SYVB v Refugee Review Tribunal

Federal Court of Australia|2005-08-12|Before: Lee J, Mansfield J

introduction 1 The applicant is a 25 year old male Iranian, of Arab ethnicity and of the Shia Muslim religion. He arrived in Australia on 20 December 2000 and since that date has been in immigration detention. 2 On 9 January 2001 the applicant applied for a protection visa under the Migration Act 1958 (Cth) (the Act). He claimed to have a well-founded fear that he would be persecuted if he returned to Iran by reason of his Arab ethnicity. Hence, he claimed to be a 'refugee' as defined in the Convention, and to satisfy the criterion for a protection visa in s 36(2) of the Act. A delegate of the second respondent (the Minister) refused that application on 13 February 2001. The Refugee Review Tribunal (the RRT) affirmed that decision on 11 April 2001. This is the fourth occasion in which the applicant has sought the intervention of the Federal Court of Australia with respect to his status under the Act, although in reality it is only the second occasion in which he has sought to challenge the validity of the RRT decision under the Act. 3 Under the then provisions of Pt 8 of the Act, following the RRT decision, the applicant sought judicial review of the RRT's decision. On 10 September 2001 Lee J dismissed that application: S v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1661. The applicant sought to appeal from that decision at first instance, but did not do so within the time permitted by the Federal Court Rules and so had to seek an extension of time to appeal. On 4 February 2002 his application for an extension of time within which to appeal from the decision at first instance was refused, in essence because it had no prospects of success: S v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 191. The applicant applied to the High Court of Australia for special leave to appeal from that interlocutory judgment refusing him an extension of time within which to appeal, but that application was deemed to have been abandoned under the High Court Rules on 4 November 2002. That process completed the first judicial review proceeding. 4 Thereafter, the applicant was vulnerable to being removed from Australia pursuant to s 198 of the Act. He continued to maintain that he could not safely return to Iran. On 19 December 2003 he applied for an injunction to restrain the Minister from removing him from Australia, notwithstanding that his application for a protection visa had been finally determined (see s 5(9) of the Act). An interim injunction was granted on 19 December 2003 restraining the Minister from removing him from Australia, but that injunction was vacated by consent on 7 April 2004. It is accepted that that application is not directly relevant to the present proceedings. It was not an attempt to challenge the validity of the RRT decision. It raised the question whether, in his circumstances, s 198 of the Act required or permitted the applicant's removal from Australia. At that time, there were two decisions of the Full Court of this Court in M38/2002 v Minister for Immigration & Multicultural Affairs (2003) 131 FCR 146 (M38) and NATB v Minister for Immigration & Multicultural Affairs (2003) 133 FCR 506 which had decided that persons who were unlawful non-citizens in the position of the applicant were liable to be removed from Australia pursuant to s 198 of the Act without further inquiry as to whether they may suffer serious harm upon their removal to their country of nationality. An application to the High Court for special leave to appeal from the decision in M38 was refused. It appears that the injunction was vacated as a result. 