WACM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: Introduction 1 The appellant is a citizen of Iran who arrived in Australia without lawful authority on 7 November 2000. He lodged an application for a protection (XA) visa with the Department of Immigration and Multicultural Affairs on 1 March 2001. A delegate of the Minister for Immigration and Multicultural Affairs refused his application on 4 April 2001 and on 6 April 2001 he applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 8 November 2001, the Tribunal affirmed the decision not to grant the appellant a protection visa. 2 On 29 November 2001, the appellant signed two applications in the Federal Court. The first, in Form 56, was an application for an order for review of the Tribunal's decision. Form 56 is the form appropriate to applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for which O 54 makes provision. Form 5 is the general form of application for proceedings in the Court. In the event, on 14 February 2002 both the proceedings instituted by these applications were consolidated. On 28 March 2002, the consolidated application was transferred to the Federal Magistrates Court. 3 On 27 May 2002, McInnis FM dismissed the application with costs. 4 On 12 June 2002, the appellant lodged a notice of appeal against the decision of the Federal Magistrates Court. The Appellant's Claims and Evidence 5 In answers to questions set out in the form of application for a protection visa, the appellant said that when he was a child and as he was growing up he used to go to the city of Masjed Suleiman and liked it very much. He said a lot of political groups and educated people came from this city which was kept for and in need of fundamental necessities of life by the Islamic Republic. The Islamic Republic, he said, wanted to "kill the thoughtful roots of this city". 6 The appellant's uncle was a political activist in Masjed Suleiman. He is now an asylum seeker in Europe. When the appellant began to understand what was happening and saw the oppression of the regime against the people he believed, he said, in the sacred aim of those who had dedicated their lives to the freedom of the people. He decided to follow in the footsteps of people like his uncle who had fought against injustice. 7 As a university student in 1995, he used to talk to fellow students about the Islamic Regime and the situation of oppressed people in Iran. He found he was summoned many times before the Islamic Council of the University and warned about his political activities. On one occasion he said their verbal argument led to physical contact and he was banned from attending the university for a whole semester. When the next semester started in January he resumed his activities. This time he spoke out about the negligence of the authorities towards the situation of students. He invited the students to conduct a demonstration and to refuse to go to classes. They demonstrated and university security officers arrested some of the students. He was subsequently brought before the Discipline Committee of the university and banned from the university permanently. He then consulted his uncle in Germany and established a political group called Hadaf. That group started with three people. One of them was a man whose brother had belonged to the Mujahedin. The brother had been executed by the Regime. The second member was the appellant's cousin who had also been banned from the university because of his political activities. According to the appellant, he soughtas much financial and ideological help as he could from his uncle to operate the group. He was determined to fight the Regime to the very end. In the context of parliamentary elections in Shooshtar he and his colleagues, during the last hour of the vote counting, started chanting and shouting against the Regime and the authorities. They were joined by others. The crowd grew and the streets filled with people. He led them towards governmental and military buildings. Law Enforcement Forces confronted the people and tried to control them but it was impossible. The Law Enforcement Forces, the Ettela'at, video recorded the crowd. Then Sepah and Basij forces in Shooshtar and Dezfoul confronted the people. Many of the demonstrators were arrested and beaten. Later on that night, at midnight, people from Ettela'at came to the appellant's house, blindfolded him, took him to their centre and beat him. He said he was tortured for one or two hours. He was then sent to court, found guilty (the offence is not specified in his statement) and sentenced to three years imprisonment. He was sent to Dezfoul prison, but was released after a year on a good behaviour basis. 8 Following his release the appellant said he completed compulsory military service of which ten months remained. While he was serving military service his parents divorced. The divorce cost them their good name in the community and they lost face and "paid heavily for it". The appellant made only indirect reference to this in his statement in support of the application for a protection visa. He referred to an earlier statement he had made about it at a post-arrival interview. 9 In the event he said he became concerned about the unfair and inhuman treatment of women under Islamic law. He wrote articles and letters about the cruelty of the system and its inappropriate rules against women. He was once arrested by Sepah, abused and beaten harshly and only released after signing an undertaking to respect the Ministry of Justice. 