WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal against the decision of a judge of the Court (French J) given on 16 January 2002. French J dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 25 September 2001. The Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, not to grant the appellant a protection visa, for which he had applied on 7 July 2001. The statutory context 2 The application for the visa, the review by the Tribunal and the judicial review by the Court were required to follow the requirements of the Migration Act 1958 (Cth) ("the Act"). On and from 2 October 2001, that Act was amended significantly by the introduction of a privative provision (s 474) stipulating that Tribunal decisions, amongst certain other decisions, are final and conclusive and must not be challenged, appealed against, reviewed, quashed or called into question in any court. This Court was left with jurisdiction under s 39B of the Judiciary Act 1903 (Cth) but the effect of s 474 is to confine that jurisdiction to exceptional cases. 3 The effect of s 474(1) was considered by a five member Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. The approach of the majority in NAAV was summarised by another Full Court, in NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 at [24], as follows: "In NAAV v Minister, von Doussa J (with whom, on this point, Black CJ and Beaumont J agreed) stated (at [635]) that the Migration Act contained a hierarchy of provisions of which, in relation to privative clause decisions, s 474(1) was intended by Parliament to be the leading provision. His Honour held that 'apparently inconsistent provisions of the Act' are to be construed as subject to the restrictions in s 474(1). Consequently, the effect of s 474(1) is to expand the jurisdiction of the relevant decision makers including the Tribunal so that a decision that is affected by irregularities that would, in the absence of s 474(1), amount to jurisdictional error will be within power, subject to satisfying the so-called Hickman conditions. The Hickman conditions require that the decision · be a bona fide attempt to exercise the power which the Act reposes in the decision maker; · relate to the subject matter of the Migration Act; · be reasonably capable of reference to the power. In addition, it follows from the reasons of the majority in NAAV v Minister that a decision will not be protected from judicial review if it contravenes what is variously described as an 'inviolable' condition, 'jurisdictional factor' or 'structural elements' found in the legislation: at [12], per Black CJ; at [619], per von Doussa J." The Tribunal's decision 4 Before the Tribunal, the appellant's claim to have a well-founded fear of persecution, if returned to his native Iran, was based on three factors. The first was that he had engaged in a sexual relationship with a married woman, as a consequence of which he was detained, tortured and interrogated. He feared that, if he returned to Iran, he would be persecuted by being stoned to death. His act contravened the Iranian religious code and would be taken to show defiance towards the Islamic regime. Secondly, he had converted to Christianity. Thirdly, he would be punished on account of his illegal departure from Iran. 5 The Tribunal accepted that the appellant is a national of Iran and of no other country. However, the member was sceptical about his evidence of having had a relationship with a woman that attracted the attention of the Pasdaran. She said: "It is possible that [the appellant] had a relationship with a woman in Iran. It is also possible that he is being truthful when he claims that he was detained by local pasdaran because of the nature of the relationship, and was able to escape from custody, but the probabilities are against that. I consider his claim somewhat implausible that he and his brother were able to locate each [other] by chance a kilometre from the Sepah building, and that he was then able to obtain [a] passport and leave the country without being apprehended. On balance, I am not satisfied that these events occurred. On the other hand, I cannot reject the possibility that they did and I therefore turn to consider whether he now faces a real chance of Convention-related persecution in Iran as a result of those events." 6 The member noted that "people fleeing from prosecution or punishment for a common law offence are not, without more, normally refugees". The member quoted a passage from the judgment of the Full Court of this Court (Beaumont, Hill and Heerey JJ) in Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309 at 319: "Since a person must establish well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention." (Tribunal's emphasis) 7 The Tribunal member noted some qualifications on the principle just quoted. They are not presently relevant. She went on: "I accept that the penalties for adultery and rape in Iran are harsh, given that they can range from a lashing to execution. They fall into the category of punishment referred to in Applicant A's case as 'totally repugnant to the fundamental values of our society and the international community', for conduct which, in the case of adultery, would not be criminal at all in Australia. However in the present case I am satisfied that the authorities have not imputed any political or religious views to [the appellant] which might make the punishment any more severe than that prescribed in the laws of Iran. When he was detained and seriously ill-treated, he does not claim that he was questioned at all about his religious or political views, nor does he claim that the pasdaran accused him of holding unacceptable political or religious views, nor of belonging to any particular social group. He also stated that the punishment he feared was the same as that applying to other people accused of rape or adultery. There is no suggestion in the present case that any prosecution of [the appellant] would be for a Convention reason, nor that any extra-judicial punishment he may face might be motivated by any of the Convention reasons. For these reasons I am satisfied, and find, that any punishment or penalty to which [the appellant] may be subjected for either sexual assault or adultery will not be motivated by any of the Convention reasons." 