Nejad v Minister for Immigration and Multicultural Affairs

[1997] FCA 1284

FEDERAL COURT OF AUSTRALIA

Migration - further application for review in circumstances where a reconstituted Tribunal adopted the reasons of an earlier decision of the Tribunal arising out of the same application - treatment by the Tribunal of fresh documentary material adduced before it.

Migration Act 1958 - s 416(c) and (d)

Amarjit Singh v The Minister for Immigration and Multicultural Affairs, Mansfield J, 19 August 1997, unreported - cons.

HAMID REZA JAMAL JAMALIAN NEJAD V THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 645  of   1996

JUDGE:        BEAUMONT J.
PLACE:        MELBOURNE
DATE:          21 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 645  of   1996

BETWEEN:	HAMID REZA JAMAL JAMALIAN NEJAD APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		BEAUMONT J
DATE OF ORDER:		21 OCTOBER 1997
WHERE MADE:		MELBOURNE

ORDERS:

1. Application dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 645 of 1996

BETWEEN:	HAMID REZA JAMAL JAMALIAN NEJAD APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	21 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION
The applicant, a citizen of Iran, claims refugee status based on his fear of persecution due to his imputed political opinions, that is, he claims that it is perceived that he is against the Islamic State and its government.  He fears that if returned to Iran he would be charged with anti-government activities, including involvement in the assassination of a member of the ‘Ideology and Politics Group’ known as “the Komiteh”.  The applicant now seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of the Minister's delegate which rejected Mr Nejad’s application for refugee status.  The matter has had a long history, as follows:

• On 12 July 1990 the applicant lodged an application for refugee status with the Department, and that application was rejected by the Minister’s delegate on 24 December 1992.  The applicant then applied to the Refugee Status Review Committee for review of that decision.  That committee referred the application to the Refugee Review Tribunal on 1 July 1993.

• On 4 February 1994 the Tribunal, constituted by Ms Agnes Borsody, affirmed the decision under review (“the first Tribunal decision").

• On 25 March 1994 the applicant again applied for refugee status.  This application was refused on 2 May 1995. 

• On 16 May 1995 the applicant applied again to the Tribunal for a review of this decision.  On 26 February 1996 the Tribunal, as reconstituted by Mr Domenico Calabro, conducted a hearing in the matter at which the applicant gave sworn evidence through an interpreter.

Shortly before this hearing, on 20 February 1996, the applicant's solicitor forwarded to the Tribunal a written submission, together with documentation in support of the application.  A few days later, on 23 February, the applicant filed in the Tribunal a report dated 16 February 1996 from an expert in Middle Eastern affairs, Dr Colin Rubenstein.  As has been said, the second hearing before the Tribunal proceeded on 26 February 1996.   It did not conclude on that day, and the further hearing was adjourned to 22 July 1996.

• On the resumption of the hearing on 22 July 1996, the applicant's solicitor filed a further submission which included material from Amnesty International about the situation in Iran.  The hearing concluded on that day.  On 11 September 1996 the Tribunal again affirmed the decision under review (“the second Tribunal decision”). 

THE REASONING IN THE FIRST TRIBUNAL DECISION
After reviewing the material before it, the Tribunal said:

“40.I do not accept the applicant as a credible witness.  I do not accept his explanation for the very different stories he told the Department.”

The Tribunal went on to say:

“45.I do not accept most of the history that is the basis of his application for refugee status.  His story of refusing to obey an order given by a Komiteh man who was his senior officer in the Army is not credible.  His story of then being punished by a transfer to the capital to continue in the same job, when he had shown himself unwilling to obey the orders of the Komiteh, at a time that Iran was engaged in a ten year war with Iraq during which children were sent to the front lines, is not credible.  His story of being asked to collaborate with an anti-government group about whose politics he knew nothing is not credible.

46.I note that there are discrepancies between his statement as to what happened in Teheran prior to his departure.  On one occasion he says he does not know who was assassinated or by whom, on another he says he has forgotten who was assassinated, though he did know, and that he knows the individuals involved in the assassination.

47.As I do not accept the applicant’s version of his activities prior to leaving Iran, I find it unnecessary to make any finding as to what would happen to an individual who had behaved in the described manner on return to Iran.

48.I accept that the applicant may have been in the Iranian Army.  I also accept that he may have deserted the Army, although I have no evidence, which I accept, as to the reasons for or the circumstances of that desertion.  I have therefore considered the implications for the applicant of being returned to Iran after deserting, although this aspect was not raised by the applicant at any time.  From information available to me I accept that the applicant will face some punishment on his return.  However there is nothing to indicate that prosecution for desertion would be applied in a discriminatory fashion, or be so disproportionate as to amount to persecution...”

