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

SGLB v Minister for Immigration [2002] FMCA 309 (20 December 2002)

MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether the RRT erred in the assessment of the applicant's refugee claims -whether the RRT proceedings were unfair - no reviewable error found.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

1. The applicant is an Iranian national of Arab ethnicity. He arrived in Australia by boat without a visa and applied to the Department of Immigration & Multicultural & Indigenous Affairs for a protection visa on 27 September 2000. He has been held in detention for in excess of two years. A delegate of the Minister refused the visa and the Refugee Review Tribunal ("the RRT") affirmed the delegate's decision on 26 April 2001. The applicant sought review of the RRT's decision by the Federal Court and on 2 April 2002 the decision was remitted to the RRT, by consent, for reconsideration.

2. On 13 August 2002 the RRT, differently constituted, affirmed the decision not to grant the applicant a protection visa. The applicant sought review of that decision from the Federal Court and his application has been transferred to this Court by order of Mansfield J on 13 September 2002.

3. The applicant was represented at trial by Mr Mark Cox of counsel who appeared pro bono pursuant to a referral granted under the Federal Court Rules. It is appropriate that I place on record the Court's appreciation for the willingness of Mr Cox to appear on this basis in the interests of the fair and efficient administration of justice.

4. Mr Cox sought an adjournment of the hearing on 2 December 2002 on the basis that I should await a decision from the High Court on the validity of the privative clause in s.474 of the Migration Act 1958 (Cth) ("the Migration Act"). I refused that application, on the basis that I could hear argument on whether any error of law had been committed by the RRT which would vitiate the decision under the general law and, secondly, whether the privative clause would alter that position.

I am bound by the decision of the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228 concerning the validity of s.474 and I considered that it was unnecessary and inappropriate to await the outcome of proceedings on the validity of the privative clause in the High Court. Accordingly, the matter proceeded before me on 2 December 2002 on the two bases of argument outlined above.

5. I accept as accurate the statement of background information contained in paragraphs 2 to 14 of the respondent's outline of submissions filed on 27 November 2002 and I adopt that statement as follows:

On arrival in Australia in June 2000 the applicant stated he had travelled on a genuine Iranian passport but that the smuggler who assisted him had taken it away from him. In summary, the applicant also said that he left Iran because life there was monotonous, he had been unable to get married, although he had tried he could not get a job as he was not in a favoured category such as from a martyr's family or a basiji, there was a drug problem among young people and that he had come to Australia to find a job, get married and secure his future. He said he had never had any problems with the authorities in Iran.

In October 2000 the applicant applied for a protection (class XA) visa with the assistance of NSW migration agents Al Jabiri & Associates.

In that written application the applicant stated that he had not divulged the true circumstances concerning his reasons for coming to Australia "...due to the fact that I was seized with fear over the information being divulged and taken as evidence to expose my family in Iran to destruction at the hands of the Iranian security organs." The written application then went on to claim that his family and the members of his clan in Iran had been subject to "...disdain and contempt and all forms of discrimination" for various reasons.

The application claimed he had purchased a false passport for his travel, and that if he was returned to Iran he would be arrested tortured and perhaps killed.

The application was considered by a delegate of the Minister. On 8 December 2000 that delegate concluded that she was not satisfied that the applicant in fact had a well founded fear of persecution for a Convention reason in Iran, and that accordingly he did not meet the prescribed criterion for the grant of a temporary protection visa. In short, the delegate did not believe the applicant's claims of adverse treatment and did not believe he would be subject to adverse treatment upon his return to Iran.

On 15 December 2000 the applicant applied to the RRT for a review of this decision.

On 26 April 2001 the RRT affirmed the decision not to grant a protection visa, essentially as the Tribunal did not accept the applicant as a credible witness and did not accept the history he had recounted. Accordingly the Tribunal did not accept that the applicant had a well founded fear of persecution for any of the Convention reasons.

The applicant appealed to the Federal Court and the matter was remitted by consent to be reheard. This remittal was prompted in part by the applicant expressing concerns that the interpreter at the first Tribunal hearing was Iranian, and by that interpreter expressing the view that he thought it would have been more appropriate that an Arabic (rather than Farsi) interpreter was used. The applicant had in fact requested a Farsi interpreter.

