WACV of 2002 v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2002-12-04|Before: Nicholson J

REASONS FOR JUDGMENT 1 This is an appeal from the decision of Federal Magistrate Raphael given on 10 May 2002. In that decision an application by the appellant to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 29 November 2001 was dismissed. The decision of the Tribunal affirmed the decision of a delegate of the respondent not to grant to the appellant a protection (class XA) visa. 2 The application for review was lodged on 11 December 2001. It therefore attracted the application of the Migration Act 1958 (Cth) ("the Act") as it was amended with effect from 2 October 2001.

Background circumstances 3 The background circumstances to this appeal are as follows. 4 The appellant and his adult son, both claiming to be nationals of Iran, arrived undocumented in Australia by boat from Indonesia on 6 March 2001. The appellant is an electrician from Tehran. He claimed that he and his son became involved in the third day of the notorious student demonstrations in Tehran in July 1999 where he tore up a photograph of Ayatollah Khomeini and may have been seen doing this. He alleged his son was held by authorities for twenty days. He claims to have lived the next eighteen months in constant fear. The appellant also claimed he was dismissed from his position with the Tehran City Council for not attending group prayers.

Tribunal's findings and reasons 5 The findings and reasons of the Tribunal were as follows: "The Tribunal accepts that the Applicant is an Iranian national who departed Iran, as claimed, on an Iranian passport issued in his name. All this is evidence of a lack of concern about being scrutinised by the authorities in the process of his departure. In turn, this points to the authorities having nothing against him as does the fact that they did not arrest him after his claimed involvement in the demonstrations. Although the Applicant is very probably no supporter of the ruling regime in Iran, and although the Tribunal is prepared to accept that he took to the streets with tens of thousands of others, he did not satisfy the Tribunal that he got deeply enough involved in the student demonstrations in July 1999 to be of any interest to the authorities. This conclusion is strongly supported by the evidence of his uninterrupted pattern of living and the length of time he remained at large before departing to Australia. The Tribunal is deeply troubled by the Applicant's son's voluntary return to Iran. It leaves the Tribunal strongly doubting that he was ever arrested, or at least living in fear of re-arrest. Were it to accept that the Applicant's son also participated in the popular response to the 8 July 1999 raid, and that he was detained fro 20 days, it would still conclude that this was a short, finite and arguably understandable response on the authorities' part to what was after all a riot, and especially compared with their response to dissident students generally. The Tribunal dismisses as a fabrication the Applicant's claim that his son was arrested at home after being allowed to return there from the airport. The Tribunal accepts the Applicant's evidence of his son's safe passage through the airport as evidence that he too can return to Iran without fear of being detained for any Convention-related reason, notwithstanding that he has applied for asylum in Australia. The Tribunal has read the submissions of the Applicant's adviser but these do not overcome the fundamental problems in this case. Having concluded that the Applicant departed Iran under the scrutiny of authorities, and having concluded that he did so bearing a passport identifying him correctly, the Tribunal finds that there are no grounds on which to be concerned as to his safe and incident free return to his own home, and to a routine life after that. On the evidence before it, the Tribunal is not satisfied that the Applicant has a genuinely-held fear of Convention-related persecution in Iran. It is not satisfied that he faces a real chance of Convention-related persecution in that country. He is not a refugee." It will be observed that the Tribunal fails on occasion to make actual findings, employing language falling short of a finding.

Reasoning of Federal Magistrate 6 The Federal Magistrate commenced from the statutory base that in order to satisfy the Tribunal that he was entitled to a protection visa the appellant was required to satisfy the relevant criteria set out in s 36(2) of the Act: see s 65(1) of the Act. This required him to satisfy the criteria that he was a non-citizen in Australia to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. 7 The Federal Magistrate was concerned with three aspects of the Tribunal's reasoning. Firstly, the Tribunal had misunderstood when it was that the appellant had been sacked from his employment. Secondly, there was no reference in the reasons to his brother's arrest and killing under a fatwa by the Ayatollah. Thirdly, there was no discussion of an issue raised by the appellant's solicitors at the hearing before the Tribunal to the effect that the appellant's son, who had voluntarily returned to Iran, was mentally unwell and not in a position to make a rational decision. The Federal Magistrate considered this was a dismissal of material on intuition or inclination and could arguably constitute a failure to hear the appellant's case as presented to it and a failure to perform the duty imposed on it by s 414 of the Act: W195/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 396. 8 However, the Federal Magistrate, after a study of the reasons, came to the conclusion that the Tribunal based its decision firmly on the basis that if the appellant was a person who would risk death or imprisonment in Iran upon his return there, he would not have been able to leave Tehran through its airport with a passport (whether false or otherwise) in which his real name and photograph appeared. This conclusion was firmly based upon the country profile so that there was no jurisdictional error made by the Tribunal. As a consequence the findings which the Tribunal came to about the appellant's son and the views about the appellant's truthfulness (whether or not they were influenced by an apparent understanding about his employment) had no relevance to the real reason for the decision. 9 In any event, even if he had found a jurisdictional error or errors in the non-consideration of evidence put before the Tribunal, the Federal Magistrate would have followed the decisions of the Federal Court as they then stood in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263; Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 and Wang v Minister for Immigration & Multicultural Indigenous affairs [2002] FCA 477, the effect of which would have been to put such an error beyond the reach of remedy by the Court. This was because of the effect of s 474 of the Act. That is, the Federal Magistrate concluded that the conditions in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 could not be satisfied so that the privative effect of s 474 applied. Accordingly he dismissed the application.

