SDAE v Minister For Immigration & Multicultural Affairs

Federal Court of Australia|2002-12-20|Before: Mansfield J

REASONS FOR JUDGMENT 1 The applicant is a young man from Iran. He arrived in Australia on 31 December 2000. On 13 February 2001 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). A delegate of the respondent refused that application on 16 March 2001. The decision was reviewed by the Refugee Review Tribunal (the Tribunal). Following a hearing on 30 April 2001, the Tribunal on 15 May 2001 affirmed the decision of the delegate of the respondent not to grant the applicant a protection visa under the Act. 2 This application is to review the decision of the Tribunal. It was instituted prior to the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), so the provisions of the Act as in force prior to that amendment are those applicable to its consideration. In particular, the grounds of review previously available under s 476(1) of the Act are those to which the Court's attention must be given. 3 The Tribunal affirmed the decision of the delegate because it was not satisfied that the applicant 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). That is the criterion for the grant of a protection visa specified in s 36(2) of the Act. If it was not met, the Tribunal was required by s 65(1) of the Act to affirm the decision of the delegate of the respondent. In practical terms, the decision turned upon whether the Tribunal was satisfied that the applicant is a refugee as defined in Art 1A(2) of the Convention, namely a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

the applicant's claims AND THE TRIBUNAL'S REASONS 4 In recording the applicant's claims, and in addressing them, I have endeavoured to refer to them only in general terms. That is because the applicant, through his counsel, stressed the applicant's concern about not being identifiable by the authorities in Iran if he were to return there. 5 The applicant comes from a city in Iran. 6 He claimed to have a well-founded fear of persecution for a variety of reasons which he explained to the Tribunal at the hearing, and which in general terms were consistent with the claims he had previously made to the delegate of the respondent, and in an interview upon his arrival in Australia. 7 The applicant claimed that his father had worked for the Savak, the intelligence organisation of the Shah, and upon its downfall that his father was arrested in 1979 and subsequently executed. He did not, however, make any complaint of any difficulties he had experienced in Iran until 1999. The Tribunal concluded: "Given the large amount of time between his father's death and the applicant's departure, the Tribunal does not accept that his father's death either indicates that the applicant faces a real chance of persecution or has resulted in the applicant being perceived as against the regime." 8 The applicant claimed that his troubles commenced from about April 1999. He said he had been reluctant to undertake military service, although that was required of young men from the age of 18 or 19. He described to the Tribunal the onset of his problems, arising from a fight in a cinema queue when he was pushed and fell over. In the course of the scuffle he punched an army officer. He was arrested and charged with assault and evading military service. He claimed that he was imprisoned for eight months. The Tribunal accepted that it was "quite possible" that those events had occurred. It was not satisfied, however, that those events gave rise to a well-founded fear of persecution on the part of the applicant. Its reasons were as follows: "Such punishment would not be for any one of the five Convention reasons and indeed had the applicant taken such action in Australia he could possibly have received a similar punishment. The applicant also claimed that part of the reason for this punishment is that he had avoided military service. Whilst he may have done this and this may have arisen it does not seem to the Tribunal to have been the triggering event in this sentence. Had he not assaulted the army officer he would not have come to the authorities attention. In addition punishment for avoiding military service is not necessarily Convention related and in this case if such avoidance did have an impact on his gaoling the Tribunal is still not satisfied that such gaoling fell within any one of the Convention grounds. Had the authorities seen such avoidance as part of an anti-regime stance it might have been in part Convention related. However there is no evidence that the authorities would have imputed such an opinion to the applicant as opposed to simply considering he did not want to perform military service. In addition if part of his punishment on this occasion was for avoiding military service the Tribunal does not consider such punishment excessive or unreasonable. Finally there is no suggestion that the applicant faced ongoing problems stemming from this occasion." 9 The applicant claimed that following his release from prison in about January 2000 he went to a small nearby city. He told the Tribunal that he there participated in some anti-regime demonstrations, and joined a small anti-government group painting anti-government slogans on public buildings and damaging government property. He said he had been identified as participating in a demonstration, together with his brother. His brother had been arrested, and the applicant then surrendered to the authorities. He claimed to have been imprisoned for five months, during which time he was mistreated in an attempt to induce him to disclose other participants in anti-government activities. He was released after payment of a large fine, but as he described it, on some form of parole with a threat of a further period of imprisonment and a much greater fine if he were to engage in further anti-government behaviour. 10 The Tribunal appears to have proceeded on the basis that the applicant was involved, to some extent, in the demonstrations but not that he was otherwise involved in significant anti-government activities. Its reasons are contained in the following passage (omitting names that may tend to identify the applicant): "However he lived in …and not in … and appears to have only visited there to see some relatives. Even if he attended a demonstration there he was not detained at the time. Further as the applicant was not from … the Tribunal does not accept that he played any significant part in organising these demonstrations. Whilst it is possible that he knew Mr … who was involved in organising the demonstrations, again because the applicant was not from this town and had no history of organising demonstrations or history of involvement in the subject matter of the demonstration, the Tribunal does not accept that such association led to him being involved in organising the demonstrations himself. Whilst he may have attended a demonstration, the Tribunal does not accept that he had a role in organising the demonstrations. In these circumstances the Tribunal does not consider it plausible that his brother was detained and that this led to the applicant handing himself in. As a result it is not plausible that the applicant was held for five months and then given a fine of 800,000 Toumans and a suspended sentence of a further fine and gaol term. The Tribunal does not accept that he was a member of an unnamed group or that the reason for his detention was in part to torture him to reveal the names of other members. The applicant went to … to visit relatives and as stated above the Tribunal does not accept it is plausible that he was detained for five months. As a result it is not plausible that the applicant was a member of an unnamed group or that he was detained and tortured because of this. The Tribunal also does not accept that the applicant would be imputed with an opinion of support for the Mojahedin. The country information above indicates the lack of support for this group within Iran and as a result the Tribunal does not accept that the applicant in visiting … to see relatives and attending a demonstration would be imputed with such an opinion." 