QAAA v Minister for Immigration
[2006] FMCA 371
•17 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| QAAA v MINISTER FOR IMMIGRATION | [2006] FMCA 371 |
| MIGRATION – Review of Refugee Review Tribunal decision |
| Migration Act 1958, ss.36, s.475A Judiciary Act l903, s.39B |
| Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SGKB v MIMIA [2003] FCAFC 44 WAID v MIMIA [2003] FCA 220 NACB v MIMIA [2003] FCAFC 235 NAFQ v MIMIA [2003] FCA 781 WAHI v MIMIA [2003] FCA 908 NATC v MIMIA [2004] FCAFC 52 |
| Applicant: | QAAA |
| Respondent: | MINISTER FOR IMMIGRATION |
| File Number: | BRG151 of 2004 |
| Judgment of: | Jarrett FM |
| Hearing date: | 04 October 2004 |
| Date of Last Submission: | 04 October 2004 |
| Delivered at: | Brisbane |
| Delivered on: | 17 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Plunkett |
| Solicitors for the Applicant: | Terry Fisher & Co |
| Counsel for the Respondent: | Mr Bickford |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application filed on 16 January, 2004 be dismissed.
That the applicant pay the respondent's costs of and incidental to the application to be agreed, and failing agreement, to be fixed upon application to the Court on seven (7) days notice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG151 of 2004
| QAAA |
Applicant
And
| MINISTER FOR IMMIGRATION |
Respondent
REASONS FOR JUDGMENT
This is an application seeking relief pursuant to s.39B of the Judiciary Act l903 and s.475A of the Migration Act1958 (“the Act”). The decision in respect of which relief is sought is a decision of a refugee review tribunal (“the tribunal”) made on 1 December, 2003 which affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant to the applicant a protection visa.
The applicant seeks orders for:
a)certiorari to quash the decision;
b)prohibition against the respondent acting on the decision;
c)a writ of mandamus remitting the decision back to the tribunal to be determined according to law;
d)a declaration that the tribunal was in jurisdictional error in concluding that the applicant did not have a well founded fear of persecution should he be returned to his country of origin;
e)an order that the respondent pay the applicant’s costs.
The respondent opposes the application and seeks that it be dismissed.
Background
The applicant was born in Tehran, Iran on 17 October, 1956.
On 14 June, 1978 he fled Iran for the United States of America. He lived for 21 years in the USA. Between 1989 and 1991 he served in the US Navy.
The applicant, accompanied by his son, arrived in Australia from the USA on 20 July, 1999. He had a visitor’s visa that expired three months after his arrival. He did not depart before his visa expired, but remained in Australia.
He was located by the Department working illegally in Perth on 16 May, 2001. He was granted a bridging visa so that he could make arrangements to depart Australia.
He again failed to depart. He was subsequently located, this time in Brisbane in May, 2002. He was placed in detention. He lodged an application for a protection visa with the Department on 31 May, 2002, was interviewed by the delegate on 18 July, 2002 and the application was refused by the delegate on 26 July, 2002.
A valid application for review was received by the tribunal on 29 July, 2002. The applicant’s son was originally included in the application for a protection visa but he has subsequently returned to the USA pursuant to orders made by the Family Court of Australia.
The tribunal found that:
a)the applicant was a national of Iran;
b)he had been a pro-Monarchist, although not an “active” Monarchist;
c)his father arranged his escape from Iran prior to the fall of the Shah;
d)he had been interviewed a few times in the wake of the collapse of the former Shah’s regime in 1979 and after the Shah’s death in 1980;
e)his views about the Shah and his criticisms of the current regime were publicly expressed after his arrival in the USA;
f)he is not politically active and has not otherwise publicly expressed his views about the Shah or his criticisms of the current regime;
g)he had, until his departure from the USA, permanent resident status in that country having resided there for some 21 years;
h)he named his son Shahyad in memory of the late Shah;
i)he had converted from Islam to Christianity and is now a Catholic;
j)he needs to attend church once a week to fulfil his religious needs;
k)he requires weekly or fortnightly meetings at church with other parishioners to fulfil his pastoral needs related to his religion;
l)he had been granted an exemption from conscription service with the Iranian military for medical reasons, based upon false medical advice;
m)he would be “intercepted” and “questioned on return” to Iran;
n)he will be questioned and his past will be examined and will disclose that his family were former supporters of the Shah, that he had made some critical comments about the government some 25 years ago and that he worked in the US Navy for more than two years.