For the second RRT hearing the applicant again requested a Farsi interpreter.

The applicant secured the services of a further migration agent, Australian Migration Program and Investments Pty Ltd, who forwarded a submission and materials to the second RRT.

The second RRT went to considerable care to ensure that the interpreter used by the applicant was suitable for and acceptable to him. The second RRT also made allowances for the applicant's claimed dissatisfaction with the earlier interpreter.

The second RRT considered the materials in detail, and concluded that it was not satisfied on the evidence provided by the applicant that in particular the key events proffered by him being events surrounding his departure from school in 1988, the closing of his family's business in 1997, and his claimed 1998 and 1999 instances of detention if they occurred gave rise to a well founded fear of convention related persecution when he left Iran. The Tribunal found as a fact that the applicant did not have such a fear when he left Iran. The Tribunal concluded that the applicant was not at risk of being persecuted for a Convention reason when he left Iran, and that he did not presently have a well-founded fear of Convention-related persecution. As a result the Tribunal concluded that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, and accordingly that he did not satisfy the criteria set out in s.36(2) of the Act.

On 4 September 2002 the applicant applied to the Federal Court for an order of review of this decision. The applicant claimed entitlement to a protection visa because he claimed to be "...at significant risk of persecution, within the meaning of the Refugee Convention, should he be returned to Iran." The grounds of the application are:

(i) the Tribunal failed to comply with the requirements of the Hickman principles in assessing the application and in its reasons for decision and the decision itself;

(ii) the Tribunal erred in the application and/or interpretation of the relevant law and the Migration Act.

6. Mr Cox submits that the RRT committed errors of jurisdiction of a kind dealt with by the High Court in Minister for Immigration v Yusuf [2001] HCA 30; 206 CLR 323. In that case the High Court, following Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 held that it is a jurisdictional error if the tribunal commits an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and if the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it, under the general law.

7. In an amended application filed on 29 November 2002 the applicant asserts that the RRT in this case misapplied or misinterpreted the law relating to the determination of refugee status, as embodied in the Migration Act. The applicant asserts that, having made the findings of fact in its reasons for decision that:

(a) the applicant was the descendant (grandson) of the leader of a large Arab tribe in Khuzestan;

(b) it was not implausible that the applicant's grandfather and other Iraqi Arabs in Iran attracted persecution and the grandfather was executed in 1983;

(c) the grandfather's two sons, including the applicant's father, were detained and severely ill-treated in the period of the Iran Iraq war;

(d) the applicant was from a family from an area that was originally in Iraq, but was seized and confiscated by Iran during the Iran-Iraq war and his family moved to Ahwaz at that time;

(e) the applicant was highly likely to be suffering Post Traumatic Stress Disorder - and therefore his ability to give evidence clearly was certainly influenced (and yet the Tribunal made adverse credit findings because of the inconsistencies or incompleteness in his evidence);

(f) the applicant worked with his brother in a family ironmonger business which was closed by authorities and for which no alternative premises were provided because the applicant's family were not relatives of the "martyrs" or otherwise associated with the revolutionary struggle. Thus his family was not given the same consideration (and yet the Tribunal found this was not discrimination due to any imputed political belief);

(g) the applicant was detained during a violent protest against the authorities about a flood in 1998 (but the Tribunal found this was not due to his being imputed with a political opinion giving rise to a fear of persecution);

(h) the applicant was living in an area where an explosion occurred at the Iranian Information Ministry in Ahwaz in 1999 and in relation to which the applicant was likely to have been questioned by authorities (although it did not accept that the applicant was detained in relation to it);

the RRT should have found that the applicant possessed the requisite degree and type of fear on refugee Convention grounds.

8. In particular, Mr Cox submits that the RRT fell into error in that:

a) the RRT took into account a letter from the applicant's sister (court book, page 168) but there was no effort made by the RRT to follow up the allegations made in that letter and there was no proper consideration of the matters raised by the RRT (court book, page 183);

b) the RRT attributed to the applicant a statement that he stayed with his family for six months prior to leaving for Australia, which conflicted with a later statement that he had gone into hiding in a rural error (court book, pages 181-182) and it is asserted that the applicant had consistently claimed that he had gone into hiding, not stayed with he family;

c) to the extent that the applicant had made inconsistent statements, he explained these due to his fear of the Iranian authorities and his concern to protect his family, as well as his concern that he should not appear to the Australian authorities as a trouble maker.

