WAFS v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 The appellant appeals to the Full Court from the judgment of a Judge of this Court, French J, dismissing his application to the Court under s 39B of the Judiciary Act 1903 (Cth) made relevant to applications for judicial review of decisions of the Refugee Review Tribunal ("the Tribunal") by s 474 of the Migration Act 1958 (Cth) ("the Act"). 2 The appellant is a national of Iran. Some months after his arrival in Australia he lodged an application for a protection visa. It was refused by a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"). The appellant then sought review of that decision from the Tribunal. It affirmed the decision of the Minister. The Tribunal's decision is a "privative clause decision" within the meaning of s 474 of the Act. It is, at least for most purposes, a decision which is final and conclusive. He then applied to the Court. His application was treated by the learned primary Judge as being an application for the relief available under s 39B of the Judiciary Act. If no ground is made out for relief under s 39B then it is unnecessary to consider whether the Tribunal's decision was nevertheless exempt from review in this Court as a consequence of s 474 of the Act. 3 As noted by the learned primary Judge the appellant made a number of claims. They are set out in full in the reasons for decision of the Tribunal. He was a national of Iran. He did his military service but left because he did not have the strong religious beliefs that were required as part of being in the Pasdaran to which he was allocated. The authorities did not come looking for him. In 1999 he became a party to an arranged marriage in which he was not happy. There were religious differences. He separated from his wife in the next year. 4 Thereafter he met another woman who was married to a man who was, it was said, a senior officer of an authority which checked dress standards and relationships between unmarried men and women. She too had religious differences with her husband. The appellant and the other woman got on very well and enjoyed talking. The relationship was not, the appellant said, a serious relationship. They talked of the possibility of each divorcing and then remarrying. On an occasion when he had been invited to the house of the woman who had understood her husband was to be away, the husband had returned unexpectedly and found them together, although the appellant said that nothing had happened between them. The appellant claimed that he was attacked by the husband but escaped from the house. He hid at a friend's place and then left Tehran. He has been told that his apartment had been raided by the authorities (in oral evidence he said they were from the Ministry of the Intelligence, although wearing plain clothes) because of an allegation of adultery against him. While there the authorities found a copy of the Bible and an extract from Salman Rushdie's book The Satanic Verses which were in the apartment. The appellant's father was arrested at this time. 5 The appellant then made arrangements to leave the country through Shiraz airport and came by boat from Indonesia to Australia. He feared that he would be accused of having converted to Christianity, and having in his possession illegal material, namely the extracts from The Satanic Verses. He claimed that they would have read his diary and would know that he was hostile to Islam. 6 The appellant said that he would be "destroyed" were he to return to Iran. Firstly he said that the Regime had alleged that he had had an illegal sexual relationship with a married woman. But more importantly the Bible, the extract from The Satanic Verses and the diary which set out his personal views, which he said were in part, at least, anti religious in sentiment, meant that he would be accused of having converted to Christianity and of having illegal materials from The Satanic Verses. He claimed that the authorities would know that his ideas were hostile to Islam from reading the diary and he would be imprisoned, just as his father had been. Finally he claimed that he would face an excessive punishment for not completing his military service and face a long term of imprisonment. 7 In the course of the hearing the appellant said that he had a cousin in Germany who was a publisher and that the cousin had received threats because he had published The Satanic Verses. The appellant had sought, so he said from the bar table, to tender an untranslated copy of some internet material in German, which supported, so it was said, the evidence about the cousin. The Tribunal did not accept the material and made no reference to it in its reasons. 8 In a post hearing submission the legal adviser of the appellant claimed that the three matters of adultery, political opinion and evading military service had to be seen not only in isolation from one another but in terms of their compound effect. 9 After setting out certain country information the Tribunal restated the appellant's claims as follows: "Firstly that he deserted from his military service. Secondly that he was found in the home of a married woman by the woman's husband and therefore faces charges of adultery. Thirdly that he departed Iran illegally. And fourthly that he expressed anti-Islamic views which, are known to the Iranian authorities. The legal adviser contends that if the applicant returns to Iran action taken against the applicant by the Iranian authorities either in respect to desertion from military service or accusation of adultery are likely to be unfairly dealt with because of the applicant's known anti-Islamic stance." 10 The Tribunal, for reasons which it set out, found the claims concerning the appellant having been caught in the home of a married woman and the subsequent raid on his home to be implausible and "far fetched". Indeed it found the appellant's claims with respect to these matters to have been fabricated. It followed that the Tribunal was of the view that the appellant was not considered by the Iranian authorities to be anti-Islamic and that he would not face persecution on returning to Iran. Further the Tribunal did not believe that the appellant would receive additional punishment from the authorities over his failure to complete military service and in any event was not satisfied that the appellant had deserted from military service or for that matter that he had left Iran illegally. 11 The learned primary Judge in dismissing the application to the Court expressed the view that the appellant had not made out any ground for interfering with the Tribunal's decision which, as a result of s 474 of the Act, was to be treated as final and conclusive. 