SDAA v Minister for Immigration
[2002] FMCA 184
•30 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SDAA & SDAB v MINISTER FOR IMMIGRATION | [2002] FMCA 184 |
| MIGRATION – Application for review of decision of the Refugee Review Tribunal – applicant produced document which corroborated her claims – document on its face provided evidence that the applicant would have had a well-founded fear of persecution – Tribunal rejected the document and did not test the validity of it – failure to look at document amounted to failure of the Tribunal to exercise jurisdiction – jurisdiction enlivened by valid application to the Tribunal – jurisdictional error not an available ground of review – no lack of bona fides found – application dismissed. |
Migration Act 1958 (Cth) ss. 36, 65, 91R, 474
SAAG v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 547
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
NAAX v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 263
NAAG v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 713
SCAA v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 668
Gamaethige v Minister for Immigration & Multicultural Affairs [2001] FCA 565
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Li Shi Ping v Minister for Local Government & Ethnic Affairs (1994) 35 ALD 557; (1994) 35 ALD 225
Thalary v Minister for Immigration & Multicultural Affairs (1997) 201 FCA
Prahastono v Minister for Immigration & Multicultural Affairs (1997) 586 FCA
SBBK v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 565
W396/01 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 103
Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802
NAAV v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 228
SBAN v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 591
First Applicant: Second Applicant: | SDAA SDAB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | AZ 123 of 2002 |
| Delivered on: | 30 August 2002 |
| Delivered at: | Sydney |
| Hearing Dates: | 27 June 2002 (last submissions received 24 July 2002) |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J Costello appearing pro bono |
| Solicitors for the Applicant: | Refugee Advocacy Service of South Australia |
| Counsel for the Respondent: | Mr K Tredrea |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicants pay the respondent’s costs in the sum of $3,750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ 123 of 2002
| SDAA |
First Applicant
SDAB
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is an Iranian who together with her husband and son made an unauthorised boat arrival in Australia on 20 April 2001. On 31 July 2001 they made an application for protection (class XA) visas with the Department and were considered against the criteria for sub-classes 785 (temporary protection) and 866 (protection). On 10 September 2001 a delegate of the Minister refused to grant a protection (class XA) visa and on 17 September 2001 the applicant applied for review of that decision. The decision was reviewed by the Tribunal constituted by Ms J Morris which on 12 February 2002 made a decision affirming the delegate’s decision not to grant protection visas.
At the commencement of the proceedings I made an order by consent that the first respondent, the Refugee Review Tribunal, be removed from the proceedings with no order as to costs.
The applicant’s submissions in this case were directed to establishing that the Tribunal had:
“gone beyond the making findings of fact or making observations which involve it making errors of fact, or law, or simply reaching views which lack logic or which are wrong.”
The applicant set out to convince me that:
“The Tribunal approached it’s review of the applicant’s claims on the basis that it could look for reasons why it could reject those claims. In other words … its reasons overall show that it did not address the applicant’s claims by asking whether he had a well-founded fear of persecution for a Convention reason, but in substance by asking whether there was evidence which would enable it to reject the applicant’s claims.”
SAAG v MIMIA [2002] FCA 547 at [36].
The respondent accepted that if I made a finding consistent with that approach it would have the effect of enlivening the first pre-condition expressed in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 per Dixon J at 615. It was conceded by the applicant that if I was unable to find that the case was one which came within the principles expounded by Mansfield J in SAAG then upon the current state of the authorities it would be appropriate for me to follow the decisions of Gyles J in NAAX v MIMIA [2002] FCA 263 and Allsop J in NAAG vMIMIA [2002] FCA 713 and find that notwithstanding the gravity of the error allegedly made by the Tribunal or the unreasonableness of its decision that it was protected from review by virtue of s.474(2) of the Migration Act 1958 (Cth).