5 The third application before the Court occurred on 10 May 2005. Apparently there was then imminent action to remove the applicant from Australia. He brought an urgent application for an interlocutory injunction restraining the Minister from removing him from Australia. That application was refused by Nicholson J on 10 May 2005: SYVB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 600. At the time, the applicant undertook to institute an application for substantive relief to support the application for the interlocutory relief which he claimed. That has led to the current application. Again, therefore, it was but an interlocutory step in the present application. The application of 13 May 2005 argued three bases in support of the interlocutory injunction sought. The first was to challenge the Minister's decisions not to grant the applicant permission to make a second application for a protection visa whilst in Australia under s 48B of the Act, and not to exercise the Minister's power under s 417 of the Act to permit the applicant to remain in Australia notwithstanding the decision of the RRT. Nicholson J pointed out that neither of those decisions was vulnerable to judicial review in any event by reason of s 48B(6) and s 417(7) respectively, so there was no arguable case to support the interlocutory injunction. The second basis upon which the applicant sought the interlocutory injunction was by reason of him having applied for a protection visa whilst in Australia, and therefore being perceived as having political beliefs inconsistent with those of the ruling regime in Iran and so exposing him to the risk of persecution. (His circumstances related to a period of time before the introduction of s 91X of the Act, which would now preclude such a claim.) In any event, Nicholson J found that there was no arguable case in the circumstances that that contention could succeed. The third basis upon which an interlocutory injunction was sought was that the RRT had not considered the inability or unwillingness of Iran to protect the applicant as an ethnic Arab in Iran from private violence. Nicholson J found that that proposition was 'possibly arguable', or 'weakly made out', but concluded that on the balance of convenience there was no basis for granting the interlocutory injunction in the circumstances. 6 The present application was instituted on 13 May 2005. For the reasons explained, it is in essence the second judicial review application in respect of the RRT's decision. It is contended that the RRT decision involved jurisdictional error. It is now necessary for jurisdictional error to be demonstrated to enable the Court to grant the relief sought, namely to quash the decision of the RRT of 11 April 2001: see generally Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALJR 454;[2003] HCA 2 (Plaintiff S157/2002). 7 There were two grounds of jurisdictional error alleged in the amended application filed on 22 June 2005. They were: (1) that the RRT failed to accord natural justice to the applicant in the making of its decision; and (2) that the RRT erred in law in the application of the 'well-founded fear test'.