12 The appellant was not represented on the appeal, but was assisted by an interpreter. He sought to argue two matters. First he claimed that at the hearing before the Tribunal he was weak from a hunger strike he had undertaken and was unable to respond properly to the Tribunal. He said that he was so weak that he had to be carried into the Tribunal hearing room. The essence of the submission was that there had not been a real hearing conducted by the Tribunal into his case so that the matter should be sent back to the Tribunal for a proper hearing. Second, he said that the Tribunal had not really listened to the detail of his case as presented but had disregarded significant matters. Reference was made to the decision of the Full Court in SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161. 13 Neither of these submissions have any substance in the present circumstances. 14 As to the first submission it may be noted that there was no evidence in admissible form before the Court as to the condition of the appellant at the time of the Tribunal's hearing. But accepting for present purposes what was said from the bar table by the appellant, it appears that in accordance with the normal procedure the appellant was notified that a hearing would take place on 21 August 2001. On 14 August the appellant's legal adviser sought, on instructions, an adjournment. The basis of the adjournment was said to be that the appellant was unprepared for the hearing and considered that a hearing on that date would prejudice his case. 15 The hunger strike of which the appellant spoke began after the initial request for adjournment. Indeed, there is a possibility from what the appellant said from the bar table that he went on a hunger strike because he had been unable to obtain an adjournment. A letter in the papers before the Court from the appellant's legal adviser dated 16 August 2001 indicates that by that date the appellant was on hunger strike. The letter contains a refusal to send to the Tribunal the completed Response to Hearing Form for the proposed hearing having regard to what was said to be the appellant's current medical state. The legal advisers also pressed for access to the appellant's medical records. The purpose for this latter request is not stated in the letter. 16 In fact it seems that the completed Response to Hearing invitation form was forwarded to the Tribunal and was received by it on 16 August 2001. On the next day the Tribunal notified the advisers that the hearing scheduled for 21 August 2001 would proceed. 17 The hearing then proceeded as scheduled. The Tribunal's reasons makes no reference to any further request for an adjournment being made at the hearing and particularly there is no reference to any suggestion that the appellant was so debilitated by hunger that he could not concentrate or was unable to participate in the proceedings. It would seem that the appellant was represented at the hearing before the Tribunal. 18 Not only was there no further mention of this matter by the Tribunal but also no reference was made to it in the submissions before the learned primary Judge. It was not a ground of review filed in this Court, nor, if it matters, was any reference made to it in the notice of appeal to this Full Court. 19 There may well be a case where the Tribunal purports to conduct a review in circumstances where an applicant before it is so incapacitated as to be unable properly to give evidence or make arguments to the Tribunal. In such a case it may be said that the Tribunal has not exercised its jurisdiction to review an applicant's case or complied with its statutory obligation to give an applicant the opportunity to give evidence and present argument in support of his application. However, there is no admissible evidence in the present case put to us to show that the condition of the appellant was such that he could neither give evidence nor make arguments in support of his case to the Tribunal, even if it be accepted that the appellant was in a weakened condition such that he was carried into the hearing room. Further, the evidence before us, such as it is, rather suggests that the appellant deliberately embarked upon the hunger strike in an attempt to force an adjournment. We are of the view that if an applicant deliberately sets out to frustrate the hearing by the Tribunal by embarking upon a hunger strike, he can later not be heard to complain if the Tribunal chooses to proceed with the hearing, particularly where he is represented and where he does in fact participate in the hearing. 20 In our view there is no substance to this ground of appeal. 21 In SBAB v Minister for Immigration and Multicultural Affairs (supra) the Tribunal had failed to address one of two discrete claims that had been made by the applicant. The decision of the Tribunal was set aside and the matter remitted to the Tribunal for further consideration. The case is an illustration of the principle that there will be an error going to jurisdiction or an error of law in a case where there is a failure of an administrative tribunal to consider claims that have been made by an applicant cf Yusuf v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 1 at [82] - [84]. 22 However, that principle has no application in the present case. It is clear that the Tribunal here has considered each of the matters which formed the basis of the appellant's claim, namely the interrupted military service, the unexpected return of the husband, with the attendant accusation by the authorities of adultery, the subsequent search of the appellant's apartment, the finding of the Bible, the extract from The Satanic Verses and the diary with anti religious sentiment and, finally, the illegal departure from Iran. However, the Tribunal was of the view that these claims (with the exception of the claim about uncompleted military service) were fabricated. Further, the Tribunal was not satisfied either that the appellant had failed to complete his military service or that he had departed the country illegally. The Tribunal clearly was aware of the claim that the cousin had been harassed in Iran for having published The Satanic Verses, however, having regard to the finding of the Tribunal that the raid on the appellant's apartment and the finding of the extract from the book had not happened, it is clear that evidence of what happened to the cousin in Iran was irrelevant on the view of the facts which the Tribunal took. 23 It is obvious that the real complaint of the appellant is not that the Tribunal failed to give consideration to his case or the details of it. Rather the real complaint is that the Tribunal did not believe the appellant and was of the view that he had fabricated the claims which he advanced. However, it is for the Tribunal and not for this Court to make findings on factual matters. The appellant has not made out any ground for relief under s 39B of the Judiciary Act. It is accordingly not necessary in this case to consider the effect of s 474 of the Act. It suffices to say merely that the present is a case where clearly there would be no jurisdiction to hear the application having regard to that section. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Hill and Tamberlin JJ.