WAJW v Minister for Immigration & Multicultural & Indigenous Affairs

tribunal finding and reasons 6 The Tribunal was satisfied the appellant is a national of Iran. 7 It also accepted that if it was true that she was seriously assaulted while detained that she would have been subjected to persecutory treatment, a significant reason for which was either her religion or alternatively her membership of a particular social group which could be defined as 'non-Muslims'. However, the Tribunal found it was unable to accept this claim was plausible for reasons which it set out in pars (a) - (h) of the relevant portion of the Tribunal's reasons (referred to later in these reasons). 8 The Tribunal also was not satisfied the appellant was being subjected to treatment amounting to persecution before May 2000. First, she had not claimed she was; second, it was inconsistent with her willing return to Iran from Kuwait on seven occasions between June 1994 and April 2000; third, she had made no inquiries through the UNHRC in Kuwait about seeking asylum elsewhere. 9 As to whether the appellant had a well-founded fear of persecution as a Sabean Mandaen, the reasons of the Tribunal stated: 'As to the treatment of Sabean Mandaeans generally, I am satisfied that mere adherence to this religion does not give rise to a well-founded fear of persecution in Iran. It is apparent from the evidence from DIMA (2001) that the Sabeans generally do not have problems with members of the general community and get along well with most ordinary Iranians, that the police generally protect them and do not discriminate against them, and that the Iranian government does not harass or routinely persecute the Sobbis as a community. [THE APPELLANT] herself agreed that her life was tolerable, at least before the claimed incident of detention, and that her Muslim neighbours, who knew she was a Sabean Mandaean, were not unfriendly towards her. While I accept that as a religious minority the Sabean Mandaeans experience discrimination in employment and education and in the way the legal system operates, I am satisfied that [THE APPELLANT] has not been exposed to this discrimination. She completed eleven years of education in Iran, left school because of a family decision (that is, not because of religious discrimination), has never sought paid employment or tertiary education and has not, as I have found above, been subjected to any discrimination by the manner in which the legal system operates in relation to Sabean Mandaeans.' 10 The Tribunal therefore found the appellant did not have a well-founded fear of Convention‑related persecution in Iran so that she did not satisfy the criteria set out in s 36(2) of the Migration Act 1958 (Cth) ('the Act') for a protection visa.

JUDGMENT IN FEDERAL MAGISTRATES COURT 11 The application for review of the Tribunal's decision was the subject of reasons for judgment delivered by the Chief Federal Magistrate. Before her Honour, the grounds of appeal were those set out in an amended notice of appeal dated 24 October 2003 which set out the following grounds: '1. The Tribunal exceeded, or failed, to exercise its jurisdiction to review the decision of the delegate. Particulars (a) The Tribunal failed to properly consider all the claims of the [Appellant] as to why she faced persecution in Iran. (b) The Tribunal identified a wrong issue, asked itself a wrong question, ignored relevant material and relied on irrelevant material in such a way as affected the application of the correct test of a well-founded fear of persecution. (c) The Tribunal failed to apply, in respect of the claims made, the test of a well founded fear of persecution under the convention definition. 2. The Tribunal failed to accord procedural fairness in not proving the Appellant with a reasonable opportunity to answer material or information in the possession of the Tribunal.' 12 Her Honour addressed these as the persecution ground (namely, the Tribunal did not properly consider the evidence and ignored relevant material and took into account irrelevant material); detention and assault ground (namely, reliance by the Tribunal upon irrelevant material in dealing with that ground); and the procedural fairness ground. She was not satisfied there was any jurisdictional error in the Tribunal's decision, so that it stood as a privative clause decision within the meaning of s 474(2) of the Act. The application for review was therefore dismissed. It will be appropriate to refer to her reasons in the course of dealing with the grounds of the present appeal.

relevant legislative provisions 13 Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone '… to whom … Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol'. The Refugees Convention is the Convention Relating to the Status of Refugees, 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees, 1967. The expression 'Convention' will be used to mean the Convention as amended by the Protocol. The same criterion appears in Sch 2 of the Migration Regulations Cth (1994). 14 Article 1A(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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.' The reasons specified in Art 1A(2) are colloquially known as 'Convention reasons'. The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned, gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Art 33 of the Convention. 15 Section 91R was introduced into the Act by the Migration Legislation Amendment Act (No 6) 2001 (Cth). Relevantly, it provides as follows: '91R (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.'

