SCAT v Minister for Immigration & Multicultural & Indigenous Affairs

4 Differing views have been expressed by a number of single Judges of this Court as to the application and scope of s 474. The applicant relies upon the decisions of Wilcox J in Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 and Finkelstein J in Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498, which hold that a jurisdictional error of the kind described by the High Court of Australia in Craig v The State of South Australia (1995) 184 CLR 163 at 179 is not validated by s 474(1) of the Act. The submissions of counsel for the husband seeks to identify six jurisdictional errors in the reasons of the Tribunal. I have reached the conclusion that, quite apart from s 474(1), none of these alleged jurisdictional errors is made out. In these circumstances, I am of the opinion that the application should be dismissed, and the occasion does not arise to consider the application and scope of s 474(1) of the Act. 5 To understand counsel's submissions, it is necessary to summarise the claims made by the husband and the wife, and the reasons given by the Tribunal for rejecting them. 6 The husband, the wife and the children arrived together illegally by boat in Australia on 20 August 2001. They claimed to be citizens of Iran, and claimed to be entitled to recognition as refugees as they had a well-founded fear of being persecuted if they were to return to that country by reason of their religious faith as members of the minority Sabean Mandean community in Iran. 7 The husband claimed to fear persecution if he were to return to Iran for the following reasons: · He would be punished for having left Iran illegally. · He would be punished for having sought protection in Australia, his claim being that if an Iranian seeks asylum elsewhere he will be interrogated by the security forces on return, the Iranian authorities being embarrassed when Iranian citizens seek asylum in other countries. · He would be killed or otherwise harmed by his former employer or other Muslim Iranians. The husband was born in 1960. In 1985 he graduated in Iran with a Bachelor of Science Degree in Nutrition. After serving a period of national service, he obtained employment as a Food Technologist. Until the beginning of 2001 he had worked for eight years in a meat processing works. His employment involved the handling of food. According to Sharia law, as a non-Muslim he was prohibited from touching food items for Muslim consumption. He said that he had not disclosed his faith when he gained employment. He said that he had therefore committed two offences against Islam, first by not disclosing his religious faith, and secondly by contaminating food by being a Sabean Mandean. The manager of the food company for whom he worked found out about his religion, and he was dismissed. He claimed that the manager threatened to "show me a lesson that I wouldn't forget" and threatened to kill him. Although apparently outraged by the discovery that the husband was not a Muslim, the manager did not harm the applicant in the month before he left Iran. The applicant said that this was because the manager's mother was seriously ill and he was too busy caring for her. The husband said that the employer would know if he returned to Iran because the husband would have to visit his family and would be seen by former fellow workers. · As he could not work in the food industry, his chosen calling, he would not be able to find work or support himself and his family if he returned to Iran. · He would be punished as an apostate, because by working in the food industry he had pretended to be a Muslim, and he might be treated as a Muslim who had left the faith. · He and his family would suffer a variety of societal discriminations, harassment and lack of respect, in common with all Sabean Mandeans in Iran. 8 The wife in her application for a protection visa claimed that as a Sabean Mandean in Iran she (and her family) faced constant discrimination and intolerance. Her children were forced to learn the Koran at school and they were insulted and called "dirty Sabeans". 9 The Tribunal accepted that the applicants were Sabean Mandeans from Iran. However, the Tribunal rejected all but the last of these claims. 10 The Tribunal was not satisfied that the applicants left Iran illegally, and found that in any event the husband and his family would not be punished for having left Iran illegally, or for having sought asylum in Australia. These findings are not now challenged. 11 The Tribunal was not satisfied that there was a real chance that the husband would come to any serious harm because of his past work at the meat processing works. On this topic the Tribunal said: "I note that the employer did not act on those threats. I note the applicant husband's explanation for this. The applicants state that the husband's former employer is sure to know if they return to Iran. I also note the evidence that the applicant husband worked in this job for eight years without his religion being discovered. He stated that this was due to his not socialising with his work colleagues. It would seem that if the applicant's work colleagues did not discover his religion over eight years then they had very little contact with him outside work. In which case it does not seem likely that they would be aware of his return. It also seems improbable that the employer would wish to draw any attention to his product having been touched or prepared by a non-Muslim. This would hardly be good for his business."

