Consideration of submissions
27 In SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547, I referred to some authorities in which the nature of the "good faith" qualification in the Hickman principles was considered. I will not repeat that consideration. Gyles J in NADO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 797 at [13] and Allsop J in NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 pointed out that good faith is not necessarily synonymous with actual bias. That is because it involves an inquiry into the state of mind of the decision-maker, rather than an inquiry upon the quality of the decision-making process. Of course, the quality of the decision-making process may be informed by the reasons for decision of the decision-maker, as that may be the material from which an inference might be drawn about the state of mind of the decision-maker. Similarly, the quality of the decision-making process, or of the reasons for decision, may be relevant to the state of mind of the decision-maker, as well as to the quality of the decision-making process: see e.g. the consideration by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [37] and [38]. Although actual bias might be found to exist at a subconscious level: see e.g. Sun Zan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71, the circumstances are likely to be rare and exceptional that a combination of facts and circumstances will clearly prove actual bias: per von Doussa J in SCAA at [38]. For the same reasons as his Honour expressed, an allegation of lack of good faith on the part of the decision-maker is also likely to be rare and exceptional.
28 In this matter, there were two features upon which senior counsel for the applicant relied to demonstrate that the Tribunal simply undertook its review of the applicant's claim in a way which involved "going through the motions" without genuinely considering his claim. First, as noted above, it declined to call for the tape recording of the interview of 12 May 2001, or to listen to that tape, to see if the applicant's claim that he was forestalled from presenting fully the reasons why he had left Iran and why he feared returning there was correct. He said that he was told to be brief and was cut short on occasions, so that he did not fully present his claims at the time. He also claimed in any event to have mentioned at that interview his fear of harassment because of past harassment following the discovery of Christian literature in his house, his interview and maltreatment in March 2000, and his dismissal from permanent employment in 1979 following his return from Iran. Secondly, senior counsel referred to unreasonableness on the part of the Tribunal in expecting the applicant to produce the tape recording of that interview, and to identify by reference to a transcript where he had said the things which he claimed to have said, or where the interviewer had said to him that which he claimed was said to him because the Tribunal knew it was physically impossible for the applicant to have done so.
29 The relevant part of the Tribunal's reasons is set out in [11] above. It is apparent that the Tribunal declined to listen to the tape of the interview of 12 May 2001. It was satisfied that the written record of the interview is an accurate reflection of the information exchanged at the interview, so it was "unnecessary" to obtain the tape and listen to it. That may be said to be a curious judgment, given the applicant's assertions as to what had been recorded in that tape. The Tribunal's reasons for declining to listen to that tape refer to "somewhat conflicting reasons" of the applicant for those three matters not having been mentioned. The matter of tiredness and strain was referred to in a letter from the applicant's migration agent to the Tribunal of 10 December 2001, largely based upon information provided by the applicant himself in a lengthy written submission to the Tribunal through his migration agent dated 7 December 2001. In both of those documents, however, the assertion is maintained that the applicant did make the claims which the Tribunal found he did not make at the initial interview. The Tribunal's comment about somewhat conflicting reasons is, however, not shown to be unwarranted on the material provided. In addition, the letter from the applicant specifically referred to by the Tribunal observed at one point a claim that the interpreter had misunderstood, and had therefore misinterpreted, the interview or that the interviewing officer ended up with the wrong impression of what had been said. Consequently, subject to considering the particular matters referred to by senior counsel for the applicant, I think the Tribunal's reasons for declining to listen to the tape are coherent and not capricious.
30 The interview in question is on a pro forma document in which the answers are handwritten. The interview was conducted with the assistance of an independent professional interpreter. At the completion of the interview, the interpreter declared that he had interpreted the content of the document to the applicant before the applicant had signed it. The applicant has signed the document. The document includes those statements to which the Tribunal referred, namely:
This interview is your opportunity to provide any reasons why you should not be removed from Australia. If you do not answer questions a decision may be made on the basis of the information we have.
You are expected to give true and correct answers to the questions I ask.
You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said."