10 In 1999 he obtained employment installing power pylons for a company which was responsible for the provision of power supplies in Khozestan Province. Even then he used to continue to speak against the Regime and about oppressed and poor people within their country. He was warned by the head of the company to avoid talking about these things and finally was dismissed in May 2000. 11 He then went to Ahvaz where he started to work for himself. At this time water quality in Ahvaz had deteriorated and people were angry and needed a trigger to rise up against their unjust regime. His group, Hadaf, restarted its activities to support people from Abadan. With two other Hadaf members he decided to buy a photocopier and to distribute anti-government leaflets in Abadan. They co-operated with a member of MKO to use his experience to avoid retaliatory action by the Regime. They rented a house in Abadan in September 2000 and took the photocopier there. They started to print leaflets and "night letters" against the Regime and distributed them among the people. They also used to go out at night and write anti-regime slogans on the walls. Fifteen days after they had started these activities they were out writing slogans and were approached by a motor vehicle. Voices ordered them to stop. The people in the car starting shooting. One of the appellant's colleagues was hit in the leg. The appellant managed to get inside a house and hide there for a while. He then escaped to his brother's house. He knew that if his colleague, Mansour, were tortured he would have to confess everything so he told his brother he had no choice but to flee the country through the safest way. He said he left Iran through Bandar Abbas and went to Indonesia and from there to Australia where he sought asylum. While he was in Indonesia he called his brother and was told that the Ettall'at had discovered and raided the house they rented in Abadan. He was also told that Mansour had been sentenced to death because he was an MKO member. 12 The appellant said that he feared, if returned, he would be arrested and would suffer persecutory interrogation under torture and would be sent to a Revolutionary court. That court would sentence him very harshly. The Tribunal's Findings 13 The Tribunal referred to the appellant's post-arrival interview in Australia, his statement in support of the application for a protection visa and evidence which he gave at the hearing before the Tribunal on 29 May 2001. It also referred to oral submissions from his adviser at the Tribunal hearing and written submissions dated 14 August 2001. It acknowledged that in assessing the appellant's credibility it must be sensitive to the difficulties often faced by asylum seekers in presenting their claims and should give the benefit of the doubt to those who are generally credible but unable to substantiate all of their claims. It also recognised that it was important that a liberal attitude be adopted towards the proof of refugee status. 14 The Tribunal characterised the appellant's claims as "…a fear of persecution in Iran on account of his reformist political views and activities". 15 The Tribunal accepted that the appellant is an electrician, that he was dismissed by his employer in Abadan in May 2000 when he left Abadan and went to stay in Ahvaz. It also accepted that he was involved in May 2000 in demonstrating with others against irregular electricity supplied by the Abadan Power Distribution Company. It did not accept that his dismissal from the company was to do with his political view but rather because he promoted protests against the Power Distribution Company for unfairly cutting power to four citizens. 16 The Tribunal accepted that the appellant had been interested in politics and had been politically active "… but on a low level". It accepted that he was initially disciplined and later banned from the Ahvaz Institute of Technology for being restive about student affairs. It accepted that he was charged and sentenced to imprisonment in 1996 for one year for participating in a public disturbance associated with volatile parliamentary elections in Shooshtar. It also accepted that he involved himself in 1996 in a small group of like minded reformist individuals called Hadaf. It was not satisfied, apart from his participation in the protest at the Power Distribution Company in Abadan in May 2000, that the appellant had been politically active since his release from goal in 1997 in a way or at a level that would attract adverse interest from Iranian security authorities. 17 The Tribunal found that several important elements of the appellant's claims made in evidence suffered "a serious lack of plausibility" and that there were significant inconsistencies between his testimony before the Tribunal and the claims made in his application. His main claims to need protection lacked "cohesion and consistency, on issues on which the Tribunal expects there would be greater certainty and clarity than has been demonstrated". He was said to have regularly resorted, in evidence before the Tribunal, to casting blame on interpreters and others for serious shortcomings in key aspects of his case. It was clear to the Tribunal that serious deficiencies lay in the substance of his claims for protection. The Tribunal said: "Not being convinced in respect of his explanations for the many inadequacies, inconsistencies and implausibilities in key aspects of his claims, which are discussed below, the Tribunal is not satisfied that he is in genuine fear of persecution nor that there is a real chance that he will face persecution on return to Iran." 18 It is not necessary for present purposes to set out in full detail the Tribunal's reasons in this respect. However, they included references to: 1. The evasive and unsatisfactory evidence by the appellant about his actions and the timing of his political activities in Abadan. 