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[2002] FCAFC 429
Federal Court of Australia (Full Court)
2002-12-20
French J, Tamberlin JJ
Original judgment source is linked above.
THE COURT: 1 The appellant appeals from the judgment of a Judge of this Court, French J, dismissing his application for judicial review, which application his Honour properly treated as an application to the Court under s 39B of the Judiciary Act 1903 (Cth). The application was filed in the Court after 2 October 2001 and, accordingly, the decision of the Refugee Review Tribunal ("the Tribunal") which the appellant seeks to review is a "privative clause decision" as that expression is used in s 474 (2) of the Migration Act 1958 (Cth) ("the Act"). 2 The appellant is a citizen of Iran. He arrived in Australia with his daughter on 1 March 2001 and shortly thereafter lodged an application for a protection (class XA) visa. The application was rejected by a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"). The appellant then sought review of that decision by the Tribunal. The Tribunal confirmed the decision of the respondent. The appellant then applied to this Court. 3 It is a criterion of the grant of a protection visa that the applicant for the visa be a person to whom Australia has protection obligations. Australia will, generally speaking, have protection obligations to a person who is a "refugee" within the meaning of that expression in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967, which, compendiously, is here referred to as "the Convention". 4 Article 1(A)(2) of the Convention defines a refugee to be any person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 5 The appellant claimed to have a well-founded fear of persecution for reason of political opinion having regard to what he claimed to have been his political activities for many years against the government. He summarised his case at his "unauthorised arrivals interview" by saying: "I would be jailed because of political probs." 6 The case presented by the appellant before the Tribunal is conveniently summarised in a submission which was attached to his application for a protection visa. That submission is set out in the Tribunal's reasons for decision which is, for convenience, repeated here. "I am Kurdish and of the Shia faith. I completed my education in Ahwaz. Whilst I was at school in 1978, I supported the Qakhl Fadaec Militia. This was an organization to promote Marxist/Leninist ideas. I read the Manifesto which is a compilation of communist rules and books by Maxim Gorky. The Iranian authorities destroyed books about communism as these were said to be against the revolution. In 1981, my brother Mohammed Ali was arrested whilst he was in the Navy. He was accused of working for Komoleh Democrat, an organization which promoted Kurdish rights. He was a supporter of Kurdish rights and freedom and was held in prison until 1983. My sister Fareedeh was helping with propaganda work for the National Front Party. This was a nationalist and religious organization. Their aim was to separate state and religion and calling for freedom of expression and freedom of the press and other principles. She was arrested in 1981 in Ahwaz. My sister was severely mistreated physically and mentally. She was held for about 25 days to a month. My father used his property title deeds as security for her release. She was expelled from University as an unwanted student. Other people were also arrested at this time. There was a big demonstration in Ahwaz calling for the release of the detainees. I was at the demonstration in front of the detention centre in Ahwaz. The Pasadran came and attacked us and detained between 15-20 people. I was one of the people detained. I was beaten and hosed with a fire hose so that I could not go to sleep. During the night there was shooting and they told me that they had executed some colleagues and that it would be my turn next. My father arranged to get me released on security of his property. I had to sign an undertaking not to cooperate with opposition groups. I continued to help distribute pamphlets for Qalkh Fadaee in neighbouring suburbs during the night. In about 1982 and early 1983, there were demonstrations organised by Qalkh Fadaee and I was involved to protect women in the demonstration from the Pasdaran. The Pasdaran came to our house and questioned me. They knew our family because of the arrest of my sister and brother. … After I was discharged from the army in 1985 I was working with my brother who had been released from prison. He was a contractor and we did some construction work. I continued my political activities in this time. There were no demonstrations but we distributed pamphlets. A colleague had a stencil machine and he printed 1000 - 1500 pamphlets for distribution. The pamphlets were about the sentencing of political prisoners who were executed without a hearing or kept in prison for many years. They were involved in the same organization and the Mujahaddeen, Qalkh Fadaee militia and communists, national front party members and Freedom movement and other parties against the government. Several times a year, the security forces