SAAC v Minister for Immigration and Multicultural Affairs

[2002] FCA 188

FEDERAL COURT OF AUSTRALIA

SAAC v Minister for Immigration & Multicultural Affairs

[2002] FCA 188

SAAC v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S.176 of 2001

MANSFIELD J
7 MARCH 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.176 OF 2001

BETWEEN:	SAAC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	7 MARCH 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay to the respondent costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.176 OF 2001

BETWEEN:	SAAC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	7 MARCH 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant is a national of Iran aged 27.  He left Iran in February 2001, arriving in Australia some little time later.  On 25 April 2001 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). On 15 June 2001 a delegate of the respondent refused that application, and on 19 September 2001 the Refugee Review Tribunal (the Tribunal) affirmed that refusal to grant him a protection visa under the Act.

2. On 4 October 2001 the applicant applied for review of that decision of the Tribunal. On 2 October 2001, amendments to the Act came into force, including the very significant amendments to Pt 8 of the Act effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) dealing with judicial review. The transitional provisions of that amending Act provide that the Act as amended applies to decisions made before the amendment if an application for review was lodged after the amendment came into effect: Schedule 1 Item 8 (2)(b) of that amending Act. Consequently, although the application before the Court relates to a decision of the Tribunal made before 2 October 2001, it falls to be determined under Pt 8 of the Act as now in force.

3. The Court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to address decisions of the Tribunal in certain circumstances. The respondent accepts that. It is a position which is recognised by s 475A of the Act, at least in respect of decisions of the Tribunal under Pt 7 of the Act. Despite the apparent width of the privative clause provision in s 474 of the Act, the respondent acknowledges that the Court may grant review under s 39B of the Judiciary Act in limited circumstances. He contends that those circumstances are confined to the principles derived from the judgment of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 616 (Hickman).  Dixon J in R v Murray; ex parte Proctor (1949) 77 CLR 387 at 399-400 identified a “second step” to consider, beyond the Hickman principles, when interpreting a legislative instrument in which a privative clause is contained. That is to consider whether particular limitations on power and specific requirements as to the manner in which the administrative decision maker should be constituted or should exercise its power are expressed so that they must be taken to mean that the observance of those limitations and compliance with those requirements are essential to a valid action, notwithstanding the privative clause.  In this matter I do not consider that the matters of which the applicant complains gives rise to the need to address those issues.

4. The applicant is a single man.  He completed school in 1991, and worked as a carpet repairer to 1996, apart from a two year period of military service.  Between 1997 and 2000, he travelled variously between Syria and Turkey as well as living in Iran for periods of time.  After those travels, in January 2001 he returned to Iran for a brief period before leaving again.  He claimed that there were four reasons why he had fled from Iran so as to qualify as a “refugee” as that term is defined in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention).  That is, he claimed to have a well-founded fear of persecution for a Convention reason in several respects, so that Australia is a country which owes him protection obligations under the Convention, and in turn he meets the criterion for the grant of a protection visa specified in s 36(2) of the Act.  It is necessary to advert to each of those claims, and how the Tribunal dealt with them in turn.

   THE TRIBUNAL’S REASONS

5. The applicant claimed that he fled from Iran because he was suspected of having been a spy for the Israeli government.  In a period of months in 1997 whilst he was living in Turkey, he told the Tribunal that he had visited the Israeli Consulate on several occasions in the course of an application to seek asylum in Israel or to migrate there for a better life.  He said that he had been granted asylum by the Israeli Embassy in Istanbul on the condition that he supply military information to Israel and convert to Judaism.  He refused to do so, but he fears that he was suspected then of having been engaged as an Israeli spy.  The one positive indication of that suspicion to which he referred was that, upon his return to Iran in 1998, he was questioned at the border for seven hours.

6. The Tribunal appears to have had three reasons for rejecting, or at least not being satisfied about those claims.  Firstly, the Tribunal had “serious reservations” about those claims.  It described them variously as vague and implausible in the details.  It could not understand why, as he claimed, the Israeli Consulate sought to impose upon him that he convert to Judaism.  It thought his explanation as to why he chose Israel as the place to which he wanted to go was not satisfactory.  Despite those serious reservations, the Tribunal does not appear to have made a firm finding one way or another on whether those claims were accurate, and so it cannot be taken to have positively rejected those claims.  The second reason flows from the Tribunal proceeding to consider whether, assuming the applicant did have a fear of persecution by reason of his activities in offering to become an Israeli citizen and the perception that he may be then spying for Israel against Iran, that would amount to persecution for a Convention reason.  It decided that it would not.  That is because, as the Tribunal expressed it, the applicant was vulnerable to punishment for breaking laws of general application in Iran, namely laws preventing spying for a foreign power.  The applicant did not claim that he had undertaken the involvement with the Turkish Embassy in Istanbul for any Convention reason, or that he was perceived as having done so.  It is not necessary to address the Tribunal’s detailed reasons for those conclusions.  It also decided that the applicant had not made out a case that, if that law of general application was applied to him, it would be applied in a discriminatory manner such that the applicant would be persecuted for a Convention reason.  The third reason of the Tribunal was that the applicant would not be exposed to any adverse consequences for that conduct in any event.  It said:

   “In any event, the Tribunal notes that the applicant states that after his claimed involvement with the Israeli Consulate he was questioned at the border about his movements in Syria and Turkey for some seven hours and then released.  Following this event the applicant again exited Iran and returned to Iran using his own passport.  The applicant stated in the hearing that he did not experience any difficulties with the Iranian authorities on these subsequent occasions.

   Accordingly, the Tribunal does not accept that the applicant faces adverse attention from the Iranian authorities for any claimed improper dealings with the Israel Consulate on his return to Iran from Australia.  The Tribunal does [not] accept this because the applicant exited Iran and re-entered Iran without adverse attention from the Iranian authorities after this claimed involvement with the Israel Consulate.”

7. It may be possible to criticise the Tribunal’s first and second reasons for rejecting that claim, but it is not necessary to explore those questions.  In my view, the third reason for the Tribunal rejecting the applicant’s claim to have a well-founded fear of persecution by reason of his involvement with the Israeli Consulate in Turkey is unexceptionable.  It does not involve any error of fact or law.  The first reason may be subject to criticism that, despite the Tribunal’s reservations, it has not indicated whether it has accepted that claim or not.  It must therefore be taken to have accepted that claim but, even on that basis, the third reason is a sound one.  The second reason also is of a little concern because the Tribunal expressed itself as saying that the applicant “has not made out a case” that the law of general application would be applied to him in a discriminatory manner.  It might be suggested that the Tribunal was thereby imposing an onus of proof upon the applicant upon that issue, or at least was not addressing the question which the Convention dictates, namely whether the applicant has a well-founded fear of persecution by reason of those activities.  Of course, the Tribunal’s reasons are not to be construed with an eye keenly attuned to the perception of error, and it may be that construing the Tribunal’s reasons in that way succumbs to the temptation to do so.  However, it is not necessary to take that issue any further.  As I have said, the third reason of the Tribunal is independent.  It proceeds on assumptions favourable to the applicant in any event.  The Tribunal’s conclusion was not reached through any error of law or misapplication of the law, and does not otherwise demonstrate error in a way which would make the decision in that regard reviewable.

8. The applicant further claimed that upon his return to Iran in January 2001 he had been detained by the Basij or pro-government authorities and accused of rejecting Islam, and of being a “mortad” for which the penalty is death.  The applicant told the Tribunal that in 1998 he had undertaken a “scientific sports” course over three months involving the study of yoga and similar disciplines.  Having completed that course, he then went to Syria to work for a time.  He said the course was illegal as it was an anti-Islamic course.  In January 2001 he returned to Iran to undertake a further subject of a like nature called Tatvashooti or spiritual cleansing.  It was in the course of that subject that he attended a discussion group, in which he was apparently active, in comparing the Islamic and Christian religions.  He said that in the course of that particular meeting two unknown persons sought, and were granted, permission to attend and listen.  They turned out to be officers of the Basij.  He and the lecturer were arrested and detained for three days and then released upon his brother lodging a security deposit.  His description suggests that he was under some form of parole.  He decided to flee via Turkey, and eventually arrived in Australia.  He feared prosecution for apostasy, the penalty for which is death.

9. The Tribunal found his evidence on this aspect to be “unconvincing to the point of implausible”.  It noted inconsistencies or implausibilities in his description of the study course being illegal in relation to the physical circumstances in which it was conducted, in relation to the provision of student cards, and in relation to the admission of strangers to what was on his own account a significant anti-Islamic discussion.  It could not understand why, if he was engaging in apostasy at the time, he should do so in a semi-public forum.  The Tribunal concluded:

   “Although, individually each of these points set out above may not be sufficient to draw the conclusion that the applicant has fabricated his claim, considered collectively they lead the Tribunal to conclude that the applicant’s claimed participation in a course, presentation of a paper criticising Islam and subsequent arrest are fabricated.  As a logical consequence and in the absence of other claims from the applicant, the Tribunal rejects the applicant’s claim that he faced charges of apostasy and left Iran illegally to escape these charges.”

10. As appears from that passage, the Tribunal rejected his claim that he had left Iran illegally in February 2001.  It found positively that the applicant had left Iran legally on the passport with which he had been issued in 1995, and which he had used for his various movements into and out of Turkey over some years.  Having rejected his reason for having fled in February 2001, it did not consider that there was any reason why the applicant would not then have used his ordinary passport.  Once it formed the view that he had done so, it followed on the basis of independent country information that the applicant was not a person then wanted by the authorities because airport security checks would have identified him at the time he was leaving Iran.

