SRFB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 268

FEDERAL COURT OF AUSTRALIA

SRFB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 268

MIGRATION – whether the Refugee Review Tribunal (Tribunal) did not accord applicants procedural fairness and did not comply with the requirements in s 424A of the Migration Act 1958 (Cth) by considering submissions from a migration agent who had ceased working for the applicants – whether Tribunal did not give applicants opportunity to respond to those submissions – whether Tribunal erred by not raising certain matters concerning female applicant’s former marriage with applicants before hearing – whether Tribunal was ostensibly biased – whether Tribunal’s decision was unreasonable – whether Tribunal mis-directed itself in law by failing to address whether it was satisfied the applicants had a well-founded fear of persecution – whether Tribunal addressed all the integers of the applicants’ claim.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth) ss 36, 91R, 420, 424, 424A, 424B, 424C, 425, 474
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 referred to
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 referred to
Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 175 ALR 585 referred to
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 referred to
Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 referred to
Minister for Immigration & Multicultural Affairs; Ex parte Epeabaka (2001) 179 ALR 296 referred to
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 referred to
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 referred to
Attorney-General (NSW) v Quinn (1990) 170 CLR 1 referred to
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1998) 168 ALR 407 referred to
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to
Htun v Minister for Immigration & Multicultural Affairs (2003) 194 ALR 244; [2001] FCA 1802 referred to
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

SRFB & SRGB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 618 of 2003

MANSFIELD J
25 MARCH 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 618 OF 2003

BETWEEN:	SRFB & SRGB APPLICANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	25 MARCH 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

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 618 OF 2003

BETWEEN:	SRFB & SRGB APPLICANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	25 MARCH 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application under s 39B of the Judiciary Act 1903 (Cth) to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 5 December 2001 and to direct the Tribunal to hear and determine according to law the application by the applicants for review of a decision of a delegate of the respondent made on 19 June 2001. The review application to the Tribunal was in respect of the delegate’s refusal to grant to the applicants a protection visa for which they had each applied on 8 January 2001 under the Migration Act 1958 (Cth) (the Act).

2. It is accepted that the Court has power to make the orders sought only if the decision of the Tribunal affirming the decision of the delegate was arrived at as a result of jurisdictional error on its part:  Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 (Plaintiff S157/2002). If the Tribunal’s decision was arrived at through jurisdictional error on its part, it is in law no decision at all and is not therefore a privative clause decision caught by the operation of s 474 of the Act.

3. To be eligible to be granted the visa, it was necessary that each of the applicants satisfy the criterion for the grant of a protection visa specified in s 36(2) of the Act, namely that they are each persons to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). For present purposes, that issue may be re-expressed as being whether the decision-maker was satisfied that each is a refugee as defined in Art 1A(2) of the Convention, namely that each is a 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.’

   THE APPLICANTS’ CLAIMS

4. Each of the applicants is a national of Iran.  Each claims to have a well-founded fear of persecution if they were to return to Iran.

5. Each of the applicants left Iran in 1992 and has in essence lived in India from that time until October 2000.  They each claim to have formed a relationship and to have lived together although not married from late 1992.  They each claim to have become interested in the teachings of Osho, and to have participated in meditation and similar activities in that religion.  And they each claimed whilst in India to have been friendly with persons who were, or may have been perceived as, political opponents of the Iranian regime, although they themselves did not discuss politics with persons in that group or express political views or participate in any way in the expression of political views.

6. Each of the applicants claims that on 6 October 2000, when they returned from India to Iran, as it happened in the company of one of the persons who was a member of the ‘political’ group who were perceived as opponents of the Iranian regime, they were detained and their documents were confiscated.  Upon detention, they were interrogated and beaten.  They were released on bail on 13 October 2000, and were due to return to the Court on 28 October 2000.  They were charged with ‘mortad’, that is apostasy, although they do not understand exactly the basis of that charge.  They suggested that they may have been so treated by reason of having lived together although not married, by reason of their involvement with Osho, particularly as tapes and books of Osho were found in their possession when they returned to Iran, and by reason of their association with a perceived political activist.