2. The inconsistency between his claim in evidence that the Abadan riots were spontaneous and without forewarning, and his claim in the protection visa application that he had prior warning of the impending uprising and acted to assist the people of Abadan to the fullest extent. 3. The implausibility of the appellant's statement that he decided to print and distribute dissident pamphlets at a time when, on his own account, the Regime was aware that people were ready for an uprising and prepared itself to do everything to prevent that. 4. The alleged date of the appellant's arrival in Abadan. This was said, in his first departmental interview, to be 6 March 2001. But that followed the first uprising in Abadan which had occurred on 5 July 2000, according to country information. 5. The inconsistency between the appellant's testimony to the Tribunal and his claim in a supplementary statement of 29 May 2001 that he was working in Abadan but that when disturbances began he moved to Ahvaz. 19 The Tribunal found it most implausible that the appellant would find it at all politically useful to return to Abadan after major rioting when, on the country information, a substantial police and security authority presence was maintained following the riots. The Tribunal found he was not politically active in Abadan after leaving that town in May 2000. It was not satisfied that he actively participated alone or with others (including the group called Hadaf) in political activities against the Iranian government in Abadan, including the distribution of pamphlets in September 2000 or at any time. By reason of that finding the Tribunal was not satisfied that the appellant's friend, Mansour, was shot, detained, tortured or interrogated. As a result there could be no reason for him to be apprehensive about Mansour exposing him. Nor was there any reason for the appellant to be apprehensive about his home having been searched or for him to fear apprehension and detention, torture or execution by Iranian security authorities. 20 Although on country information Iranian security authorities consider political activists and their supporters to be a serious security threat and can bring strong pressure on family members to locate suspects, the appellant merely claimed that security authorities had searched the family home looking for him, asked his family in Iran some questions about political activities, accepted his families simple denials and left them alone thereafter. The Tribunal was not satisfied that the appellant's parents' home had been searched or that his family was questioned about him in any way by Iranian authorities after he left Iran. 21 In relation to his earlier political activities, the Tribunal noted that the issue to the appellant of a passport in 1999 after the completion of his military service was an indicator that any past political activities were of no concern to the authorities. 22 The Tribunal was not satisfied that the appellant had been candid about his claims or that he needed Australian government protection for a Convention reason. It had no reason to believe that he left Iran other than legally and on his own properly issued Iranian passport. Moreover it was not satisfied that any harm amounting to persecution under the Convention would befall the appellant if he were returned to Iran as a failed asylum seeker. The Tribunal was not satisfied that the appellant was a political dissident or that he had supported or associated with political dissidents or that he was of adverse interest to the Iranian authorities. The Magistrate's Decision 23 The learned federal magistrate gave his decision prior to that of the Full Federal Court in NAAV v Minister for Immigration and Multicultural Affairs (2002) 193 ALR 149 . At that time there had been a divergence of views expressed by different members of the Court about the operation of the privative clause provision, s 474 of the Migration Act 1958 (Cth). 24 The learned magistrate said that on a proper interpretation of the appellant's submissions the appellant had "deep and sincere concerns" about the way in which the review had been conducted by the Tribunal, the lack of opportunity for him to be properly heard and a perception that the Tribunal had prejudged the application. In that context, the learned magistrate referred to the duration of the hearing before the Tribunal which took some four and a quarter hours on the day of the hearing. 25 The learned magistrate characterised the appellant's submission as an assertion that the Tribunal had not acted in good faith. He said: "In my view, having considered the Tribunal's reasons for decision and the material placed before it, I am satisfied that it properly received oral submissions and indeed subsequent written submissions dated 14 August 2001. I cannot see on the evidence before me any material which would persuade me to conclude that the Tribunal has not acted in good faith in dealing with the submissions made for and on behalf of the applicant." 