In expressing its "findings" the Tribunal said, amongst other things:

“52.     The applicant was not a credible witness.

53.He was in the army at sometime, as evidenced by photographs.  Given the finding in paragraph 52 above, I can make no findings as to the capacity in which he served, or his duties while serving.

54.Based on the finding in paragraph 52 above, I am not satisfied that he had any involvement in any anti-government activity of any sort.  I can make no findings as to any imputed anti-government opinions or activity.

55.I am not satisfied that the applicant has a well founded fear of persecution in Iran.  I am not satisfied that he faces a real chance of persecution were he to return to Iran.”

THE PROVISIONS OF S 416 DEALING WITH FURTHER APPLICATION FOR REVIEW
As has been noted, there was a further application for a review by the Tribunal. In this connection, reference should be made to the provisions of s 416 of the Migration Act 1958 (“the Act”), as follows:

“416.   If a non-citizen who has made:

(a)an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal;  or

(b)applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;

makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:

(c)is not required to consider any information considered in the earlier application or an earlier application;  and

(d)may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.”

THE REASONING IN THE SECOND TRIBUNAL DECISION
The Tribunal, as reconstituted, having noted the provisions of s 416 of the Act, first ascribed and summarised the reasons and findings made in the first Tribunal decision. The Tribunal then re-stated the basis for the applicant's claims in the light of the evidence given by him to the Tribunal in February 1996. The Tribunal next referred to fresh documentary material relied on by the applicant, being a letter of transfer indicating that the applicant was to report to the Second Division of the army in Tehran. The warrant was dated 3 September 1990 and informed the applicant that he was to report to the Prosecutions Office of the army on 5 September 1990 or he would be “judged in absentia” and that the Court order would be “effective”.

The Tribunal next proceeded to consider further evidence given to it on 22 July 1996 by the applicant and by his cousin.  In discussing the applicant's claims and making its findings, the Tribunal said:

"The Tribunal has perused the evidence in relation to the first application and finds that the claims and facts were accurately set out in the reasons for decision.  While this hearing is a de novo hearing, I have regard to the provisions of s.416. I agree with the majority of the conclusions of Member Borsody in affirming the delegates’ refusal, that it is she affirmed the decision on the basis of major credibility problems. For the purposes of the current review, the Tribunal has had regard to and takes to be correct the decision in relation to the information considered in respect of the Applicant’s first application [see s.416(d)]”.

The Tribunal went on to say:

"In this case I have a positive state of disbelief in much of what the Applicant has told me.  Based on the evidence provided to the Department in his first application, the previously constituted Tribunal, the Department in his second application and this Tribunal, I find that the Applicant is not a credible witness and in all material facts he presented before the Tribunal.” 

The Tribunal next addressed the fresh material.  With respect to the warrant, the Tribunal said that it did "not accept that this document is genuine", for reasons the Tribunal then gave. 

In regard to Dr Rubenstein's report, the Tribunal said:

"While I accept that Dr Rubenstein is an ‘expert’ in regard to developments in Iran, I note that his comments to the Applicant’s advisors are based on ‘accompanying papers’ provided to him to comment on.  That is to say, he was given information about the Applicant’s claims as recounted to his advisor and then commented on whether they were plausible and credible having regard to the situation in Iran.  I accept the overall tenor of Dr Rubenstein’s report as it relates to the general human rights situation in Iran, that is, it is a repressive regime.  However, I do not accept that Dr Rubenstein is in a position nor is it proper for him to determine the Applicant’s credibility based on written information, or indeed whether the Applicant’s claims are well founded, that is a matter for this Tribunal to determine.”

With respect to the information from Amnesty, the Tribunal said:

"The Tribunal acknowledges that the above material reveals that the human rights record of Iran is dismal and it is a repressive regime, but this alone is not sufficient to establish that the Applicant in this case faces a real chance of persecution for a Convention ground.”

The Tribunal then expressed its conclusion as follows:

"Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. In assessing all of the Applicant’s evidence individually and cumulatively, I find that while he fears returning to Iran, his fears are not well-founded as there is not a real chance, as defined by the High Court in Chan’s case, that he will be persecuted for a Convention reason if he were now to return to Iran. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for the grant of a protection visa.”

THE APPLICANT'S GROUNDS FOR JUDICIAL REVIEW
Counsel for the applicant advanced two main grounds in support of the application for judicial review of the second Tribunal decision. First, he submitted that the Tribunal erred in law within the meaning of s 476(1)(e) of the Act by misapplying the provisions of s 416(c) and (d). Secondly, he argued that the Tribunal erred in law by failing to appreciate the true purpose of the tender of the fresh material from Dr Rubenstein and from Amnesty.