7. Rather than face the charge, on 28 October 2000 they fled Iran on false passports.  After travelling through Pakistan and India, and Indonesia, they arrived in Australia on 18 December 2000.  They could not stay in India as they no longer had work papers in India and they had entered India on false Turkish passports.  They told the Tribunal that they feared imprisonment and further mistreatment if they were to return to Iran.  They did not think they would receive a fair trial.  The female applicant further claims that, by reason of her activities in Australia involving contact with Osho adherents in Australia, she would face persecution if she returned to Iran, a vulnerability heightened by having applied for status as a refugee in Australia.

   THE TRIBUNAL’S REASONS

8. As the criticism of the Tribunal’s reasons directed to showing jurisdictional error requires a careful analysis of parts of its reasons, it is convenient at this point simply to note the general views which the Tribunal expressed in relation to those claims.

9. The Tribunal regarded the evidence of the two applicants in relation to their relationship as containing implausibilities and as being unreliable and inconsistent.  It rejected their claims that they were living together unmarried.  It therefore rejected their claim that they were declared ‘mortad’ because they were living together in an unmarried state.

10. The Tribunal also rejected their claim that they are under threat from the Iranian authorities ‘because of a claimed association with political activists’.  It rejected that claim because it lacked essential details which the Tribunal regarded as necessary to enable it to be satisfied as to the veracity of the claim.  It expected that, if the applicants were associating with political activists in India, they would have been able to provide more specific details of the political views and activities of their friends.  The failure to provide such details about the claimed political activists led the Tribunal to reject the applicants’ claims that they were declared ‘mortad’ because they associated with political activists.

11. The Tribunal also rejected the applicants’ claims that the Iranian authorities had declared them ‘mortad’ because of their involvement with Osho.  It regarded the claim as implausible.  The implausibility included the claim that Iranian Embassy officials would have been aware of the applicants’ visits to the Osho Center in Puna in India.  Furthermore, it was implausible because they had not publicly embraced Osho and rejected Islam.

12. The Tribunal concluded:

    ‘The Tribunal does not accept that the applicants’ living arrangements, association with political activists or involvement with Osho has brought the applicants into conflict with the Iranian authorities.  As a logical consequence of these findings the Tribunal also rejects the applicants’ claims that they returned to Iran in October 2000 and were detained, charged with “mortad”, given bail and while on bail fled the country.’

13. It accepted that the female applicant had made some contact with Osho adherents while in Australia, asking for literature on Osho.  As that was a private communication, it did not accept that her inquiry would have come to the attention of the Iranian authorities on her return to Iran.  It noted her evidence that she was unsure of her commitment to Osho, and had therefore put her religion as Muslim on her application for a protection visa.  For those reasons it was not satisfied that the applicant would continue to pursue her interest in Osho upon returning to Iran or would face persecution because of it.

    THE ALLEGED JURISDICTIONAL ERRORS

14. There are five bases for jurisdictional error asserted in respect of the Tribunal’s decision.

15. First, it is contended that the Tribunal erred in applying an incorrect test in law as to what amounts to persecution under the Act.  It is submitted that the Tribunal ‘constructively’ applied a balance of probabilities test as to whether the applicants’ fear of persecution upon return to Iran was well-founded.  Such an approach would be inconsistent with the way in which the High Court in a series of decisions commencing with Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 and more recently Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 175 ALR 585 has explained the expression ‘well-founded fear of persecution’. It is also contended that the Tribunal erred in the application of the test as to what amounts to serious harm, as described in s 91R of the Act.

16. The second ground of review is the ‘Wednesbury unreasonableness’ ground, namely that the Tribunal’s decision was so unreasonable that it was not open to it on the evidence.  The particulars are that the Tribunal made findings regarding credibility based on inconsistencies in evidence, and based on evidence which did not exist, and that the Tribunal relied upon general country information that was not relevant to the circumstances of the applicants.

17. The third ground of jurisdictional error asserted is that the applicants were denied procedural fairness because the decision of the Tribunal was made in circumstances where there was a reasonable apprehension that the Tribunal member did not approach the task of review with an impartial mind.  The submissions identified the allegations upon which that assertion was made as being:

    • the Tribunal received, and read and relied upon, submissions of a migration agent when the accompanying letter made it clear that the migration agent was not instructed to put those submissions on behalf of the applicants,
    • the Tribunal during the course of its hearing produced, without warning to the applicants, documentation concerning their previous applications for tourist visas and asked them about it, and
    • the Tribunal placed significance on the distance between the town of Dharwad where the applicants lived in India and the location of the Iranian Embassy in Delhi, from which it inferred that it was unlikely that the Iranian authorities had monitored or would monitor the conduct of the applicants in Dharwad, but the applicants were not invited to comment upon that material.