The applicant worked as a secretary/typist from 1992-2000 for the marketing manager of the National Excavation Company which, she advised the Tribunal, was a responsible position. In about 1979 her brother went to live in the United States. In about 1988 she went to visit her brother and whilst in America sought medical treatment. Her visit, which was made openly with her own Iranian passport, coincided with a visit to that country by President Khatami and some dissident activity in the United States. She returned to Iran and to her job. Around August of 2000 there was a rumour that her workplace was to be privatised and workers at her office went on strike. During this period she went to have her passport renewed. This normally took approximately 24 hours. After three days when she returned to collect the passport she was asked to go inside the passport building and was shown a photo of a group of dissidents of the United States and was accused of participating in demonstrations with them. She was asked to write down the name of all the people who she knew in the United States. She was also accused of inciting a strike, of crimes against modesty and the commission of a crime against the Republic of Iran section B of Article 15. She was investigated by the Board of Rehabilitation and Human Resources and they decided that she was guilty of these offences and was punished by being given a written warning and expelled from her workplace. The decision included a prohibition on her being hired by any government or private organisation. Her passport was also not renewed. The Board also noted that she had a previous record of conviction and anti-modesty activities.
In a type-written statement dated 26 July 2001 the applicant stated:
“Around third week of August I was called for a hearing with the Heyat Badaviah. Two women in full Islamic dress came to where I was in the office to take me to the hearing in Khoram Koosh. I was taken into a hearing room where a clergyman was sitting as well as the person who interrogated me in the passport office, along with a few of my colleagues and a few members of the Behbood-e-Mohit-e-Kar. They didn’t allow me to speak at all. They just read the accusations (repeating the above accusations on the notices I received) and the charges that they were putting on me. The first charge was that I had political attachments. The second charge was influencing my colleagues at work. The third was not wearing the proper Islamic attire at work, forth charge was that I was having an affair with my boss and the fifth was that they had witnesses. All they showed me was a page with a few signatures on it but they didn’t show me who they belonged to. With these charges I was banned from working with any government or non-government organisation. In the letter I have about my expulsion from my job they accused me of instigating other workers of going on a strike.”
In the applicant’s record of interview in written form found at [CB 24-26] the applicant refers to the trip to the United States and the accusations that she had met with dissident groups. She refers to the accusations made against her when she went to collect her passport and in response to the question:
“Did you have any more dealings with the Iranian government after this?”
She responded
“Yes, my office had.”
To the question:
“What was the point of that dealing?”
She said:
“From the investigation unit of the company they said I had been inciting the strike that I had not been following the rules of Hejeb of women and indecent acts. At the same time because of the issues with my passport and the issues of the opposition they wrote to my office and said I should not work at that place.”
The applicant brought with her a number of documents, including her marriage certificate and her identity card but the documents also included a document in Iranian with a translation in English of the decision of the Board of Rehabilitation and Human Resources in relation to the charges made against the applicant and previously referred to [158-159 Court Book]. That document is referred to by the delegate to the Minister in his decision at [CB 130].
The applicant’s submission that the Tribunal lacked good faith in coming to its decision is based upon an analysis of a number of findings in the reasons themselves. There is no suggestion of any extraneous material from which the court could come to any conclusion concerning the Tribunal’s bona fides.
The applicant points to sections of the decision of the Tribunal which it says indicates the lack of good faith and suggests the approach criticised by Mansfield J in SAAG supra. The first is a comment at [190 Court Book]:
“The Tribunal does not however, accept as being credible or believable, the applicant’s core claim that she has been imputed with an adverse political opinion as a consequence of her visit to the USA. The applicant’s claims and evidence in this regard are exceedingly implausible, contradictory, internally inconsistent and moreover, inconsistent with independent evidence. … The Tribunal finds that the applicant has fabricated her claim (to have been imputed with an adverse political opinion as a result of her visit to the USA) to create a case for refugee status.
Travel to the USA, return to Iran – imputed political opinion
The applicant’s claims and evidence are to the effect that as a result of her travel to the USA, she has been imputed with an anti-government political opinion. The applicant’s claims and evidence are to the effect that:
· At the time she went to apply for a new passport in July 2000, she was detained by the authorities [Etellat] and has been imputed with an adverse political profile as a support of opposition political groups
· As a result of talking about her trip to America at her place of work she has been dismissed from her employment
The Tribunal finds the applicant’s claim to be so far-fetched as to be fanciful.”