9. The other ground of review advanced by Mr Cox under the general law is that the RRT fell into jurisdictional error by failing to accord the applicant procedural fairness in the conduct of proceedings before the RRT. Mr Cox submits that as the RRT had accepted that the applicant suffered from Post Traumatic Stress Disorder ("PTSD") (court book, page 177) the RRT should not have proceeded to take evidence from him and make adverse findings against him. Mr Cox submits that the RRT proceedings should not have continued until the applicant had undergone further medical assessment of his fitness to attend and answer questions.

10. Mr Cox further submits that the privative clause in s.474 of the Migration Act does not protect the decision of the RRT for several reasons. First, he submits that the RRT breached several inviolable limitations upon the exercise of power by it. In the course of argument, Mr Cox adopted propositions put by me that it was arguable that s.65 of the Migration Act had been breached on the basis of legal errors made by the RRT in arriving at the state of satisfaction necessary to grant or refuse a visa. Mr Cox also adopted my proposition that it was arguable that s.420(2)(b) had been breached when the RRT declined to refer the applicant for further medical assessment. I did not understand Mr Cox to be maintaining his original written submission that the Refugee Convention was itself a final limitation upon the powers, duties and functions of the RRT, otherwise than is required by the Migration Act, in particular s.65. Mr Cox further submits, consistently with the amended application, that the decision of the RRT was not a bona fide attempt to exercise its power because, having acknowledged that the applicant was suffering PTSD and that that condition affected his ability to give evidence, the RRT nevertheless proceeded to take evidence and make adverse findings and decisions based upon that evidence.

11. Finally, Mr Cox submits that the RRT's decision was not reasonably capable of reference to the power given to the RRT, having regard to the approach of the RRT to the PTSD issue.

12. Mr Stretton, for the respondent Minister, submits that the RRT dealt thoroughly and carefully with the applicant's claims. He submits that the RRT made conclusions on inconsistency in evidence presented by the applicant which were reasonably open to it on that evidence. He submits that there was inconsistency between the story told by the applicant shortly after he arrived in Australia and that presented by the applicant later. He submits that independent country evidence renders more plausible the applicant's initial account and that the subsequent allegations made by the applicant were less plausible. He submits that the RRT dealt properly with the purported letter from the applicant's sister in that the applicant was entitled to weigh and assess the document and did so. He further submits that the RRT did not fail to take into account any relevant considerations and notes, in particular, that the RRT took into account the assertion by the applicant that his family's truck had been confiscated (court book, page 155). He submits that this is a classic case of an applicant disputing factual conclusions reached by the RRT and that such a challenge is not open to the applicant.

13. Mr Stretton submits that the RRT did all that reasonably could be expected of it in assessing the medical condition of the applicant and that there was no need for any further medical examination of him, once the RRT had accepted that the applicant suffers from PTSD and took that into account. Mr Stretton submits that the applicant was not incompetent, by reason of PTSD and that he was able to pursue his claim (and give instructions to his lawyers) as would a person pursuing a claim arising out of PTSD under the general law.

14. Mr Stretton further submits that, in any event, the decision of the RRT is protected by the privative clause because the decision was a bona fide attempt by the RRT to exercise its power, the decision relates to the subject matter of the legislation and the decision is reasonably capable of reference to the power given to the RRT. He submits that no inviolable pre-condition to the exercise of power by the RRT has been breached.

15. In reply, Mr Cox points to the consistency of the assertions made by the applicant about him going into hiding for six months prior to leaving for Australia (court book, pages 28 paragraph 3, 93 paragraph 2, 96 and 143 paragraph 24). He also observes that there was no consideration by the RRT of the allegation that the applicant's family's truck had been confiscated, only a passing reference to the allegation.