    Those issues were relevant to the Tribunal’s assessment of the credibility of the claims made by the applicants, and in conjunction with (what is contended to be) unavailable findings of inconsistencies on collateral matters, were used to reject the reliability of the claims of the applicants.  It is further contended that the Tribunal’s perception of the nature of the applicants’ relationship with each other and with the Osho sect reflects an apparent preconception on its part.

18. It is further contended that the applicants were denied procedural fairness because the Tribunal relied upon the incomplete and incorrect submissions by a migration agent who was no longer acting for the applicants as the (or a) basis for not accepting the credibility of the version of events or claims made by the applicants.

19. Finally, it is alleged that the Tribunal erred in law in failing to deal with certain integers of the applicants’ claims, namely that they were mistreated as they claimed when they returned to Iran in 2000 by reason of political or religious beliefs imputed to them.

    PROCEDURAL FAIRNESS

20. It is accepted that the Tribunal was obliged to accord procedural fairness to the applicants in the conduct of its review, and that a failure to do so on its part may constitute jurisdictional error so as to result in the decision of the Tribunal being quashed notwithstanding s 474 of the Act: Plaintiff S157/2002.  As the Tribunal’s decision was made prior to the commencement of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) it is not necessary to have regard to or to consider the consequences of that enactment.

21. It is convenient first to deal with the contention that the Tribunal erred by having regard to a submission from the migration agent who, at the time of the submission, had ceased to act for the applicants.  It is clear enough that the migration agent who acted for the applicants at the time of their protection visa applications, in their subsequent communications with the department of the respondent, and in the application for review to the Tribunal made on 26 June 2001 had soon thereafter ceased to act for the applicants.  On 10 July 2001 a different migration agent had informed the Tribunal that it had been appointed to act as migration agent for the applicants in their claim for review before the Tribunal.  The Tribunal clearly was aware of that.  Its communications subsequent to that date were with the new migration agent.  However, by letter of 16 August 2001 the former migration agent sent to the Tribunal a submission ‘in support of our client’s [sic] claims for a protection visa’.  The letter pointed out that the submission was completed before the migration agent found out that the applicants had changed advisers.  The letter enclosed a lengthy submission from the former migration agent contained in a letter of 14 August 2001. 

22. In recording the ‘claims and evidence’ in its reasons for decision, the Tribunal recited in sequence the information provided by the applicants as set out in the protection visa, in their detailed claims in support of the protection visa claims, as contained in the submission from the former migration agent in the detailed submission of 14 August 2001, in subsequent information as provided by the new migration agent including a further unsigned and undated statement from the female applicant, and as made at the hearing.  The Tribunal in that recital noted that the submission from the former migration agent was prepared before that migration agent had found out that the applicants had changed their adviser.  That does not mean that the Tribunal was not entitled to have regard to that information.  It is entitled to have regard to such information as is available to it in the making of its decision.  However, it was not entitled to have regard to that information as if it were information sent by the applicants with their approval.  It was not.  It may well have been, as they assert, that they had not approved of that information being sent in those terms.

23. Section 424(1) empowers the Tribunal to get any information that it considers relevant. That information, in my view, may include unsolicited information. The procedural fairness provision in s 424A then requires the applicants, subject to applicability of that provision to the material received, to be given the opportunity to address the information. Consequently, if the Tribunal considered that information in the ‘submission’ of 14 August 2001 might be or would be the reason, or part of the reason, for affirming the decision that is under review, it was obliged under s 424A of the Act to ensure that the applicants were given notice of that information, and were given the opportunity to comment upon it. The information in that submission clearly was specifically concerning the applicants, and so did not attract the exemption from compliance with s 424A provided for in s 424A(3).

24. At common law, in general terms, the same considerations apply.  The Tribunal is not inhibited from using information provided by a non-party and having regard to it in making its decision, provided that the applicants are given the opportunity to be heard with respect to it.  What weight is given to such information is then ultimately a matter for the Tribunal.

25. In this instance, after reciting in detail the claims which were made, the Tribunal addressed the significance of the material in the ‘Findings and Reasons’ section of its decision.  There is nothing in that section of its reasons for decision which indicates that it perceived in the ‘submission’ of 14 August 2001 information different from that which the Tribunal otherwise received from the applicants.  The ‘Findings and Reasons’ section of its decision does not refer to the material received from the former migration agent.  No information is identified in the submissions relevant to the Tribunal’s assessment of the credibility of the applicants’ claims, or to its decision, which has come from the document of 14 August 2001.