the motion for summary dismissal 8 Before addressing those matters, it is necessary to consider the Minister's motion that the application be summarily dismissed under O 20 r 2 of the Federal Court Rules (Cth). She claims that the application is an abuse of process, that it raises issues which are already decided adversely to the applicant, and alternatively that it is made in circumstances where 'Anshun estoppel' should apply. 9 In the course of argument counsel for the parties agreed that, in the event that the motion was unsuccessful, it was appropriate for the Court to proceed to consider and determine the application for prerogative relief itself as the material before the Court on the motion, and the arguments adduced by the parties on the motion, are the same as those which would be put at the hearing. 10 It is accepted that an order dismissing an application summarily should only be made in the clearest of case: see e.g General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. 11 I do not consider that the application should be struck out on the ground that it seeks to raise a claim or claims which have already been the subject of judicial determination. I accept that, in appropriate cases, a claim of res judicata is available with respect to decisions under the Act: see Somanader v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677. That case applied commonly understood principles as to res judicata. The question is whether the first judicial proceeding raised and determined, in substance, the same 'cause of action' as is now sought to be raised in the current application: see Trawl Industries of Australia Pty Ltd (In liquidation) and Others v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418. 12 At the time of the first judicial review proceeding, the powers of the Federal Court to review decisions of the RRT were limited to the grounds available under s 476 in Pt 8 of the Act as it then stood. Section 476(1) specified a number of grounds upon which the Federal Court could review a decision of the RRT. Those grounds were subject to some specific restrictions, including relevantly in s 476(2)(a) that an application to review an RRT decision could not be made upon the basis that a breach of the rules of natural justice occurred in connection with the making of the decision. Abebe v The Commonwealth (1999) 197 CLR 510 decided that the Federal Court could be given jurisdiction to review decisions of the RRT but that the grounds upon which it might review RRT decisions could also be confined as expressed in s 476. The first judicial review proceeding did not, and could not, address whether the RRT had failed to accord natural justice to the applicant in the making of its decision. It was nevertheless open to the applicant to apply directly to the High Court to quash the RRT decision on that ground. The High Court has jurisdiction to do so: see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 (Muin and Lie). The Federal Court of Australia was given jurisdiction by s 39B(1) of the Judiciary Act 1903 (Cth) with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth: see Jurisdiction of Courts Legislation Amendment Act 2000 (Cth). However, s 485 of the Act as in force at the time of the first judicial review proceeding precluded the Court from exercising any other jurisdiction than that available under Pt 8 of the Act in reviewing decisions of the RRT, including under s 39B of the Judiciary Act. 13 Subsequently, the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) replaced Pt 8 of the Act. It was assented to on 27 September 2001. It prescribed a new regime for judicial review, including the introduction of privative clause decisions, which are decisions immune from judicial review. Section 475A of the Act then preserved the jurisdiction of the Court under s 39B of the Judiciary Act. The High Court in Plaintiff S157/2002 subsequently determined that a purported decision made by the RRT which involved jurisdictional error on its part was not a privative clause decision, and so was vulnerable to prerogative relief either granted by the High Court by reason of its powers under Ch III of the Constitution, or by the Federal Court by reason of its powers under s 39B of the Judiciary Act preserved expressly by s 475A of the Act. It is that jurisdiction which the Court is now being asked to exercise. 14 Consequently, although the first judicial proceeding was a final judgment within jurisdiction, and a judgment between the same parties, I do not think the nature of the issues are so clearly identical with the grounds of review now sought to be ventilated as to lead clearly to the conclusion that the causes of action or the foundation for the claims for relief are the same. Furthermore, I am not sufficiently confident that the Minister is correct in that assertion as to warrant the matter being determined adversely to the applicant on the application for summary relief on the notice of motion. 15 I have a similar view with respect to the application for summary judgment based upon Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). Although in an appropriate case that estoppel is available (see Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 722), I do not think that the application of the principle in the present circumstances is sufficiently clear as to warrant summary judgment in favour of the Minister. The applicant did not have the opportunity in the first judicial review proceeding to raise the matters of natural justice which he now seeks to raise as the foundation for jurisdictional error on the part of the RRT. 16 Principally, however, counsel for the Minister contended that that application should be summarily dismissed because it amounts to an abuse of power. As was said by Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393, proceedings will constitute an abuse of process if they can be seen clearly to be foredoomed to fail. That principle has been applied in respect of decisions under the Act: see Applicant A321/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 306 at [18]-[19]; SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 at [29]-[30]. To address the contention requires consideration of the prospects of success of the applicant on the application itself. As the parties are agreed that, in any event, the Court can resolve the application on its merits on the material presently before the Court, and in the light of the contentions already put to the Court, there seems little point in determining if the merits are so weak that the claim cannot possibly succeed. In order to properly dispose of the case it would be sufficient to determine that it does not in fact succeed. I therefore propose to proceed to address the merits of the applicant's claim.