16. In my view, the decision and reasons by the RRT (court book, commencing at page 150) is a careful and thorough consideration of the claims advanced by the applicant. The RRT took into account problems in interpretation experienced in the first hearing before the RRT and sought to avoid any repeat of those problems. Mr Cox, from the bar table, told me that there were still problems in the second RRT hearing which he attended, probably due to the applicant's PTSD rather than difficulties with interpretation, and that these impacted upon the fairness of the second RRT proceedings. However, I have no transcript of the hearing before the RRT on either occasion and what Mr Cox told me is not evidence.

17. In my view, the conclusions reached by the RRT about the purported letter from the applicant's sister were reasonably open to it. The presiding member said this (court book, page 183):

[The applicant] has claimed that his father was detained after he left Iran, and that his mother was detained and ill-treated. He has submitted in evidence a letter purporting to be from his sister, confirming this. I do not consider the assertions about these detentions credible. If the authorities had any sustained adverse interest in [the applicant], they could have questioned him or detained him during his final six months in Iran when, as I have found, he was living at the family home and was not in hiding. I am not satisfied that either parent has been detained for the reasons implied by [the applicant].

18. It is apparent that the conclusion reached by the presiding member about the lack of credibility of the assertions contained in the letter was largely dependent upon the conclusions reached by the presiding member about the conflicting stories advanced by the applicant concerning what he did in the final six months before leaving Iran. Initially, the applicant had stated that he spent that time at his parents' home. Later, he said that he went into hiding in a rural area. The presiding member drew attention to this inconsistency (court book, page 181-182) in the following terms:

At the Tribunal hearing [the applicant] gave clear oral evidence that he was living at ...Ahwaz until the day he travelled to Tehran to leave the country. He stated that he spent one night in the park opposite the airport in Tehran, but apart from that had been living at the family home, which his family had bought some eight months earlier. That is consistent with what he said during the entry interview, in which he gave his most recent address...

However, when he was invited in writing after the hearing to explain why the authorities might wish to detain him again, given that he had been released from detention and had been living in Ahwaz for a further six months or so before leaving Iran, he claimed that he had been hiding in the village of al Zowair, in the countryside, with a friend, throughout the entire period - from immediately after his release from detention until his departure via Tehran...That is broadly consistent with what he said at the first Tribunal hearing. These two assertions as to his whereabouts in the months leading to his departure from Iran are entirely irreconcilable and he has not provided any explanation as to why they differ. I consider untrue his claim to have been in hiding throughout his last six months in Iran. I am satisfied that he was living at his family home throughout that period. It follows, and I am satisfied, that he was not detained by the authorities because they did not wish to detain him. It also follows, as he willingly remained at his family home where he could be readily located by the authorities, that he did not fear arrest.

19. I do not accept Mr Cox's submission that the applicant has consistently claimed that he went into hiding for six months before he left Iran. At his second hearing before the RRT he gave oral evidence that he had been living at the family home. That is broadly consistent with what he said at his arrivals interview. However, in his written submissions and at the first RRT hearing he said that he had been in hiding. This cannot be explained on the basis of misinterpretation at the second RRT hearing. I do not understand any such allegation to be made. It is submitted that the applicant was confused at the second RRT hearing because of his PTSD. The presiding member does observe, on page 16 of the reasons for decision (court book, page 165) that the oral hearing was terminated early "as it was apparent that he was not in a condition to answer any further questions". The presiding member agreed to send final questions to the adviser of the applicant and to obtain written responses.

20. It is possible that the applicant was confused in his answers given orally to the presiding member on this important issue. The presiding member accepted (court book, page 177) that the applicant is suffering from PTSD and that his ability to give evidence clearly has almost certainly been influenced by this. Nevertheless, the presiding member states that the applicant gave "clear oral evidence" concerning this matter. He appeared to be in no doubt. It was the RRT's job to assess the credibility of the various accounts given by the applicant and to adopt the preferable account. The RRT did so and its conclusions were reasonably open to it on the material before it. I find no error of law in the approach taken by the RRT on this issue.

