SDAH v Minister for Immigration & Multicultural & Indigenous Affairs

11 The specific claims made by the appellant's wife that her daughter was forced to convert to Islam, that she was grabbed by a man in the street and sexually abused and so on were also rejected by the Tribunal on credibility grounds. 12 In the result the Tribunal determined: "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 applicants do not satisfy the criterion set out in s. 36(2) of the Act for a protection visa." 13 The appellant sought judicial review of the decision of the Tribunal in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth). The application for judicial review was heard by von Doussa J. His Honour delivered judgment on 19 August 2002. 14 On the face of it, the decision of the Tribunal in this matter appears to be a "privative clause decision" for the purposes of s 474 of the Act. Section 474 of the Act provides: "474 Decisions under Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: 'privative clause decision' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument." 15 Von Doussa J noted the limitations upon the jurisdiction of this Court to afford judicial review by reason of s 474 of the Act. However, his Honour did not have the benefit of the High Court decisions in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 ("S134") and Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 ("S157") where the High Court "read down" the otherwise broad terms of s 474. Instead his Honour proceeded on the basis that s 474 had a more significant effect upon the jurisdiction of this Court than is now realised: "It is common ground between the parties that s 474(1) is to be construed and applied according to the principles stated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. The section is to be understood as not having a validating effect upon a decision that might otherwise reflect error unless the impugned decision is 'a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body' (per Dixon J at 615)." 16 Consequently the issue considered by von Doussa J was whether the Tribunal had made a "bona fide attempt to exercise the power." The appellant's argument that it had not was based entirely upon the credibility findings that the Tribunal had made. After careful consideration of the reasoning of the Tribunal, his Honour concluded: "I am not persuaded that the decision of the Tribunal was not a bona fide attempt to exercise power. In my opinion the challenge to the decision is not made out, and the application must be dismissed with costs." 17 In light of the High Court decisions in S134 and S157,the jurisdiction of this Court in judicial review proceedings is broader than that which had been agreed by the parties before von Doussa J and that which was applied by him. It is clear from the High Court decisions that the Court's jurisdiction is limited to "jurisdictional errors" (S157 at [76]), but this is still a significantly broader jurisdiction than that described by von Doussa J in his reasons. In determining whether or not a particular error is a "jurisdictional error" or not, it is necessary to have regard to the whole of the Act, including s 474. (See S157 at [77]-[78]). 18 It follows that his Honour was in error in applying the test that he did even if that error has only been revealed since the High Court delivered its reasons in S134 and S157. The question still remains whether any issue has been raised before us which either identifies a jurisdictional error or suggests that the matter should be remitted for further consideration in light of the High Court decisions. 19 The only ground of appeal argued before us was that the Tribunal did not deal with the claim by the appellant that he had been abused and assaulted by a mob which had been incited by Ayatollah Yazdi, a religious leader. In his evidence before the Tribunal the appellant did refer to an incident in 1999 where the Ayatollah had made comments about "spies". Apparently this was a reference to Israeli spies, but the appellant argued before us that it was misunderstood by the crowd to also include Mandeaens. The appellant claimed before us that as a result of that misunderstanding he had been attacked and stoned. 20 The appellant submitted before us that, by reason of this incident, he had a well-founded fear of persecution if he returned to Iran. The appellant submitted that by failing to deal with this specific allegation the Tribunal failed properly to deal with the question of whether there was a "well-founded fear of persecution" and that this failure constituted a jurisdictional error. 21 The problem with this submission is that it falls at the first step. In fact it is clear that the Tribunal took account of the claim made by the appellant. It is mentioned expressly in several places in the Tribunal's reasons. 