SBBF v Minister for Immigration & Multicultural & Indigenous Affairs

THE COURT 1 This is an appeal from a decision of a judge of the Court given on 17 June 2002, dismissing an application under s 39B of the Judiciary Act 1903 (Cth) to have declared invalid a decision of the Refugee Review Tribunal (the Tribunal) given on 17 December 2001. The Tribunal affirmed a decision of a delegate of the respondent of 12 September 2001 refusing to grant to the appellant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) following his arrival in Australia. 2 The decision of the Tribunal turned upon whether the appellant satisfied the criterion for the grant of a protection visa specified in s 36(2) of the Act, namely that he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention). In practical terms, that amounted to the Tribunal not being satisfied that the applicant is a refugee as defined in Art 1A(2) of the Convention, because it was not satisfied that it has a well-founded fear of persecution for a Convention reason if he were to return to his country of nationality. 3 Certain of the appellant's claims were accepted by the Tribunal. He is an Iranian national born in 1977. He and his family were well-educated. He completed secondary education in 1996 and attended university until September 1997. He was then expelled for being found by the Basiji (religious police) at a party at which there was alcohol and young women present. He was fined and sentenced to a lashing. He submitted to that punishment, albeit somewhat lighter than might otherwise might have been the case because his father paid a bribe. The appellant did not claim that those circumstances gave rise to a well-founded fear of persecution for any Convention reason on his part. The appellant had then for a time run a computer training business, but his principal activity was as a professional soccer player until his departure to Australia. 4 The circumstances which led to his departure from Iran arose in the course of his compulsory military service which he commenced in April 1998. After his initial training, he was assigned to clerical duties and then as a driver for a high ranking colonel in the Islamic Revolutionary Guard (Sepah). There were three matters arising in the course of his military service which, he claimed, gave rise to him fleeing Iran and having a well-founded fear of persecution if he were to return to Iran. The Tribunal did not accept that all of them occurred. 5 The appellant claimed that, in the course of his work as a driver for the colonel, he had seen some materials, and then a diary maintained by the colonel, indicating that the colonel was involved in embezzlement of materials from Sepah. The Tribunal did not accept the claim, and said that it was neither "logical nor true". It did not think that it made any sense that looking at some pieces of paper in a diary would enable the appellant to have concluded that the colonel was engaged in such conduct or that the appellant's description of what he had seen was likely to convey that sort of information. It also thought it unlikely that the appellant would have presumed to have looked into the private diary of a high ranking colonel. Consequently, the Tribunal concluded that the appellant had made up that part of his claim up to enhance his claims for a protection visa. 6 The second aspect of the appellant's claims which the Tribunal did not accept concerned his claim that the colonel had been having an affair with another senior officer's wife, and had threatened the appellant to keep quiet about that incident. He claimed also that the colonel had arranged for the car which the appellant had been driving to be tampered with, so as to cause the appellant's death. In fact the appellant claimed to have had a car accident leading to quite severe injuries as a result of car tampering by or on behalf of the colonel concerned. The Tribunal accepted that the appellant had been involved in a car accident in the course of his duties as a driver for the colonel, and had been severely injured as a result. It also accepted that his military service had been prolonged for the period of his disability, and as a punishment for having been involved in the accident. It did not accept, however, that the colonel would have behaved in a way which enabled the appellant to recognise his liaison with another officer's wife, or that the colonel behaved in a way which conveyed to the appellant that he had had such a liaison. Again it concluded that the appellant had made up that story up to enhance his claims for a protection visa. 7 The third claim that the appellant identified, which was accepted by the Tribunal, was that he had been sexually harassed by the colonel and that he had reacted in a violent way, including departing the area quickly in a Sepah vehicle and accidentally running over the colonel who was trying to get into the car at the same time. The Tribunal described the incident as a person in a position of power taking advantage of their position and harassing the appellant, of the appellant not agreeing to the proposal, "and an unfortunate accident eventuating". The Tribunal did not, however, accept some of the claimed consequences of the incident or of the appellant escaping from it. 8 The repercussions which the appellant feared, and which were not accepted, were that Sepah as a result suspected the appellant of having been involved with anti-revolutionary groups and that he stole a pistol or other equipment (the vehicle in which he fled and a telephone) from Sepah, so that he needed to go into hiding and to leave Iran illegally. He claimed that the suspicion arose because the colonel had lied about the incident leading to the appellant fleeing Iran, and had attributed to the appellant a false political motive. Thus he feared persecution by reason of an imputed political opinion. 