came to our house and questioned us because my brother had been in prison for political activities. This continued until about 1994. When I was studying at University between 1986 and 1988, there were restrictions so I could not distribute pamphlets easily. I was questioned 2-3 times by the University authorities about whether I was involved with pamphlet distribution but they could not prove anything against me. In about 1986, I was detained once but I did not have pamphlets on me at the time and I was released the next day. From 1989, I was working for the Ahwaz local government and in 1991 I was detained for a night by the Pasdaran. They threatened me that it would be hard for me if I continued my activities. The next day my parents came to the detention centre and asked me to be released. They had no proof against me so they released me. I was again detained in 1994. I had intervened to make the local government pay workers overtime. I was interrogated by the Pasdaran. They accused me of provoking the workers against the government. I was sacked from the local government because of my activities. I was sacked even though they were advertising for someone with my skills. About this time, a bottle of acid was thrown into my front yard but no one was injured. I believe this was thrown by someone from the Basiji or Pasdaran. I decided to move to Shiraz to avoid problems from the Pasdaran. In Shiraz I maintained my political opinions and I supported the Jebheh Melli (National Front Party) in Shiraz. During the Iran Iraq war many Khozestani people had left for Shiraz and so I had many friends in Shiraz. A number of people I know had changed from supporting the Socialist party to support the Jebheh Melli. In about 1995, I became involved in publishing pamphlets asking for political freedoms and workers' rights they were distributed at the University for the students. The students helped distribute some pamphlets. We distributed pamphlets in the middle class areas during the night. In 1997, the Basiji took me one night. I had already distributed al [sic] the pamphlets but they kept me for a night and they interrogated me. I was released but they said they would contact the Ahwaz office to cheek [sic] on me. I gave them the wrong address in Shiraz so they were not able to come and find me. I continued to distribute pamphlets and demonstrations in Shiraz. In 1999 I was detained. I was walking along the road and a car stopped and ordered me to get. In. they took me to a detention centre and I was interrogated and beaten. There were many people arrested at this time and there were many demonstrations against the government. I was released after 24 hours. In July 1999, the authorities raided a student hostel in Tehran and after this there were many demonstrations against the authorities. I participated in demonstrations in Shiraz and distributed pamphlets against the government. The pamphlets asked why the police and security forces raided the student hostel. I was very involved in political activities. In 2000 I was attacked while I was on the road. I was stabbed and they told me that I should not have any political activities or distribute pamphlets. They told me next time if we find you involved we will kill you. I think they were Basiji or Pasdaran in plain clothes. I fled to Tehran. I had printing machines at my house but my friends had removed them from my house before the authorities searched my house. I stayed with friends in Tehran for six months. I was in hiding as I had heard that the authorities had raided my house in Shiraz. I learnt this when I contacted neighbours by telephone. I did not do any political activities as I new [sic] it would be dangerous in Tehran for my daughter and myself. When I was in Shiraz I learnt from a friend in the passport office that I was banned from leaving the country. In Tehran I asked friends to see if I was still banned and they told me yes. I stayed in Tehran to find a way to escape from Iran with my daughter." 7 After setting out these claims, a further elaboration of them contained in a submission from the appellant's advisers, and relevant country information, the Tribunal proceeded to set out its findings. 8 The Tribunal accepted that the appellant had had "minor political involvement" in Iran over a 20-year period. It was also satisfied that this involvement included participation in some demonstrations and that the appellant may have been briefly detained because of this. The Tribunal, however, stated that it was not satisfied that the appellant was known to and faced persecution from the "Iranian authorities" because of his political activities. The Tribunal said that the reasons it reached this conclusion were collectively as follows: First, the appellant was issued a passport in January 1991 without difficulty. Yet country information was that people with a history of active political opposition to the regime and political offences were on a black list and would have been refused a passport. Because the appellant was not on the black list, the Tribunal was not satisfied that the Iranian authorities wished to imprison or execute him because of his political activities. Secondly, the Tribunal considered that it was implausible that the Iranian authorities would detain the appellant on so many occasions and yet never press charges nor wish to imprison or execute him on the basis of his cumulative political activity. Thirdly, the Tribunal considered the appellant's claim to be a dissident and political activist vague and unconvincing. The appellant claimed to be involved in a number of different groups, to have supported many groups without being a member and not to have participated in political activities for some years. Further, the Tribunal said the activities focused on different issues and took place in different cities over the 20 years in which the appellant claimed to be politically active. 