Grounds of appeal 10 The appellant filed his notice of appeal without the benefit of legal advice. He repeated in it grounds which had been stated before the Federal Magistrate being grounds based on no evidence and error of law.

Contentions for appellant 11 Although the appellant recognised the potentially limiting effect of s 474 of the Act he relied upon the following matters at the hearing of the appeal: (1) Mala fides in the Tribunal member 12 In the course of its reasons the Tribunal stated the appellant had claimed that his son decided to go back to Iran "when he learnt that his case had been constituted to the presiding member…". (2) Non-consideration of certain of his claims by the Tribunal member as illustrated by: (a) the Tribunal's apparent confusion concerning the appellant's employment; (b) the lack of any reference by the Tribunal to the appellant's information about his brother's detention and death; (c) its findings in relation to what he had claimed concerning his passport. (3) The summary dismissal of submissions concerning his son's return to Iran so that such dismissal constituted a failure to hear the case presented. 13 In the course of supporting the third contention the appellant claimed that upon his son's return to Iran he had been detained for two months by Ettela'at. He had later been released. In July 2002 his son decided that because of continuing persecution by the regime he would again depart Iran. He and his wife left in that month for Turkey where they are now seeking refugee status. This was fresh evidence not before the Tribunal or the Federal Magistrate.

Respondent's contentions 14 It was submitted on behalf of the respondent that the decision of Federal Magistrate Raphael was delivered before the judgment of the Full Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. Nonetheless, the secondary position taken by his Honour was consistent with the majority decision in NAAV as set out below. There was, it was submitted therefore no error in his Honour's decision that the application did not disclose any error which enabled him to grant relief pursuant to the jurisdiction under s 39B of the Judiciary Act 1903 (Cth). Other specific submissions for the respondent are reflected in the reasoning which follows on those specific aspects.

Reasoning on appeal 15 The effect of the reasoning in NAAV has been described by a further 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 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." 16 The Tribunal did consider the appellant's claim that he faced persecution on return to Iran. It honestly dealt with the subject matter given to it under the Act and acted in pursuance of its powers. The decision was open to it in the exercise of its statutory powers. 17 The position is that neither the application, nor the notice of appeal or oral submissions identify a Hickman exception. Nor do those documents or the oral submissions identify any requirement or limitation on the exercise of power by the Tribunal that it has not complied with and which, notwithstanding the terms and affects of s 474, is essential to a valid decision. Further the appellant did not point to any Hickman exception or "inviolable limitation" in his oral submissions at the hearing of the application. The result is that the decision of the Tribunal is final and conclusive and the Federal Magistrate did not err in deciding the application should be dismissed. 18 As to the first of the matters raised by the appellant in oral submissions, there is no evidence that the Tribunal member was in some way acting mala fides. The matters referred to by the appellant are not evidence that there was not a bona fide attempt by the Tribunal member to exercise the power which the Act reposed in the Tribunal. There was therefore no error of law by the Federal Magistrate in not dealing with this matter more closely. 19 In relation to the three matters identified in the second of the contentions made orally by the appellant, none of these give rise to an error of law pursuant to s 39B of the Judiciary Act. The appellant's submissions in this respect constitute an invitation to this Court on appeal to remake findings of fact, a course not lying within its jurisdiction. Furthermore, it is to be borne in mind that in stating its reasons a tribunal is not under an obligation to set out every matter: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [67]-[68]. In any event, if there were any jurisdictional error in this respect it is the sort of jurisdictional error which s 474 of the Act now protects by enlarging the jurisdiction of the Tribunal. 20 In relation to the fresh evidence concerning the son, that was not before the Tribunal or the Federal Magistrate so that no error of law in the reasoning of either of them can arise from those facts if they were established. However, they do give rise to the matter which forms the subject of a paragraph at the conclusion of these reasons.

Conclusion 21 The appeal must be dismissed with costs.

Fresh evidence 22 It is accepted for the respondent that if the fresh evidence concerning what occurred to the appellant's son upon his return to Iran was established and found as a fact, that evidence could have a bearing on the appellant's position. However, for that to occur it would be necessary for the appellant to make a fresh application founded on, in particular, that evidence. That would then enable those responsible for finding facts to consider such evidence as the appellant may be able to bring in that respect. 23 There are two statutory provisions which may make this course possible for the appellant. The first is s 48B under which the Minister, if he thinks it is in the public interest to do so, may by written notice determine that the restrictions on a further application provided for in s 48A does not apply to prevent an application for a protection visa in a certain period. The second statutory provision is s 417 by which the Minister, if he thinks it is in the public interest to do so, may substitute for the decision of the Tribunal another decision being a decision more favourable to the particular appellant. 24 It follows that the appellant should take such steps as may be open to him to obtain evidence to support his claims concerning his son and the treatment the son received on return to Iran if it is the appellant's wish to seek the agreement of the Minister to the provisions of either of these sections having application. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 36(2), 48A, 48B, 65(1), 414, 417, 474

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