CONCLUSIONS ON THE APPLICATION FOR JUDICIAL REVIEW
Turning first to the meaning and operation of s 416, counsel for the applicant referred to some general observations on the operation of this provision made recently by Mansfield J in Amarjit Singh v The Minister for Immigration and Multicultural Affairs, 19 August 1997, unreported.  The question there differed from the present case in that the issue there was whether the same member could also make the second determination.

Mansfield J said (at 11):

"It is significant that [s 416] is in permissive terms.  Thus the Tribunal reviewing the later application is not required to consider any information considered in the earlier application, and may have regard to and take to be correct any earlier decision of the Tribunal made about or because of that application.  It is not obliged to do so.  Whether it does so is up to the Tribunal, and the Tribunal will have to make that decision in the circumstances then before it.  In effect, in relation to an earlier application reviewed by the Tribunal, the Tribunal adopts one of two alternate paths:  either it decides that it is appropriate to ‘adopt’ the earlier decision, and if it does not then it must retraverse the entire material before it, or if it does do so then it need only traverse the new material before it and adopt the earlier decision.  If the Tribunal constituted by one and the same person has made the earlier decision, then it seems to me to be clear that the Tribunal is unlikely to be sufficiently removed from the process to meaningfully consider whether it is appropriate to ‘adopt’ the earlier decision for the purposes of the later decision.”  (Emphasis added).

In regard to the emphasised passage, whilst I can, with respect, appreciate that his Honour's analysis will frequently reflect the reality, I would not read these observations as so confining the Tribunal in any exhaustive legal sense.  That this is so, is confirmed by what Mansfield J went on to say, as follows:

“It might be said in response that this analysis is too theoretical, as s 416 does not create any ‘right’ on the part of the applicant to have the Tribunal consider whether to ‘adopt’ the earlier decision or to go behind it.  That is, it provides a vehicle for the Tribunal if it considers it desirable to go behind an earlier decision but starts from the premise that the applicant must build on an existing decision of the Tribunal.  The respondent also fairly points out that the Tribunal, on the face of its reasons, has also done no more than it was expressly entitled to do:  it has expressly had regard to, and taken to be correct, its decision on the earlier application.

I interpose to remark that it was not contended that the word ‘decision’ in s 416 was limited so that the Tribunal (absent the sort of issue now raised) was not expressly empowered to act as its reasons indicate in relation to that earlier decision. See the discussion on this topic in the decision of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (Federal Court, 6 May 1997, unreported, at 48-58).”

As I read s 416(c) and (d), whether taken literally or purposively or both, the provision places no obligation upon the Tribunal to accept, or not to accept, the conclusion or the process of reasoning, in whole or in part, of the previous decision. By the same token, in a proper case, the Tribunal is to be at liberty to adopt or accept the conclusion, or the process of reasoning, in whole or in part. When the reasons of the second Tribunal decision are read as a whole, it does not appear that the Tribunal failed to understand that s 416 operated in this way. In my view, no legal error in this regard has been demonstrated.

Further, there could be no suggestion that the Tribunal failed to perform the task which the Act required, so as to amount to a constructive failure to exercise jurisdiction (cf. Re Coldham;  Ex parte Brideson (1989) 166 CLR 338 at 350). A reading of the reasons of the Tribunal indicates that the Tribunal appreciated that it was obliged in law to bring an independent mind to the consideration of the question before it.

The second ground of review now sought to be relied upon concerns, as has been noted, the Tribunal's treatment of the fresh material tendered before it.  This ground can, I think, be dealt with briefly.  As I indicated in the course of argument, any attempt to agitate a question of this kind must confront the insurmountable obstacle that it is not open to this Court, in the exercise of this jurisdiction, to embark upon any review of the merits or to seek to re-agitate questions of fact.  In my view, the way in which the Tribunal treated this additional factual material was entirely a matter within its province, and I see no warrant for intervention by way of judicial review. 

Recent authority in the High Court of Australia has re-stated the familiar principle in this area;  that is, it is simply not open to this Court to occupy the territory now sought to be opened up in the argument presented on behalf of the applicant. Normally, only in the case of a "no evidence situation" (cf. s 476(1)(g)), is it open to this Court to intervene in such a manner by way of judicial review.  There is, in my view, no error of law demonstrated in this connection. 

ORDERS
The application will be dismissed, with costs. 

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:            21 October 1997

Counsel for the Applicant:	Mr Niall
Solicitor for the Applicant:	Baker & Armstrong
Counsel for the Respondent:	Mr Downing
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 October 1997
Date of Judgment:	21 October 1997