The applicant argues that these remarks are not justified by the evidence and that where evidence is proffered to support them it is evidence taken out of context or irrelevant. The applicant also alleges that the Tribunal’s categorisation of her story as implausible or internally inconsistent was founded on fallacious reasoning. On the other hand the applicant accepts that there may have been some embroidery of her story but cites Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] and the remarks of Mansfield J in SAAG as indicating that these are matters which are to be expected and which should not tell against her.
In my view the very strong language used by the Tribunal is indicative of an unsympathetic view of the applicant. But within itself and without more it could not possibly constitute a lack of bona fides sufficient to fall within the first Hickman principle as found in SAAG. As von Doussa J said in SCAA v MIMIA [2002] FCA 668 at [38]:
“where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party’s interest such as a hostile attitude throughout the hearing, or a failure to enquire into and to obtain readily available and important information relating to central matters for determination an inference of actual bias by pre-judgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.”
There is one additional matter of concern which has ramifications in other areas of the Tribunal’s decision and that is its treatment of the document which appears at [CB 158-159].
This document was brought to Australia by the applicant as reproduced in the Court Book it appears to be on official paper bearing official crest and official seals. In translation it states the following:
“Islamic Republic of Iran
Decision Number: H.B Zar 2343 dated 01/06/1379 (23/08/2000)
Place of Investigation: Board of Rehabilitation of Human Resources #1 Ahwaz
Type of Charge: Previous record of Conviction and anti modesty activities
Name of accused: Mohammad Younus Yusufi S/O Farjullah
Date of birth: 1349/1960
ID # 18
Issued: Agha Jari
Occupation: Secretary and typist
Years of Service: 18 Years
Work place: Ahwaz
Employment # 663827
Education: Diploma
The case has been investigated by the Board and after deliberation and consideration of all evidence reached to the following decision:
Decision of the Board
According to evidence provided in the file, accused admission, defence, statements of witnesses, professional opinion, statement of people aware of the issue all related documents and evidence board found accused guilty of the following offences:
1- Commission of crime against the Republic of Iran section B of article 15
2- Strike and encouraging others to take part in strike
3- Previous criminal record and crimes against modesty
Therefore, according to rehabilitation law of ministries and other government institutions declared on 05/07/1360 (27/09/1981) section 1 article 28 accused has been punished by a written warning and expulsion from work. This punishment is final and immediately effective or binding according to same law. Review can be lodged in 15 days.
First board #10 Ahwaz
Note: Above named person cannot be hired by any government or private organizations
Stamp and signature of Board
True copy of original.”
In regard to this document the Tribunal says at [CB 194-195]:
“The Tribunal does not accept as credible or believable the applicant’s claims that: …
· She appeared before the Hei-ate Badwi [preliminary panel]
· She was convicted of any “crimes” or charges by the Hei-ate Badwi [preliminary panel] including ‘bad hejab’, inciting strikes, of being immodest or un-Islamic. …
In the light of fact that the Tribunal has found the applicant to be an unreliable witness and has found that her claims totally lack credibility, it can place no weight on the documents she has submitted in support of these claims.” (emphasis in original).
The document set out above is extremely important. Firstly it corroborates the story told by the applicant all the way through from her first interview onwards that she was the subject of a court order which prevented her from working. Secondly it could be said to corroborate her statement that she talked to her staff about America and that this caused her problems. In her response to the s.474A letter dated 11 January 2002, the applicant states at [CB 164]:
“After my return from America the staff of the Hizbullah Department accused me of not wearing the veil and other indecent actions.”
The only explanation for the court appearance given by the applicant was her discussions. It might, of course, be true that she suggested or encouraged strike action. This was not considered by the Tribunal which rejected the document.