12 The Tribunal held that it was not satisfied that not being able to work in the food industry would cause the husband harm serious enough to amount to persecution. The Tribunal noted that the husband said that two of his brothers worked as goldsmiths, whilst another brother had a street stall. The Tribunal was not satisfied that the husband would be prevented from working or otherwise earning a living, save in the food processing industry. 13 The claim by the husband that he would be punished as an apostate was dismissed by the Tribunal as a fanciful suggestion. 14 Finally so far as the claims made by the husband and the wife rested upon discrimination which they would suffer as Sabean Mandeans, in common with the rest of that community in Iran, the Tribunal accepted that they had a genuine fear that they would suffer harm if they returned to Iran. The Tribunal said: "I am satisfied that the applicants have faced some societal discrimination and intolerance in Iran. They have been called names and insulted. The children have been forced to read the Koran at school. The applicant wife has had altercations with a neighbour, in one of which she was injured. The applicants' experience is consistent with the independent information. Sabean Mandaeans do face societal discrimination and intolerance in Iran. They do not enjoy the full range of opportunities and rights as Muslim Iranians. As an unofficial religious minority, Sabean Mandaeans are not allowed to establish their own schools. Along with adherents of other religious minorities, Sabean Mandaeans are not accorded full equality with Muslims before the law, for example by not being accorded the same amount of compensation in the event of injury or death. Sabean Mandaeans are, along with members of other religious minorities, precluded from government employment and seem to be prevented from attending university, though the applicant husband was allowed to at that time. Sabean Mandaean children, along with all children who attend public schools, are required to study Islam as part of the school curriculum. Whilst I accept that Sabean Mandaeans face some discrimination in Iran, the independent evidence does not support a conclusion that any discrimination they face can be characterised as persecution."

15 Earlier in the Tribunal's reasons for decisions, it had discussed the meaning of "persecution" under the Act, and in particular the provisions of s 91R(1) of the Act which relevantly provide that: "(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. (3) …"

16 The Tribunal's finding that the discrimination suffered by the applicants did not amount to persecution is to be understood as a finding that the discrimination did not involve "serious harm" to the applicants. The Tribunal gave reasons for this conclusion which indicate that it engaged upon a qualitative assessment of the degree of seriousness of the discrimination they would face in Iran. The Tribunal found that Sabean Mandeans were not denied basic education. Whilst they faced discrimination in employment they were not prevented from earning a living. The Tribunal noted that the husband stated that his brothers in Iran conducted businesses, and the Tribunal was not satisfied that the husband would be prevented from working or otherwise earning a living other than in the food industry. In reaching this conclusion, the Tribunal had regard to country information which said that as far back as written records show, the Mandeans have existed in Iran as simple tradesmen - such as smiths, goldsmiths, boat builders and carpenters. They are however presently barred from becoming school principals or gaining public sector employment. 17 I turn now to the submissions made to this Court by counsel for the husband, and I consider them in the order in which they were developed in oral argument:

The Employer's Threat of Death 18 Whilst the Tribunal was satisfied that the husband genuinely feared serious harm from the former employer, the Tribunal was not satisfied that the applicant faced a real risk of this threat being visited upon him. I have already set out the reasons given by the Tribunal for this conclusion. Counsel contends that to arrive at the conclusion which it did, the Tribunal must have applied the wrong test to determine whether there was a "real chance". 19 The Tribunal referred to the leading decisions of the High Court of Australia which have considered the concept of a "real chance" including Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 (Chan), Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559. The Tribunal, correctly, said: "A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A 'real chance' is one that is not remote or insubstantial or a far fetched possibility. A person can have a well-founded fear of persecution even though the possibility of persecution occurring is well below fifty percent."

