SDAE v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2003-05-28|Before: Mansfield J, Jacobson JJ

THE COURT 1 This is an appeal from a judgment of Mansfield J (SDAE v Minister for Immigration and Multicultural Affairs [2002] FCA 1583) dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"). By that decision, the Tribunal affirmed a refusal by a delegate of the then Minister for Immigration and Multicultural Affairs ("the Minister") to grant the appellant a protection visa.

Background 2 On 31 December 2000, the appellant, a citizen of Iran, arrived in Australia. On 13 February 2001, he lodged with the then Department of Immigration and Multicultural Affairs ("the Department") an application for a Protection (Class XA) visa under the Migration Act 1958 (Cth) ("the Act"). On 16 March 2001, a delegate of the Minister refused that application. On 15 May 2001, the Tribunal affirmed the decision of the delegate. 3 As the application for review was instituted prior to the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), the provisions of the Act which were in force prior to that amendment are applicable to this matter. It follows that the grounds of review previously available under s 476(1) of the Act are those which are relevant to this appeal. The only ground upon which the appellant sought to rely was that contained in s 476(1)(e), namely that the decision involved an error of law of the type therein described.

The appellant's claims before the Tribunal 4 The appellant claimed before the Tribunal that he had a well-founded fear of persecution. He based that claim upon a series of alleged incidents. He expounded upon those incidents at a hearing on 30 April 2001. 5 The appellant claimed that his father had been employed by Savak, the notorious intelligence organisation which operated under the regime of the Shah. He claimed that his father was arrested after the Shah was overthrown, and that he was subsequently tried and executed. He further claimed that his mother suffered emotional difficulties as a consequence, and that he himself had been unable to study. 6 The appellant clearly faced difficulties in relying upon events that had occurred more than 20 years ago as the basis for his claim for refugee status. He relied primarily, in support of that claim, upon a series of events which occurred in 1999 and 2000, shortly before he left Iran. 7 The appellant claimed that his troubles began when he exhibited a reluctance to undertake compulsory military service, in April 1999. He described an incident which occurred about that time when he became involved in a fight in a cinema queue. In the course of that fight, he was pushed and fell to the ground. There was a scuffle and, unfortunately for the appellant, he punched an army officer. He was charged with assault, and evading military service. He claimed that, as a consequence, he was imprisoned for eight months. 8 The appellant claimed that after he was released from prison, in January 2000, he moved to a small town nearby. He claimed that he participated in a demonstration organised by a man who was, in turn, instructed by a group opposed to the government, the Mujahadeen. During that demonstration, anti-government slogans were painted on public buildings. Other government property was also damaged. The appellant claimed that both he, and his brother, were identified as having taken part in the demonstration, and that his brother was arrested. The appellant claimed that he gave himself up to the authorities, and was imprisoned for five months. He claimed that he was tortured in an effort by the authorities to extract information regarding others who were suspected of involvement in anti-government activities. He claimed that he was released, only after payment of a large fine. His release, however, was conditional. He was threatened with further imprisonment, and a much greater fine, if he engaged in any further anti-government activity. 9 The appellant claimed that some months later, in about August or September 2000, he was required to undergo military service. He said that he trained for about one and a half months, during which time he was continually subjected to unfair punishment and mistreatment. He claimed that he learned that two men in the service, with whom he was acquainted, had been sexually harassed. In addition, he discovered that he was a "target" for future "sexual abuse". He responded to that threat by setting fire to a food store belonging to the Revolutionary Guards. He also deserted from the army. He then stayed with an aunt and ultimately left the country on a false passport.