9 The appellant responded to the first matter by saying that he had been placed on the black list some five to six months after the issue of the passport. He claimed that he had been detained for a month after student demonstrations in July 1999 following which his name had been placed on the black list. However the Tribunal did not believe that the authorities would both release the appellant and place his name on the black list. 10 The appellant claimed to have been attacked in the street in early 2000 and warned to stop his political activities. The Tribunal was not satisfied on the basis of the evidence before it that this attack was "officially sanctioned" although the appellant, who was unsure from whence it came, thought that it might have been the Hezbollah. 11 Further, the fact that the appellant had managed to leave Iran through the airport with his own passport (only having paid, according to the appellant, a bribe) led the Tribunal to the conclusion that the appellant could not have been black-listed, for there was country information before the Tribunal that it would be virtually impossible for Iranians on the black list to use bribery to have their names removed from that list so as to enable departure. 12 Further, there was country information, which the Tribunal accepted, that travel out of Iran through legal checkpoints was a reliable indication that a person was of no particular adverse political or security interest. 13 On the basis of this country information, and also on the basis of country information which stated that individuals who were briefly and in a relatively minor capacity associated with anti-regime activities or demonstrations and had been detained and imprisoned were now living freely in society and could not be considered as having an imputed political profile, the Tribunal concluded that the appellant's minor participation in political activities over a 20-year period was not of interest to the Iranian authorities. The appellant did not, the Tribunal considered, have a well-founded fear of persecution from the authorities on his return to Iran. The Tribunal, accordingly, rejected the application and confirmed the decision of the Minister's delegate. 14 In this Court at first instance, the appellant argued that the Tribunal's decision was affected with bias. The appellant also referred to the existence of two different lists affecting the ability to obtain a passport and argued that the Tribunal had not had regard to aspects of the evidence affecting the question of departure from Iran. 15 The learned primary Judge rejected these arguments. His Honour held that there was nothing in either the findings of the Tribunal or for that matters in comments that had been made by the Tribunal member during the course of the proceedings which indicated actual bias. As to the other matters raised, his Honour held that these went to questions of the Tribunal's findings of fact and raised no grounds upon which the Court could set aside the Tribunal's decision. His Honour accordingly dismissed the application with costs. 16 Before us it was submitted that the Tribunal had acted in excess of jurisdiction or had committed a jurisdictional error by directing itself that only acts sanctioned by the State could constitute persecution with the meaning of the Convention. It was also submitted that the Tribunal had denied natural justice to the appellant by failing to put to him that the Tribunal member was not satisfied, and was required to be satisfied, that the attack in 2000 was sanctioned by the authorities and provide the appellant with an opportunity to respond. Further, it was said that the Tribunal had failed to consider whether the appellant's treatment over the whole 20-year period would cumulatively constitute persecution or in failing to consider whether there was a real chance that the persecutory events feared by the appellant might occur in the future. 17 The matters referred to in the last paragraph were said to involve a fundamental error of principle ("a transgression of an inviolable restraint on the jurisdiction of the Refugee Review Tribunal": see NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [11] - [19]) such that, as a matter of construction, the provisions of s 474(4) of the Act did not operate to exclude the Court from exercising jurisdiction to grant relief under s 39B of the Judiciary Act 1903 (Cth). Alternatively it was submitted that the Tribunal's decision was made other than in good faith or was not reasonably capable of being referred to the powers granted to the Tribunal such that it fell within an exception to the principle stated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616. Accordingly, it was submitted that the Court had jurisdiction to grant relief of the kind referred to in s 39B of the Judiciary Act 1903 setting aside the Tribunal's decision. 