SBBG v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant, his wife and son and daughter are citizens of Iran. They arrived in Australia on 5 April 2001 and lodged an application for a protection visa under the Migration Act 1958 (Cth) ("the Act") with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") on the basis that they are refugees within the well-known definition in the Convention Relating to the Status of Refugees done at Geneva 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). 2 Before the Court is an application for review of a decision by the Refugee Review Tribunal ("the Tribunal") given on 19 December 2001 dismissing an application for review of a decision by the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") rejecting the application for a protection visa. The principle ground which is advanced in relation to the decision of the Tribunal is that the Tribunal did not have full regard to the whole of the evidence presented by the applicant and his family and in particular, it did not address the question as to whether the discriminatory conduct to which the applicant and his family 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 departure from Iran was the understandable choice of the applicant and his family. 3 Reference is made to a number of specific claims which were advanced by the applicant and his family before the Tribunal in relation to the treatment suffered, and will likely suffer, if they are forced to return to Iran. These were discussed for the most part by the Tribunal in its reasons for decision with one particular exception, which is agreed on by both sides. The applicant submits that the decision of the Tribunal was not a bona fide exercise of power and that the reasoning of the Tribunal was an arbitrary, capricious process in which the Tribunal appears to have reached a view prior to the hearing of all of the evidence that human rights abuses suffered by Sabian Madaean people in Iran were mere discrimination and did not amount to persecution for a Convention reason. It is said that the claims of the applicant and his family were not properly considered and the independent country information was not properly assessed. 4 On a reading of the detailed decision of the Tribunal, there is no express indication of any prejudice on the part of the decision-maker and it is difficult to see that there is any lack of bona fides so far as an attempt to exercise jurisdiction is concerned. The decision of the Tribunal is a lengthy one and deals in considerable detail with the claims which have been raised by the applicant and his family. In order to establish lack of bona fides it is necessary, on the basis of the authorities which are binding on me, to demonstrate that there is something in the nature of bias or circumstances which indicate a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question. 5 I recently considered these matters in NAML v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1190 where I adopted the approach taken by Allsop J in NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 in considering the elements of a claim for lack of bona fides. The approach dictates, along the lines of numerous authority, that it is very difficult to establish a lack of bona fides involving as it does, a suggestion of reprehensible conduct to some extent on the part of the decision-maker. There is no reference in the material before me to anything in the reasons for decision or in the transcript of the hearing before the Tribunal which indicates pre-judgment or bias, nor is there any documentary material relied on to establish such bias, apart from the way in which the claims are dealt with in the decision of the Tribunal itself. 6 The decision of the Tribunal contains findings which are qualified to some extent and which indicate that the decision-maker has undertaken a balancing act. This is an exercise which one would not normally expect to find in a decision which is tainted by lack of a bona fide or honest attempt to exercise jurisdiction. So much is derived from an examination of the reasons for decision of the Tribunal member, who dealt with issues that were numerous and complex, as presented to her. 7 The Tribunal's decision sets out the relevant legislative provisions and details the claims and evidence and refers in length to independent country information. The decision then proceeds to deal with particular claims, and findings are made in relation to credibility and reasons are given pointing to perceived inconsistency between parts of the evidence and the claims made before the Tribunal. Although some of the claims were wholly accepted by the Tribunal, and others were accepted with qualifications, many of the claims made by the applicant and his family were rejected. 8 The task of the decision-maker involves a consideration of fact and degree in assigning weight to the various opposing considerations. It is obvious from the decision that considerable weight was placed on country information in assessing the claims which were made by the applicant and his family. Regard was also had to the inconsistency between the evidence given and the country information, as well as internally with respect to the nature of the claims which had been made. 9 As noted above, it is conceded that the Tribunal did not consider one particular claim, which was that there is insufficient protection and a lack of action by the Iranian authorities when complaints are made and that there is a lack of civil remedies or access to justice through the police or the judicial system when such complaints are made. These claims were clearly made in the statement given by the applicant and are also referrable to country information. Nevertheless, it is not possible to say they were not taken into account in relation to the making of relevant findings concerning such matters as the inconsistency between country information and the claims made, as well as in relation to the general appraisal by the decision-maker of the evidence given by the applicant and his family. As counsel for the respondent has pointed out, even if it can be shown that there is an error made, which I do not perceive to have been made in this case, nevertheless, such an error is not sufficient to establish bias or pre-judgment or indeed any lack of bona fides on the part of the decision-makerin attempting to grapple with and make findings with respect to the matters that have been raised. 10 In all the circumstances I am not satisfied that the ground relied on by the applicant has been made out and I do not consider that the decision evidences any bias on the part of the Tribunal member. In fact, in my view, the way in which the whole matter was approached is to the contrary, because the decision-maker went to considerable efforts in a decision of over seventy pages to examine the various claims in detail. One would not normally expect such an exercise to be undertaken if there was bias, although it does not necessarily follow that the length of the reasons given indicates the absence of bias, but it is a factor to take into account when examining the manner in which the Tribunal member has approached the question before her. 11 Accordingly, for the above reasons I am satisfied that the decision-maker did take into account the matters which have been raised with the exception of the omission to which I have referred although this has not been shown of itself to have had any decisive effect in relation to the conclusion which has been reached. Certainly even if that matter had not been taken into account it does not, in my view, establish lack of bona fides on the part of the Tribunal. 12 In all the circumstances therefore I have reached the conclusion that the application in the present case should be dismissed and in accordance with the usual principles which apply in relation to the award of costs, I consider that the applicant should be ordered to pay the respondent's costs. I recognise that in may of these cases it is not possible, due to financial reasons, for an applicant to meet the costs but that is not a reason for not imposing a liability in accordance with the usual principles. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.