application of s 91R of the act 16 Ground 2 of the present notice of appeal claims that her Honour erred in law in holding that the Tribunal had applied the correct test as to what amounts to persecution under s 91R of the Act. This is particularised as the failure to find that the specific treatment suffered by the appellant and her family and that which is generally suffered by people of the Sabean Mandaen faith (namely, their limited rights to protection by the law; the restrictions on their religion, education, employment, a free press; being spat on; being unable to touch food, etc) were such as to amount to serious harm and therefore to persecution in application of s 91R of the Act. 17 The appellant contends this ground is supported by the fact that the Tribunal, in the passage quoted at [9] above, considered the issue 'through the prism of the appellant's experience' rather than generally. 18 The respondent submits that the appellant's claims based upon the treatment of Sabean Mandaens generally were considered by the Tribunal. It is submitted that the Tribunal's reasoning does not disclose that it applied any incorrect test as to what amounts to persecution under s 91R of the Act. It is therefore submitted that in reality this proposed ground of appeal seeks to attack the merits of the Tribunal's decision. 19 We agree with the respondent's submission. In the passage quoted at [9] above the Tribunal clearly does address the position of Sabean Mandaeans generally. It said so in the first sentence of the passage and it further considered the treatment of Sabean Manaens generally in the second sentence. Whether we agree with the findings is not to the point. 20 The second way in which the misapplication of the test under s 91R of the Act is sought to be engaged by the grounds of appeal is the allegation that 'implicit in the [appellant's] evidence is avoidance of persecution by discretion and outward compliance'. 21 The respondent submits that no such alleged implicit avoidance of persecution is disclosed by the appellant's evidence. It is said that, to the contrary, the appellant's evidence to the Tribunal was that her neighbours knew she and her family were Sabean Mandaens and that although there were 'hassles and discrimination' she and her husband adjusted to that and the situation was tolerable until the specific incident (namely, the alleged detention and assault) which she claimed had occurred on 27 May 2000. 22 The appellant's ground of appeal states that the general persecution constituted by limited rights at law; restriction on religion, education, employment, on a free press; being spat on and being unable to touch food were all accepted by the Tribunal. In support, attention was directed to the following passage in the reasons: 'I asked her if she had participated in any Mandaean religious activities in Kuwait. She responded that she had not because the couple had to pretend not to be Mandaeans, as did the other Mandaees, because there were so many "religious Muslims" in Kuwait.' Attention was also directed to another passage: 'I asked her if she had ever been in paid employment. She responded that she had never applied for a job. Her husband thought she might be "hassled" if she was identified as a Sobbi. Also Sobbis were not allowed to get a public sector job, and her husband did not like the idea of her working in the private sector.' Other evidence recited in the reasons was also relied upon as well as further evidence in the papers before the Tribunal. The appellant asserted this was enough to bring her within Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112 ("S395/2002") at [43] and [50] per McHugh and Kirby JJ and [82] per Gummow and Hayne JJ. 23 We do not agree. To come within S395/2002 the appellant would have to demonstrate that the Tribunal's view of persecution was that persecution does not exist where an asylum seeker can be expected to take reasonable steps to avoid adverse consequences by hiding the fact that he or she is of a particular religious, ethnicity or social group. The Tribunal did not make such a finding. Its only relevant finding was that relating to discrimination in education and employment generally. Its further finding that the appellant had not been exposed to such discrimination was not predicated on a finding of avoidance. Such findings cannot, as the appellant urged, be inferred from the absence of a denial by the Tribunal of evidence recited. Furthermore, the opening sentences in the passage quoted at [9] above is a positive finding that the Tribunal did not accept that the evidence had the effect the appellant contends should have been found. 24 A further contention made by the appellant, although not obviously within the amended grounds of appeal, was that the Tribunal did not make any attempt to consider the issue of whether the appellant had a well-founded fear. Rather, it is said, the Tribunal simply looked at whether she had been actually persecuted. A well-founded fear is one where the fear of the applicant for refugee status is founded on a real chance of persecution for a Convention reason, even though the possibility of persecution occurring is well below 50 per cent: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 571 - 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ citing Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 429 - 431. The appellant urged that the Tribunal's findings on 'discrimination' quoted above at [9] should be understood as findings of persecution. 25 Again, we are unable to agree. The Tribunal in that passage was looking at circumstances pertaining to the appellant's claim that there was a real chance she would be persecuted and hence whether the fear she held was well-founded. It did not get to the point of making a finding concerning her fear because it did not find as a question of fact that the foundations for such fear were present. 26 There is a further way in which the appellant sought to put her case, again not apparently within the grounds of appeal. She asserted the Tribunal had failed to consider relevant evidence before it that she was forced to be discreet. That evidence included in particular an unofficial translation of a letter from the appellant dated 7 June 2001 in connection with the application for a protection visa by the appellant's husband. In that letter she claimed to have chosen her children's names so as to avoid being identified as Sabeans; to being married 'in the Islamic way' for the same reasons; and to changing her mother's name to a Muslim one to enable a passport to be obtained. She spoke of keeping her talents covert and wearing the hejab. 27 This evidence was before the Tribunal but it was not part of her claims or contentions to the Tribunal. In any event, it is clear that the general finding of the Tribunal quoted at [9] above is capable of encompassing consideration of all the evidence which was before the Tribunal. It was not obliged to cite each piece of evidence before it: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 ("Yusuf") at [67] - [68] per McHugh, Gummow and Hayne JJ. This contention of the appellant is in substance an argument inviting this Court to interfere with the conclusions on merits which lies only in the jurisdiction of the Tribunal. Further, the reasoning of the Tribunal here is distinguishable from the reasoning in SBAU v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 70 ALD 72, upon which the appellant expressed reliance. 28 The appellant also drew the Court's attention to the evidence of persecution of Sabean Mandaeans referred to in NADK of 2002, a case concerning the appellant's husband. All that can be said is that such evidence was not the evidence before the Tribunal, the reasoning of which arises for examination in this appeal.

