SAAE v Minister for Immigration and Multicultural Affairs

[2002] FCA 172

FEDERAL COURT OF AUSTRALIA

SAAE v Minister for Immigration & Multicultural Affairs

[2002] FCA 172

SAAE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S.178 of 2001

MANSFIELD J
7 MARCH 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.178 OF 2001

BETWEEN:	SAAE 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 is 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.178 OF 2001

BETWEEN:	SAAE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE:	7 MARCH 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant seeks to review a decision of the Refugee Review Tribunal (the Tribunal) given on 26 September 2001.  The Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act).

2. The application to the Court was made on 5 October 2001.  That is shortly after the extensive amendments to the Act made by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and associated legislation came into force. The transitional provisions of that amending Act provide that the Act as so amended applies to decisions of the Tribunal made before the commencement of the amending Act only if the application for review to the Court was lodged after the amendments came into effect: Schedule 1, Item 8(2)(b) of that amending Act. Those amendments came into force on 2 October 2001. The Court’s jurisdiction to review the Tribunal’s decision is thus confined to that available under s 39B of the Judiciary Act 1903 (Cth): see ss 474, 475 and 475A of the Act.

3. The respondent acknowledges that, despite the literal breadth of the privative clause provision in s 474 of the Act, the Court may nevertheless review the Tribunal’s decision in some limited circumstances.  He contends that these circumstances are confined to the three grounds specified by Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 616 and discussed further by his Honour in R v Murray; ex parte Proctor (1949) 77 CLR 387 at 399 – 400 (Proctor).  The first of those grounds is that the Parliament had no power to grant to the Tribunal the function which it performed.  There is no issue of constitutional authority in this matter.  The second of those grounds is that the Tribunal’s exercise of its powers was unrelated to the subject matter of the legislation.  There is also no issue on that score in this matter:  the Tribunal was charged by s 414 of the Act with the specific task it undertook, namely reviewing a decision of the respondent by his delegate to refuse to grant a protection visa to the applicant.  The third of those grounds is to show that the decision was beyond power or was not a bona fide attempt to act in the course of the Tribunal’s authority.  In this matter, one issue raised by the applicant is that the Tribunal was biased.  If that were made out, it would be relevant to that third potential ground of review.  I have found below that that allegation is not made out, so it is not necessary to consider that particular question further.  There is otherwise no basis for any suggestion that the Tribunal did not bona fide attempt to review the decision of the delegate of the Minister.

4. There may also arise the question whether, notwithstanding s 474, there are some provisions of the Act or some implied requirements of procedural fairness on the part of the Tribunal with which the Tribunal must comply.  That is a matter of statutory construction:  see per Dixon J in Proctor at 400, at what his Honour described as a “second step”. In Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602, Gaudron and Gummow JJ at 629 – 634 discussed considerations relevant to the interpretation of legislation containing prescriptions as to the means by which an administrative decision-maker is to proceed and containing a privative clause such a s 474. In this matter, it is not necessary to address those issues, as I do not consider that the Tribunal has erred in any way which, absent s 474, might entitle the applicant to the relief which he claims.

   THE CLAIMS

5. The applicant is a citizen of Iran.  He said he was born in Khorramshahr in 1973 and moved with his family to Isfahan in 1980 where he completed his higher school certificate.  He completed military service from 1996 to 1998.  He worked casually as a taxi driver after leaving school until military service, and again after completing military service.  His religion is Shi’a Muslim.

6. The applicant claimed that he feared persecution by the Iranian authorities because he was suspected of having involvement with the Bahai faith and propagating its message.  He had a girlfriend who was Bahai, and he had borrowed from her a film of a Bahai congress and a book on that faith.  Those materials were found in his home by the authorities in January 2001, whilst he was absent.  He did not return to his home after learning of that raid, but left Iran within several days.  His girlfriend has moved to Turkey.  The applicant wished to change his religion to Christianity, but was unable to do so with safety in Iran.  Hence, he fled Iran and arrived in Australia.  He claimed that he would be attributed with political opinion adverse to the Iranian authorities in the light of the events he referred to.

7. He also claimed to have a well-founded fear of persecution if he returns to Iran by reason of his illegal departure from that country.  The authorities may suspect him of having committed a serious crime, causing him to flee.  For that separate reason, he claimed to the Tribunal to be a “refugee” as defined in Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) (the Convention).  If so, he would be a person to whom Australia owes protection obligations under the Convention and he would meet the criterion for a protection visa specified in s 36(2) of the Act.

   THE TRIBUNAL’S DECISION

8. The Tribunal did not accept that the Iranian authorities found Bahai materials in the applicant’s home, or even that he had a girlfriend who practised the Bahai faith.  It rejected the applicant’s evidence as not credible, as it regarded his account of how he came to meet that girlfriend as “not coherent”.  Consequently, it rejected any claims the applicant expressed, based upon his association with a Bahai girlfriend or any involvement with the Bahai faith.

9. Nor did the Tribunal accept that the applicant is a Christian.  It was satisfied that the applicant only took an interest in Christianity with a view to founding a protection visa claim.  It also was not satisfied that his commitment to Christianity will endure beyond the conclusion of the refugee determination process, particularly if he were to return to Iran and be exposed to hardship by then professing Christianity.