11 The applicant then claimed that in August or September 2000, he was required to undertake military service. He said he did that training for about one and a half months, during which time he was subjected to unfair punishment and mistreatment. He learned of two men in the services who had been sexually harassed, and that he was also to be sexually abused. In reaction to his concerns he set fire to a military storeroom, and then fled from military service. The Tribunal perceived two claims potentially arising from the applicant's evidence about his military service. The first was whether he might have a well-founded fear of persecution by reason of having been required to undertake military service, and the second that he might have a well-founded fear of persecution by reason of his victimisation and that he was a target for sexual abuse or to his reaction to those circumstances. As to the first claim it said: "The applicant then claimed he was taken for military service. The Tribunal had some doubts that this occurred. The applicant should have gone for military service at eighteen or nineteen along with other young men and not at twenty five. According to his own account he had come to the attention of the authorities before in relation to his failure to do military service but had been allowed to return home. However whatever the true situation having to do military service is not a persecution and does not bring the applicant within the Convention. Indeed the applicant's statement to the Tribunal about this was that he did not want to do it, which is not in the Tribunal's view a Convention related reason." As to the second aspect of those claims, it concluded: "He then claims he was victimised and learned he was a target for sexual abuse by some officers. Again however the Tribunal is not satisfied that the applicant was targeted for such actions because of being perceived to be anti-regime or for any one of the five Convention grounds. The Tribunal is not satisfied that any of the Convention grounds would form part of the reason for such victimisation. The Tribunal considers that such victimisation occurs in many countries in the military and that being in such a situation is not Convention related. The Tribunal does not accept that being in the situation the applicant describes in the military justifies him setting fire to a food store. If he did this it is reasonable that he would be punished for causing such damage. However such punishment would not bring him within the Convention as it would not be for one of the Convention reasons. The Tribunal would add that in reaching this conclusion it is aware of the possibilities of such action being seen as anti-regime and leading to the imputation of a political opinion. However the Tribunal does not accept that setting fire to a food store in these circumstances would be seen as an expression of political opinion or lead to an opinion being imputed to him. Further even if he were seen as anti-regime, punishment for his illegal actions would still not amount to persecution unless such punishment was excessive and his anti-regime opinion formed the motivation or part of the motivation for such excessive punishment. 12 The Tribunal's reasons then indicate that it stepped back to consider the applicant's claims in their totality. The applicant claimed that he feared returning to Iran because he would be executed for having contravened the "suspended sentence" following his arrest in April 1999, for having breached the condition of good behaviour imposed upon him for setting fire to the military storeroom. The Tribunal did not accept that the applicant would, as a result of his claims, be seen in the same way as his father. It said that any of his claims which it had accepted would not indicate that he is anti-regime or has an opinion opposed to the regime which would lead him to facing a real chance of persecution. 13 Finally, the Tribunal addressed the consequences of the claimed illegal departure from Iran. It concluded: "Although the Tribunal considers it most likely the applicant departed legally, even if he departed illegally, the country information above indicates that he will not suffer harm serious enough to amount to persecution. In addition the Tribunal considers that breaching Iran's laws relating to departure from the country will not bring the applicant within the Refugees Convention. Given the above country information, applying for refugee status or departing the country suddenly will in the Tribunal's view neither bring the applicant to the attention of the authorities or lead to a real chance of persecution should he now return." 14 Overall, therefore, the Tribunal was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason, and so was not satisfied that he met the criterion set out in s 36(2) of the Act for the grant of a protection visa.

the grounds of review 15 The applicant, through his counsel, read two affidavits in support of the grounds of review. One exhibited the transcript of the hearing before the Tribunal on 30 April 2001. There is no dispute as to its accuracy. The other was an affidavit of the applicant affirmed on 13 March 2002. 16 In that affidavit, the applicant says that he was sexually abused whilst in prison and whilst undertaking military service, rather than that he was threatened with sexual abuse as he had told the Tribunal. He says he has not previously disclosed that matter out of extreme feelings of fear and shame. He fears that he will be killed by stoning by the authorities if he returns to Iran, and if he complains to the authorities or if they learn of what happened to him, as homosexual behaviour is alien to Islamic culture even if it is non-consensual. He also fears alienation from his family because of the shame his experience would bring upon them. 17 The applicant acknowledges that he has not previously told anyone that he was sexually assaulted in the way he now reports. He gives a detailed description of how he was raped and sexually abused by prison officers several times per week over the periods he was imprisoned following the incident in April 1999, and following his further imprisonment in early 2000 (this claimed period of imprisonment was not accepted as having occurred by the Tribunal), and again whilst undertaking his military service. 18 The other topic the applicant's affidavit addresses is the effect upon his family of his father's execution. He says that he and his family have been stoned by neighbours, that his brother was refused entry to tertiary education, and that he had great difficulty getting employment because of his father's political activities. That topic presents an assertion of facts different from those which the applicant, despite the opportunity previously to do so, conveyed to the Tribunal or earlier. He gives no particular reason for presenting that material now, rather than earlier. The Tribunal recorded that the applicant did not claim any problems from his father's execution in 1980 or his father's political activities until the events of 1999, and so concluded that the applicant did not face any real prospect of persecution by being perceived as being anti-regime by reason of his father's political activities. The further information in this regard does not, therefore, indicate reviewable error under s 476(1) of the Act in the Tribunal's conclusion, but is an attempt to re-visit its findings of fact. I do not need to refer further to that particular material as a discrete ground of setting aside the Tribunal's decision. It is, in addition, raised with other factors indicative of a more general ground upon which the Tribunal's decision is the subject of criticism, and I shall refer to it also in that context. 