9 The Tribunal appears to have accepted that Sepah was seeking the appellant to make inquiries over the incident, and to charge him if it is thought that he has assaulted a superior officer. It accepted that the appellant's father had been questioned over the incident, and about the appellant's whereabouts. It said: "I do not accept as true however that the army has alleged or claimed that the applicant was involved with anti-revolutionary groups, that he stole a pistol or stole other equipment. I do not accept this as it makes no sense that the army would need to do this, when the applicant is being wanted on such a serious charge already. Even if these additional charges were being held against him it is apparent to me that the motivation of the army in seeking the applicant is to make inquiries over the incident, and to charge him if it is found that he has indeed assaulted a superior officer. If they are lied to or misled by the colonel as to what happened, this does not change their motivation. It is also apparent that the motivation of the colonel in lying about what happened has nothing to do with the Convention definition. His motivation is to keep the applicant quiet about the claim that he has making [sic] sexual advances. It is also likely that he is seeking revenge for being run over. As noted above, the phrase "for reasons of" serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act." 10 The Tribunal concluded that the interest of Sepah was in investigating an accident and an apparent assault upon the colonel. It did not accept that there is any evidence to suggest that Sepah might seek the appellant for any other reasons. Consequently it did not accept that the appellant "will" be imputed with a political opinion and with being involved with anti-revolutionary groups. 11 The Tribunal then considered and rejected the appellant's claims that he had a well-founded fear of persecution by reason of having left Iran illegally, even in the context that he is wanted by the authorities. It accepted that he may be wanted by Sepah, but it concluded that there is no evidence to suggest that any punishment he will receive for illegal departure will be anything other than that imposed by a law of general application. On the assumption that he is wanted by the authorities simply for a criminal offence of assaulting a Sepah colonel or of stealing a vehicle, without any political connotations, that conclusion would be open to the Tribunal. Indeed, the Tribunal concluded that the appellant is likely to be arrested if he returns to Iran, and that an inquiry will be undertaken as to what happened when the colonel was injured. It was prepared to accept that the authorities would not accept the appellant's version of those circumstances, namely that the colonel made sexual advances towards him, and "it is reasonable to accept that he would be punished for the incident". It accepted the punishment may well be severe. However, it concluded that because the motivation of the colonel in telling a false story would be not for a political reason but to divert attention from his own misconduct, and because Sepah in seeking to inquire into and punish the appellant would not be doing so for an imputed political belief on the part of the appellant, the Tribunal concluded that its conduct would have nothing to do with the Convention definition of a refugee. It said: "The motivation of the army is investigation of a serious incident which would be viewed by them as being criminal, and the motivation of the Colonel is revenge and to hide his harassment. I find that the motivation of those who seek to harm or punish the applicant is not Convention related." 12 The learned judge at first instance accepted that, if the appellant had been falsely accused of stealing military equipment to assist anti-revolutionary forces, that could amount to an imputed political opinion. His Honour was not, however, satisfied that the Tribunal fell into error in rejecting the applicant's claim that he might have such a motivation attributed to him. Consequently his Honour upheld the Tribunal's decision because, whatever the fears of the appellant as to what might befall him if he were to return to Iran (and they were accepted as genuine and significant), they were not fears of persecution for a Convention reason. 13 The appellant appeared in person on this appeal. Understandably in his circumstances, he found it difficult to express with clarity errors in the Tribunal's reasons which might demonstrate a lack of jurisdiction on its part, particularly in the face of s 474(1) of the Act. One point he made was that the Tribunal referred to the colonel being a member of the Iranian army rather than Sepah, as was his claim. He said Sepah was a more powerful and potentially a more vindictive authority. If the Tribunal made such an error, it does not affect the general nature of its reasoning. For the purposes of this appeal, we have accepted the colonel was a member of Sepah. The other matter the appellant raised was that he had not presented to the Tribunal claims of having a well-founded fear of persecution by reason of the status of his uncle's wife as a highly placed member of the Mujahadeen, and by reason of the political activities of his cousin who had been killed by the Iranian authorities. He accepted his failure to raise those claims at the time was not the responsibility of the Tribunal, and could not demonstrate jurisdictional error on the part of the Tribunal. His acknowledgement that the failure to make those claims to the Tribunal cannot now demonstrate error on its part is clearly correct. If the appellant wishes to pursue a claim for a protection visa based on those claims, he will be confronted by s 48A of the Act which, subject to s 48B, precludes him from making a fresh application. Section 48B empowers the respondent in certain limited circumstances to permit a second application for a protection visa. The respondent also has power under s 417 under certain circumstances to substitute a more favourable decision on an application for a protection visa than the decision of the Tribunal. It is up to the appellant as to whether he pursues either of those avenues. He would be well advised to seek professional assistance in that regard. His acknowledgement that the failure to make those claims to the Tribunal cannot now demonstrate error on its part is clearly correct. 