26. In my judgment, therefore, s 424A is not shown to have been enlivened by information in that document. The Tribunal is not shown to have regarded any information contained in that document as being information which would be the reason, or part of the reason, for affirming the decision that is under review. Accordingly, I do not consider the Tribunal has failed to comply with s 424A of the Act in that regard. I also do not consider there has been a failure to accord procedural fairness to the applicants by it having referred to the information in that document. Counsel for the applicants did not identify any piece of information provided by the former migration agent which was of significance to the Tribunal, and upon which they did not have the opportunity to comment in the course of the hearing before the Tribunal. It may be that the Tribunal did not draw to the attention of the applicants, or to that of their adviser, that the document had been received. But its content related to events which generally the Tribunal gave the applicants the opportunity to comment upon at the hearing. Its contents in general terms were consistent with the issues which were being addressed before the Tribunal by reason of the review, and which were addressed at the hearing. There is no particular piece of information, even if not apparently used by the Tribunal, which has been shown to be information about which the applicants did not generally have the opportunity to comment in the course of the hearing before the Tribunal.

1. In those circumstances, I do not think the Tribunal has failed to accord procedural fairness to the applicants simply by failing to disclose that it had that particular document available to it.

2. The second aspect of the alleged failure to accord procedural fairness concerned something which occurred in the course of the hearing.  The applicants said at the hearing that they had commenced living together in India in about December 1992, and had remained living together until about August 1998.  The female applicant then married a person named Nour Hayati, who also used the name Saeed, on 28 August 1998 and divorced him in April 2000.  She said Mr Hayati had then left India and she did not see him again.  Shortly afterwards she resumed living with the male applicant.  They were not married until October 2000, after they had been arrested and bailed following their arrival in Iran on 6 October 2000. 

3. On 13 September 2000 the female applicant applied for a tourist visa at the Australian Consulate in India.  She then stated that she was married to a Mr Saeed Hayati.  Her application is co-signed by him.  That matter was raised by the Tribunal during the hearing.  The female applicant confirmed her marriage when confronted with that apparent discrepancy.  She said that she had sent her divorce papers to her father in Iran to follow up, and that it takes some time for the divorce to be processed.  Consequently, she said, on 13 September 2000 when she completed the application for the tourist visa she was not sure how far the divorce had progressed.  She suggested that the signature of Saeed Hayati on the documents may have been put there by the male applicant.

4. The first complaint is that the Tribunal should have raised those matters with the applicants under s 424A of the Act before the hearing to ensure that the applicants were given procedural fairness. Section 424A(1) requires the Tribunal to give to the applicants particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. The intent is that the applicants should understand the significance of that material and have an opportunity to respond to it.

5. In respect of that material, that procedure was not adopted prior to the hearing before the Tribunal. It is not clear why. It may be that the Tribunal did not appreciate the significance of those documents until at, or shortly prior to, the hearing. I do not think it must always be the case that the Tribunal may not have a hearing or may not at a hearing confront an applicant with information of which the Tribunal is then aware and which may be significant, unless it has followed the procedure specified in s 424A of the Act.

6. Section 424C of the Act entitles the Tribunal to proceed to review without taking any further action if the invitation to comment upon potentially adverse material under s 424A is not taken up. Section 425 obliges the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 424C(2) excuses the Tribunal from that obligation if it has already invited comment upon material in accordance with s 424A(1) and there has been no response. Hence, it appears that the normal sequence is that the procedure contemplated by s 424A will be adopted before the hearing, if one takes place, in accordance with s 425 of the Act. But it does not follow that Div 4 of Pt 7 of the Act requires that sequence to be followed invariably. It does not say so, although it could readily have been so prescribed. To adopt such a rigid sequence would mean that the Tribunal, where it learnt of or realised the potential implications of certain information which attracted the application of s 424A only at or shortly before the hearing, would have to cancel or adjourn the hearing without then exploring the significance of that information. There may then be the need for a series of abbreviated hearings if further information comes to light. Such a consequence would not be consistent with the exhortatory terms of s 420 of the Act. Moreover, such a construction, if correct, would preclude the Tribunal from seeking additional information under s 424 because it too is in a sequence in Div 4 which precedes the hearing. It would interfere inappropriately with the Tribunal’s conduct of a review to impose such a rigid sequence of investigation upon it. If, as a result of a hearing or for some other reason, the Tribunal procures additional information under s 424, then depending upon its nature the obligation under s 424A may be enlivened. It does not necessarily lead to the obligation to conduct a further hearing, or to invite the applicant to further appear under s 425. If an invitation to comment upon information is given under s 424A, s 424B(1) makes it clear that the manner of response is to be in ‘the way the Tribunal considers appropriate in the circumstances’. It contemplates a response at interview or in writing: subs 424B(3) and (2) respectively. The expression of those alternatives indicates the legislative intention is not to re-enliven the obligation under s 425 if it has already been complied with, nor always to impose upon the Tribunal the obligation to have a further hearing when s 424A has been enlivened.