21. I place no significance on the failure of the RRT to consider specifically the confiscation of the truck belonging to the applicant's family. The confiscation of the truck was related, on the applicant's evidence, to the confiscation of land. The confiscation of land was obviously more serious. The RRT accepted that the land had been confiscated (court book, page 177) and it logically follows that the RRT also accepted the confiscation of the truck. There was no need to mention it specifically.

22. It is apparent from the findings and reasons of the RRT that the RRT accepted that the applicant's family were subjected to at least discrimination and probably persecution during the 1980s when Iran was at war with Iraq. The applicant's family are Arab Iranians whose loyalty at the time was subject to official doubt. However, the RRT did not accept that the applicant was subject to persecution for any Convention based reason at school and also did not accept that his family's business was forcibly closed in circumstances establishing persecution for a Convention based reason. The RRT did not accept that the applicant was detained for any Convention based reason in 1998 and rejected totally his assertion that he had been detained in 1999. The RRT concluded that whatever may have happened during the 1980s with the applicant's family, the applicant was of no continuing interest to the Iranian authorities and hence that he did not have a well founded fear of persecution should he return to Iran. The RRT took into account country information which failed to establish continuing persecution of Iranian Arabs in general or the tribe to which the applicant belongs in particular. In my view, these conclusions were reasonably open to the RRT on the material before it and no error of jurisdiction of a kind identified in Craig and Yusuf has been established.

23. I also find that the proceedings before the RRT were procedurally fair. The RRT went to considerable lengths to establish that it had provided an interpreter suitable to the applicant, having regard to difficulties experienced with interpretation at the first RRT hearing. Although the proceedings were returned to the RRT for rehearing, based upon an assessment during the Federal Court appeal that the applicant should have been given an Arabic rather than a Farsi interpreter, the applicant insisted upon a Farsi interpreter for the second RRT hearing. The RRT accepted that the applicant suffers from PTSD, on the basis of a psychologist's report obtained by the RRT. Having accepted the disability suffered by the applicant there was no need for the RRT to further prolong proceedings to obtain a further medical assessment. His legal advisers were apparently satisfied that they could obtain instructions from him and represent him. Persons suffering from PTSD commonly conduct legal proceedings without particular difficulty. The RRT took into account that the answers given by the applicant may be confused, consistent with his PTSD and adjourned proceedings early when it became apparent that the proceedings had become unproductive. The RRT took the precaution of submitting further questions in writing and obtain written answers from the applicant's legal representatives. This was, in my view, a proper approach for the RRT to take. Mr Cox takes issue with a finding of fact made by the RRT on an important issue in the second RRT hearing (the whereabouts of the applicant in the six months prior to his departure from Iran) but I have already found that that finding of the RRT was reasonably open to it. The RRT presiding member was in a far better position than me to determine whether it could properly rely on the answers given by the applicant on that question. I am not persuaded that the RRT fell into error on this point.

24. I have found that the RRT reached conclusions that were reasonably open to it bearing upon the ultimate issue of whether the applicant is a person to whom Australia has protection obligations under the Refugees' Convention. In the circumstances there was no error committed by the RRT that could constitute a breach of s.65 of the Migration Act, whether or not that is regarded as an inviolable pre-condition on the exercise of power by the RRT. I have also found that the proceedings before the RRT were procedurally fair. It follows that there was no breach of s.420(2)(b), whether or not that provision is regarded as an inviolable pre-condition to the exercise of power. In any event, it is clear from the decision of the Full Federal Court in NAAV that procedural unfairness is not an available ground of review following the enactment of the privative clause. The decision of the RRT was clearly a "privative clause decision".

25. In my view, the decision of the RRT was a bona fide attempt by it to exercise its decision making powers. The decision clearly relates to the subject matter of the Migration Act and the decision is reasonably capable of reference to the power given to the RRT. Accordingly, the three Hickman provisos are met. On the basis of my findings above, there was no error of law committed by the RRT in its decision and, accordingly, even without the application of the privative clause, this application fails. The privative clause simply confirms that result.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM

SGLB v Minister for Immigration [2002] FMCA 309

At a glance

Court

Decision date

Before

Source

Judgment (61 paragraphs)

SGLB v Minister for Immigration [2002] FMCA 309 (20 December 2002)

Parties

Cases Cited (1)