The document indicates that the applicant has already got a record as follows:
“Type of Charge: Previous record of Conviction and anti modesty activities.”
Secondly, if the document is accepted it would take the sting out of the criticism found at [CB 181]:
“The Tribunal asked the applicant about her claims in her written statement to the department of immigration, that around the 3rd week of August [1st Shahrivar] she was called for a hearing with the Heyat Badvieh (The Government Court for dealing with Government and non-Government organisations). This is a very serious issue and an important claim to make – to be taken before a court – and yet the applicant did not mention this claim at her initial interview.”
In fact the applicant did mention this. In answer to the question:
“Did you have any more dealings with the Iranian government after this?”
She responded:
“From the investigation unit at the company they said that I had been inciting the strike that I had not been following the rules of Hejab and of women and indecent acts at the same time because of the issues with my passport and the issues with the opposition they wrote to my office and said that I should not work at that place.”
She is clearly referring to this document.
Thirdly the document supports the applicant’s response to the questions put to her in the first paragraph of [CB 182].
The Tribunal did not test the validity of this document. It did not consider whether the document was corroborative of anything which the applicant had put forward. It decided that the applicant was not telling the truth and then came to a conclusion about the document. As Finkelstein J said in Gamaethige v MIMA [2001] FCA 565 at [54]:
“Importantly, in the process of reasoning, the Tribunal was not entitled to pay no regard to the corroborative evidence in the course of deciding whether the evidence of Mr Gamaethige was true or probable and then use its conclusion on that evidence [that was it untrue] to impeach the corroborative evidence.”
Both the Judge at first instance and Stone J made observations calling into question the correctness of the Tribunal proceeding in this fashion. Stone J did not feel that it was indicative of actual bias within the former 476(1)(f). Neither Stone nor Hill JJ agreed with Finkelstein J in his view that their rationality found in that decision permitted review under the old s.476(2)(b). These sections are no longer in the Act as they have been replaced by the privative clause. Consideration of the decision on what appears to be a clear error of law must bend to the interpretation of that clause.
To my mind the real importance of the documents is that upon its face it indicates that the applicant might be able to claim relief under Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol and as interpreted by s.91R of the Migration Act. The relevant parts of s.91R are as follows:
“91R Persecution
1For 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.
2Without 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)…
(b)…
(c)…
(d)…
(e)…
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.”
The decision of the Board evidenced by the document included the punishment to be metered out to the applicant. That punishment was said to be final and immediately effective. The applicant was expelled from work and, in accordance with the note to the document, she could not be hired by any government or private organisation.
There have been several decisions on the extent to which a prohibition on working or serious restrictions upon working constitute persecution. Most of the cases decided involve a prohibition from working for a government organisation, often in countries where working for a government organisation is the only way in which a person can carry on the profession or calling for which he or she has been trained. The current status of the law as found in cases such as Chan v MIEA (1989) 169 CLR 379; Li Shi Ping v MILGEA (1994) 35 ALD 557; (1994) 35 ALD 225 (Full Court); Thalary v MIMA (1997) 201 FCA and particularly Ibnau Prahastono v MIMA (1997) 586 FCA that a prohibition on employment will not constitute persecution if it is selective. In other words, if it bans employment in the public sector but there is employment available in the private sector. On the face of this document all forms of employment are banned and prima facie this applicant would have a right to claim asylum on the basis of this form of persecution provided that she can establish that the ban came about for convention reasons.
By a combination of s.36(2) and s.65(1) of the Migration Act the Minister is obligated to grant a protection visa in circumstances where an application is validly made and the criteria for the grant of such a visa is complied with. The Minister’s duties to investigate the application is delegated to an officer in the department. The duties were explained by Tamberlin J in SBBK v MIMIA [2002] FCA 565 at [46]:
“One essential precondition, (among others), to the performance by the Minister of the duty under s.65 is to consider the matters set out in s.65(1)(a)(i)-(iv). If the Minister is not satisfied of the existence of any of these matters then the visa must be refused. Before a decision can be made under this section, it is necessary that the Minister should consider whether the applicant is a “refugee” as defined by the Convention.”