The grounds of review
The grounds of review are:
a)that the RRT exceeded its jurisdiction in making its decision to affirm the delegate’s decision;
b)that the tribunal made a jurisdictional error in finding that the applicant did not have a well-founded fear of persecution should he be returned to his country of origin in that:
i)the tribunal did not identify the proper legal test for persecution;
ii)having accepted that the applicant had been a Christian for many years, that he had lived in the United States of America for 21 years, that he had served in the US Navy for more than two years, and that he had not been in his country of origin for more than 25 years the tribunal made a jurisdictional error in that no reasonable tribunal could have found that he did not have a well-founded fear of persecution if he returned to that country (“Wednesbury” unreasonableness);
iii)having found that he would be interviewed by the authorities on his return about his religious beliefs, the tribunal failed to consider the fact that the laws of Iran prescribed the death penalty for people such as the applicant, a convert to Christianity, and whether that fact could give rise to a well-founded fear of persecution on his part;
iv)having found that the authorities can examine his service records and question him on his return in relation to his service in the US Navy the tribunal failed to consider whether the manner in which such questioning could reasonably be expected to be conducted could give rise to a well founded fear of persecution;
v)the tribunal made a jurisdictional error in that it failed to have regard to evidence before it concerning arbitrary arrest by the authorities in the applicant’s country of origin, imprisonment of people solely on account of their beliefs, torture and ill-treatment of detainees in the prisons of his country or origin, the refusal of the country’s governing body to adopt laws against torture and the role of morality forces in attacking opponents of the regime, when considering whether a person such as the applicant had a well-founded fear of persecution in his country of origin;
vi)the tribunal made a jurisdictional error in that it breached the rules of natural justice in indicating to the applicant at the hearing before it that it did not need to hear any further evidence about the treatment that the applicant could expect at the hands of the authorities in his country of origin.
The law
The tribunal was reviewing the rejection of an application for a protection (class XA) visa subclass 866. The power to decide to grant or refuse to grant visas is vested in the Minister by s.65 of the Act. Section 36 of the Act prescribes the criteria for the grant of a protection visa. On a review application, the tribunal may exercise all of the powers and discretions available to the person who made the decision under review.
The question for determination by the tribunal in the circumstances of this case was whether or not the applicant satisfied the prescribed criteria for the grant of a protection visa.
The prescribed criteria for the grant of a protection visa are set out in Part 866 of Schedule 2 to the Migration Regulations (“the regulations”). In particular, clause 866.211 requires the applicant to be a person to whom Australia has protection obligations under the Convention and who makes specific claims under the Convention. The reference to the “Convention” is a reference to the Convention Relating to the Status of Refugees (opened for signature 28 July 1951, entry into force 22 April 1959) as amended by the Protocol Relating to the Status of Refugees (opened for signature 31 January 1967, entry into force
13 December 1973) (the “Convention”).
A protection visa may be granted under s.36 of the Act if the applicant for the visa is a person to whom Australia has protection obligations. Australia will have such obligations to a person who is a refugee within the meaning of Article 1A(2) of the Convention.
Article 1 A(2) of the Convention defines a refugee as 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.
A “well-founded fear of being persecuted” requires the applicant to have a subjective fear and that there must be an objective justification or foundation for that fear: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 396, 406, 413, 415 and 429.
The fear of persecution is well-founded if there is a “real chance” of being persecuted on return to the country of nationality: Chan at 389, 398, 407 and 429.