19 The applicant's contentions principally seek to enliven the grounds of review under s 476(1)(b), (c), and (e) of the Act. There is no real dispute as to the applicable principles. In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [84], McHugh, Gummow and Hayne JJ said: "It must be recognised that the ground stated in para (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals. That having been said, the addition of the qualification to para (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out" Earlier at [83], [22], their Honours also said that the Tribunal in identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material, also exceeds its authority or powers and lacks jurisdiction to make the decision made, so that the decision would not be authorised by the Act. The same errors, therefore, would engage s 476(1)(b) and (c) as well as (e). The applicant has relied upon each of those provisions, but the submissions relating to them are common. It is not necessary separately to deal with each of those provisions in addressing the particular complaints made in the present matter. 20 A major claim of the applicant is that the Tribunal erred in failing to consider his claim that he had in fact been sexually harassed whilst in prison, as he had made that claim to the Tribunal, albeit not in the detailed terms now asserted in his affidavit. The submission is that the Tribunal, having identified that claim, should have pushed the applicant to the extent that he overcame his understandable aversion to disclosure of his experiences (as he now reports them). It is then contended that the applicant was entitled to have the Tribunal address a claim that he has been persecuted by that conduct by reason of his membership of a particular social group, described as "vulnerable/good looking young conscripts/detainees/prisoners" or "army deserters" or "victims of homosexual abuse" or "illegally departing returnees". 21 The second major submission of the applicant is that the Tribunal erred in law in failing to consider the applicant's claims in terms of the Convention. The argument is put in two ways. Firstly it is contended that the Tribunal imposed an onus of proof upon the applicant which was inappropriate, as it was required to address the question whether the applicant had a well-founded fear of persecution for a Convention reason upon the whole of the evidence. There is no doubt that the Tribunal should not impose an onus of proof, certainly not an onus of proof on the balance of probabilities, upon the applicant: see Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo). The respondent acknowledges that. He says, simply, that the Tribunal did not impose that onus of proof upon the applicant and so did not err in law by inappropriately applying such an onus of proof to the applicant's claim as to whether he has a well-founded fear of being persecuted for a Convention reason if he were to return to Iran. The alternative way in which the applicant developed the point was to contend that the Tribunal had erred by failing to step back and to consider the totality of his claims in terms prescribed by s 36(2) of the Act and by Art 1A(2) of the Convention. It is argued, correctly, that in certain circumstances the Tribunal is obliged to consider the whole of the applicant's claims to determine whether he has a well-founded fear of persecution for a Convention reason. The respondent also accepts that in certain circumstances it is necessary for the Tribunal to step back and to consider whether, upon the whole of the evidence, and notwithstanding the findings of fact the Tribunal has made about the applicant's claims as to what has happened to him in the past, there is a real chance of the applicant suffering or being exposed to the risk of persecution if he were to return to Iran. That is sometimes described as the "what if I am wrong?" test. 22 Finally, the applicant through counsel then embarked upon a detailed dissection of the Tribunal's findings, and the reasons for its findings, on each feature of the applicant's claims with a view to demonstrating reviewable error on its part.

(a) Failure to consider the claim of sexual abuse 23 The foundation for this claim is that the Tribunal should have addressed a claim made by the applicant that he had a well-founded fear of persecution, by reason of his membership of the social group described in [20], namely persecution by serious sexual abuse. The submission focussed upon the social group described as "vulnerable/good looking young conscripts/detainees/prisoners." The respondent accepts that, if such a claim was made, the Tribunal was obliged to address it and would have erred in law if it failed to do so. The respondent contends, however, that no such claim was made by the applicant. 24 The applicant contends that he expressed that claim to the Tribunal in his statement submitted with his application for a protection visa dated 9 February 2001. It was submitted under the letterhead of his solicitors then acting as his migration agent. It included the following passage: "During my military service I was angry at the treatment I got. Two other Soldiers and myself from my city were sexually harassed at night by military officers. I got into a fight with one of the officers and I became angry and I set fire to one of the stores. I escaped and went to … and stayed with my aunt." The anger referred to may be by reason of having to undertake military service, or by reason of the applicant having previously been imprisoned following the demonstrations (an event which the Tribunal did not accept). It is also noteworthy that that statement refers to the applicant having been imprisoned following the demonstration and having been tortured during that period of imprisonment, but makes no reference to any sexual harassment at that time or indeed at the time of his earlier imprisonment for striking an army officer. 25 I do not consider that the expression of the claim as now made in the affidavit is a refinement of a claim previously made to the Tribunal and which it was required to deal with. In my view, the Tribunal correctly identified the nature of the applicant's claims and it addressed them. At the time of his protection visa application, the same statement of the applicant recorded that he feared mistreatment if he were to return to Iran: "Because I was involved in the demonstrations and because I damaged government property during my military service." He did not then make any claim of fearing persecution because of being a member of a particular social group of the type now under consideration. The claim now made was also not a feature of the applicant's application to the Tribunal. Again, his lengthy submission from his migration agent sent to the Tribunal on 27 April 2001 was to the same effect, namely that he feared persecution because he had been involved in the demonstration and because he had damaged government property during his military service. It was that he claimed persecution due to perceived political opinion. There was nothing identified in that lengthy submission to put the Tribunal on notice that the