The obligations described above would include looking at all the evidence put forward by the applicant for a grant of a protection visa. The scope of the Tribunal’s task is not limited by the case articulated by an applicant. The Tribunal should look at all the evidence and material that it has not rejected and give consideration to a case which it might reasonably raise, notwithstanding that such a case might not have been contended for by the applicant (W396/01 v MIMA [2002] FCAFC 103). If the applicant claims a well-founded fear of persecution for several reasons and one of those reasons is simply not addressed at all by the delegate, then the delegate has failed in his duty to apply the Act (Sellamuthu v MIMA [1999] FCA 247).
This type of failure was considered to be a fundamental failure (Htun v MIMA [2001] FCA 1802). But Allsop J who sat on the Full Bench in Htun has since opined in NAAG that this type of failure is protected from review by virtue of the privative clause found in s.474(2) Migration Act 1958 (Cth). However, Tamberlin J in SBBK came to the opposite view and the matter awaited resolution by a Full Bench of the Federal Court which had been specially constituted to consider the breadth and extent of s.474(2).
I raised the possibility that the failure of the Tribunal to look at the decision of the Board of Rehabilitation of Human Resources in this matter was a failure to exercise jurisdiction. The parties had had no opportunity prior thereto to consider the matter and I therefore wrote to them both offering them an opportunity to make written submissions.
The applicant in her additional written submissions claimed that on its face the Board document provided evidence that the applicant would have had a well-founded fear of being persecuted for a Convention reason because the direction concerning future employment and the finding that she had encouraged others to strike. The applicant submitted that as a result of its approach to the applicant’s claims, the Tribunal effectively closed its mind of the possibility that the Board document by itself constituted evidence of a state-sponsored persecution of the applicant for reasons of political opinion or imputed political opinion. The applicant argued that the Tribunal failed entirely to address one of the principal issues for determination, namely, whether the matters in the Board document referred to constituted grounds for the grant of a protection visa.
In support of its argument that this failure of the Tribunal was not validated by s.474(1) of the Migration Act the applicant cited SBBK v MIMIA [2002] FCA 565. The Full Bench of the Federal Court in the decisions entitled NAAV v MIMIA [2002] FCAFC 228 specifically disapproved of that decision. It seems to me that the dicta of von Doussa J with whom the Chief Justice and Beaumont J agreed at [639] seals the fate of the arguments advanced by the applicant. His Honour said:
“I share the difficulty expressed by Allsop J in NAAG of 2002 at [59] – [60] about Tamberlin J’s conclusion that an error of law in failing to identify the right question to be addressed in the applicant’s claim constitutes a failure to comply with a condition that is essential to the exercise of the jurisdiction of the RRT. In my opinion the jurisdiction of the RRT was attracted by a valid application to the RRT made under s.414 to review an RRT reviewable decision. Once that decision was enlivened, the manner of exercise of the authority and powers of the RRT came within the expanded area of authority and powers brought about by s.474(1), with the consequence that the decision of the RRT was lawfully made. This consequence arises even if in the absence of s.474(1) the decision would have been infected with a jurisdictional error of the Craig type because the wrong question had been asked.”
I note in the applicant’s additional submissions that there is a suggestion of a “closed mind”. I have considered the reasons given by the Tribunal for its decision and I do not believe that this omission provides the type of evidence of lack of bona fides which was accepted by Mansfield J in SAAG v MIMIA [2002] FCA 547 and SBAN v MIMIA [2002] FCA 591 and certainly not by von Doussa J in SCAA v MIMIA [2002] FCA 668. I am not satisfied that this ground, if it is being argued, has been made out.
I therefore dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $3,750.00 pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules.
I note in this matter that the applicant was represented pro bono. It is appropriate that the court should recognise the contribution of members of the legal profession to the efficient administration of justice and the protection of human rights by appearing in these matters on this basis.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
4
13
0