error in not finding Tribunal had relied on irrelevant material and not considered relevant material

irrelevant material 29 The appellant's submissions identify the following five matters said to be irrelevant: (1) Regard by the Tribunal to the appellant's injuries not having been visible and that she was apparently going out of the house. (2) Disputation by the Tribunal that the appellant was so dominated by her husband that she did not reveal she had been detained. (3) Absence of material on which to find it was appropriate to reveal her detention and assault to her husband and for it then to be reasonable for her husband to tell other detainees lies about her detention. (4) Reliance by the Tribunal on material from a Canadian source concerning summons and from telephone interviews in 1999 about the legal system. (5) Reliance by the Tribunal on information, not put to the appellant, that because it would be difficult to leave the country if one was wanted by the authorities, her claim was implausible. 30 The respondent submits the matters in pars (1), (2) and (3) above are not 'irrelevant material'. Rather, the reference to them by the appellant discloses that the appellant is in reality seeking to attack the merits of the Tribunal's findings and the logic of its reasoning, something which is not properly open on review of the exercise of the powers of review. 31 Each of the above matters were raised before her Honour. She found that they were 'really objections to the reasoning process of the Tribunal'. She also stated that even if there was a want of logic by the Tribunal in drawing an inference of fact, that does not per se constitute an error of law: citing Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411, NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [21] - [30]. These conclusions were specifically addressed to the issues raised in par (4) and par (5) above. 32 We do not consider that an error has been demonstrated in how her Honour reached these conclusions.