7. In this matter, in addition, the Tribunal proffered to the applicants in any event the opportunity to have the hearing adjourned before confronting that material.

8. At the hearing, after having been through a considerable part of the applicants’ evidence, the Tribunal introduced the information arising from the tourist visas referred to above.  It identified a number of concerns about that.  It said:

   ‘Now, what I’d like to do is run through some of the discrepancies or inconsistencies.  If you wish, you can respond or your adviser can respond, but if you wish you can also stay that and respond in writing after I write to you officially to put these points to you.’

   The Tribunal then proceeded to put a number of points to the applicants.  At one point, in relation to the male applicant and some discrepancy in documents which the Tribunal then perceived, the male said that he may need to see the documents to be able to respond.  The Tribunal then indicated that it would provide the documents to him to give him an opportunity for a written response.  It did not press him for an oral response at the time although he continued to provide one in the presence of his adviser.  A little later, the Tribunal said:

   ‘… there’s not you know this information will be put to you through your adviser and you can respond in writing through your adviser.  I’m not expecting that you sort of explain it all instantly in the hearing.  There will be opportunity for you to sort of put a thought through (inaudible).’

9. It also issued the appropriate notice under s 424 following the hearing. By letter dated 12 October 2001 the Tribunal gave to the applicants notice under s 424A in relation to that material. A response was given through the migration agent by letter dated 26 October 2001. It was to request the Tribunal to accept that the marriage solemnised in 1998 was dissolved in 2000, and that the female applicant did not know at the time of preparing the visitor visa application (which ante-dates the visa application being lodged) if she was still legally married to Mr Hayati. It addressed other matters which the s 424A notice had raised, but which subsequently did not feature as significant in the Tribunal’s decision, presumably because in those respects the explanation or additional material allayed the Tribunal’s concerns. It then put the general submission that it is difficult to ascertain why the applicant would have lied about any of those issues. It contended that any discrepancies were most likely because one or other of the two Australian visa applications was prepared at speed in circumstances of duress, and that the applicants did not apply themselves fully to the relevant application.

10. Consequently, in my judgment, the Tribunal did not fail to comply with s 424A of the Act. It did not oblige the applicants to respond orally to material which they had not previously had the opportunity to address. The Tribunal gave them the opportunity of receiving a notification under s 424A of such adverse material for their comment and of responding to it in writing. The applicants did not take that up exclusively but chose additionally in the circumstances to offer an oral explanation at the hearing. It is not necessary, in view of that conclusion, to determine whether the conduct of the hearing under s 425 followed by the giving of a notice under s 424A would itself amount to jurisdictional error, even if Div 4 of Pt 7 of the Act does impose that rigid sequence upon the conduct of its review.

11. The Tribunal concluded:

    ‘The contradictory information supplied by the applicants in their protection visa application and in their tourist visa application and the applicants’ failure to satisfactorily explain these inconsistencies leads the Tribunal to reject the applicants’ claim that they were living together unmarried.’

12. The Tribunal also considered certain aspects of their claimed relationship to be implausible.  The applicants said they had been living together since late 1992, and had been warned by staff at the Iranian Embassy about that conduct, but they also said that they had returned to Iran in mid-1995 without experiencing any difficulties by reason of their relationship.  The Tribunal did not regard that as fitting comfortably with their claim of having been arrested upon their return to Iran in October 2000, at least as that arrest was attributable to their then relationship.  It also considered as implausible the claim that they had married in October 2000 after having been charged with mortad, and when they were planning to leave Iran, but had not done so earlier when they had previously been warned of the need to formalise their relationship.  It was the combination of those implausibilities and what the Tribunal regarded as their unreliable and inconsistent evidence which led it to reject their claim that they were declared ‘mortad’ because they were living together in an unmarried state.