A “real chance” is one that is “substantial” as distinct from “remote”, “insubstantial”, or “far-fetched”: Chan, at 389, 398, 407 and 429.
A fear is well -founded when there is a real substantial basis for it or a real ground for believing the applicant is at risk of persecution and not merely assumed or if it is mere speculation. It is not necessary to show that the persecution is more likely than not to eventuate: Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 577.
Section 91R of the Act is relevant to the applicant’s application. Section 91R provides:
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugee’s 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 involved serious harm to the person; and
(c) the persecution involved 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 a 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.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purposes of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
I accept the applicant’s submissions that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at citing Craig v South Australia (1995) 184 CLR 163.
The applicant must establish that the tribunal fell into error by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion.
Discussion
The tribunal had jurisdiction to deal with this matter. The tribunal’s decision is a privative clause decision pursuant to s.474(2) of the Act.
There no basis for the suggestion that the tribunal did not identify the proper legal test for persecution. The tribunal discussed the various statutory provisions and the relevant authorities in its reasons. It is not suggested by the applicant that the tribunal made any error in its identification or exposition of the relevant principles. It is argued that the tribunal erred because it applied a test of whether the applicant would be an enemy of Iran. It applied no such test. The tribunal found[1]:
The tribunal does not accept the argument that he will be imputed to be an enemy of Iran because he was employed by the Navy.
In doing so, the tribunal was simply dealing with an argument put by the applicant. In my view, it did not confuse the proper legal test for persecution with the argument put by the applicant.
[1] at page 13 of the reasons for decision
I accept that given the finding that the applicant had converted from Islam to Christianity and is now a Catholic, the tribunal was bound to apply the test as stated in WAHI v MIMIA [2003] FCA 908 where French J stated that “the issue raised by the existence of the death penalty for apostasy is one which must lie at the centre of consideration of any claim based on religious conversion.”.
The tribunal, however, considered that very issue. It referred to SGKB v MIMIA [2003] FCAFC 44 and WAHI (above). It gave detailed consideration to information relied upon by the applicant, namely the UK Home Office report Country Assessment Iran, April 2003 and a subsequent report in October, 2003 and found that “While there are potentially severe consequences for converts, particularly if they proselytize, punishments have diminished in recent years and the practical consequences for converts to Christianity are not nearly so serious.”
Given that country information and the fact that the applicant did not claim to be a proselytizer, the tribunal concluded that there was no real chance of persecution by reason of the applicant’s religion in the reasonably foreseeable future. That finding was open on the country information alluded to by the applicant’s adviser and accepted as reliable by the tribunal.
The tribunal further found that the applicant could fulfil all of his religious needs by attending church and other meetings with fellow parishioners without a real chance of being persecuted if he returned to Iran. The applicant did not seek to challenge that finding.
The applicant argues that the tribunal ignored “the plain evidence that conversion alone (without proselytizing) can not only result in “severe repression” but also result in administration of the death penalty”. In my view, however, the tribunal did not ignore that evidence. The tribunal in fact considered the evidence before it, and found as reliable the evidence that I have referred to above, namely that the practical consequences (and I would interpolate – as opposed to the theoretical consequences) for converts to Christianity are “not nearly so serious”.
In my view, the tribunal did not fail to consider whether there was a real chance that the Iranian authorities would persecute the applicant because of his conversion which the tribunal accepted would become known to the Iranian authorities. The tribunal considered that very issue. It considered the evidence about execution of converts and, on the basis of the evidence it found reliable, concluded that no real chance of persecution existed because of the applicant’s conversion to Christianity.
In my view the tribunal’s reasoning is neither illogical nor irrational. The applicant’s challenge to this aspect of the matter is simply an attempt to review the merits of the tribunal’s decision. Lack of logic or irrationality is no basis to challenge the decision under review if there is a basis to support the factual findings and inferences relied upon by the tribunal: NACB v MIMIA [2003] FCAFC 235; NATC v MIMIA [2004] FCAFC 52.