26 The learned magistrate was of the view that the Tribunal had regard to the detailed and significant submissions made on behalf of the appellant. In relation to other errors allegedly made by the Tribunal in the consideration of the application, the magistrate considered they could properly be characterised as errors relating to findings of fact or the manner in which the Tribunal reached its findings of fact. 27 The learned magistrate then said: "In my view, it is sufficient that the tribunal has embarked upon its task in a manner which is consistent with acting in a bona fide manner or acting in a manner that was reasonably open to it, having regard to its powers and having regard to the subject matter of the legislation." He made this comment in the context of his rejection of the attempt by the appellant to raise issues of factual error on the part of the Tribunal. He also went on to deal with the application on the basis that even if he were to adopt the approach that, notwithstanding s 474 the decision of the Tribunal could be reviewable for jurisdictional error, there was no such error. In that respect he said: "It seems to me that the tribunal has given due consideration to all relevant matters and made findings that were reasonably open to it, and at least made findings of fact which cannot be challenged in a review of this kind, that is, a judicial review. Hence, regardless of the way in which the issue of the divergent opinions of the Federal Court justices as to the application of privative clauses is resolved, I am satisfied that on the material before me there has been no error of a kind which would attract judicial intervention in this decision. For those reasons the applications should be dismissed." Conduct of the Appeal 28 At the hearing of the appeal to this Court, the appellant was represented by counsel and an amended notice of appeal filed. The amended notice of appeal raised a question of the constitutional validity of s 474 of the Migration Act. Notices had been issued to the Attorneys-General of the Commonwealth and the States only on the day prior to the hearing of the appeal. Counsel invited the Court to hear argument under the second ground of appeal which raised a question not involving the Constitution. 29 The Court allowed the amended notice of appeal to stand as the notice of appeal and heard argument in relation to the second ground. At the end of argument the Court reserved its judgment and made orders giving liberty to the parties to supplement their argument by written submissions within fourteen days of the delivery of the judgment of the High Court in Plaintiff S157 v Minister for Immigration and Multicultural and Indigenous Affairs. It also gave liberty to apply for any additional directions as to the further conduct of the appeal within that time. 30 The High Court delivered its decision in Plaintiff S157 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 2 on 4 February 2003. The parties subsequently made written submissions in relation to that decision on 19 February 2003. No directions were sought as to the further conduct of the appeal. The Court therefore proceeds to deal with the appeal on the materials and submissions now before it. Grounds of Appeal 31 The grounds of appeal as set out in the amended notice of appeal were as follows: "1. The decision of the Learned Magistrate is invalid or erroneous by reason of the constitutional invalidity of s 474 of the Migration Act 1958 as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (the privative clause) to the decision of the Tribunal. The Learned Magistrate (through no fault of his own) erred in failing to apply the grounds of review pursuant to section 476 as it was prior to the enactment of the Migration Legislation Amendment (Judicial Review) Act 2001 effective as of 2 October 2001. PARTICULARS The Learned Magistrate erred in failing to find that the Tribunal decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal: The Tribunal accepted the Appellant's claims that he: (a) was arrested and imprisoned for one year in 1996 for participating in public disturbances associated with elections, (b) was involved in demonstrations in May 2000, (c) was the child of divorced parents in a country in which divorce is considered against social and religious mores, (d) was involved in political activities which led to him being disciplined at, and later banned from University, (e) was a founding member of and involved in a reformist political group called "Hadaf": Tribunal Decision p 33. Having accepted those claims, and regardless of the findings in relation to the Appellant's other claims, the Tribunal erred in not finding that the Appellant faced a significant risk of persecution should be he returned to Iran. 2. Alternatively, the Learned Magistrate erred in not identifying errors in the decision of the Refugee Review Tribunal ("the Tribunal") that were of such a nature as to attract relief under section 39B of the Judiciary Act (Cth). PARTICULARS (a) In failing to find the purported exercise of power by the Tribunal contravened a 'jurisdictional factor', namely the requirements under the Act to comply with Australia's obligations under the Refugee Convention: the Particulars under Ground 1 are repeated; (b) In failing to find the purported exercise of power contravened a final limitation upon the powers, duties and functions of the Tribunal, namely to avoid breach of Australia's obligations under the Refugee Convention: the Particulars under Ground 1 are repeated." The First Ground of Appeal - Invalidity of Section 474 32 The first ground of appeal was abandoned by the appellant in the supplementary written submissions lodged on his behalf although the particulars referred to in that ground were relied upon in support of ground 2. The Second Ground of Appeal - Jurisdictional Error 33 The substance of the argument put to the Court at the hearing of the appeal related to this ground. The questions raised by ground 1 as to the validity of s 474 of the Act were then reserved before the High Court. 