22 What is also clear is that the claim made by the appellant was not that the mob had misunderstood the Ayatollah, but that the Ayatollah himself had accused the Sabians of being spies: "About two years ago Ayatollah Yazdi spoke at the Friday Mosque and he referred to Sabians as infidels and spies for Israel. He said we did not deserve to be recognised as a religion and that they should convert or die." 23 The Tribunal dealt with this as follows: "The Tribunal pointed out to the applicant that it has a copy of the text of the speech, and at no point does Ayatollah Yazdi suggest that Sabians should 'convert or die'. The Tribunal asked the applicant if he wished to comment on this observation? The applicant stated that the name of Sabians are mentioned and they are not recognised as a religion. He stated that the Tribunal would know more about the problems of the tape. The Tribunal asked the applicant if he heard the speech himself? The applicant stated that he did not. The Tribunal asked the applicant upon what he was relying that the Ayatollah said these things? The applicant stated that he was called 'sobbi, sobbi' in the street, and he was assaulted in the street after his speech. The Tribunal noted that the applicant did not mention this assault in his statement - and asked why not. The applicant stated he was stoned. The applicant stated that he was distracted and his mind was frozen. He stated that he could not remember everything." 24 The Tribunal then set out in its reasons the text of the speech of Ayatollah Yazdi. The speech did refer to the Sabian religion, but only as one of the official religions of Iran. It is clear that the Tribunal has rejected as untrue the statement of the appellant as to the source of his fear. 25 This is a matter of some substance. "Persecution" under the Act does not involve every assault or other act to which an individual might be subject. It clearly requires some official, usually governmental, involvement. That may include the systematic failure upon relevant grounds of the government authorities to protect persons from the actions of other persons: see Chan at 430. But in this case the appellant gave no evidence of systematic government inaction. And in relation to the speech there was no need to do so because the claim was not of government inaction, but of "official" involvement by the Ayatollah himself. However, this claim was untrue. In addition, the Tribunal specifically found that the allegation of Government involvement was untrue: "There is no independent evidence before the Tribunal suggesting that the Iranian authorities have ever regarded Sabeans as spies." 26 The Tribunal returned to the issue: "The Tribunal notes the applicant's claims and evidence suggesting that the Mandaean community is under threat by the Iranian [Moslem] population and the authorities and that they are harassed when they have contact with the authorities. The Tribunal does not accept this claim as credible as it is contradicted by the independent evidence which suggests that there is: 'no evidence to suggest that the Iranian government actively harasses or routinely persecutes the Sobbis as a community' and that at present, the serious threat to threat to survival of the Mandaean theology is the difficulty recruiting new priests and because younger members are deserting their religion." 27 These comments by the Tribunal must be understood in the above context. When so understood it is clear that the Tribunal rejected the evidence put by the appellant that "the authorities" (including the Ayatollah) were involved in 1999 in the persecution of the appellant and the Mandaeans. 28 Although the argument put to this Court was not raised before von Doussa J, his Honour nevertheless did refer to the topic: "In the course of discussing part of the country information the Tribunal referred to a reported speech by Ayatollah Yazdi. The applicant said that he had been called 'Sobbi Sobbi' in the street and had been assaulted after the speech, and had also been stoned. He was asked why these assaults had not been earlier mentioned. He said that he was distracted and his mind was frozen and he could not remember everything. 29 It is clear from his Honour's reasons that he also was of the view that the Tribunal rejected the appellant's claim and evidence on credibility grounds. 30 If the appellant's claim before the Tribunal (and his evidence to the Tribunal) was that the mob had misunderstood the Ayatollah's speech and had then harassed him, such a claim would have been subject to the simple and obvious answer that the mistaken understanding of a mob in 1999 could hardly provide the basis for a well-founded fear of persecution when the Tribunal gave its decision in 2002. 31 The result of this analysis is that the Tribunal did consider the claim made by the appellant and rejected it. It was open to the Tribunal to do so. There was no jurisdictional error in this regard. 32 Although von Doussa J did proceed upon a mistaken view of the effect of s 474 of the Act, the appellant has not identified any jurisdictional error by the Tribunal. 33 It was for these reasons that we did at the close of the hearing on the 14March 2003 dismiss the appeal with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Weinberg and Selway JJ.

Counsel for the Applicant: Dr S C Churches (Pro Bono)

Solicitor for the Applicant: Refugee Advocacy Service of SA Inc