In this respect, the Tribunal has reflected the observations of McHugh J in Chan at 429. Counsel acknowledged that the Tribunal stated the right question that it was required to address in determining whether the husband's fear was well-founded, but contended that the relevant test, if properly applied to the facts as found, would result in a finding that a "real chance" of persecution had been established. 20 On the facts asserted by the husband, the manager of the food factory who employed him, took no steps to carry out the threat of physical harm in the immediate aftermath of his discovery of the husband's deception. The Tribunal was entitled to assume that as time went by the anger and desire for revenge by the employer and the manager would subside. The Tribunal's view - that it seems improbable that the employer would wish to draw attention to his product having been touched or prepared by a non-Muslim - was one reasonably open on the facts. Coupled with those matters which tend against the likelihood of any further action being taken against the husband is the unlikelihood, identified by the Tribunal, that the manager or the employer would become aware of his return to Iran. The evidence supports the finding that the applicant had little social contact with his colleagues. In my opinion it was open to the Tribunal to reach the conclusion that there was not any real chance that the applicant would come to any serious harm because of his past working at the meat processing works. I do not think that the submissions made on the husband's behalf identify any error of law on the part of the Tribunal. Rather, the submissions in my opinion seek to review the merits of the factual finding made by the Tribunal. Even in the absence of a provision like s 474(1), on judicial review of an administrative decision, a Court does not have power to enter into an assessment of the merits of the case and substitute for a factual finding made by the Tribunal some other finding.

Section 91R of the Act 21 It is contended that the Tribunal erred in failing to consider whether psychological harm could amount to "serious harm" within the meaning of s 91R of the Act. Implicit in this submission is the premise that the claims of the applicant, either on his own behalf or on behalf of family members, included a claim that a family member had suffered psychological harm. I do not think it could be doubted that serious psychological harm, particularly harm involving mental illness, could constitute "serious harm" within the meaning of s 91R. The difficulty which confronts the applicant in this case is that a claim of psychological harm does not appear to have been pressed before the Tribunal by the husband or the wife. There is no mention of such a claim in their personal statements, nor is there mention of such a claim in the reasons for decision of the Tribunal. 22 In written submissions made by a migration agent to the Tribunal on behalf of the husband and the wife, a submission was made that psychological harm amounts to serious harm for the purposes of the Migration Act, and two documents in support of that proposition were submitted. The first was a letter from Father Jim Monaghan of the Woomera-Roxby Downs Catholic Parish which points out that discrimination suffered by Sabean Mandean children at the hands of Muslims at the Detention Centre in Woomera, causes psychological harm. The migration agent's letter says: "This supports [the wife's] claim that her children suffer in the detention camp, as they did in Iran." The other document is a letter jointly signed by Sister Anne Higgins, Chaplain at the Woomera IRPC, and Mr Russell Wilson, psychologist. That letter says that constant verbal abuse linked to the deprivation of normal human activities often leads to severe depression, and refers to feelings of powerlessness and helplessness said to be experienced by Sabean Mandean people. The authors say: "The combination, especially when one has a lifetime of such experiences, starting from an early age, is so damaging to one's personal identity that there is often a grave risk of suicide."

23 Both the letter from Father Monaghan and the joint letter from Sister Higgins and Mr Wilson are in general terms about Sabean Mandean people, and are not specific to the present applicants. The probative value of the documents, if any, would lie in the coincidence between factors identified by the authors of the documents as possible causes of psychological harm, and the complaints made by the husband and the wife. The link between the two appears to be entirely missing in the present case. Counsel for the husband emphasises that the letter from the migration agents at one point says that the document from Father Monaghan supports the wife's claim that her children suffer in detention camp as they did in Iran. However, the nature of that suffering is not spelt out in the letter, nor does the letter (or any other information) assert psychological illness or psychological harm over and above the general complaints of discrimination in Iran in schools and the community generally suffered by Sabean Mandeans which the Tribunal has addressed in its reasons for decision. 24 There being no claim that the discrimination suffered by the husband and his family had caused "psychological harm" or that one of them was suffering depression or suicidal feelings, I do not think that the Tribunal erred in not addressing the question whether psychological harm could amount to "serious harm" within the meaning of s 91R of the Act.