8 Turning to the second matter raised by the appellant, the Tribunal member said: "I accept that [the appellant] has been baptised as a Christian, and that he has attended a Sunday service at the detention centre each week for the past two months. I have regard to evidence above (from DFAT) that converts are generally tolerated in Iran as long as they maintain a very low profile. I infer from the evidence that [the appellant's] conversion is very recent (just over a week ago), and the fact that, according to his own evidence, only his mother is aware of it and is angry with him about it, that the Iranian authorities remain unaware of his conversion. I also note that he does not claim to fear being persecuted in Iran because of his conversion, and his solicitor does not refer to the conversion in her submissions. Ms Fabb has expressed her belief that [the appellant] may face harm in Iran because of his apostasy but, with respect, I am unable to give weight to this view because it appears her only sources of information about the treatment of apostates is the applicants for a protection visa with whom she has had contact in the detention centre. I also have regard to the fact that [the appellant] does not claim to have made any attempt to convert while in Iran. According to the independent evidence there are over 100,000 Christians of various denominations in Iran, and a number of churches, and I infer from his failure to make any enquiries about Christianity in Iran that he was unwilling to convert until after he arrived in Australia some six months ago. I also infer from his failure to enquire about Christianity in Iran that he is able and willing to be 'low key' in his religious practices. In my view these actions indicate that it is highly unlikely that he will reveal to the authorities that he has converted. For the same reasons I also consider his assertion implausible that he will attempt to convert Muslims. I am of the view that [the appellant's] conversion to Christianity is so recent and his reasons for claiming to wish to practice Christianity so vaguely expressed that, if he practices Christianity at all in Iran, it will be in a low key manner and consistent with the inevitably limited level of his knowledge and understanding of the religion. On that basis I am satisfied that the chance is remote he might be subjected to persecutory treatment because of his religion." 9 Finally, in relation to the illegal departure, the Tribunal member said: "I have regard to the evidence from DFAT (1996, 1.7.6.1) that, while the law states a fine or prison sentence of up to 12 months for illegal departure, the most likely penalty for an Iranian who has left Iran illegally is a fine. A prison sentence seems to be rarely used except when the person refuses to pay the fine, or in cases where the person's illegal exit was prompted by a wish to evade justice. In the latter case, the individual may also have to face the penalties, if convicted, for the original offence. There is no evidence before me from which I might infer that illegal departure leads to the imputation of an anti-government opinion. I find that any penalty which [the appellant] may face on return to Iran for departing on a passport other than his own will not be motivated by any of the Convention reasons." 10 For these reasons, the Tribunal found the appellant's fear of Convention-related persecution was not well-founded; he did not satisfy the criteria set out in s 36(2) of the Act for a protection visa. The primary judge's decision 11 The appellant sought judicial review of this decision. Although the Tribunal's decision had been published on 25 September 2001, one week before the commencement of the 2001 amendments, the application for review was filed after that date. Consequently, the amended provisions applied to the judicial review: see Migration Legislation Amendments (Judicial Review) Act 2001, Schedule 1, para 8(2)(b). 12 French J did not find it necessary to discuss the significance of the 2001 legislative changes. He thought the application failed to raise any error of law. He said (at para 10): "In his application filed in this Court, the applicant alleged that the decision involved an error of law involving the incorrect interpretation of the law or an incorrect application of it to the facts. It also said that the decision involved an error of law in that the Tribunal made findings of fact that were not rationally supported and it failed to rationally consider the evidence before it. Neither of these grounds was explained further in the application, nor was there anything in what the applicant put to the Court that would indicate such a ground. It is therefore not necessary for me to consider the extent to which error of law might affect the power of the Tribunal in a way that the Court could review." Issues on the appeal 13 Before French J, the appellant was not legally represented. However, shortly