11. Finally, the applicant made a claim that he had a well-founded fear of persecution if he were to return to Iran because of his interest in Christianity.  He said that he had had an internal interest in Christianity for several years, following his decision to abandon Islam at about age 23.  He had not practised Christianity in any way until he had arrived in Australia, and was not at the time of the Tribunal hearing a convert to Christianity.  There was independent evidence that, since May 2001, he had taken an active interest in Christianity at the Woomera Immigration Detention Centre.

12. The Tribunal did not consider that that interest exposed him to any risk of persecution if he were to return to Iran.  Its first reason is expressed in the following passage:

    “The country information from DFAT on persons returning to Iran … indicates that ‘asylum applicants on their conversion from Islam to Christianity would, in almost all cases not suffer particular problems if returned, unless they declared to the authorities on return their new affiliation’.  The Tribunal accepts this evidence and finds that the applicant’s interest in Christianity in Australia would not come to the attention of the authorities in Iran should the applicant return to Iran unless the applicant declared it to the authorities.”

    The Tribunal then proceeded to express the view, particularly as the applicant’s first public manifestation of his interest in Christianity was only in May 2001, that that interest ‘is closely linked to his protection visa application such that outside of this context the applicant’s interest in Christianity would evaporate’.  Consequently, the Tribunal did not think that, upon his return to Iran, there was any real chance that he would pursue an interest in Christianity, at least in a way which would attract the attention of the authorities.

13. The applicant expressed concern that that attention would arise because, whilst in the Woomera Immigration Detention Centre, he had escaped and newspaper reports at the time had given some publicity to that escape including identifying him as one of the escapees.  The Tribunal noted independent country information that the act of applying for asylum is not, of itself, an offence in Iran except for persons who are fugitives from justice or had a high opposition political profile.  The Tribunal had already found that the applicant was not a fugitive from justice.  There was nothing to suggest that he had a high opposition political profile.  Accordingly, it reached the view that the fact that the applicant was mentioned in the Australian press as a person who had sought asylum or who had escaped from Woomera Immigration Detention Centre did not of itself give rise to a well-founded fear of persecution on return to Iran.

14. For those reasons the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, and so was not satisfied that the criterion for the grant of the visa set out in s 36(2) of the Act was met.

    THE APPLICATION FOR REVIEW

15. The applicant in his application for review to the Court did not identify any grounds of review other than general complaints about the decision of the Tribunal.  That document was accompanied by a statement from the applicant dated 3 October 2001 under the heading “affidavit” which purported to provide more details of the grounds why he was seeking review.  He also made oral submissions at the hearing.

16. In general, both his statement of 3 October 2001 and his oral submissions reasserted matters or claims of fact he had made to the Tribunal and which it had rejected.  He claimed that the conduct of the course in January 2001 leading to his detention was not conducted in a “public” place, but was held in a body building club, that the meetings were normally held at a time when no-one was present in the club, that the identity cards to which he had referred were issued by the lecturer or by the applicant and not in some more formal way, and that he had been selected to be arrested along with the lecturer because he had requested the particular additional session to take place on a Saturday.  He re-asserted that it was not reasonable for the Tribunal to expect him to have known the address of the Israeli Consulate in Istanbul, because his practice was simply to take a taxi and ask the taxi driver to take him to that place.  He re-asserted that he had used a false passport to leave Iran in February 2001, because he had had the trouble of which he complained in January 2001, whereas previously he had used his lawfully issued passport.  He claimed that his commitment to Christianity had pre-existed his arrival in Australia, and that he had demonstrated that commitment to Christianity in the course of his travel to Australia on a boat at some risk to himself of hostility from other Muslims travelling with him.  He also asserted that, contrary to the Tribunal’s conclusion that the publicity attributed to him by virtue of his escape from the Woomera Immigration Detention Centre, Iranian authorities would know not just of that escape, but of his commitment to Christianity, not simply from that publicity but from other asylum seekers who have since returned to Iran and who would tell the authorities of it.  None of those matters, nor similar but more general assertions made by the applicant, in my view, give rise to any potentially reviewable error on the part of the Tribunal.  They are but re-assertions or fresh assertions of fact or about matters of fact upon which the Tribunal has made findings.  It is not for the Court to substitute its view of the facts for those reached by the Tribunal.  The Court is to consider whether the Tribunal, in the process of reaching its decisions of fact, and in dealing with the application for the visa, erred in some way which is reviewable by the Court.  In relation to those factual complaints, I do not consider that reviewable error has been demonstrated.