The Tribunal's reasons for decision 10 The Tribunal accepted that the appellant's father had been executed in 1980, as a result of his work on behalf of the Shah. It noted, however, that the appellant did not claim to have experienced any further difficulties until 1999, and that he did not leave Iran until 2000. Given the period of 20 years which elapsed between the death of his father and his departure from Iran, the Tribunal rejected so much of his claim as depended upon imputed political opinion arising out of his father's background, and ultimate death. 11 The Tribunal then turned to the appellant's claims arising out of more recent events. It accepted, as possible, his claim that he had been sentenced to a term of eight months' imprisonment after being convicted of assaulting an army officer, albeit in a state of anger after being pushed by that officer. It noted, however, that: "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". 12 The Tribunal then dealt with a separate aspect of that claim. The appellant said that one of the reasons he was imprisoned was because he was evading military service. The Tribunal concluded that even assuming that the appellant had done so, that conduct did not seem to have been "the triggering event in this sentence". In addition, punishment for evading military service was not necessarily Convention related. The Tribunal said: "… 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." 13 The Tribunal then dealt with the claim that, after his release from prison, the appellant attended a demonstration in a neighbouring town, in the course of which government property was damaged. The Tribunal expressed doubts about that claim, noting that the appellant appeared to have visited that town only in order to visit relatives. It concluded: "Even if he attended a demonstration there he was not detained at the time. Further as the applicant was not from [the town] the Tribunal does not accept that he played any significant part in organising these demonstrations. … 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." 14 The Tribunal did not accept that the appellant was a member of an "unnamed group", as he claimed, or that the reason for his detention was, in part, to torture him to reveal the names of other members. The Tribunal said: "The applicant went to [the town] 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 [the town] to see relatives and attending a demonstration would be imputed with such an opinion." 15 The Tribunal said it had "some doubts" regarding the appellant's claim that he was then required to undergo military service. It said: "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 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. 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. 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." 16 The Tribunal also expressed doubts regarding the claim that the appellant left Iran illegally. However, even on the assumption that he left illegally, the country information available indicated that he would not suffer harm serious enough to amount to persecution, by reason of having done so. The Tribunal concluded: "Having considered all of the applicant's claims the Tribunal finds that the applicant does not have a well founded fear of persecution for a Convention reason. … Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa."

The primary judge's reasons 17 Before the primary judge, the appellant submitted that the Tribunal had fallen into reviewable error by failing to consider his claims cumulatively, that it had failed to inquire adequately into those claims, and that it had failed to consider the possibility that those claims which it rejected might be possibly true. 18 The primary judge rejected each of these contentions. His Honour concluded that the Tribunal had considered all of the appellant's claims, and the evidence as a whole, just as it said it had done. The contention that the Tribunal had failed adequately to inquire into the appellant's claims was regarded as a mere assertion, devoid of particularity, and one which would not, in any event, amount to an error of law within s 476(1)(e). 19 The appellant also sought to rely upon an affidavit affirmed shortly before the hearing of the application for review. In that affidavit he claimed, apparently for the first time, that while in prison, and while undertaking military service, he had been sexually abused, and not merely "targeted" for such abuse, as he had told the Tribunal. He provided an explanation, based upon a natural reticence to reveal such matters, as to why he had previously withheld that information. 20 The other matter addressed by that affidavit was the effect that his father's execution had upon his family. The consequences were said to have been more profound, and far reaching, than the appellant had previously suggested. 21 The primary judge rejected the attempt by the appellant to rely upon the new material. He concluded that the affidavit went far beyond merely "refining" the claim previously made before the Tribunal, and sought impermissibly to introduce new material on review. His Honour concluded that the Tribunal had correctly characterised the appellant's claim, as formulated on his behalf, and that it had dealt with that claim appropriately. The Tribunal could not be criticised for failing to address a claim which had not been developed before it in the way the appellant now sought to do. His Honour accordingly dismissed the application for review.