before the hearing of his appeal, a solicitor, Ms Marg Le Sueur, agreed to assist him, apparently acting on a pro bono basis. Ms Le Sueur notified the Court, and the respondent, of some amended grounds of appeal. Four grounds were notified: (i) The relevant law to be applied to the proceeding is the law set out in s 476 of the Act, as it stood at the date of the Tribunal's decision; the amendments that took effect on 2 October were unconstitutional or, alternatively, should be read down in relation to the present appellant. In particular, para 8(2) of Schedule 1 to the amending Act is invalid; (ii) The Tribunal erred in law in finding that any punishment or penalty to which the appellant may be subjected for sexual assault or adultery will not be motivated by a Convention reason; (iii) The Tribunal erred in law in finding that the appellant would have only a remote chance of persecutory treatment because of his religion; and (iv) The Tribunal contravened s 424A of the Act in failing to invite the appellant to comment on information contained in a Department of Foreign Affairs and Trade ("DFAT") report of March 1996 concerning the treatment in Iran of converts from Islam to Christianity. 14 The constitutional validity of the 2001 legislation was considered in NAAV. The Full Court unanimously held the legislative amendments not to be constitutionally invalid. More recently, this issue was raised before the High Court of Australia, in Plaintiff S157/2002 v Commonwealth of Australia. Judgment in that proceeding is currently reserved. 15 Notwithstanding the fact that the issue raised by proposed ground (i) has been conclusively determined, for this Court, in NAAV, s 78B of the Judiciary Act would have the effect that, if leave was given to amend the notice of appeal in such a manner as to raise this ground, the Court would be precluded from disposing of the appeal until notices under that section had been given to the Attorneys-General of the Commonwealth and all States. This would be so even if the Court came to the conclusion (as did French J) that, irrespective of the new statutory provisions, there was no basis upon which to grant judicial review. Particularly given the fact that the appellant is being held in detention, the delay that would have been incurred - unnecessarily on that scenario - would be unfortunate. 16 In this situation, the Court proposed to counsel who appeared at the hearing (Mr R L Lindsay appearing pro bono for the appellant and Mr P Macliver for the respondent) that the application to add the first new ground should be deferred pending resolution of the other grounds. If it appeared, after considering those grounds, that there was not, in any event, an available ground of review, it would be pointless for the appellant to press the first ground. If it appeared that, absent the new s 474 or the new para 8(2), the appellant had a valid claim for relief, action could be taken to deal with the first ground. 17 Counsel agreed to this suggestion. The application to amend was deferred in relation to ground (i) but granted in relation to the remaining three grounds. The Court heard argument in relation to each of them. Ground two - whether punishment for Convention reasons 18 In order to support his argument in respect of this ground, Mr Lindsay provided to the Court a transcript of the evidence given by the appellant to the Tribunal. The appellant's oral evidence about his sexual relationship with a woman in Iran is consistent with a written account that his solicitor had previously sent to the Tribunal. That account was as follows: "2. One day, whilst the applicant was at work, a female customer entered the shop. She was a new customer and the applicant had not seen her before. She purchased some meat and left. Within the next month, she came back several times to purchase meat and the applicant became acquainted with her. Her name was Nager. She asked the applicant if he had ever had a girlfriend. The applicant replied that he was single. 3. The applicant gradually became friends with Nager and the two engaged in a sexual relationship for a period of about one and a half months. On occasions, the applicant would take Nager to his home and they would engage in intercourse. The applicant asked whether she was married, but she assured him that she was a divorcee. 4. The relationship progressed to the point where the applicant asked Nager to marry him. The applicant had also informed his family that he had met someone whom he intended to marry. 5. On one occasion, whilst the applicant's family were away visiting friends, the applicant brought Nager to the family home and had intercourse with her. During the course of this, members of the Basij jumped the walls of the applicant's property and entered the house. The applicant and Nager were arrested and taken to the 'Social Corruption Section' of the Basij Headquarters for questioning. 6. The applicant was tortured and interrogated in relation to his relationship with Nager. He was asked as to why he was having a sexual relationship with a married woman and replied that he was not aware of the fact that she was married. 7. On the first day of his detention, Nager was brought into the interrogation room that the applicant was being held in. She told the Basij that the applicant had forced her to have sex with him. The applicant considers it obvious that she lied in this way in order protect herself from the punishment that would have been inflicted on her had she admitted to an adulterous affair. 