18 It does not appear that any of these grounds were argued before the learned primary Judge, nor were they the subject of the appellant's grounds for review as filed in this Court. However, the appellant was not represented in the hearing before the learned primary Judge and, as no objection was made to leave to file amended grounds of appeal, we granted leave to amend the grounds of appeal and would likewise grant leave to amend the grounds upon which it is to be taken that the appellant has applied to this Court for the relief referred to in s 39B of the Judiciary Act 1903. 19 It is common ground that the question whether the Court's jurisdiction is barred by the provisions of s 474 of the Act will not arise unless an applicant to the Court can establish that the Tribunal failed to exercise the jurisdiction which Parliament conferred upon it or otherwise acted in excess of that jurisdiction: we propose, therefore, to consider first the question whether the appellant has made out a case for one of the forms of relief provided for in s 39B of the Judiciary Act 1903. If he has not, then the appeal must be dismissed and it will not be necessary to decide whether the provisions of s 474 would otherwise preclude the Court from granting the relief sought.
Did the Tribunal err in requiring official sanction before there is persecution? 20 The primary submission made on behalf of the appellant was that the Tribunal had erred by imposing the requirement, inconsistent with the decision of the High Court in Minister for Immigration & Multicultural Affairs v Khawar (2002) 187 ALR 574, [2002] HCA 14 that before an act could constitute persecution in the sense used in Article 1(A)(2) of the Convention, that act must be officially sanctioned. 21 At the heart of the submission is a comment made by the Tribunal rejecting the appellant's claim of persecution so far as that claim concerned an attack (the stabbing incident) said to have taken place in early 2000. The appellant's description of the attack is dealt with in the third last paragraph of the submission set out earlier in these reasons. That paragraph was virtually identical to a paragraph dealing with the same subject matter in a post hearing submission lodged with the Tribunal by the appellant's legal adviser. That submission read, relevantly, as follows: "In 2000 the applicant claims he was attacked while on the road. The applicant claims he was stabbed and told that he should not have any political activities or distribute pamphlets. These people told the applicant that next time they would kill him. The applicant thinks these people were Basiji or Pasadran in plain clothes." 22 In oral evidence, as appears from an extract from the transcript of evidence which was tendered by consent, the appellant referred to the incident and when asked whether he knew who it was who had attacked him said: "clothing and appearances looked like hebollahis [sic] … unable to discern faces." 23 The Tribunal accurately summarised the oral evidence in its reasons. However, in dealing with the matter in its findings, the Tribunal made the following comment: "The applicant claimed that he was attacked in the street in early 2000 and warned to stop his political activities. The applicant was unsure who attacked him as they wore plain clothes but the applicant thought that it might be the Hezbollah. The Tribunal can not be satisfied on the basis of the evidence before it that the attack was officially sanctioned." 24 The passage set out in the previous paragraph, when coupled with the finding of the Tribunal that the appellant's participation over the 20-year period in political activities did "not give rise to a well-founded fear of persecution from the authorities on his return to Iran" (emphasis added) is said to lead to the conclusion that the Tribunal's decision was in error because the Tribunal took the erroneous view that the Convention required that acts be officially sanctioned before they could be taken to constitute persecution. 25 There was country material before the Tribunal, particularly a document prepared by the Department of Foreign Affairs and Trade ("DFAT") in 1996, which discussed the structure of power in Iran and, particularly, the role of a number of bodies that are independent, at least officially, from the government. 26 The country is, as is well known, an Islamic State. In addition to the normal secular authorities such as the police, there are what DFAT refers to as "semi-autonomous hard-line revolutionary elements who defend existing practices as being in conformity with revolutionary Islamic values". Under the heading "Internal Security" the material referred to the "'morals' police" which tend to operate as a separate unit, the Islamic Revolutionary Guard Corps (IGRCR or "Pasdaran") which is tasked in the constitution with "safeguarding the Revolution" and which plays a role, particularly in matters involved in internal unrest and morals policing. The Basiji is a volunteer mobilisation force created during the Iran-Iraq war and made up of young Hezbollah. The Basiji is under the wing of the Pasdaran but enjoys an enhanced role in morals policing and the quelling of civil unrest. 