13. The other complaint of procedural unfairness arises from the Tribunal’s rejection of the applicants’ claim to have been declared mortad because of their involvement in Osho.  It regarded the claim as being implausible.  It gave a number of reasons for that.  The first was that it was implausible that the female applicant would return to Iran with Osho books and cassettes which would be considered to be anti-Islamic.  Secondly, the Tribunal noted that the applicants had only visited the Osho Centre in Puna on one or a few occasions, that being the only external manifestation of their commitment to Osho, and that the Osho Centre in Puna is ‘something of a tourist attraction’ attracting many overseas visitors each year.  Thirdly, it noted that the Iranian Embassy in India is situated in Delhi with consulates in Bombay and Hyderabad, and that independent country information indicated that the Iranian authorities do not closely monitor movements of their citizens overseas unless an individual is of particular interest to the authorities so as to warrant monitoring.  Because the Iranian Embassy or consulates are all some distance from Puna and from Dharwad where the applicants were located, the Tribunal regarded it as unlikely that the activities of the applicants in relation to Osho would have been monitored by Iranian authorities.  The combination of those factors made it implausible to the Tribunal that staff at either the Iranian Embassy or consulates knew that the applicants had visited the Osho Centre in Puna, or that their attendance at Puna would indicate the applicants themselves were committed to Osho.  It also had regard to the applicants having presented in their application for the protection visa and the accompanying statements that they were Muslim, so they have not publicly embraced Osho or publicly rejected Islam.

14. The complaint is that the Tribunal did not put to the applicants that the distances between Dharwad, where they lived, and the Iranian Embassy in Delhi or the consulates in Bombay or Hyderabad, were considerable.

15. I do not consider that the Tribunal failed to accord procedural fairness to the applicants by failing to give them the opportunity to comment upon the geographical remoteness of Dharwad from Delhi or from Bombay or Hyderabad.  In fact, during the hearing, they told the Tribunal that Dharwad was a 10 hour bus trip from Puna and that Puna is two hours from Bombay.  There was no contest about that.  It was the remoteness of Puna from Bombay or Delhi, together with the independent country information about the extent of tourist visitors to Puna, and the fact that Iranian students in India were not routinely watched by Iranian authorities in India unless there were particular reason to do so, together with the applicants not having expressly adopted a commitment to Osho so that their visits may have been as tourists, which led to the Tribunal to reject the claim as implausible.

16. In this instance, in my judgment, the conduct of the Tribunal did not deprive the applicants of a fair opportunity of presenting their case, or of correcting an erroneous and unfavourable factual assumption relevant to their credibility.  They acknowledged the geographical remoteness of Dharwad and Puna from Delhi and from Bombay, and they were given the opportunity to indicate the way in which they had openly demonstrated their interest in or commitment to the principles of Osho.  The Tribunal was entitled to conclude on their evidence, which it did not reject on those matters, that the extent of their interest did not involve any overt commitment to Osho different from that which those visiting Puna as tourists might have participated in.  See per Gleeson CJ in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 88-89, [4].

17. The allegation of jurisdictional error by ostensible bias relates in essence to the same matters.  The test for disqualification requires that it be firmly established that there is a reasonable apprehension that the decision-maker may be biased, in the sense that it is reasonable to believe that the decision-maker may not have been open to persuasion on the evidence:  Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at 438, [72]. See also the remarks of Kirby J in Minister for Immigration & Multicultural Affairs; Ex parte Epeabaka (2001) 179 ALR 296 at 318-319, [90]. I do not consider that the Tribunal’s conduct gives rise to a reasonable apprehension that it might not bring an impartial mind to bear to the resolution of the review issue: see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-435, [27]-[28]. The fact that the Tribunal regarded the applicants’ claims as unreliable or as implausible for the reasons it gave does not provide a reasonable foundation for believing that the Tribunal had a firmly pre-determined view about the claims. Its reasons demonstrate, on the contrary, an analysis of each claim measured against objective facts to determine whether the claim was accepted. It did not reject their claims to have visited the Osho Centre in Puna, perhaps on more than one occasion (although their evidence was somewhat vague as to how many such visits there had been), but it regarded their visits as consistent with tourist visits to Puna. Its comment that the external manifestation of their commitment to Osho consisted of such visits was not inaccurate. It was consistent with their evidence. During the hearing, the Tribunal raised the issue of the distances between Dharwad, Delhi and the Iranian consulates in India. Neither the fact that the Tribunal referred to the ‘submission’ of the former migration agent of 14 August 2001, nor the way the Tribunal raised and discussed the apparently inconsistent assertions by the female applicant about her marital status (referred to in [21] to [29] above), in my view tend to indicate a closed mind to its task of review. The ‘submission’ did not feature in any explicit way in its ‘Findings and Reasons’. The apparently inconsistent information was material upon which the Tribunal could reasonably have sought comment, and the means by which it did so does not itself indicate a closed mind on its part.

