this issue. Consequently there was no error on the part of the primary judge in this respect.

The meaning of persecution 10 The Tribunal accepted that adherents of the Sabean Mandean religion are discriminated against in many ways, including 'in the way in which the legal system operates' but pointed out that not all discrimination amounts to persecution for the purposes of the Convention. The Tribunal referred to s 91R of the Migration Act which provides that Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution unless it, inter alia, involves 'serious harm' to the relevant person. Section 91R(2) lists six instances of serious harm but states that this does not limit the concept for the purpose of the section. The Tribunal correctly directed itself in its analysis of the concept of persecution and the effect of s 91R. It concluded that it was unable to accept, on the evidence before it, that, '… if the Applicant and his wife and their three children return to Iran now or in the reasonably foreseeable future, there is a real chance that they will suffer discrimination… as a result of the way the legal system operates amounting to serious harm for the purposes of subsection 91R(1).' 11 The appellant submitted that, in reaching this conclusion, the Tribunal so comprehensively failed to understand the meaning of 'persecution' as qualified by s 91R of the Act that it committed an error of jurisdiction. The appellant's claim was supported by reference to the Tribunal's handling of his claim to have been persecuted on account of his adherence to the Sabean Mandean religion. In particular the appellant refers to the following statement by the Tribunal: 'Also, different rules apply to Sobbis for the payment of 'blood money' in cases of murder, accidental death or bodily injury. (NB. under the Iranian legal system, if a person kills or injures someone accidentally or otherwise, they must pay "blood money" to the victim's family in addition to any other punishment they are liable for. The "blood money" payable for injury or death of Christians or other official religious minorities is less than for Moslems.) Because Sobbis are not a recognised religion, no blood money is payable if one of them is killed or injured.' 12 The appellant likened 'blood money' to what Australians would know as damages from a civil case and submitted that the inability to sue for damages for personal injury is so serious and crushing a restriction that it must amount to persecution. 13 In our view the Tribunal's findings were reasonably open to it. Although s 91R does not provide an exhaustive list of instances of 'serious harm', it does give some guidance as to the extent of the persecutory treatment that is required to fall within that description. All of the instances given involve either substantial physical detriment, a threat to a person's capacity to subsist or a threat to the person's life or liberty. A denial of the right to receive 'blood money' in circumstances in which other members of the community would be entitled to receive it is certainly discriminatory. However, the circumstances in which, absent such discrimination, the applicant would have a right to receive blood money have not arisen for the applicant, and may never arise. That being so we do not believe that the harm arising from the discrimination falls within the concept of 'serious harm' in s 91R. For that reason we find that the appellant's claim, that the Tribunal was in error on this point, has not been made out.

Good faith 14 The appellant claims that the Tribunal did not act in good faith and that it was biased against him. The basis of this claim appears to be that the Tribunal preferred the independent evidence before it to the evidence of the appellant and his wife. As counsel for the appellant readily conceded this point really consists of his other two points rolled into one. He admitted that there was nothing on the face of the Tribunal's reasons to suggest bias. He relied, however, on the way in which the Tribunal approached its task, including its rejection of the evidence of the appellant and his wife even when this evidence was not inconsistent with independent information. 15 In our view this is a thinly disguised attempt to have this Court take issue with the Tribunal's assessment of the merits of the appellant's claim. The Tribunal is entitled to assess the evidence and attach such weight to that evidence as it regards as appropriate. Even were the Tribunal to disbelieve every element of the appellant's claim (and it did not) it would not be sufficient to establish bias. Bias or lack of good faith requires much more. It requires that the decision maker have prejudged the matter, and that he or she has a mind closed to any argument in support of a contrary conclusion; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134. Such allegations must not be lightly made; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J. They also must be firmly and distinctly made and clearly proven; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J. In this case the Tribunal carefully examined the claims made by the appellant and explained why it did not accept those claims. Whether this Court or the primary judge would have come to the same conclusion is not relevant. The reasons for its views given by the Tribunal are more than sufficient to rebut a claim of bias or lack of good faith. The primary judge also carefully analysed the Tribunal's decision and observed that, even if the alleged errors were made out, they would not demonstrate lack of good faith on the part of the Tribunal. We agree with that conclusion.

Claim of jurisdictional error 16 There is one final matter. The judgment of the primary judge was given before the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 ('S157'). In view of the decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 ('NAAV') and the limited grounds of review available under the provisions of the Migration Act as interpreted in that decision, his Honour decided that it was not useful for him to determine whether the Tribunal had erred as the appellant alleged. His Honour commented that he was not to be taken as accepting that those errors occurred. That was, with respect, an entirely reasonable approach given the state of the authorities at that time. 17 In the circumstances this Court is in as good a position as his Honour to resolve the question of whether the Tribunal erred and we have done so. Not having found error on the part of the Tribunal it is, of course, unnecessary that we express any opinion as to the proper application of the High Court's views in S157. Nor do we enter into the controversy as to whether that decision effectively overruled the decision of the Full Court in NAAV in its entirety. 18 For these reasons the appeal must be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 9 May 2003 Counsel for the Appellant: Mr K Hanna

Solicitor for the Appellant: Refugee Advocacy Service of South Australia

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