27 Another document, a country assessment of Iran prepared by the UK Home Office refers to the Pasdaran as using violence to disperse unauthorised gatherings. The document, so far as relevant says: "In April 1998 the head of the Revolutionary Guard Corps made clear the fact that they would repress efforts to achieve reform by persons perceived to be 'counter-revolutionaries'… The Basij, or Baseej (paramilitary volunteer forces), come under the control of the Revolutionary Guards. … They are active in monitoring the activities of citizens, enforcing the hijab and arresting women for violating the dress code, and seizing 'indecent' material and satellite dish antennae. In May 1999 the Minister of Islamic Culture and Guidance stated in public remarks that the Government might support an easing of the satellite ban. … The 'Special Basijis' are not permitted to participate in political parties or groups, although other members of the Basij can belong to political associations if they are not on a Basij mission … Hezbollahi ('partisans of God') consist of religious zealots who consider themselves as preservers of the Revolution. They have been active in harassing government critics and intellectuals, have firebombed bookstores and disrupted meetings. They are said to gather at the invitation of the state- affiliated media and generally act without meaningful police restraint or fear of persecution." 28 Another reference to the Hezbollah is to be found in a Human Rights Watch 1999 World Report, referred to the Tribunal by the appellant's representative which, inter alia, notes: "In March, Hezbollahi broke up a peaceful demonstration by students in Tehran criticizing the role of the Council of Guardians in excluding candidates from parliamentary by-elections. In May, after statements threatening such action by parliamentarians, attackers beat a speaker and disrupted a conference of surgeons which had criticized a proposed law to segregate health care along gender lines. Eventually, on September 11, reacting to the beating of a minister and a vice-president by Hezbollahi…" 29 Finally, reference may be made to a passage in the US State Department Country Report for Iran, released 25 February 2000, which is as follows: "Several agencies share responsibility for internal security, including the Ministry of Intelligence and Security, the Ministry of Interior, and the Revolutionary Guards, a military force that was established after the revolution. Paramilitary volunteer forces known as Basijis, and gangs of thugs, known as the Ansare-e Hezbollah (Helpers of the Party of God), who often are aligned with specific members of the leadership, act as vigilantes, and are released into the streets to intimidate and threaten physically demonstrators, journalists, and individuals suspected of counter-revolutionary activities. Both regular and paramilitary security forces committed numerous, serious human rights abuses." 30 In the course of submissions counsel for the appellant appeared to move from the submission to which reference has already been made to a rather different submission, namely that the Tribunal failed to consider the question whether the appellant had a well-founded fear of persecution on political grounds from organisations like the Hezbollah, the Pasdaran or the Basiji - effectively vigilante organisations operating as "morals police" and operating without the sanction of the state, but without the state taking active steps to stamp out or protect persons from their activities. 31 In support of the basic submission that persecution in the Convention sense is not limited to state-sanctioned harm, reference was made to the decision of the High Court in Khawar where it was held by a majority of the Court, Gleeson CJ, McHugh, Gummow and Kirby JJ, Callinan J dissenting, that a Pakistani woman, married to a drunken and violent husband but who was unable to obtain State protection from that violence could, if the relevant facts were ultimately found by the Tribunal, come within the definition of "refugee" in the Convention. 32 There was a difference among their Honours in the High Court on the question of the position of the State in relation to the connection required between the harm and the State so as to constitute persecution within the meaning of the Convention. The Chief Justice noted that the relevant State conduct could be tolerance of, or condonation of, the inflicting upon the wife of the violence. McHugh and Gummow JJ were of the view that the persecution in that case lay in the discriminatory inactivity of State authorities in not responding to the violence of the non-State actor, the husband. Kirby J spoke of the persecution being condoned, tolerated, or there being a case where the State refuses or is unable to offer protection. 