34 The terms of ground 2 itself are singularly unrevealing. They were however to be read in the light of the particulars in ground 1. Counsel for the appellant, at the hearing of the appeal, characterised his argument on ground 2 thus: "My simple argument is that on the basis of those facts that were accepted, taken cumulatively the tribunal should have been satisfied that the appellant faced the requisite degree of fear of persecution." The contentions advanced at the hearing of the appeal therefore reduced to the proposition that the Tribunal, having made the findings of fact referred to in pars (a) to (e) of ground 1 should, as a matter of law, have concluded that the appellant had a well-founded fear of persecution for one or more of the reasons referred to in Article 1A of the Refugees Convention. On that basis the Tribunal should have held that the appellant satisfied the criterion that he was a person to whom Australia owed protection obligations under the Convention. 35 In his supplementary submission made in light of the decision of the High Court in Plaintiff S157, counsel for the appellant did not depart from the central argument which he advanced at the hearing. What was said, however, was that the failure by the Tribunal to find, on the facts accepted by it, that the appellant had the requisite well-founded fear of persecution was a jurisdictional error. A decision infected by such an error was, consistently with the reasoning in Plaintiff S157, not a decision to which the privative clause s 474 applied. 36 There has been some recent debate in decisions of the Court about whether the reasoning in Plaintiff S157 was so inconsistent with that of the majority in NAAV that the latter can no longer be regarded as good law. The decision of Gyles J in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144suggested that the majority position in NAAV was still good law. This judgment and others to contrary effect were canvassed in the recent decision of the Full Court in Koulaxazov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 75 and in particular in the judgments of Madgwick and Conti JJ, albeit from different and somewhat conflicting perspectives. Some of this debate turns on the question, not expressly answered in Plaintiff S157, whether the species of jurisdictional error that will avoid the operation of the privative clause encompassed the range of errors canvassed by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 which concerned jurisdictional error for the purposes of the former s 476 of the Migration Act. In our opinion however, there is no basis upon which it can be said that the appellant has exposed an error on the part of the Tribunal that constitutes an error of law, much less jurisdictional error. 37 Four of the five findings of fact reflected in claims made by the appellant and accepted by the Tribunal relate to political activities of the appellant (pars (a), (b), (d) and (e)) of ground 1. The fifth finding relates to the fact that the appellant's parents had been divorced but is not related to any Convention ground (par (c)). If they were divorced in a country in which divorce is contrary to social and religious mores, that might conceivably expose them to persecution on the grounds of religious opinion or membership of a particular social group. It does not so affect the appellant nor is there anything in the Tribunal's findings to indicate that it did or could. The Tribunal had accepted that the appellant's parents were divorced in 1997 and that this had a most deleterious effect on his family and caused the appellant to have to shoulder additional financial responsibilities with his brother as set out in his arrival interview. That does not involve any finding of persecution on a Convention ground or otherwise. 38 As a matter of logic the other four findings, or accepted claims, do not require the inference that the appellant was exposed to a risk of persecution on account of his political opinions. In any event those findings must be read in the context of other findings of fact made by the Tribunal. Findings fatal to the inference which the appellant contends for as a matter of law included the following: "The Tribunal accepts that the Applicant has been interested in politics and has been politically active but on a low level. The Tribunal accepts that he was initially disciplined and later banned from the Ahvaz Institute of Technology for being restive about student affairs. The Tribunal also accepts that the Applicant was charged and was sentenced to imprisonment in 1996 for one year for participating in a public disturbance associated with volatile parliamentary elections in Shooshtar. The Tribunal also accepts that the Applicant involved himself in 1996 in a small group of like-minded reformist individuals, which was called 'Hadaf'. However, the Tribunal is not satisfied for the reasons set out below that, apart from his participation in the protest at the Power Distribution Company in Abadan in May 2000, the Applicant has been politically active since his release from gaol in 1997 in a way or at a level that would attract adverse interest from the Iranian authorities." And after referring globally to the inconsistencies and lack of credibility of certain aspects of his claims and testimony, the Tribunal found, in a passage cited at [17] above that the appellant was not in genuine fear of persecution nor that there was a real chance that he would face persecution on return to Iran. The Tribunal's findings have already been summarised in these reasons. Having regard to them it cannot be said that the matters which the Tribunal accepted as claims made by the appellant required the Tribunal, as a matter of law, to conclude that the appellant had a well-founded fear of persecution for a Convention reason. No error of law is exposed. No jurisdictional error is made out. Ground 2 therefore fails. Conclusion 39 For the preceding reasons the appeal will be dismissed with costs. I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.