Failure to Invite Comment - Procedural Fairness 25 It is submitted that the Tribunal fell into jurisdictional error, or procedural unfairness, in not giving the husband an opportunity to contradict country information, for example by asserting that it was outdated or inaccurate. Section 424A of the Act imposes procedural obligations upon the Tribunal to give to an applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review, and to invite comment. Counsel for the husband concedes that s 424A does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member: s 424A(3)(a). 26 The country information cited by the Tribunal is of a general nature and in my opinion is fairly described as information about a class of persons of which the applicant and his wife are members. However, counsel argued that s 424A(3)(a) should be narrowly construed, and that s 424A is not a code that by implication excludes an overarching obligation to comply with the rules of procedural fairness. Counsel relied in support of this submission on the observations of Kirby J in re Minister for Immigration & Multicultural Affairs; Ex parte "A"(2001) 185 ALR 489 at [47] - [50]. Kirby J there put forward a possible argument that s 424A(3)(a) of the Act as it then stood prior to the introduction of s 474(1), might not constitute a code, so that in the particular circumstances of a case, procedural fairness might require additional information to be given to an applicant that would not fall within the statutory obligation imposed by s 424A. His Honour suggested at [48] that a narrow construction of s 424A(3)(a) might confine the restriction in that paragraph to information about a "class of persons" and not extend to information which, as such, referred to the social or political conditions of the country concerned, including any alleged change in the conditions in that country said to disentitle an applicant for refugee status. 27 Kirby J did no more than suggest a possible construction of provisions in s 424A. His Honour did not put forward those suggestions as a preferred interpretation of the Act, and it was not necessary for him to decide on the construction of the section as he was unconvinced in the circumstances of that case that any breaches of the rules of natural justice had been demonstrated in the failure of the Tribunal to provide a copy to, or to bring the substance of the country information to the notice of, the applicant. 28 His Honour gave three reasons why he reached that conclusion. First, the country information in question was not of recent origin that suggested a change in the political environment of the applicant's country of nationality, Burma. There was therefore no element of novelty or surprise in the country information that necessitated or invited a specific response. Secondly, there was no suggestion that the Tribunal had positively misled the applicant by asserting that it had read all the contents of specified files when that was factually incorrect. His Honour said at [53]: "There was no issue concerning information of a general character that was available to the Tribunal but had not been considered by it." Thirdly, the applicant had not placed before the Court a clear indication of the type of evidence or material that he would have placed before the Tribunal if he had known of the country information available to it. His Honour said that, in default of some indication of the nature of the opportunity which the applicant says he was denied, any omission by the Tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in the case. 29 Contrary to the submissions made by counsel for the husband, I think that each of the three reasons advanced by Kirby J as to why there was no breach of the rules of procedural fairness also apply in this case. It is therefore unnecessary to consider the construction questions posed by Kirby J, nor is it necessary to consider whether the enactment of the privative clause in s 474, as a matter of construction, indicates a parliamentary intention either that the rules of procedural fairness no longer apply to the Tribunal or, alternatively, that a breach of the common law rules of procedural fairness does not invalidate a decision made by the Tribunal. 30 In the present case, the country information cited by the Tribunal did not refer to any recent change in the political or social conditions in Iran which would disentitle the husband and his family to recognition of refugee status. Moreover, there is no suggestion here that the Tribunal positively misled the applicant by assertions that it made about country information or the material that it had available to it. Before the hearing, the migration agent acting for the husband referred to a number of documents published by the Department of Foreign Affairs and Trade, and from recognised international organisations. Not all of these documents were cited expressly by the Tribunal in its reasons, but there is no reason to infer that the Tribunal did not read and consider the submission of the migration agent. Finally, and of particular significance in this case, the husband has not put forward any indication of the type of evidence or material that he would have placed before the Tribunal if he had known of the country information upon which the Tribunal intended to act. The country information about discrimination suffered by Sabean Mandeans referred to in the migration agent's submission is not substantially different to the information relied upon by the Tribunal. 31 In argument, counsel sought to read an affidavit from the applicants' lawyer which exhibited the reasons for two reported decisions of differently constituted Tribunals, one delivered a month before the decision in question, and one delivered three days later, where extensive country information was cited by the members who constituted those Tribunals about the situation of Sabean Mandeans in Iran. Some of the country information cited in those reasons is from the same sources that the Tribunal referred to in the present case. Whilst the citations from country information sources is more extensive in the other reasons, I do not think that it is substantially different in effect from the findings about the situation in Iran made in the present case by the Tribunal.