33 The analogy is said here to be that acts of harassment by the Hezbollah, or other groups, capable of constituting persecution were capable of being persecution within the meaning of the Convention because they were tolerated or condoned by the State. It was said that if the submission were accepted, it would be necessary to refer the proceedings back to the Tribunal to find the relevant factual matters. 34 It must be accepted following Khawar that harm or discriminatory conduct need not be sanctioned by the State before it can be persecution within the meaning of the Convention. Serious harm which is either condoned or tolerated by the State could be persecution. The question thus arising is whether the Tribunal did hold that persecution must be state sanctioned before it came within the Convention. If it did that would clearly involve the Tribunal in legal error. 35 The passage set out in para 23 of these reasons and on which the argument centred clearly refers to State sanction. On its own it gives substance to the appellant's argument. On the other hand it must be said that the Tribunal early in its reasons and in the course of discussing what the Tribunal referred to as the "four key elements to the Convention definition" said: "The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality." This passage, on its face, is an unexceptionable statement of the law and indicates that the Tribunal at least understood what the law was. The issue before us is whether having set out the correct test, the Tribunal then abandoned that test and instead applied a wrong test when dealing with the stabbing incident. 36 Although it is possible to argue that the Tribunal's discussion of the law might have been merely the result of using a word-processing program to set out what may colloquially be referred to as a "boiler plate" discussion, thereafter to be ignored, that is nevertheless an argument not to be lightly accepted. The alternative view, and it is the one that we think should be accepted, is that the Tribunal used loose language in referring to official sanction, but in the context where the appellant had made it clear that he did not know who it was who had attacked him. Of course, the attackers may have been the Hezbollah; the attackers may have been the Basiji; the attackers may have been the Pasdaran or they may have been persons unconnected with any of these groups. On that basis, the Tribunal really was saying no more than it could not be satisfied at all that there was the necessary State involvement. The focus in the passage complained of was not really on State sanction as against State tolerance, but upon the Tribunal's inability to be satisfied at all who the attackers were. It is interesting to note, although the Tribunal made no reference to it, that in the initial interview with authorities the appellant, when discussing the stabbing incident actually said, presumably through an interpreter, and of the persons who had allegedly stabbed him that "Don't know if from my wife or government". In these circumstances we do not think that the argument that the Tribunal erred in law in adopting a wrong test as to the meaning of persecution can succeed.
Constructive failure to exercise jurisdiction - the alternative argument 37 It was submitted in the course of oral argument before us that the Tribunal had failed, constructively, to exercise its jurisdiction by not dealing with the case that the appellant had a well-founded fear of persecution on political grounds where that persecution would emanate from groups, such as Hezbollah, which were not themselves the State but whose acts were tolerated or condoned by the State. 38 This submission was one developed in the course of argument. However, it was not an argument actually dealt with in the amended grounds of appeal filed in Court as a result of leave which the Court gave. No request was made to seek leave to further amend the grounds of appeal. 39 In our view, the submission should not be entertained. However, we will make some comments concerning it. These comments perhaps explain why the argument was not contemplated by the grounds of appeal. 40 It can be accepted that the failure of the Tribunal to consider an issue raised before it would involve a constructive failure on the part of the Tribunal to exercise its jurisdiction such as would found relief under s 39B of the Judiciary Act 1903, subject to s 474 of the Act. The questions here, if leave were granted to amend the ground of appeal, would be whether the issue was one which was raised before the Tribunal and, if so, whether the Tribunal failed to deal with it. 41 It will be recalled that there were a number of claims which the appellant made and which concerned all of the Hezbollah, Basiji or Pasdaran as well as the official agencies, such as the police. So, the applicant claimed among many things to have been interrogated by the Pasdaran in 1994 and to have moved to Shiraz to avoid problems with that organisation. He claimed also to have been interrogated by the Basiji. Finally he claimed, as already noted, to have been stabbed in 1999 and in circumstances where he thought that those who threatened him were Basiji or Pasdaran in plain clothes or, in oral evidence, the Hezbollah or perhaps as he first said, persons associated with his wife. These claims were in the context of numerous claims to having been detained for participation in demonstrations and sometimes to have been detained without apparent reason, and claims to have been interrogated or to have had his house searched. 