applicant claimed also to fear persecution by reason of being a member of a social group now described. Under the heading "Is the harm or mistreatment feared by the applicant on return for reason of one or more grounds recognised in the Refugees Convention?" the submission is made that the applicant's fear of harm or mistreatment on release to Iran is "for reasons of his political opinion". The submission was the document upon which the Tribunal was entitled to consider its review, as the application to the Tribunal for review of the delegate's decision did not identify any particular claims, and no other document after the making of the application to the Tribunal until the Tribunal's hearing did so. Then, at the hearing, the thrust of the applicant's claims was to the same effect. The Tribunal also records accurately his claim to have been harassed whilst doing military service, and that the applicant had learnt that he was to be the target of sexual abuse. It dealt with that claim in the "Findings and Reasons" section of its decision in the terms in which it was made. It was not satisfied the applicant was targeted for any Convention reason. 26 The applicant, through counsel, contends that on the basis of that briefly expressed claim the Tribunal was obliged to consider whether the applicant has a well-founded fear of being persecuted because of his membership of a particular social group, namely vulnerable/good looking young conscripts. In Ahvazi v Minister for Immigration & Multicultural Affairs [2002] FCA 279, Hill J addressed the question as to the circumstances in which a claim is made by an applicant for a protection visa, or arises for the Tribunal's consideration, so that the Tribunal errs in not addressing it. His Honour, after reviewing the relevant authorities, determined at [23] that the Tribunal is obliged to consider a possible foundation for a well-founded fear of persecution if the material or other evidence before the Tribunal "raises the case" even if it is not one on which the applicant bases the claim and so raises it squarely for decision by the Tribunal at [23]. See per Merkel J in Paramanthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28 at 63. However, as his Honour proceeded to point out at [27]-[28], a well-founded fear of persecution can exist only where there is both a subjective fear of persecution for a particular Convention reason and some objective foundation for the fear. I respectfully agree with his Honour's view. The Tribunal must therefore have material upon which it could find that the applicant has a subjective fear of persecution because of his membership of a particular social group before the evidence or other material before the Tribunal would raise for its consideration such a case. In my judgment, the Tribunal was not given by the applicant any reason to address a case that the applicant had a well-founded fear of persecution because he was a member of a social group comprising vulnerable/good looking young conscripts because he gave the Tribunal no reason to think that he had in fact a fear of persecution for such a reason. Any concern the applicant may have had of sexual harassment was confined to his military service, and was not ascribed by him to his membership of such a social group. 27 In addition, in any event, the Tribunal considered, and did not accept, that any victimisation of the applicant whilst in military service (whether sexual harassment or otherwise) was for any of the five Convention reasons. Its finding in that regard was one which, in my view, it was able to and did reach without reviewable error on its part. Nothing was put by or on behalf of the applicant which would lead to a conclusion of factual error on its part. Its reasons on the topic were so brief. The brevity of its reasons are a reflection of the absence of any evidence from the applicant to suggest that he in fact feared sexual abuse or harassment, or victimisation, for any particular Convention reason. As noted above, the fear which he expressed (including in particular in the written submission on 27 April 2001) was of persecution by reason of his political beliefs or political beliefs imputed to him. 28 I conclude that the Tribunal did not overlook his claim to have been the target of sexual abuse. It identified the claim, and expressed itself as not being satisfied that the applicant was targeted for that abuse by reason of any perception that he was anti-regime or for any of the Convention grounds. It was not satisfied that such victimisation would be for a Convention reason. In the absence of any further refinement in the applicant's position before the Tribunal, and there was none, in my view the Tribunal was not required to address the claim which the applicant now makes. It is not shown to have fallen into error, therefore, by not having done so.

(b) The detailed claims of errors 29 The contentions of counsel on behalf of the applicant involved a thorough and careful examination of the Tribunal's reasons, step by step. Counsel criticised the Tribunal's reasons, almost sentence by sentence. Whilst it is necessary to deal with each of those individual contentions, as each is said to involve an error of law, an excess of authority, or jurisdictional error on the part of the Tribunal, it is important to bear in mind that the Tribunal's reasons for decision are not to be read with an eye keenly attuned to the perception of error. See e.g. the discussion in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259(Wu) per Brennan CJ, Toohey, McHugh and Gummow JJ at 271-272 and per Kirby J at 291-293. In the majority judgment, it was said at 272: "The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." 30 Several of the points made on behalf of the applicant concerned the significance of the political activities of the applicant's father, and his execution in 1980. In my view it was open to the Tribunal to conclude that the elapse of time between 1980 and 1999, when the applicant first complained of significant problems in Iran, justifies its conclusion that his father's political activities, or his death, did not give rise to a real chance of persecution on the part of the applicant because he is or might be perceived as being anti-regime. Counsel for the applicant referred to a claim made, as described by the respondent's delegate, that the applicant's mother had "a hard time" immediately following his father's death and so the family moved to another city. That is the only circumstance to which counsel drew attention suggesting further problems immediately following the father's death, or indeed until 1999. I do not think it advances the applicant's claim in the way asserted, namely that, contrary to the Tribunal's finding, the applicant did complain of further problems between 1980 and 1999. Nor does it demonstrate error on the part of the Tribunal in relation to his father's political activities that the Tribunal failed to consider the applicant was born in 1975, and so for much of the period from 1980 to 1999 "was only a child". He was clearly only a young man in 1999 when he first began to experience difficulties in Iran, according to his claims, but on his own evidence those difficulties were prompted by particular incidents or experiences which he had rather than being apparently unprompted or due to his family history. 