relevant evidence 33 The appellant's submissions identify the following matters as material which, it is contended, her Honour should have found were ignored by the Tribunal: (1) Departmental and Tribunal decisions relating to the appellant's husband, in relation to persecution generally and to specific incidents. (2) A letter from the appellant to the Tribunal considering her husband's application detailing general persecution. (3) Observations of discrimination raised before the Tribunal considering her husband's application. (4) Certain aspects of oral evidence of the appellant to the Tribunal. (5) Material from a Professor Buckley about the consequences of revealing the rape of a Mandaen woman, the fact that the sect was not a legal religious minority and concerning the persecution they allegedly suffered in everyday life. (6) Evidence from other sources concerning persecution including certain official documents and newspaper articles. (7) Extensive quotations utilised by the Tribunal from country information contained in an official document. (8) The issue of what would happen if the family returned to Iran from Australia. 34 These issues were all raised before her Honour. She concluded that they simply asked the Court to come to a different view about the treatment of Mandaens than the Tribunal found, and relate to the matters which go to the merits of the Tribunal's decision. Her Honour held that that did not establish any jurisdictional error on the part of the Tribunal: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. No error is demonstrated in that conclusion. 35 Specifically, the Tribunal was not obliged to refer in its statement of reasons to every piece of evidence or material put forward by, or on behalf of, the appellant: s 430(1)(d) of the Act. In particular, the fact that the Tribunal did not refer to every statement made by the appellant in her oral evidence at the Tribunal hearing on 17 March 2003 or to various matters contained in country information reports did not establish a basis for a correct assertion that the Tribunal ignored that evidence or material. 36 In reality, the appellant's submissions seek to attack the merits of the Tribunal's decision. In identifying these matters the appellant is advancing a number of reasons for disagreeing with the Tribunal's views of the merits of the case: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gleeson CJ and McHugh J at [56]. 37 In relation to the last of the above listed matters, this was in fact addressed by her Honour. She said in relation to the issue of return to Iran by the appellant that if the Tribunal concluded there is no chance or probability of persecution, that conclusion excluded any alternative hypothesis or any alternative probability and the Tribunal was not required to address fanciful possibilities. There is no error of law in that conclusion. 38 The appellant also contends that evidence relevant to the issue of the appellant's alleged detention and serious assault was ignored by the Tribunal. This evidence was identified in the following way by her Honour at [39]: '(a) The evidence about the detention and assault and the [appellant's] inherent credibility. (b) The evidence of an injury to her nose not inconsistent with her story. (c) Evidence of her miscarriage at the time the detention and assault was alleged to have occurred. (d) Evidence of her departure from the country at a time consistent with fleeing as soon as practicable. (e) The summons produced to the Court that coincided with her evidence. (f) Her absence when the second summons arrived. (g) The plausibility of her explanation about her departure from the country. (h) The country information and evidence about consequences for her marriage and family of revealing the incident to her husband or anyone who might inform him. (i) Country information and evidence about difficulties for Iranian women in revealing such information to strangers et cetera in the circumstances of concern about whether the information would be kept confidential.' 39 In relation to these matters her Honour concluded that they did not establish any jurisdictional error. She accepted that while it was accurate to say that some of the evidence produced by the appellant was not inconsistent with her story, or put more positively was consistent with her story, it did not prove her story. Furthermore, the Tribunal was not obliged to refer to every piece of evidence: Yusuf at [67] - [68] per McHugh, Gummow and Hayne JJ discussing s 430(1). She found it was clear from the Tribunal's reasons that it had considered all of the matters raised by the appellant but had found her allegation that she was detained or assaulted by members of the security force was a fabrication. 40 It is additionally alleged in the appellant's submissions that the Tribunal did not ask itself whether the alleged detention and rape occurred but had concentrated on the delay in reporting it and went no further. However, that is not the case, as her Honour found. The Tribunal considered the claims at some length but rejected them as a fabrication. It is again the case that in raising the above matters the appellant is in reality seeking to attack the merits of the Tribunal's decision, a course not open to it to undertake on the review before her Honour.