18. As I am not satisfied that a case of ostensible bias has been made out, it is not necessary to address the respondent’s alternative contention that a breach of the obligation to accord procedural fairness, by reason of ostensible bias (as distinct from actual bias), does not amount to jurisdictional error in the face of s 474 of the Act. Plaintiff S157/2002 requires the construction of the Act as a whole to determine whether there has been jurisdictional error, so that the provisions of s 474 do not apply to a particular decision of the Tribunal.

    UNREASONABLENESS

19. The Full Court in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [18]-[19] discussed the circumstances in which ‘Wednesbury unreasonableness’ might be made out in the following terms:

    ‘But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.

    This argument, if it were made out, would be sufficient to establish that the Tribunal had made a “jurisdictional error” so as to found jurisdiction in this court to intervene.  If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error:  see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was “Wednesbury” unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (“S20”) at 62, 6, 76, 90-91.’

20. The detailed contention is that the Tribunal made findings contradicted by the only evidence available to it, or without any evidentiary foundation at all, and made findings relating to the credit of the applicants based upon inconsistencies which either did not exist or were collateral and so indirectly connected with the substantive claims that they could not provide evidence of relevant inconsistencies.

21. The first such discrepancy or inconsistency relates to the tourist visa application discussed above. At the hearing, the female applicant gave evidence that she had been divorced from Mr Hayati in April 2000, but in September 2000 in her tourist visa application she said that she was still married to him. At the hearing, she explained that apparent discrepancy by indicating that at the time of the tourist visa application on 13 September 2000 she was unsure whether the divorce from Mr Hayati had gone through, even though the papers had been sent in about April 2000. The point was also presented in response to the s 424A notice of 12 October 2003 from her migration agent of 26 October 2001 that she did not know at the time of preparing the visitor visa if she was still legally married to Mr Hayati. The Tribunal was not obliged to accept the explanation for the inconsistency. Indeed, although it did not expressly so remark, the subsequent explanation for the inconsistency presented by letter from her migration agent on 26 October 2001 did not proffer any explanation for why she had not until after September 2000 known of the divorce. It did not indicate any document which she received, whether dated before or after 13 September 2000, to confirm the divorce. There was apparent inconsistency in that material, which the female applicant sought to explain but which explanation was not accepted.

1. On that issue, in my view, there was sufficient evidence before the Tribunal for it to conclude that there was an inconsistency between what the applicant said about her marital status and the time of her divorce at the hearing and what she asserted in the tourist visa application.  Her application did not suggest any uncertainty about her marital status.  She simply asserted that her spouse was, as noted above, Saeed Hayati.  That application is dated 13 September 2000.  The explanation for the clear inconsistency between the two pieces of evidence was not one which the Tribunal was bound to accept.  It was a matter for the Tribunal to determine what weight it gave to that inconsistency in the light of the explanation which was proffered, and whether it accepted the explanation.  Its failure to accept the explanation demonstrates neither jurisdictional error on its part, nor an error of law.  It is for the Tribunal to determine the merits of the claim.  Indeed, it is not clearly demonstrated that the Tribunal’s refusal to accept the explanation was itself a wrong finding of fact:  see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.