31 Moreover, the Tribunal did consider whether his family history may have caused or contributed to the nature of his treatment. I reject the claim made on behalf of the applicant that the Tribunal failed to consider whether his family history might have led to a perception of him being anti-regime in some way leading to or contributing to the particular events of which he complained, especially having been involved in the fracas in April 1999 or as an explanation in support of his claim of being identified and a focus of regime attention when participating in the demonstrations in early 2000, or whilst undertaking military service, It expressly adverted to the possibility that his resistance or reluctance to engage in military service, or his conduct in military service, might have been seen by the authorities as part of an anti-regime stance but it rejected those claims. It considered and rejected the possibility that he was a target for sexual abuse or victimisation in military service because of a perception that he was anti-regime or for any Convention reason. It concluded: "The Tribunal does not accept that the applicant will, as a result of his claims, be seen in the same way as his father. The Tribunal does not accept that any of the applicant's claims that it has accepted would indicate that he is anti-regime or has an opinion opposed to the regime which would lead to him facing a real chance of persecution." 32 The applicant also attacked the Tribunal's findings and conclusions about whether he had punched an army officer in about April 1999 and had been imprisoned as a result. The Tribunal accepted as possible that those incidents had occurred. Contrary to the contention of counsel for the applicant, however, as appears from the Tribunal's reasons quoted in par [11] and [31] above, the Tribunal did consider whether the applicant's family connections may have led him to be perceived as having an anti-regime stance so as to lead to his imprisonment, or to lead to a punishment greater than that which would otherwise have been the case had he not had such a family history. The Tribunal specifically rejected that suggestion. That is a finding of fact which was open to the Tribunal. 33 The Tribunal also accepted that part of the cause for the applicant having been arrested and punished in the way he was following the incident when he assaulted an army officer may have been his reluctance to undertake military service. The Tribunal, however, did not consider that, even in that event, any additional punishment or mistreatment he received was for a Convention reason. That finding was open to it. It rejected the suggestion that the applicant's conduct leading to his imprisonment, or the length of his imprisonment, was caused or contributed to by any perception that he was anti-regime. It also had regard to the absence of any suggestion that, thereafter, the applicant had any ongoing problems resulting from that occasion. In my judgment each of those findings was available to be made by it. It is not shown that the Tribunal erred in law, or in the ways asserted by counsel for the applicant, in reaching those conclusions. 34 Counsel for the applicant pointed out that there was available to the Tribunal, by reason of s 418 of the Act, the material upon which the delegate based the decision under review. The material included a Department of Foreign Affairs and Trade (DFAT) Country Profile for Iran, March 1996. The Tribunal referred to parts of that document in its reasons. One part of the document to which it did not expressly refer contained the following, under the heading "Imputed Political Profile": "It is very difficult [to] be definitive in assessing who may or may not have an imputed political profile, given the often arbitrary nature of the system in uneven application of the law, depending on an individual's wealth and connections … Immediately family members of fugitives or high profile dissidents and opposition figures or of very prominent members of the former regime could on a case by case basis be assessed as having such a profile." That passage in that document is one to which other members of the Tribunal have had regard in determinations of the Tribunal to which the Court was referred. Hence, it was argued, the Tribunal had failed to consider country information which might suggest that the applicant might have imputed to him an anti-regime political opinion by reason of his family background. 35 I do not think it can be said that the Tribunal failed to have regard to the issue as to whether the applicant's family background, in all the circumstances, may have contributed to a perception that he has an anti-regime attitude. The Tribunal expressly addressed that possibility in its reasons. In reaching its conclusion that it did not consider the applicant's arrest in April 1999, or the subsequent period of his imprisonment, or his aversion to military service, were in part due to him being perceived as being anti-regime. Whilst the Tribunal did not expressly refer to that passage of that document, in other parts of its decision, it did expressly refer to parts of that document. I do not think its failure to refer to the particular passage now referred to by the applicant indicates that the Tribunal did not have regard to the possibility the subject of the present contention. The particular passage referred to by the applicant was expressly the subject of the detailed submission from the applicant's migration agent of 27 April 2001. In the light of the submission, the Tribunal, however, considered that there was no evidence that the authorities "would have imputed" an anti-regime opinion to the applicant by reason of his reluctance to undertake military service, and it noted that there was no suggestion that the applicant faced ongoing problems stemming from his period of imprisonment of eight months or so for the balance of 1999. It cannot be said, in my judgment, that the Tribunal was doing other than making a finding of fact about the attitude of the authorities towards the applicant in 1999 and leading into 2000 or that its finding of fact was not open on the evidence, irrespective of whether others might have reached a different view of the facts. The determination of the facts is essentially one for the Tribunal, and not for the Court: see e.g. Kola v Minister for Immigration & Multicultural Affairs [2002] FCA 265. In Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220, Kenny J said at 257 [146]: "A tribunal such as the RRT 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." Her Honour referred to authorities in support of that propositions, including Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 [40], and 627-628 [44]-[45] per Gleeson CJ and McHugh J, and at 654 [138] per Gummow J; and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ. 36 In my view, the Tribunal reached a finding of fact on the issue, namely that the treatment of the applicant in respect of the incident involving an assault upon an army officer, (whether compounded by a reluctance on his part to undertake military service), was not in any sense attributable to a perception that the applicant was anti-regime but was simply dealt with as a matter of the application of the general law in Iran. That finding was open to the Tribunal. It was able to have regard to the fact that the applicant made no complaint of any adverse treatment towards him between 1980 when his father was killed and 1999. Although he was a child for much of that time, by 1999 he was a young man of 24 years of age. 37 As part of the criticism of the Tribunal's findings on the issue, counsel for the applicant also criticised the Tribunal's observation that there was no suggestion that the applicant faced ongoing problems stemming from the occasion of that imprisonment. Its observation must be seen in the light of its non-acceptance of the applicant's claims of having then been involved in demonstrations in early 2000 leading to a further period of being imprisoned and tortured for a period of months. Counsel for the applicant also mounted separately a detailed attack upon those findings. 