Fear for a Convention Reason 32 This ground for review rests on a passage in the Tribunal's reasons for decision relating to the applicant's claim that he was at risk of serious harm because of the circumstances of his dismissal from the meat processing works. The passage reads: "I am not satisfied that there is any real chance that the applicant will come to serious harm because of his past work at the meat processing works. In any event, any such harm would be because he worked in the food industry contrary to Islamic law and Muslim dietary rules, not because of his own religion."

33 It is submitted that the Tribunal fell into error in saying that any such harm would be because the husband transgressed Islamic law and Muslim dietary rules, not because of his own religion. I agree that this statement reflects error. The husband's dismissal and the outrage of the manager and the employer was precisely for reasons of religion. The definition of "refugee" in Article 1A(2) of the Refugees Convention does not require that the well-founded fear of persecution be for reason of some attribute of the asylum seeker's own religion. A well-founded fear could arise for reasons of religion if the risk of harm arose for reason of the religion of the persecutors and their disposition, by reason of their religion, towards the asylum seeker. 34 However, this error is not one that invalidates the reasons of the Tribunal. The Tribunal independently concluded that it was not satisfied that there was any real risk that the applicant would come to serious harm because of his past employment. That conclusion stands even if the Tribunal had been of the opinion that his experiences with the former employer arose for reasons of religion.

Imputed Apostasy 35 It is contended that in simply dismissing this claim on the ground that it was "fanciful", the Tribunal failed to apply the "real chance" test. Counsel contended that, having accepted the husband's description of his work environment and dismissal, the Tribunal should have held that there was a real risk that other people, knowing of those facts, would hold a belief that he must have been a Muslim as he was employed in the food industry, and that he must have later converted to the Sabean Mandean religion. At best I consider that this submission seeks to review what is in substance a finding of fact by the Tribunal. Apart from any operation which s 474(1) may have on the question, an error of law could only arise from the finding that the claim was fanciful if such a conclusion was not reasonably open on the material available to the Tribunal. The case of the applicant is that he was dismissed because he had not disclosed his religion and because the employer was outraged because during his employment he was not a Muslim. In these circumstances, I consider that the Tribunal's finding was not only open, but was unsurprising.

Cumulative Persecution 36 Counsel for the husband contended that the Tribunal failed to consider the cumulative effect of all the conduct about which he and his wife complained as the basis for their asserted well-founded fear of persecution. The Tribunal considered each of the claims upon which the applications for protection visas were made and then summarised its ultimate conclusion by saying that, having considered the evidence as a whole, it was not satisfied that the applicants are persons to whom Australia has protection obligations. In terms, the Tribunal has purported to consider the cumulative effect of the various claims, and I am unconvinced that the Tribunal fell into the basic error of not considering the cumulative effect of individual claims made by the applicants. The obligation of the Tribunal was to engage in a qualitative assessment of the harm that it accepted had been suffered by the husband and the wife. That qualitative assessment led the Tribunal to its conclusion. Such a finding at the end of that exercise is a finding of fact: Minister for Immigration & Multicultural & Indigenous Affairs v Kord [2002] FCA 334 per Heerey J at [3] and W338/01A v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 544 at [13]. Even in the absence of a privative clause like s 474(1), if an administrative tribunal makes a wrong finding of fact, that does not give rise to an error of law that is reviewable by a Court on judicial review. In my opinion there is no substance to this ground of challenge to the Tribunal's decision. 37 For the above reasons I do not consider that any of the grounds of challenge mounted against the decision of the Tribunal are made out. In my opinion the application for review must be dismissed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.