The concluding parts of the interview include the questions as to why the applicant left his country of nationality, and his reasons for not wishing to return to his country of nationality. The answer to those questions is quite lengthy. It is handwritten. He said, after referring to the reasons for his trip to Tehran:
"When I got to the city, there was riots going on by uni students. Then for no reason, I was abducted by two men and taken to an unknown place, assaulted and questioned about my involvement with any opposition groups. This went on for a month. Whilst I was in custody, the intelligence people went to my house and searched my belongings and took some of my books about Christianity. After a month, I returned and there is a group of people called 'Hiat Badvi' that examines and investigates complaints against employees. I was called by this group because of my absenteeism from work because I had only seven days leave. …They told me to go back to work until further notice and for the time being to work only dayshift instead of rotating shifts until the end of the year."
31 Given the Tribunal's concerns about the suspected recent invention of certain of his claims, following the hearings, on 4 December 2001 it wrote to the applicant in accordance with s 424A of the Act for his response. It referred to the fact that he had not given any real indication at his initial interview that he wanted to convert to Christianity, or faced harm in Iran because of his interest in Christianity although ultimately conversion to Christianity became his main claim. It also referred to his failure to state that he had been demoted in his place of employment and sacked from permanent work, but merely that he would change from nightshift to dayshift. Finally, it referred to his failure to mention being harshly interrogated in March 2000. It invited his comments. It also requested if the applicant wished to rely on the tape of that interview to show he had made those claims at the interview, to provide a transcript of the tape with the relevant portions marked. On 10 December 2001, the migration agent for the applicant responded to that request. It sought to explain and respond to the Tribunal's queries. It made no reference to the tape of the interview. However, the enclosed handwritten memorandum of some length from the applicant dated 7 December 2001 included the following:
"Because I was never given a copy of my initial interview tapes and I still do not have access to them, I would plead with you to listen to the tapes. If you don't mind please, as I am very confident that I have mentioned all the abovementioned important aspects of my claims and have also sufficiently answered all questions asked. By listening to the tapes you would see the truth of what I did say and will verify it."
32 In fact, the applicant through his migration agent made a request under the Freedom of Information Act 1982 (Cth) on 5 September 2001 for relevant documents including any recording of the initial interview. On 12 September 2001, an officer of the respondent in the "On-shore Protection Operations" section provided a response giving access to much of the documentation. That officer decided that copies of the initial entry interview tape and report were exempt from release because their release might involve unreasonable disclosure of operations of agencies. The release of the report may do so. The release of a tape recording which, purportedly, has been transcribed and released to the applicant, could not possibly do so. It is impossible to understand that decision, but nevertheless that decision was made. Review of that decision was not sought.
33 In my view, consideration of the materials before the Tribunal, and of the transcript of the hearing before the Tribunal on 7 and 9 November 2001 does not indicate that the Tribunal approached its consideration of the applicant's claim with a closed mind. Indeed, it was not suggested by the senior counsel for the applicant that it had done so. The contention was that, in the course of its decision-making process, the Tribunal had somehow resolved simply to go through the motions and so to discount without proper consideration material to which it should have had regard and failed to make an inquiry which was an obviously necessary inquiry.
34 I am not persuaded that the Tribunal failed to endeavour in good faith to determine the application for review of the decision of the delegate of the respondent. Its reasons for decision demonstrate a thorough rehearsal of the material which the applicant had presented from time to time in support of his application, including at the two hearings before the Tribunal. The transcript of those hearings indicates that the Tribunal carefully sought to explore with the applicant the details of his claim, and sought from him responses to its concerns about aspects of his claims. In making its findings and reasons, it has had regard to extensive independent country information on a range of topics. It has not been criticised for the selection of that material. It is on the basis of such material that it found significant parts of the applicant's claim to be implausible or to lack credibility.