14 There are, however, flaws in the Tribunal's approach. It said that if the colonel misleads Sepah that will not change the motivation of Sepah. The conclusion does not follow from the proposition. If the colonel were to mislead Sepah about the circumstances of the accident to divert attention from what the Tribunal accepted to be the real cause of the accident, namely the colonel's sexual harassment of the appellant, it does not follow that he might not suggest some other motivation on the part of the appellant to do with an attitude towards the existing regime and to invite the army to believe (as it might) that the appellant stole the vehicle and a weapon and assaulted the colonel because of anti-regime activities or attitudes. The Tribunal's conclusion excluding that possibility is based upon a logical non-sequitur. How it is able to express with confidence that the interest of Sepah is in investigating an accident and apparent assault on the colonel without accepting the possibility that it may suspect the appellant of having done those things because of opposition to the regime, particularly when it accepted the untruthful version of the colonel would be accepted, is unclear. It also does not follow from the motivation of the colonel in lying about the incident not being a Convention reason that the consequence of his lying might not provoke in Sepah the desire to investigate the appellant for a Convention reason. The lying might well be the provocation for such a belief on the part of Sepah. Finally, the Tribunal's manner of expression of its conclusion may not, in our view, reflect an approach to the determination of the question posed by Art 1A(2), namely whether the appellant has a well-founded fear of persecution for a Convention reason, in accordance with the High Court decisions in Chan Ye Kin v Minister for Immigration & Ethnic Affairs (1998) 169 CLR 379, Chen Chi Hi v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 and Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 175 ALR 585. Rather than ask whether there is a well-founded fear of persecution for a Convention reason, expressed in Chan as whether there is a real chance of persecution for a Convention reason, the tenor of the Tribunal's reasons suggest that it made findings as to the motivation of Sepah in investigating the conduct of the appellant if he returns to Iran on the balance of probabilities rather than to consider whether there is a real chance of Sepah having the motivation to which reference has been made. For the reasons given in par [15] it is not necessary finally to resolve whether these matters amount to jurisdictional or legal errors on the part of the Tribunal. 15 However, in our judgment those matters cannot result in the appellant's present appeal succeeding. Even if it be established that the Tribunal misapplied the law by determining whether the appellant had a well-founded fear of persecution for a Convention reason on the balance of probabilities rather than in the way explained by the High Court in the cases referred to, it is within its jurisdiction to have made such an error: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (Black CJ, Beaumont and von Doussa JJ, Wilcox and French JJ dissenting). Moreover, even if the Tribunal in reaching its decision reached an illogical conclusion in the way explained above, such an error also is within the Tribunal's jurisdiction. In NAAV, the majority explained that s 474(1) of the Act expanded the jurisdiction of the Tribunal so that it no longer commits jurisdictional error by wrongly identifying or applying the applicable law or by asking itself the wrong question, or by making findings of fact or conclusions of fact in an illogical or erroneous way. Indeed, even absent s 474(1) of the Act, 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: see e.g. per Kenny J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]. 16 In the light of the decision in NAAV, in practical terms, the decision of the Tribunal may only be set aside by the Court if it does not represent "an honest attempt to deal with the subject matter provided to the Tribunal and to act in pursuance of the powers of the Tribunal …": R v Murray; Ex parte Proctor (1949) 77 CLR 387 per Dixon J at 400. As the appellant appeared in person, we have considered whether the Tribunal's decision does, in all the circumstances, demonstrate that it undertook its review of the applicant's application for a protection visa other than in good faith. It is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves: see e.g. per von Doussa J in SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668 at [38], and per Hely J in NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 805 at [25]. Despite the apparent errors in the Tribunal's reasoning process, and in its arguably erroneous application of the law to the facts, in our view the Tribunal's decision does not demonstrate a lack of good faith on its part. It has carefully considered the appellant's claims. It has addressed them in terms which indicate that it has attempted to fairly and impartially consider them. It has made findings which in part accept, and in part reject, the claims which he has made and its reasons for rejecting those claims which it did reject are expressed in terms which are comprehensible and rational. Overall, the picture presented is not one of the Tribunal failing to attempt to perform its review function in good faith. 17 Accordingly, in our view the appeal must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Mansfield & Jacobson JJ.