breach of procedural fairness 41 Before her Honour it was also contended by the appellant that the Tribunal failed to provide a reasonable opportunity to her to answer material in its possession, in particular in relation to Canadian source material, telephone interviews, DFAT and UK Home Office material about leaving Iran. 42 Her Honour found there was no breach of s 424A of the Act in respect of this information. She considered that it was 'not specifically about the [appellant] or another person' and was 'just about a class of persons of which the [appellant] or another person is a member' so that it all fell within the exception in s 424A(3) with the result that there was no obligation to give particulars of such information arising under that section. Additionally, she held that the information was not, in any event, 'the reason, or a part of the reason, for affirming the decision' which was under review as required by s 424A(1)(a). Consequently there was no breach of s 424A. 43 The appellant's amended ground is that her Honour erred in law in her findings on the application of s 424A(3) to the appellant's circumstances. In support it is contended that even though the information identified above does not concern the appellant and is about a class of persons of which the appellant or another person is a member, it is not 'just about' that class. Therefore, it is said, s 424A(3) does not apply to it so that it was required to have been disclosed to the appellant. 44 This submission by the appellant is dependent on whether s 424A(3) contains two criteria. A recent decision of the Full Court, Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 ("NAMW"), delivered on 23 September 2004, held that the only criterion is that the information is not specifically about the applicant or another person, and that the reference in s 424A(3)(a) to the class of persons is a provision designed to underline the specificity required by precluding an argument that reference to a class could be taken as a reference to all individuals falling within it, including an applicant. That view was reached, albeit on different foundations, by Beaumont J at [70] and Merkel and Hely JJ at [138]. In VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 80 ("VHAJ"), delivered on 15 August 2003, Moore J and Kenny J respectively reached a conclusion to the contrary by adopting a 'two criteria' approach (at [25] - [27] and at [46] - [48]), with Downes J expressing a different opinion at [73] - [75]. In NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494 at [30], Ryan and Finkelstein JJ expressed views to the same effect as those by the majority in VHAJ on the issue. The alternative interpretation was adopted in VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 at [14] per Gyles and Conti JJ (with whom Allsop J agreed). See NAMW at 9, at [126]. 45 The present appeal is not one in which we could reach the view that it was unsafe to follow the unanimous view of the Full Court as expressed in NAMW. Argument on the issue is brief and confined to written submissions of relevantly short length. They do not provide a foundation to depart from the effect of the reasoning in NAMW. 46 The information in question was set out by the Tribunal in its reasons. It is clearly not specifically about the appellant or another person. Therefore there was no obligation on the Tribunal to provide that information to the appellant because the information fell within the terms of s 424A(3)(a) as understood in accordance with the decision of the Full Court in NAMW. The learned Chief Federal Magistrate was therefore correct in concluding that the information fell within the exception in s 424A(3)(a). 47 In any event her Honour gave an alternative reason for finding that the non-provision of the information did not give rise to an error. She stated in her reasons at [58] and [59]: '58. … But even if I am wrong about the exemption in s.424(3)(a) would remain to be satisfied that the "information" which was information for the purpose of s.424A(1) was "the reason or a part of the reason" for the Tribunal's decision. That means that the applicant must establish, on a proper analysis of the Tribunal's reasons for its decision, that in the absence of that particular information, the Tribunal would not have affirmed the decision under review …. 59. The information itself in this case was not part of the reasons for decision but went to the issue of disbelief of the applicant's claim. It is difficult to see how the applicant could establish on a proper analysis of the reason for decision, that in the absence of information relied upon as part of the reason for not accepting the applicant's evidence regarding the summons, the decision under review would not have been affirmed. The applicants have not been able to establish that and for that reason as well in my view, there is no breach of s.424A.' 48 The appellant contends in relation to this that the information was the reason or part of the reason for the decision of the Tribunal because the information was relied on by it to determine issues of credibility. These went to issues of whether or not the appellant was detained or detained and assaulted, and whether or not she received a summons at all. It is submitted that similar information was determined as the reason or part of the reasons for the decision of the Tribunal in NAMW. 49 The Tribunal gave a number of reasons for disbelieving the appellant's claim to have been detained or detained and assaulted, and whether she received a summons. These were (a) her denials at a previous hearing and reasons why her explanation for that could not be believed; (b) absence of corroborative testimony from her husband; (c) absence of evidence, other than that of Professor Buckley, that it is assumed women detained in Iran for 'bad hejab' or otherwise are sexually assaulted; (d) inconsistency in dates in her evidence; (e) further inconsistencies in her evidence concerning summonses and other matters; (f) the effect of evidence relating to the appellant's health; and (g) the effect of absence of evidence of her complaining to a nurse while in detention. 50 Reference to the Tribunal's description of the information in its reasons does not disclose how it can support the appellant's contention. The issues of credibility were determined by inconsistencies in and the absence of corroborative evidence in relation to the appellant's evidence. 51 In NAMW the country information that the Federal Magistrate found was required to be disclosed to the first respondent in that proceeding was that according to DFAT and American authorities, the political violence of the kind claimed to have been suffered by that first respondent was mainly experienced by certain activists: at [6] - [7] and at [117] - [118]. It was there relied upon by the Tribunal to conclude it was not satisfied the first respondent had been targeted for violence by his political enemies and to make an adverse credibility finding against him. That may be distinguished from the present proceeding where the Tribunal based its adverse credibility findings on the matter previously described arising from the appellant's evidence. 52 In our view it follows that her Honour correctly concluded that the appellant could not succeed on her contention concerning s 424A on the alternative basis set out above.

conclusion 53 For these reasons we consider the appeal must be dismissed. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices RD Nicholson, Jacobson and Bennett.

Solicitor for the Appellant: Refugee Advocacy Service of South Australia Inc

Solicitor for the Respondent: Australian Government Solicitor