42 It seems that the appellant's case was put on the basis that he had opposed the government over a period of 20 years and that this had resulted in his being questioned and detained. The Tribunal's reasons make it clear that the Tribunal understood his case to be a fear of State persecution as a result of his political activities. The appellant did not seek to differentiate between the State itself and State-tolerated organisations. Perhaps the appellant regarded them as all involving the State. Indeed, it seems likely to us that this was the case. If this is correct then there was no reason for the Tribunal to make the distinction between State activity on the one hand and State-tolerated activity on the other. No doubt it was for this reason that the Tribunal considered carefully the question whether the appellant had been black-listed for the claim was persecution by the State authorities. The Tribunal found, as already noted, that the fact that he was able to obtain a passport and depart without difficulty meant that he could not have been on the black list and, therefore, was not a person of interest to the State authorities. 43 In our view there will be a constructive failure to exercise jurisdiction in two classes of case. The first will be where the issue is raised by an applicant but not dealt with by the Tribunal. That is the simple and obvious case. However, applicants before the Tribunal are often not represented either legally or by a migration agent. In the present case the appellant had no legal representation, although he was, it seems, represented by a migration agent. 44 In such cases and where the facts before the Tribunal raise an issue which, if decided by the Tribunal favourably to the applicant could lead to the Tribunal forming the necessary state of satisfaction, the Tribunal will have an obligation to deal with it. The proceedings before the Tribunal are not adversarial but inquisitorial and it is for the Tribunal on the material before it to determine whether the necessary state of satisfaction exists. We do not, in the present case, need to determine what the position would be if an applicant is legally represented but that representative does not advance a claim which the facts before the Tribunal raise. 45 The factual material before the Tribunal and which we have set out, could, in our opinion, but read without reference to the appellant's claim, raise for decision the issue whether the appellant had a well-founded fear of persecution on political grounds from organisations such as the Hezbollah which are tolerated by the State, but which are not the State. In determining whether the Tribunal was satisfied that the appellant did have such a fear, it necessarily would then need to consider any acts in the past brought about by the organisations which might then constitute persecution by the State-tolerated organisation. 46 However, it seems to us that the claim was made compendiously by reference to both the State itself and the State-tolerated organisations and, as such, it was rejected by the Tribunal. The Tribunal's findings of fact on the matters which were relied upon by the appellant were somewhat sparse. The Tribunal accepted that the appellant had what it described as "minor political involvement in Iran over the twenty year period". It was, however, not satisfied that the appellant was known to, or that he faced persecution from, the authorities. More importantly, the Tribunal was not satisfied either that he had a history of political opposition to the government over a 20-year period or that he was regularly questioned and detained. It found, too, the appellant's claim to be a dissident and political activist "vague and unconvincing". It did find that the appellant may have been briefly detained because of his participation in some political activities such as demonstrations (and that claim related both to the State and State-tolerated organisations). However, the Tribunal concluded that what it called his "minor participation in political activities" did not give rise to a well-founded fear of persecution. 47 Accordingly, we do not think that this is a case where it can be said that there was a constructive failure on the part of the Tribunal to exercise its jurisdiction by failing to consider a case open on the material before it. Rather, we think that the Tribunal considered the case raised by the appellant both in respect of acts of the State itself and acts of State-tolerated organisations and came to the conclusion that it was not satisfied that the appellant did have a well-founded fear of persecution. Accordingly, we are of the view that even if leave were granted to permit the appellant to raise this issue, the appellant would be unsuccessful.