The tribunal acknowledged the gravamen of the applicant's case namely that: “he has been out of the country for 26 years, mostly living in a Christian country that is Iran’s sworn enemy; he has worked in the US Navy and will be imputed to be opposed to Iran for that reason; he has publicly supported the Shah and criticized the government that replaced him; he has avoided military service; and he had become a Christian.” The tribunal acknowledged and considered that each of those matters might have a cumulative effect.
The tribunal, however, considered those matters, and in particular whether the applicant faced persecution because of (collectively) the political opinions that may be imputed to him because of his time outside Iran, because of his service in the US Navy and because the majority of that time was spent in the USA.
The tribunal dealt with those matters in the following way:
It is likely that he will be questioned and his past will be examined and will disclose that his family members were supporters of the Shah, that the Applicant made some critical comments about the government some 25 years ago and that he worked in the US Navy for more than two years. The tribunal finds that the authorities will have no interest in punishing for historical connections to the Shah’s regime or for criticizing the Revolutionary government when it first came to power, particularly as he has not been politically active or otherwise critical in the intervening 25 years. His service in the US Navy was 13 years ago and he only reached the relatively lowly rank of airman. He voluntarily left after a little more than two years. The tribunal does not accept the argument that he will be imputed to be an enemy of Iran because he was employed by the Navy. The authorities can examine his service record and question him to satisfy themselves that his service does not disclose he is any threat to Iran. He can inform them that he was never properly rewarded for his study efforts in the Navy. It finds that he does not face a real chance of persecution related to his US Navy service, for that reason alone or in combination with other aspects of his claim.
Of the findings recorded in that passage, the applicant attacks the finding that: "… he does not face a real chance of persecution related to his US Navy service, for that reason alone or in combination with other aspects of his claim.". The factual statements upon which that finding was made, recorded in the paragraph extracted above were, however, open to the tribunal.
The statement: "The tribunal finds that the authorities will have no interest in punishing for historical connections to the Shah’s regime or for criticizing the Revolutionary government when it first came to power, particularly as he has not been politically active or otherwise critical in the intervening 25 years." indicates, in my view, that the tribunal in fact paid regard to the country information relied upon by the applicant in his adviser's letter to the tribunal (Rd 045 – 054). That information indicated that political dissidents, students, academics and journalists faced arbitrary arrest and faced the possibility of torture while detained. The Majilis had failed to secure the implementation of a bill designed to end torture and forced confessions. Given the tribunal's finding that the applicant was not politically active and had not been critical of the Revolutionary Government for some 25 years, it was open to the tribunal on the country information relied upon by the applicant to conclude as it did. In any event, an erroneous conclusion on that matter does not amount to jurisdictional error.
The tribunal also considered the applicant's claim to be a monarchist against the available country information provided by the applicant's advisers (pages 9 – 10 of the decision).
The tribunal accepted that interrogation of the applicant might take place. The applicant alleges that the tribunal made a jurisdictional error in that it breached the rules of natural justice in indicating to the applicant at the hearing before it that it did not need to hear further evidence about the treatment that the applicant could expect at the hands of the authorities in his country of origin. In that respect, the applicant referred to the affidavit of Bruce Trevor Henry, paragraphs 7, 8 and 9 and annexure A. A perusal of the record of the proceedings before the tribunal, however, indicates that the tribunal did not give such an indication. What the tribunal did indicate was that it was satisfied that the applicant would be questioned. There appears to have been no suggestion that the tribunal stopped the applicant from putting forward claims about the nature of that questioning.
I am not satisfied that there was a breach of natural justice as the applicant alleges. In any event, Division 4 of Part 7 of the Act is an exhaustive statement of the requirements of natural justice hearing rule in the tribunal: WAID v MIMIA [2003] FCA 220; NAFQ v MIMIA [2003] FCA 781. It was not suggested that any particular provision of that division had not been complied with by the tribunal.
Conclusion
In my view the applicant has failed to demonstrate any jurisdictional error on the part of the tribunal. The application must be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S. Haysom
Date: 17 March 2006
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