the rrt's reasons 17 The RRT was asked to find that the applicant satisfied the criterion for the grant of a protection visa specified under s 36(2) of the Act, namely in practical terms that he is a 'refugee' as defined in Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol (the Convention), because he had a well-founded fear of persecution if he were to return to Iran. He claimed to have such a fear for two reasons. 18 The first was because he is an ethnic Arab in Iran. He described having been insulted and abused at school, so that he stopped schooling at a young age, and subsequently also having been abused and insulted in later years. He gave the illustration of being detained by the religious police for wearing the wrong pants on one occasion, and being released only after two days. He said he is still vulnerable to insult and abuse. He also claimed that he is not able to obtain employment in government service, or is not preferred against non-Arabs in applications for employment for government service. He also said that land of his family was confiscated without proper compensation. 19 The second ground upon which the applicant claimed to have a well-founded fear of persecution was through fear of reprisal from the brothers of his fiancée. He had been engaged to his cousin for some time, but the marriage was delayed because her brothers were not supportive of the marriage. A few months before leaving Australia, he had had intercourse with his fiancée, and after his fiancée's brothers found out about that, he claimed that they pursued him and threatened to kill him causing him to flee to Australia. He also told the Tribunal that he learned, whilst in Australia, that the brothers had killed their sister for participating with the applicant in extra-marital intercourse. 20 As to the second matter, the RRT accepted that the applicant had encountered problems over his relationship with his cousin. However, it had regard to his ability to visit his parents and to procure a passport in September 2000 (after the alleged threat from his fiancée's brothers arose), and to spend time with his family until he left for Australia, without apparent trouble. It also had regard to his ability to stay with relatives whose location the brothers knew, all without harm being experienced in that period of time up to when he left for Australia. It concluded: 'The Tribunal accepts that the applicant has angered his male cousins by having sex with their sister. They were unable to inflict any harm before he left the country, either when he was with relatives in various villages or visiting Ahwaz, where they lived. The Tribunal concludes that there is not a real chance that the applicant will be seriously harmed by his fiancée's brothers.' That was so even though the RRT accepted that the applicant's fear of such harm was genuine. 21 The RRT also observed that the applicant's claimed fears in this respect were not for any Convention-related reason. He made no claim that the brothers asserted threat to him was for reason of his race, his religion, his nationality or his political beliefs. It also found that his fear of them was not by reason of his membership of a particular social group, because it was only by reason of what he personally did, and not because he is a member of a particular social group whose membership share common characteristics with other persons in the group so that they share a common unifying element, that set him apart from other members of the society: see e.g. Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1. 22 In addition, the RRT found that it was not unreasonable for the applicant to re-locate to some other part of Iran where he would not be exposed to any risk of harm from his fiancée's brothers. In reaching that view, it applied the principles enunciated in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265. It had regard to the applicant's work history and his linguistic skills as well as his personal characteristics in reaching that view. 23 As to the first claim, the RRT accepted that the applicant had been bullied at school because of his Arab ethnicity. It also accepted that he may have met some subsequent discriminatory treatment, including possibly that his family's land had been resumed without proper compensation. The incident when he was detained for wearing the wrong pants was described by it as an isolated incident, which could be avoided by him conforming to the dress code which he otherwise apparently did. It also had regard to the fact that he had been gainfully employed for a long period, was able to move freely around Iran to work, and to obtain a passport and leave Iran legally as he acknowledged he had done. It concluded: 'The Applicant has not been persecuted because he is an Arab. His history conforms with the DFAT assessment referred to by the delegate that "Shiite Arabs do not face official systematic discrimination." [Reference given] The applicant gave evidence of traveling [sic] in many cities over many years as a trader, but did not mention that he was ever harassed in those cities because he is an Arab. In all of the circumstances, the Tribunal concludes that there is not a real chance the applicant faces persecution for reason of being an Arab.' 24 Finally, the RRT addressed, and rejected, any claim that the applicant might be perceived in Iran as having expressed dissident political opinions that would attract a persecutory response because he had applied for a protection visa in Australia. It noted that he had left Iran legally and had not done anything to attract adverse attention from the authorities. It noted that his asylum application is confidential. Even if there were a remote possibility that his asylum application became known to the Iranian authorities, the RRT concluded that even then he would not face a real chance of persecution for that reason.