38 Counsel for the applicant contended that the Tribunal's findings about the applicant's participation in the demonstrations was circuitous and illogical. In my view, the attack upon that part of the Tribunal's findings involves an inappropriate parsing and analysing of the Tribunal's reasons to seek error when none in substance exists. The Tribunal had regard to the fact that the applicant did not live in the town in which the demonstrations took place, and visited there only to see some relatives. It had regard to the fact that he was not detained during the demonstrations. It did not accept that he had played any significant part in organising the demonstrations, even though he may have known one of the organisers, because of his previous apolitical history (that is, he had not previously organised demonstrations, or been involved in the subject matter of the demonstration), and because he was not from the place where the demonstration took place. To criticise the Tribunal for expressing, at one point, that the applicant did not play "a significant part" in organising the demonstrations and later that he played "no part" in organising the demonstrations illustrates, in my view, a too semantic attack on the Tribunal's reasons. 39 The position, in my view, is that the Tribunal accepted that the applicant may have attended demonstrations, and may have known an organiser of those demonstrations, but did not accept that the applicant played any role at all in organising the demonstrations because he did not live in the town where the demonstrations took place, because he attended there only to visit some relatives, and because he had no history of organising demonstrations or of involvement in the subject matter of the demonstrations. Those considerations were rationally available to the Tribunal and do not demonstrate error on its part. The Tribunal also rejected the applicant's claim that his brother had been detained in the course of the demonstrations and that the applicant therefore handed himself to the authorities. In describing that as not "plausible" in my judgment the Tribunal is simply expressing its lack of preparedness to accept that part of the story of the applicant because it was inherently unlikely. 40 I think the Tribunal's approach does overlook, or does not pay full regard to the applicant's evidence about why his brother was arrested. In his evidence to the Tribunal, the applicant had said that the authorities must have discovered his participation in the demonstration because the applicant's brother was detained. He said that because his brother was detained, and because his brother has a family, the applicant himself then handed himself in. In other words, he said his brother's detention was an attempt to flush out the applicant. The Tribunal regarded the brother's arrest as not plausible, but it somewhat understates the applicant's claims as expressed in the submission from his migration adviser of 27 April 2001. The submission was that, following the demonstration at which the demonstrators were taped by the authorities, the authorities went to the applicant's home that evening where they took his brother because the applicant was not present and also took his father's photographs. The applicant gave himself up because his brother had a young family, and he perceived the authorities were endeavouring to get at him by taking his brother. However, the difference in what the Tribunal recorded in its reasons, and what was said in the written submission, is largely of degree rather than of substance. The essential claim was that the authorities wanted to arrest the applicant due to his role in the demonstrations, and used his brother as a means of getting at the applicant. The detailed claim may, to some minds, give an air of verisimilitude to the applicant's story. But that was for the Tribunal to assess. It was not satisfied about that part of the applicant's claims. It was part of its function to form a view about such matters: see per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Guo at 574-575. I am not persuaded that it fell into reviewable error in not accepting that part of the applicant's claims. 41 Indeed, the Tribunal said in this context that the applicant would not be imputed with a pro-Mujahedeen political opinion by visiting the town where the demonstrations took place and by participating in them, in part because the country information indicated a "lack of support" for the Mujahedeen in Iran. Counsel for the applicant criticized the reference to the Mujahedeen as unnecessary, and as limiting the applicant's claim in a way he did not do so. But the lengthy submission of 27 April 2001 contains the claim that the person who organised the demonstrations, who the applicant knew, was doing so as a member of or on behalf of the Mujahedeen. It also claimed that the applicant participated because he hated the government because they killed his father and ruined his mother's life. It also points out that the demonstrations involved writing slogans on walls, and damaging government property and other buildings. Consequently, it was not inappropriate for the Tribunal to consider the applicant's claimed political affiliation in that way. 42 However, if the demonstration was, as the applicant claimed, by supporters of the Mujahedeen, it is difficult to see why the Tribunal did not accept that the applicant, as a participant in the demonstration, might not be imputed with an opinion in support of the Mujahedeen. It said that country information indicates a "lack of support" for that group within Iran. That does not mean there is no support for it, or that the demonstration was not in support of it. The lack of general support for that group in Iran does not mean, as the Tribunal seemed to conclude, that the applicant attending a demonstration (the purpose of which the Tribunal has made no finding about) might not lead to the applicant being imputed with an anti-regime political opinion. In fact, the country information to which the Tribunal appears to refer, and which is quoted at some length earlier in its reasons for decision, is the UK Iran Assessment April 2000, which states inter alia: "Popular support for the Mojahedeen has declined in Iran, and Iraq's support of it has fluctuated with the level of hostility between the two regimes. The Iranian regime's treatment of the Mojahedeen opposition has been extremely severe, with reports of large numbers of executions and torture." That passage does not support the process of reasoning of the Tribunal. At the level of an individual finding, any deficiency in the Tribunal's reasoning process does not lead to the conclusion of reviewable error on its part for the reasons already given. I do not therefore consider this discrete attack upon the Tribunal's decision can succeed. 43 The applicant's counsel also attacked the Tribunal's findings regarding his participation in military service. The fact that his military service was delayed beyond the normal age does not, of itself, tend to support the view in the absence of further material that the applicant was regarded as anti-regime or was in fact anti-regime. The Tribunal was entitled to treat the late age at which he undertook military service as a neutral fact. It then rejected his claim to have been targeted for sexual abuse by some officers, and for victimisation, for any Convention reason. It appears to have accepted that the applicant was victimised and was or was to be the target of sexual harassment. It did not regard those matters as being prompted by any of the five Convention grounds, but indicative simply of some conduct which apparently occurs in military service in many countries. Subject to considering the issue raised by the applicant about the proper application of s 36(2) of the Act, in my judgment the Tribunal is not shown to have erred in its approach. It was open to the Tribunal to conclude, as it did, that it was not satisfied that the victimisation and sexual abuse was by reason of the political opinion or any imputed political opinion of the applicant or for any of the other Convention grounds. Counsel for the applicant did not point to any evidence which would indicate to the contrary. 