Failure to put matters to the appellant 48 The second error upon which the appellant relies is said to be the failure of the Tribunal to put to the appellant that it was not satisfied, but was required to be satisfied, that the attack in 2000 was sanctioned by the authorities so as to provide the appellant with an opportunity to respond. 49 This ground of appeal, which is related to the first ground, falls with it. If, as we have held, the Tribunal really did not distinguish between acts of the State and acts of organisations tolerated by the State, equating the one to the other, then there was no need for the Tribunal to put the matter to the appellant and the failure to do so brought about no injustice to the appellant. This ground of appeal, thus, also fails.
Failure to consider the appellant's treatment over the 20-year period cumulatively 50 No doubt there would be error on the part of the Tribunal if it considered individual circumstances put forward by an applicant as being grounds for a well-founded fear of persecution in the future, but failed to consider those circumstances cumulatively. However, there is nothing in the Tribunal's reasons to suggest that it failed to consider the matters raised by the appellant on a cumulative basis. Indeed, to the contrary, it is clear that the Tribunal did consider the overall impact of the individual circumstances, but nevertheless was not satisfied that the appellant had a well-founded fear of persecution. The ground of appeal must likewise fail.
Failure to consider whether there was a real chance that the persecutory events feared by the appellant might occur in the future 51 It is submitted that the migration agent representing the appellant submitted to the Tribunal that irrespective of whether the appellant had left the country legally or illegally, there was still need for the Tribunal to consider whether there was a real possibility that on return to Iran he would face persecution because of his political opinion. 52 That the Tribunal was required to consider whether there was a real chance of persecution if returned may be accepted. And it may likewise be accepted that the question whether there was a real chance of persecution will be tested both by reference to what had happened to the appellant in the past as well as other matters. Reference is made to Abebe v Commonwealth (1999) 197 CLR 510 at [83] per Gleeson CJ and McHugh J, and at [199] per Gummow and Hayne JJ; Omar v Minister for Immigration & Multicultural Affairs [2000] FCA 1430; Hamid v Minister for Immigration & Multicultural Affairs [2001] FCA 26; W68/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 148. 53 As we understand the submission, as amplified by the oral argument before the Court, it was that whatever had happened to the appellant in the past so far as concerned detention, interrogation etc, the appellant claimed that his political views, expressed over the 20-year time frame, raised a real chance that some time in the future, if he was returned to Iran he would come to the attention of the authorities and be persecuted for his political views. 54 No doubt it is logically true, as Gummow and Hayne JJ said in Abebe in the passage cited, rejection of the applicant's version of what had happened to him or her in the past would not conclude the question whether in the future he or she had a well-founded fear of persecution if returned. Just as it is equally true that evidence about past experiences, if accepted, will be a reliable guide to what may happen in the future. However, where, as here, the Tribunal has formed the view that participation in political activities over a period of 20 years was such as not to be of interest to the authorities, it is difficult to see on what basis it could be said that there was evidence from which the Tribunal could be satisfied that, if returned, the appellant would have a well-founded fear of persecution for that political opinion. We do not think that the reasons of the Tribunal, read at least without an eye attuned to error, suggest that the Tribunal erred in the way suggested.
Conclusion 55 It follows in our view that the Tribunal did not make an error going to jurisdiction such as to entitle the appellant to relief under s 39B of the Judiciary Act 1903. Accordingly, it is unnecessary for us to consider whether the Court is precluded from exercising its jurisdiction by virtue of s 474 of the Act. We would accordingly dismiss the appeal with costs. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Hill & Tamberlin.
Solicitors for the Respondent: Blake Dawson Waldron
WAFH
Minister for Immigration & Multicultural & Indigenous Affairs
(1945) 70 CLR 598
(2002) 187 ALR 574
(1999) 197 CLR 510