17. There are three particular matters raised by the applicant with which it is necessary to deal specifically.

18. First, the applicant claimed that the Tribunal had misunderstood the nature of his claims to have been interested in, and then to have converted to, Christianity because of mistakes in interpreting his claims upon his arrival in Australia.  In my judgment, there is no foundation in that complaint.  The Tribunal has referred in its reasons to the applicant’s claims as set out in his protection visa application, and in the submission by his adviser dated 30 August 2001 in support of his application for review by the Tribunal.  It has also referred expressly to a letter from Father Jim Monaghan from the Woomera Roxby Downs Catholic Parish dated 4 September 2001 indicating the applicant’s long-standing interest in the Christian faith and his desire to be instructed in that faith whilst in the Woomera Immigration Detention Centre.  In my judgment those references by the Tribunal in its reasons indicate that it did not misunderstand the nature of the applicant’s claim.

1. The applicant in his oral submissions also complained that he requested the Tribunal to call evidence from a witness, and that the Tribunal did not give consideration to whether it should do so.  When the Tribunal invited the applicant to appear at the hearing to give evidence and present arguments pursuant to s 425 of the Act, it was also required to notify the applicant that he may give the Tribunal notice that he wished the Tribunal to obtain oral evidence from another person or persons:  s 426(2).  The Tribunal complied with that obligation.  The response to the hearing invitation was provided to the Tribunal by the applicant’s solicitors on 23 July 2001.  That response indicated that the applicant did not want the Tribunal to take oral evidence from any witnesses.  The applicant’s advisers also submitted to the Tribunal on 30 August 2001 a lengthy submission on his behalf in which no request was made for the Tribunal to call evidence from any other witnesses.  The hearing then took place on 31 August 2001, having been adjourned previously on two occasions at the request of the applicant.

2. On 31 August 2001, the Tribunal was also sent by the applicant a facsimile enclosing certain information together with the following:

   “I have a witness in detention, Iraqi national, who knows me very well but could not attend the hearing.  He is [name omitted] who is willing to give evidence and who witnessed a letter sent by my family telling me that our family home in Iran has been confiscated by the government and my family are in great distress.”

3. I do not consider that the Tribunal’s apparent failure to follow up that request or that comment indicates any reviewable error on its part.  In the first place, it has complied with the obligations imposed upon it by s 425 and s 426 of the Act.  Moreover, the terms of the facsimile suggest that the witness could simply confirm the receipt by the applicant of a letter apparently received from his family.  The Tribunal’s reasons do not indicate that the applicant presented any such letter to the Tribunal at the hearing, nor that his advisers did so on his behalf prior to the hearing.  It is the letter itself from the applicant’s family which would have probative weight before the Tribunal, but it does not appear that that material was put before the Tribunal at all.  Consequently, the fact that another person in the Woomera Immigration Detention Centre could confirm that the applicant had received such a letter would have no evidentiary significance in the circumstances.  Nor is it possible to discern, from the provisions in Pt 7 of Div 4 of the Act dealing with the way in which the Tribunal should conduct its review, that it has erred in not re-opening the hearing to further hear evidence from that person.  It may well be that the Tribunal perceived the nature of the request as being no more than that described above and decided in that circumstance that it was unhelpful to follow it up.  Whatever its reasoning, I do not think the Tribunal has been shown to have fallen into reviewable error in the circumstances by not re-opening the hearing as the applicant now suggests that it should have done.

4. Finally, the applicant contended that the Tribunal was biased adversely to his claim.  He identifies, as the basis of that allegation, “the obvious lack of consideration for the issue of my identity in the media, which has been dealt with in a very petty/minor way”.  In my judgment, there is no foundation for the applicant’s claim that the Tribunal was biased.  It is necessary to show that the Tribunal had a closed mind to the issues which it was required to address, and was not open to persuasion by the applicant’s evidence for the contentions made on his behalf:  see e.g. Sun v Minister for Immigration & Ethnic Affairs (1977) 81 FCR 71 at 123 per Wilcox J and at 135-136 per North J. The contention of the applicant does not get anywhere near making out that ground. The Tribunal’s reasons demonstrate that it has carefully and thoroughly identified, and then addressed, the claims variously made by the applicant in the course of the hearing and in the events leading up to the hearing. It’s reasons do not demonstrate that it had a closed mind to the applicant’s case, but on the contrary that it had a mind open to considering the nature of the applicant’s claims in the light of the materials relevant to them.

5. Accordingly, I do not consider that the applicant has demonstrated any reviewable error on the part of the Tribunal, and in particular no error, which even absent s 474 of the Act, would entitle the Court to interfere by setting aside the decision of the Tribunal.  In those circumstances, it is not necessary to address the application of s 474 of the Act to the applicant’s claim in this matter.

6. The application is dismissed.  I see no reason why the normal order as to costs should not be made.  I accordingly order that the applicant pay to the respondent costs of the application.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             4 March 2002

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr J Basten QC and Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	30 January 2002
Date of Judgment:	7 March 2002