8. On the second night of his detention, an official came to the applicant and told him that at approximately 2am the following morning, he was to ask to go to the toilet and then escape by jumping the exterior wall of the complex. The applicant later found out that his father had paid a bribe of 1.5 million Tomans in order to facilitate this escape. 9. At 2am, the applicant did what he was instructed and found his brother waiting outside on a motorbike. They travelled to a nearby village and once there, the applicant's brother informed the applicant that Nager was the wife of a member of the Sepah Pasdaran. [Islamic Revolutionary Guard Corps] 10. The applicant's brother took the applicant to Ahvaz and arranged a smuggler for him. The smuggler arranged the applicant's documents and passport. The applicant hid in the mountains during the day and stayed at the house of a friend at night. The applicant left Iran within 10 to 15 days of his escape from detention." 19 As we understand the position, the Basij are the Iranian religious police. 20 During the course of his oral evidence, the appellant was asked by the Tribunal member to indicate what he was afraid might happen to him if he returned to Iran. He replied: "That woman has told them that I had, had forced her and had taken her into the house and raped her and committed adultery and those Pesdars can make a case for me and um they would call me a corrupters on earth and they would accuse me of these things and then they would punish me." The member asked him what sort of punishment he would expect. He replied: "I would be sentenced to death, um, somehow, whether they would stone me, um, to death or whether somehow they would get rid of me, the Pesdars wouldn't allow this dirty stain to, to remain, to be there, they would get rid of me." 21 The appellant later suggested he might be dealt with extra-judicially, by being killed in gaol. He explained that he believed this because he had heard of them doing similar things to other people. The member asked: "So you are afraid that the Pesdara will treat you in the same way as they treat other people, who they think are rapists or adulterers?" The appellant answered "Yes". 22 Later, the appellant said: "They can accuse me of anything they like to. They can, um, put all sorts of accusations on me and that's because the husband of this woman is not an ordinary person, he was a Pesdaran himself and so can do whatever they like. Their hands are open, they are free to do what they want. And the government supports, protects, sorry, supports the Pesdars. The government is not going to support me. They would support the Pesdars." 23 Mr Lindsay argued the Tribunal erred in law in concerning itself with the motivation for any penalty that might be imposed: see the last sentence in the extract from the Tribunal's reasons quoted at para 9 above. Mr Lindsay said: "… motivation, at least in its usual sense adopted in criminal law, is not a necessary element of the definition of a refugee and it may be this belief that it is an essential element that influenced the Tribunal to misdirect itself." 24 The Tribunal's choice of the word "motivation" may have been unfortunate. Article 1A(2) of the Convention speaks of a "fear of being persecuted for reasons of" race etc. It is probably preferable to use that language in considering the relationship between any possible future ill-treatment and a Convention reason. However, we think this causal relationship was what the Tribunal was considering. The criticised sentence immediately followed a statement that there was no evidence to found an inference "that illegal departure leads to the imputation of an anti-government opinion". In other words, there was no evidence to support an inference of a causal relationship between possible future ill-treatment and political opinion, the only Convention ground relied on by the appellant. 25 Mr Lindsay also submitted the Tribunal erred in law because it ignored the appellant's evidence about the significance of the fact that the woman with whom he had a sexual relationship was married to an officer of the Sepah Pasdaran. He said this fact meant his sexual activity with her could be viewed by the Pasdars as an expression of political activity, an action to undermine the status and honour of their organisation. He said it was wrong to treat the appellant as being in the ordinary position of facing prosecution for a law of general application; that was not his claim. Mr Lindsay referred to the appellant's evidence about the Pasdars not allowing "this dirty stain to remain". 26 The appellant did not claim that he initiated, or pursued, his sexual relationship with Nager as a form of political activity. Until his arrest by the Basij, he did not know that Nager was married; still less that she was married to a Pasdar. The appellant's claim was that he believed Nager to be divorced and free to marry, that they became friends and that he asked Nager to marry him. So any punishment that might be inflicted on the appellant for having had a sexual relationship with Nager would not be a punishment for the appellant's political activity. 27 Recognising this fact, Mr Lindsay took his stand on imputed political opinion. The argument is that the Basij, or the Pasdaran, would conclude that, in having sex with the wife of an officer of the Pasdaran, he was showing defiance of the regime. He said the appellant's reference to "this dirty stain" demonstrates that this was the fear claimed by the appellant. Mr Lindsay cited a statement by Dr Grahl-Madsen quoted in Hathaway, The Law of Refugee Status at 177: "If actual or alleged perpetrators of political offences and other persons who for some reason or other have attracted the wrath of public officials are not brought to trial in judicial proceedings but subjected to 'administrative measures' … it is hardly appropriate to try to distinguish between those who have actually committed a political offence … and those who are completely innocent … The same may apply if the courts have lost their independence and are in fact only a prolonged arm of the executive." 