44 I also do not consider that the Tribunal's conclusions that the penalty imposed upon the applicant for setting fire to a food store was not for a Convention reason is itself indicative of error. The Tribunal considered the possibility that his actions in that regard, apparently prompted by his treatment in the military, might be because he was seen as anti-regime or might lead to the imputation of an anti-regime political opinion. The Tribunal rejected such a suggestion, and additionally was not satisfied that the treatment for that conduct would be greater in any significant way by reason of any perception on the part of the authorities that the applicant was anti-regime. 45 Counsel for the applicant also attacked the Tribunal's conclusion that the applicant, even if he departed Iran illegally, is not likely to suffer harm serious enough to amount to persecution by reason of having done so. 46 In the written submission from the applicant's migration agent of 27 April 2001, reference was made to three Tribunal decisions upon which it was argued that the applicant, by reason of the circumstances in which he left Iran, might face persecution upon his return. The Tribunal's conclusion was based upon other country information than that referred to in those Tribunal decisions. In particular it cited at some length the DFAT, 1996 Iran Country Profile. That document did provide a basis for its conclusion. It is not, in the circumstances, erroneous for the Tribunal not to accept or not to refer to other independent country information which might not be entirely consistent with that which it accepted: cp Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. 47 Counsel for the applicant drew attention to the US Department of State Report on Human Rights Practices for 2000: Iran, and to the UK Home Office Iran Assessment, April 2000. The former was referred to in the written submission of the applicant's migration agent of 27 April 2001, and the letter quoted from by the Tribunal in its reasons and so clearly was available to it. 48 Each presents a picture of persistent human rights abuses in Iran. The sort of treatment of which the applicant complained whilst imprisoned is consistent with that reported in those documents, and with the DFAT Country Profile for Iran, March 1996. If the Tribunal had been satisfied that the applicant might be at risk of being perceived in Iran as an opponent of the regime, the material referred to would leave the Tribunal little room to conclude that he would not then have a well-founded fear of persecution for reason of his political opinion or for political opinion imputed to him. But the Tribunal, after consideration of the claims of the applicant about what had happened to him in Iran in the past, and what he had done there, did not consider that there is a real chance that he faces a risk of persecution if he returns to Iran by reason of his perceived or actual political opinion. In my view, its conclusion on that topic is one of fact, and one reached without reviewable error, for the reasons already given. Hence, I do not think the Tribunal's failure to refer to such material in its reasons for decision indicates any failure on its part to appreciate such material. Rather, in the circumstances, it was not necessary for the Tribunal expressly to refer to material which did not apply in the applicant's particular circumstances as the Tribunal found them to be. 49 In one respect, the attack upon the individual findings of the Tribunal sought to invoke s 476(1)(g) and s 476(4)(b) of the Act. The suggestion was that there was no evidence or other material to justify the Tribunal's decision because the Tribunal based its decision upon the existence of the particular fact that "there was no evidence that the authorities would [not] have imputed an anti-regime opinion to the applicant because of his avoidance of military service" but the particular fact did not exist. I put aside the question whether s 476(1)(g) and s 476(4)(b) can be enlivened where the fact which is said not to exist is a negative finding about the absence of evidence, rather than a positive finding of fact. In my judgment the particular "fact" identified is not one upon which the Tribunal's decision was based, in the sense described in Minister for Immigration & Multicultural Affairs v Rajamanikkam [2002] HCA 32. The particular submission must therefore fail.

(c) Was the correct question addressed by the Tribunal 50 Although the question is often posed as the "what if I am wrong" test, in my view it is more appropriately expressed in terms used by Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239-241. His Honour said at 239 [60]: " … that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a 'real substantial basis' for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring." At 240 [62] his Honour added: "When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a 'real substantial basis' for the applicant's claimed fear of persecution." 51 Hence, as his Honour exclaimed, the "what if I am wrong?" approach is more accurately a feature of the requirement discussed in Wu and in Guo as being an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. His Honour pointed out that the reasonable speculation in which a decision-maker such as the Tribunal must engage may require the decision-maker to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not, and it may amount to an error of law under s 476(1)(e) of the Act to fail to do so. See also the observations of French, Merkel and Giles JJ in Raza v Minister for Immigration & Multicultural Affairs [2002] FCA 350 at [18]. The applicant's contention here, ultimately, is that the Tribunal erred in law by failing to consider whether the applicant faces a real chance, or a non-trivial probability, of persecution for a Convention reason if returned to Iran. 52 In Abebe v Commonwealth (1999) 197 CLR 510, Gleeson CJ and McHugh J at 544-545 [83] said: "The Tribunal 'must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution'." 