The appeal to this Court 22 In his original notice of appeal, the appellant sought to rely upon essentially the same grounds as were raised before the primary judge. However, by notice filed on 21 May 2003, he sought leave to substitute amended grounds of appeal. There were three such grounds, but at the hearing of the appeal the appellant sought to rely upon two grounds only, namely: "(2) That the Learned Judge erred in law in finding that the Tribunal had considered, as it was required to do so, a significant integer of the Appellants claim, namely the cumulative effect of the claims on whether the Appellants fear was well founded contrary to the then s 476(1)(e) of the Migration Act. (3) That the Learned Judge erred in finding that the failure of the Tribunal to address the issue of the imputed political belief was not of itself a sufficient failure to amount to a failure to exercise the Tribunal's jurisdiction contrary to the then s 476(1)(e) of the Migration Act." 23 It was submitted, on behalf of the appellant, that the primary judge erred by concluding that the Tribunal had not made reviewable errors, under the general law, of the type identified in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351. It was further submitted that the Tribunal failed to consider, as it was required to do, a number of significant "integers" of his claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244. Finally, it was submitted that the Tribunal failed to consider his claims cumulatively. 24 It was conceded that these submissions were all based upon a single passage in the primary judge's reasons for judgment. That passage related to the Tribunal's non-acceptance of the appellant's claim that, by reason of his involvement in the demonstration in the neighbouring town, he would have imputed to him a political opinion, namely, "support for the Mojahedin" [sic]. The passage reads: "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. … 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." 25 It was submitted, on behalf of the appellant, that the primary judge erred in concluding that the deficiency in the Tribunal's reasoning process to which he referred did not amount to reviewable error. That submission was based upon the premise that his Honour's finding amounted to a conclusion that the Tribunal failed to deal with one of the appellant's claims, and thereby erred in law in a manner that gave rise to review under s 476(1)(e). 26 His Honour's error was said to be compounded by his failure to recognise that this meant that the Tribunal had committed a second error of law. That second error was said to be his failure to deal with the appellant's claims against the background of a finding that he may face persecution by reason of imputed political opinion. The imputation would arise because there would be a perception that, by reason of his involvement in the demonstration, he was a supporter of the Mujahadeen. 27 In addition, there was said to be a third error of law. It was submitted that the primary judge ought to have concluded that the Tribunal did not deal with the appellant's claims cumulatively. The reason it did not do so was because it failed to appreciate the importance of the risk that there would be imputed to the appellant an allegiance to the Mujahadeen. If that risk was real, it would have an impact upon each of the other "integers" of the appellant's claim. It would follow that some aspects of that claim, not of themselves sufficient to give rise to a well-founded fear of persecution, would be viewed in a different, and significantly more cogent, light. 28 In response to these submissions, the respondent contended that the primary judge identified a deficiency in the Tribunal's reasoning process, but correctly concluded that it did not give rise to any reviewable error. It was submitted that there was no reviewable error for two separate reasons. 29 The first was that his Honour had taken an unduly generous view of the width of the appellant's claim before the Tribunal when he described that claim as one of "imputed political opinion relating to perceived links with the Mujahedeen". In truth, the appellant had barely mentioned the Mujahadeen, and made no claim based upon any imputed political opinion arising out of his involvement in the demonstration. Rather, the claim based upon imputed political opinion centred on the role played by his father during the regime of the Shah, and to a lesser degree upon his claim to have had a significant role in organising the demonstration (a claim which the Tribunal rejected). 30 The second reason for submitting that the primary judge did not fall into error in rejecting the claim that there was reviewable error upon the part of the Tribunal was more fundamental. It was submitted that his Honour essentially concluded that the particular passage in the Tribunal's reasons which he criticised contained illogical, or untenable, reasoning, but this did not give rise to reviewable error. In particular, it did not amount to an error of law within s 476(1)(e): Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

Conclusions 31 In our view, there is no substance in the appellant's submission that the Tribunal fell into reviewable error by failing to consider each of the "integers" of his claim. The Tribunal's reasons were lengthy, and detailed. They covered every aspect of the appellant's submissions, and indeed, went considerably further than was strictly necessary. 32 The Tribunal did not fail to consider the appellant's claim that he would be "imputed with an opinion of support for the Mojahedin" [sic]. It rejected that claim, in terms, though its reason for doing so was considered by the primary judge to be deficient. That deficiency, in relation to an aspect of the fact finding process, did not give rise to an error of law of the kind that would entitle the appellant to relief. It reflected, at most, a process of reasoning which may have been illogical, or otherwise unsatisfactory, but not one which vitiated the decision-making process as a whole. 33 The same is true of the submission that the Tribunal failed to consider the appellant's claims cumulatively. The Tribunal stated, in terms, that it had considered "all of the applicant's claims", and that it had "considered the evidence as a whole". The primary judge saw no reason to doubt that this was so. In our view, his Honour was plainly correct in arriving at that finding. 34 We can discern no error of any kind in the reasons for judgment of the primary judge. We would therefore dismiss the appeal, with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

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

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