consideration 25 The particulars upon which it was alleged that the RRT failed to accord the applicant natural justice are as follows: '1.1 That the Tribunal failed to make findings in relation to a significant integer of the applicant's claim namely that the 'State' would for a Convention reason not protect the applicant from non state agents conduct. 1.2 That the Tribunal inverted the reasoning process in an impermissible manner and in doing so failed to make findings about the applicant's specific claims to be persecuted as an Arab Iranian but instead made a general finding that Arabs do not face systematic discrimination. 1.3 That the Tribunal made findings (page 4 of the decision) that the applicant's claim at the Tribunal hearing with respect to the nature of the contact with police were inconsistent with the claims made before the delegate. 1.4 That at no stage did the Tribunal put this inconsistency to the applicant and in failing to do so left the applicant with the reasonable expectation that the Tribunal had accepted the applicant's evidence on this matter.'

26 The entitlement to natural justice which the applicant enjoyed before the RRT was in substance the entitlement to an independent adjudication and the entitlement to the opportunity to be heard (see Muin and Lie). It is not clear that the first two of those matters could amount to a failure to accord natural justice or procedural fairness to the applicant. They may demonstrate other jurisdictional errors on the part of the RRT.

27 The first of those matters does not demonstrate jurisdictional error on the part of the RRT in any event. There are two reasons for that. The first is that, before any issue of the availability and adequacy of State protection arises, there must be a well-founded fear of serious harm from non-State agents. The RRT found that there is not a real chance that the applicant may suffer such harm at the hand of her fiancée's brothers. That is a finding of fact by the RRT which was open to it on the material before the RRT. The RRT was not therefore obliged to address the question whether Iran might not protect the applicant from non-State violence for a Convention reason. The second is that the RRT did address the question whether Iran would offer its protection from non-State violence to the applicant. When reciting the applicant's claims, it recorded his assertion that the authorities in Iran would not help him in relation to the fear he held of violence from his fiancée's brother because he is an Arab. It referred to his evidence on the topic. It concluded that it was 'satisfied that police would extend proper protection to the Applicant'. That addressed the applicant's specific complaint. As noted above, when rejecting the more general claim of State persecution by reason of his ethnicity, the RRT had regard both to the applicant's personal experiences and to the independent country information. Thus, in the context of another aspect of the applicant's claims, the RRT reached a view consistent with that which is the subject of the present complaint. 28 The second of those two matters is, in my view, a re-statement in a different way of the same proposition as the first matter. Moreover, the RRT did approach its consideration of the applicant's claims in a logical and structured manner. It identified the two grounds upon which he claimed to have a well-founded fear of persecution for a Convention reason. It made findings about his treatment by reason of his Arab ethnicity, and ultimately rejected his claim that as an ethnic Arab in Iran he may be exposed to a real chance of persecution by reason of his ethnicity. It addressed with the applicant the matters about which it gave consideration before reaching its conclusion. It made findings also about the applicant's claims to fear persecution by reason of the threat from his fiancée's brothers. It also raised with the applicant the matters about which it gave consideration in relation to his claim to have a well-founded fear of persecution by the threat from the brothers of his fiancée, and as to whether the State would or would not take steps to protect him from that threat by reason of his ethnicity. The reasons for its conclusion are set out above. 29 The third and fourth matters can be dealt with together. The RRT noted in its recital of the evidence that the applicant initially claimed that he could not go to the police to seek protection from any fear of violence he had from the brothers of his fiancée because they would not help him as he is an Arab. It noted that he said later in the same initial interview that his brother had gone to the police on his behalf but 'they could not help, although they suggested everyone come to the police station to discuss the issue'. It noted the applicant's evidence at the RRT hearing that the police had told his brother that Arabs have no rights (and by inference that the police would not assist by reason of his ethnicity). It then said: 'The Tribunal doubt [sic] that the Applicant has been to police. His first instinct when he changed his mind at the delegate's interview was to say they told everyone to come to the police station to discuss the issue. Given the respective parents arranged and approved the marriage according to usual custom that is the most likely scenario, and the Tribunal is satisfied that police would extend proper protection to the Applicant.