53 In this matter, the Tribunal's expression of its findings involves conclusions about whether past events occurred as the applicant claims and about whether future events which he fears might occur. The Tribunal does not appear to have specifically accepted or rejected the applicant's claims about having the subjective fear of persecution if he were to return to Iran. It has proceeded to determine whether those fears are well-founded, that is whether they have a sufficient objective foundation to meet the Convention test. 54 In respect of claims about what has happened in the past, the Tribunal: . has not accepted the father's political activities up to his death have in the past (that is, up to the Tribunal's hearing) resulted in the applicant having been perceived as anti-regime by the Iranian authorities; . accepted as "possible" the applicant was imprisoned for eight months in 1999 for assaulting an army officer; . found the punishment "would not be" for a Convention reason; . was "not satisfied" that the punishment, even if it was imposed in part for avoiding military service, was for any Convention reason, as there was "no evidence that the authorities would have imputed" an anti-regime stance to the applicant from his aversion to military service; . did not consider the punishment, even if partly for a Convention reason, was "excessive or unreasonable", by which I take the Tribunal to mean that any element of the punishment imposed for a Convention reason as distinct from that for assaulting an army officer or from that imposed for avoiding military service for non-political reasons was so little as not to amount to persecution; . did not accept the applicant played a part in organising the demonstrations, and so rejected as implausible his claim about his brother being arrested, and the applicant in turn surrendering to the authorities and being further imprisoned and tortured; . did not accept the applicant, if he attended the demonstrations and knew one of the organisers, "would be" imputed with a pro-Mujahedeen opinion because that group's support is low; . was not satisfied, even if the applicant was belatedly required to undertake compulsory military service, he was targeted for sexual abuse for a Convention reason; . considered the applicant would not have been punished for a Convention reason, even if the applicant did set fire to a military store, even though it considered and rejected the possibility that setting fire to a military store might be seen as anti-regime; . considered the applicant would not have been persecuted, even if setting fire to the military store was seen as anti-regime, because the punishment imposed was not excessive because of that perception having regard to the punishment under general law for arson; . does not have a real chance of persecution for having left Iran illegally, even if he left Iran illegally, although it considered he left Iran legally. 55 Setting out the Tribunal's conclusions in that way exposes the fact that it has considered whether past events occurred as the applicant claimed, and has made allowance for the possibility that those past events may have occurred even though the Tribunal thinks they probably did not. It has made such an allowance specifically in relation to the applicant's claims of having assaulted an army officer and been punished for having done so, to his claims to have participated in the demonstrations, and to his claims to have been taken belatedly for military service. It appears to have assumed in his favour that he was mistreated whilst undertaking military service and that he did set fire to a military store. It has considered the possibility, contrary to its finding, that the applicant left Iran illegally. It has addressed the probable motivations of the authorities in relation to those past possible events. 56 There are other parts of the applicant's claims which the Tribunal has not accepted at all: that he played a part in organising the demonstrations, that he was identified as an organiser and was - through his brother - forced to surrender to the authorities, and that he was suspected of being a member of an anti-regime group and was tortured to extract the names of members of the group. Given its allowance for the possibility that it may have been wrong in respect of certain of its findings, in my view the claims it has not accepted must be seen as findings where the Tribunal had no real doubt. Once it reached that conclusion, it was not required to consider in relation to those findings whether they might have been wrong: see Guo at 576. 57 In my judgment, the Tribunal's approach also does not indicate overall that it imposed an onus of proof upon the applicant. In a few passages in its reasons there is the hint that it may have done so. I have remarked upon them in considering the attacks upon the Tribunal's individual findings. For example, to conclude that the applicant's participation in the demonstrations would not have led to him being imputed with an anti-regime opinion because he was not in fact an organiser is not logical, in the sense that the conclusion necessarily follows from the premise. Suspicion of being an organiser could be attracted without actually being the organiser. Another example is the Tribunal's view that, because there was no evidence that the authorities would have imputed an anti-regime opinion to the applicant because he had avoided military service, they would not have done so. Again, one proposition does not follow from the other and the starting point, the absence of positive evidence, might in the circumstances be seen as requiring the applicant to prove or adduce evidence to prove the attitude of the authorities where the attitude might be inferred. Such matters must however be seen in context. Overall, in my view, the Tribunal is not shown to have imposed improperly any onus of proof upon the applicant. Its reasons, viewed in their entirety, indicate that it considered the applicant's claims about what had happened to him in the past, and the reasons of the authorities for those events which it accepted had, or might have, happened. In the light of its findings, it considered whether the applicant has a well-founded fear of persecution for a Convention reason if he were to return to Iran. Its rehearsal of the decisions about the meaning of the expression "well-founded fear of being persecuted" did not attract any criticism from counsel for the applicant, and are in conventional terms. Its ultimate conclusion is in terms which address the Convention definition of "refugee". 58 I am not therefore persuaded that the Tribunal has failed properly to address the question whether the applicant has a well-founded fear of persecution for a Convention reason, despite the thorough and careful submissions of counsel. 59 Finally, the applicant complained that the Tribunal failed to consider collectively, that is by reference to all his claims about what he had experienced in the past, or at least those which the Tribunal accepted as having occurred or as having possibly occurred, whether the applicant has a well-founded fear of persecution for a Convention reason. It is of course necessary for the Tribunal to consider each of the (accepted) claims in the context of the applicant's overall circumstances. To do otherwise might mean the Tribunal has failed to address the question posited by Art 1A(2) of the Convention. However, my consideration of the Tribunal's reasons does not indicate that it fell into any such error. It has borne in mind, for example, the possibility that the applicant's family history might be a factor in his treatment either in the past or prospectively. It has considered the possibility that the combination of his past experiences might lead to an anti-regime perception about him even though each past experience, if isolated and taken only individually, might not do so. Consequently, in my judgment, the Tribunal has not failed to consider collectively the applicant's claims and his past experience in its decision that it was not satisfied that he has a well-founded fear of being persecuted for a Convention reason.

conclusion 60 As I have concluded that the Tribunal did not commit reviewable error under s 476(1) of the Act, in the making of its decision, the application must be dismissed. 61 I so order. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 18 December 2002 Counsel for the Applicant: Ms M Kelly with Ms H Mack

Dates of Hearing: 20 March 2002, 3 April 2002

Migration Legislation Amendment (Judicial Review) Act 2001(Cth)

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