10. It is clear that the Tribunal formed an adverse view of the applicant’s credibility.  It called his description of how he met his girlfriend “not coherent” and his description of how the authorities came to find Bahai materials in his house as not making sense and as “not credible”.  It noted that the applicant has not been baptised, and had not previously been a religious person.  It referred to the time when he first expressed an interest in Christianity.  It did not express other reasons for its overall rejection of the applicant’s evidence, but its recital of the claims he made in his arrival interview, in his application for the visa, and then in his application to the Tribunal through his migration agent and particularly at the hearing before the Tribunal indicate a range of apparent inconsistencies or fresh claims which the Tribunal explored with him.

11. Finally, the Tribunal explained why it was not satisfied that there was a real chance that he might be persecuted upon his return to Iran because he had adopted Christianity in Australia, or because he had left Iran illegally.  Any detriment he might suffer by reason of his illegal departure from Iran would not be for a Convention reason, but by the application of laws of general force, and would not be of such severity as to amount to persecution.

    CONSIDERATION OF THE APPLICATION

12. The application for review to the Court does not identify any grounds upon which the Court might grant relief under s 39B of the Judiciary Act, or indeed under the grounds of review previously available under s 476(1) of the Act as it stood prior to 2 October 2001. The application is accompanied by a statement entitled “affidavit”. That document largely comprises complaints about findings of fact made by the Tribunal. It is not the role of the Court upon an application such as the present to rehear the applicant’s case, and to substitute for the findings of fact made by the Tribunal its own findings of fact. Subject to considering the way in which s 474 of the Act operates, the Court’s role is to determine whether the Tribunal has erred in some way which affects its jurisdiction to entertain and determine the application: see e.g. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 per Gleeson CJ, Gaudron and Hayne JJ at [31].

13. The matters referred to in the “affidavit” of the applicant include the claim that the Tribunal was actually biased against the applicant and prejudged his claim.  So far as I can determine, that is the only matter raised by the applicant by that document other than disagreements with the Tribunal’s findings of fact.  As I have said, in the absence of some legal error or the Tribunal proceeding without jurisdiction, the complaints about findings of fact made by the Tribunal cannot give rise to any basis for the Court now setting aside the Tribunal’s decision.

14. The complaint of bias is said to be demonstrated by the Tribunal having failed to notice explanations offered by the applicant at the hearing for inconsistencies or apparent idiosyncrasies in his evidence, by the lack of interest of the Tribunal in his claims, and by the categorisation of the applicant’s decision to convert to Christianity as “hasty” in the face of evidence to the contrary.  The applicant, in oral submissions, repeated those matters and referred to a number of the factual findings of the Tribunal with which he disagreed.  His theme seemed to be that the fact that the Tribunal made findings of fact with which he disagreed, and that those facts were on his view erroneously found, the errors themselves demonstrated bias.  That latter point is clearly a circular argument, which must fail unless the applicant can demonstrate that the Tribunal made a series of unwarranted and unsupported findings of fact.  His assertions of contrary facts do not amount to such a demonstration.  For example, he said the Tribunal wrongly regarded his description of how he met his girlfriend as “not coherent”.  He claimed that in Iran it is commonplace for young men to find a contact who knows a young woman in whom he is interested, to ascertain her telephone number, and to approach her first by telephone and then by meeting privately.  He said that Muslim customs mean that that is the way most young people meet.  The Tribunal may be correct in its view that that is not a coherent explanation of how he met his girlfriend, or it may be wrong.  But its view is not inconsistent with any independent country information, and it is not shown that the view it took was not open to it.  The other factual findings of which the applicant complained fall into the same category:  the findings were not inconsistent with available independent country information about Iran and were open to the Tribunal.  They do not assist in demonstrating bias on the part of the Tribunal.

15. Whether the complaint of the applicant is of actual bias or perceived bias on the part of the Tribunal, I do not consider that that complaint has been made out.  In Re JRL; ex parte CJL (1986) 161 CLR 342, Mason J at 352 described bias as a disposition to “approach the issues in (the) case otherwise than with an impartial and unprejudiced mind”. The test for actual bias is an onerous one involving the Tribunal having a mind closed to the issues raised and one not open to persuasion by evidence or argument to the contrary: see e.g. Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 at 123 per Wilcox J and at 134 per North J.

16. In this matter, despite the applicant’s submissions, I do not consider that the Tribunal’s decision was the result of bias, actual or perceived, on its part.  The Tribunal’s recital of the applicant’s claims and its questioning of him as recorded in the hearing demonstrate, to the contrary, that the Tribunal was anxious to reach a correct view of the facts.  It gave the applicant the opportunity to comment upon matters which were of concern.  It extensively surveyed and recorded contemporary independent country information about Iran, as it pertained to the applicant’s claims.  There are, in my judgment, no indicia of prejudgment on its part.  The fact that its findings do not accord with those which the applicant considers it ought to have made does not tend to demonstrate prejudgment on its part; it is equally consistent with an independent and careful assessment of the relevant material available to it.

17. Accordingly, I do not consider that the applicant has demonstrated any reviewable error on the part of the Tribunal which could give rise to the Court considering whether to set aside its decision, far less any error which goes to its jurisdiction to have heard and determined the application.  It is, in that circumstance, unnecessary to address the scope of operation of s 474 of the Act.

18. In my judgment the application should be dismissed.  I so order.  I also consider that the applicant should pay to the respondent costs of the application.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             27 February 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