35 It appears that, in relation to the terms of his initial interview, it ultimately decided not to pursue an apparently obvious line of inquiry. That may have been an error on its part. In a case where it is obvious that directly relevant material is readily available, normally proceeding to a decision without making any attempt to obtain that information may constitute an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have exercised it. See e.g. per Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 170. It is easy to understand the criticism of the Tribunal's approach to that particular piece of information. On the other hand, the Tribunal did not ignore the material but sought from the applicant details of it. The applicant's migration agent did not pursue the attempt to obtain the recording, or seek from the Tribunal further time within which that agent could obtain the recording of the interview so as to be able to respond directly to the Tribunal's inquiries. At the end of the Tribunal's process of inquiry, it appears that it was told that the applicant did not, at the time, have access to the material and so could not respond in the way that the Tribunal sought. That does not involve the Tribunal failing to make any attempt to explore the topic at all. At most, the Tribunal's decision in the particular circumstances of this matter, could be described as an error of judgment. It does not persuade me that the Tribunal failed to endeavour to exercise its review obligation in good faith.
36 For those reasons, I do not think that the matters to which senior counsel for the applicant referred demonstrate such a combination of flawed reasoning and conduct by the Tribunal antithetical to the applicant's claims as to demonstrate that, at any point in its process prior to its ultimate decision, it resolved upon rejecting the applicant's claims so as to lead to the conclusion that it was not considering them in good faith.
37 In Yusuf at [73] and [74] the Court said:
"The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider … What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision maker acts".
In this matter, notwithstanding the arguable error to which I have referred, the Tribunal correctly identified the law and correctly applied the law to the facts. It is not shown to have had regard to irrelevant considerations. It was not contended that any of the Tribunal's reasons for concluding that the applicant had not reported on the three matters referred to at his initial interview in the way he claimed were themselves erroneous. The submission was simply that it had failed to listen to the tape of the interview itself. That was a piece of evidence relevant to what the applicant had said at his initial interview, but a piece of evidence which the Tribunal did not itself choose to explore for reasons which it gave. The Tribunal's finding about what the applicant said at that interview then fed into its assessment of the applicant's creditworthiness about his claims of a firm interest in Christianity prior to leaving Iran, of dismissal from his permanent job, and of a second and harsh interrogation in March 2000. In my judgment, even if it be accepted that the Tribunal should have pursued a piece of evidence to which its attention was directed notwithstanding its reasons for not having done so, the Tribunal did not err in such a way as to demonstrate jurisdictional error in the sense discussed in Yusuf. The relevant consideration which the Tribunal was required to take into account was what might happen to the respondent if he were to return to Iran. For that purpose, the Tribunal was required to consider what had happened to him in the past. It made findings about that matter. In doing so, it considered, but did not pursue the inquiry of ascertaining precisely what the tape recording of the interview of 12 May 2001 disclosed although it made a positive finding that:
"The written record of the interview is an accurate reflection of the information exchanged at the interview."
It can be seen, therefore, that the Tribunal's failure, if it be a failure, was not a failure to have regard to a relevant consideration in such a way as to effect the exercise of its jurisdiction (Yusuf at [83]), but was simply a failure to ascertain by inquiry the content of a particular piece of evidence which could have added further light to the finding it made as to what the applicant said at the interview on 12 May 2001.
38 In my judgment that does not amount to a jurisdictional error within the meaning explained in Craig and Yusuf, and accordingly that alternative ground of review is not made out. It is therefore unnecessary to address whether, if such an error had been established, it would have amounted to jurisdictional error so as to empower the Court to make an order under s 39B of the Judiciary Act in the face of the privative clause provisions in s 474(1) of the Act.
39 It is therefore also unnecessary to consider the alternative contention of the respondent that, in the particular circumstances, the Court in any event in the exercise of its discretion should refuse to make an order under s 39B of the Judiciary Act because:
- the applicant had escaped from custody contrary to s 197A of the Act and so had "acted in bad faith in relation to Australian migration laws and in relation to his application for a protection visa";
- the applicant would no longer be available to the Tribunal so that it could fully carry out its review, including notifying the applicant of matters of which it was required to notify him, and indeed it might be unable to ascertain whether the applicant is still in Australia (cp s 36(2) of the Act);
- an order declaring the Tribunal's decision invalid would mean that his application has not been finally determined: cp s 198(6) of the Act, and his legal status in Australia would thereby be altered.
40 For those reasons, I consider that the applicant has not established any grounds upon which the Court should make an order declaring the Tribunal's decision to be null and void. I order that the application be dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.