28 Mr Lindsay went on: "So too if there is repression through abuse of power by an instrumentality of government because of a perceived insult or affront to one of its number, it is submitted that this may ground a claim for qualification as a refugee on the grounds of persecution for a Convention reason." 29 We do not disagree with the view expressed by Dr Grahl-Madsen. However, we do not think it has any application to this case. The appellant did not attribute to any Basij or Pasdaran officer a statement that his adulterous relationship with Nager showed defiance of the regime or subversive intent. Nor was there any other evidence to suggest his relationship would have been so regarded. Adultery is a crime in Iran, as is rape. It may be, as Mr Lindsay says, that the Basij were naďve in apparently accepting Nager's self-exculpating claim of rape and unfair in not allowing the appellant an opportunity of challenging it. However, naivety and unfairness do not establish imputation of a political opinion. It may be that the Basij reacted particularly harshly to the appellant's criminal activity because of the effect of his activity upon the honour of an official. But that is not the same thing as imputation of a political opinion. 30 We see no factual foundation for the submission that the Tribunal erred in law in failing to consider the issue of imputed political opinion. Claim three - persecutory treatment because of religion 31 As appears from the extract from her decision quoted in para 8 above, the Tribunal member worked on the basis that only the appellant's mother was aware of his conversion, in Australia, to Christianity. That might not have been the true position. In his oral evidence, the appellant deposed to his mother having told him she had heard rumours that he (and others) had converted to Christianity. 32 The difficulty faced by the appellant in relation to this matter is that Mr Lindsay was unable to relate this error (if it was one) to any ground of review that was available under Part 8 of the Act, even as it stood prior to 2 October 2001. That is understandable; any error by the Tribunal in relation to the extent of peoples' knowledge of his conversion was merely an error of fact. Even ignoring s 474 of the Act, this ground of review must fail. Ground four - failure to allow the appellant to comment on the DFAT report 33 Mr Lindsay argued the Tribunal failed to give the appellant an opportunity to comment upon a DFAT report, of March 1996, which said that converts from Islam to Christianity were generally tolerated in Iran "as long as they maintain a very low profile". He suggested the Tribunal took this report into account, and therefore should have given the appellant notice of its existence and contents and an opportunity to refute what it said. Mr Lindsay said it was possible that the appellant had personal experience of the treatment of apostates that conflicted with the information in the report. 34 Mr Lindsay based this part of his argument on s 424A(1) of the Act. However, it seems clear that the obligation imposed by that subsection did not apply to the DFAT report. Section 424A relevantly provides: "(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. … (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 35 It will be apparent that the information referred to by Mr Lindsay is information that falls within subs (3)(a) of s 424A; accordingly, the section does not apply to it. 36 Although the notified new ground of appeal made no reference to procedural fairness, this was mentioned during argument. Prior to 2 October 2001, breach of the rules of natural justice was not a ground of review available in this Court - see s 476(2)(a) of the Act - although it was available in the High Court of Australia: see Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 238; 179 ALR 238. However, s 424A was not in the Act when the Miah delegate's decision was made. All members of the High Court bench in Miah pointed out that the common law rules about natural justice could be excluded by a manifestation of a legislative intention to that effect, including by the making of a statutory regime to cover the relevant factual situation: see per Gleeson CJ and Hayne J at [35], per Gaudron J at [90], per McHugh J at [141]-[143], per Kirby J at [178]. As it seems to us, s 424A must be treated as an exhaustive statement of the Tribunal's obligation to bring information to the attention of a visa applicant, overriding any wider common law obligation. Disposition 37 In our opinion, the second, third and fourth grounds all fail. Even looking at the matter on the basis of the legislation in force before 2 October 2001, the claim for judicial review must fail. There is, therefore, no advantage in dealing with the question whether the amendments that took effect that day, or any part of them, lacked constitutional validity. 38 As will be apparent, the claim for judicial review has been argued much more fully before us than before French J. We express our appreciation to Mr Lindsay in that regard. Nonetheless, we are of the opinion that his Honour correctly dismissed the application. 39 The appeal should be dismissed with costs.