At the RRT hearing the applicant was questioned about the availability of police protection at two points. His evidence was assertive and general. The comments he made to the delegate at the initial interview were not specifically drawn to his attention. However, in the circumstances, I do not regard the fact that the RRT did not do so at the hearing as demonstrating jurisdictional error on its part. No applicant for a protection visa is entitled to assume that every piece of evidence given to the RRT which is not directly challenged by inconsistent material will be accepted by the RRT as correct. There are many matters of detail of personal history and the like about which the RRT may, at the time, have no particular view. Its obligation was to give an applicant the opportunity to be heard on the matters which are directly relevant to its decision. 30 It is apparent from the material presented to the RRT on behalf of the applicant, and from an examination of the hearing transcript, that the applicant was on notice that the RRT did not necessarily accept his two claims. The course of questioning at the RRT hearing was in that context. The applicant was aware of the information he had previously provided to the delegate. His migration agent was present during the course of the hearing. He did not then, nor does he now, dispute the accuracy of what the RRT recorded him as having said to the delegate on the topic. The RRT's reasoning process in the passage set out above indicates simply that, were the issue of State protection to become critical to its decision, it would then need to address the extent to which the applicant could seek protection from the Iranian authorities. In the circumstances, in my judgment, the RRT did not fail to accord procedural fairness to the applicant by drawing specifically to his attention the two versions he had earlier given to the delegate of the respondent about the availability of police protection. 31 More importantly, for the reasons already given, the issue as to the availability of State protection was not critical to the RRT's determination. That is simply because the RRT did not accept that the applicant faces a serious risk of harm from the brothers of his fiancée if he were to return to Iran. Unless he faced such a risk, the issue as to the adequacy of State protection did not need to be determined. Consequently, even if the RRT had failed to accord procedural fairness to the applicant in the manner alleged, that failure would not have resulted in any different outcome of the application. In the circumstances, the way in which the RRT addressed that issue would not warrant setting aside its decision. In the exercise of my discretion, I would refuse the relief sought even if that ground were made out. There is a further reason why I would reach that conclusion. The RRT's finding that, in any event, the applicant could reasonably be expected to relocate to some other part of Iran where he would not be exposed to any risk of harm from the brothers of his fiancée also made the issue of State protection moot. That finding is not challenged on this application. It provides a separate ground for the RRT's decision, in as far as it relates to the claim of the applicant to have a well-founded fear of persecution by reason of the threat from the brothers of his fiancée. It is self-evident that, if by relocating within Iran the applicant has no risk of harm from those persons, the issue of State protection does not arise. 32 The second ground of jurisdictional error is also, in my judgment, not made out. It is asserted that: '2.1 The Tribunal erroneously applied the test as if the "state" had to be the perpetrator of the conduct that amounts to serious harm when the proper application of the test requires consideration of whether the "states' failure to protect the individual is for a Convention reason even in circumstances where the conduct is by a non state agent. 2.2 That the Tribunal erroneously considered that the applicant could avoid any future state based persecution by being discrete. 2.3 The Tribunal erred in finding that the applicant's treatment amounted to no more than discrimination when the totality of the treatment amounted to serious harm.' 33 I do not consider that the RRT erred in the manner asserted. It did not address the applicant's claim to have a well-founded fear of persecution by reason of the threat from the brothers of his fiancée as if Iran itself had to be the perpetrator of the threatening conduct. It addressed that claim firstly by determining whether there was in fact a well-founded fear of that threat of harm (it did not consider that there was). It then addressed whether, if that were the case, the State would decline to protect the applicant by reason of his Arab ethnicity. The second of those two matters is a subsidiary one because of the RRT's decision on the first step. The RRT accepted that the applicant may have been detained for wearing the wrong attire on one occasion. It regarded that occasion as an isolated incident over the whole of the applicant's life, which was unlikely to recur provided he reverted to his previous practice of conforming to dress codes. The applicant did not claim that he did not normally conform to dress codes, or that he would have to modify his behaviour in any way to do so. The finding of the RRT was therefore simply that the applicant, behaving in the way which he normally did and would continue to do, would not be exposed to persecution by reason of his Arab ethnicity. It noted the independent country information to that effect. 34 The third of those matters was only briefly adverted to in argument. It is a matter for the RRT to make a finding of fact as to the extent to which, if at all, the applicant has suffered harm in the past by reason of his Arab ethnicity and the extent to which he faces a risk of harm in the future by reason of his Arab ethnicity. The RRT's view was that, in the light of the findings it made, and which were not challenged, the disadvantage he might suffer in the future if he were to return to Iran by reason of his Arab ethnicity would not amount to persecution. The decision of the RRT to that effect was one which, in the light of its findings, was available to it and does not demonstrate legal error on its part. 35 I have therefore reached the view that the applicant has failed to demonstrate jurisdictional error on the part of the RRT in its decision of 11 April 2000. The application must therefore be dismissed. I order that the applicant pay to the Minister costs of the application. The first respondent did not participate in the hearing and there is no need to make any order for costs in relation to it. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Solicitor for the Applicant: Refugee Advocacy Service of South Australia Inc

Solicitor for the Respondents: Australian Government Solicitor

Jurisdiction of Courts Legislation Amendment Act 2000(Cth)

Subsequently, the Migration Legislation Amendment (Judicial Review) Act 2001(Cth)

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