2. It has also not been shown that the Tribunal was wrong to find as a fact that the application for the tourist visa was also signed by a person named Saeed Hayati, apparently on 13 September 2000.  It is not necessarily his signature, but it may be.  It was open to the Tribunal to find that it was.  Upon that finding, there was clearly a discrepancy between what the applicant said about the departure of her ex-husband from India in April 2000 and his ability to be present to sign that document as and when it appears to have been signed.  The migration agent for the female applicant on 26 October 2001 responded that it was not possible to determine whether Mr Hayati’s signature was forged, or appended to an earlier document without seeing the document upon which his signature appears.  Consequently, the Tribunal on 2 November 2001 provided a copy of that document to the migration agent for the applicants, with the request that they respond with any further comments within seven days.  They did not do so.  They did not seek further time within which to respond.  There was a further communication from those migration agents on 12 November 2001 but it did not relate to that issue.  The decision was then made some time later on 5 December 2001.

3. It was next contended that the Tribunal’s finding that it was implausible that the female applicant would have returned to Iran with books and cassettes concerning Osho was not open to it.  A finding of implausibility is simply a finding that it is inherently unlikely that the event or events had occurred as alleged:  see per McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1998) 168 ALR 407 at 423. In my judgment, it was open to the Tribunal to regard it as implausible that the female applicant would re-enter Iran knowing of the risk that she might be subjected to a search of her property which contained such material.

4. The Tribunal also raised with the male applicant some apparent inconsistency in documentation suggesting that the dates of his entry to India and of his period of stay in India were inaccurate.  The response to that material by letter of 26 October 2001 from his migration agent explained that discrepancy.  The Tribunal did not take it further.  The apparent inconsistency was therefore apparently explained to the satisfaction of the Tribunal as it did not feature as part of its reasoning.  It cannot be said in the circumstances, despite argument to the contrary, that the Tribunal thereby used that piece of information to the detriment of the male applicant.  Its reasons indicate that it did not do so, and indeed that it was open to be persuaded by that submission as to the insignificance of what it initially perceived to be an inconsistency.

5. The Tribunal was criticized for its use of the applicants declaring themselves as Muslims on their application for protection visas and supporting claims. The Tribunal regarded that statement of their religious beliefs as indicating that, whatever their personal level of interest in Osho principles, they had not publicly embraced Osho or publicly rejected Islam. That was part of its reasons for rejecting their claim that they had been declared ‘mortad’ because they had embraced Osho. The submission in response to the notice under s 424A, by letter of 26 October 2001, was that it is possible to be both a Muslim and a follower of Osho. Consequently, it was contended, nothing turns upon the description of their religious belief as ‘Muslim’ in documentation. That may or may not be correct. It is unnecessary to decide it. The point of the Tribunal’s remark is that the fact that they were prepared to disclose their religion as Muslim tended to confirm that they had not publicly renounced their Islamic religion or publicly adopted a set of religious beliefs inconsistent with Islam. It is not suggested that conclusion was not open to the Tribunal on the basis of the material before it. It was a matter for the Tribunal as to what weight it gave to the evidence of how the applicants had described themselves in visa application documentation. There is no error of law, nor jurisdictional error, in treating that material as tending to confirm that they had not so publicly abandoned Islam and adopted some other set of religious beliefs as to attract the attention of the Iranian authorities upon their return to Iran, even if the Iranian authorities in India were watching their activities.

6. Those are the matters upon which counsel for the applicants relied in asserting that the decision was so unreasonable that no reasonable person could have arrived at it.  In my judgment the Tribunal’s conclusions on those matters are not shown to be unreasonable, but were reasonably available to it.  I therefore reject the attack upon that basis.

   ERROR OF LAW

7. It is next contended that the Tribunal mis-directed itself in law by failing to address whether it was satisfied that the applicants had a well-founded fear of persecution, but instead imposed an onus of proof upon the applicants to satisfy the Tribunal that it was more probable than not that they would be persecuted if they were to return to Iran.  The respondent accepts that, if the Tribunal adopted such an approach, it would be wrong in law.  So much is apparent from the observations of the High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-572 (Guo).  There may be a well-founded fear of persecution provided that there is a real chance of persecution for a Convention reason.  A real chance may exist even if the possibility of persecution occurring is well below 50 per cent.

8. However, I do not think the Tribunal fell into that error.  Having addressed the applicants’ claims and the evidence, and the independent country information, it proceeded to give findings and reasons for its conclusion.  It rejected a number of the applicants’ claims on the basis explained.  It was not satisfied as to those claims.  They largely related to what had happened to the applicants in the past.  It was upon the basis of the rejection of the applicants’ claims as to what had happened to them in the past, and in particular the finding that they were not arrested and mis-treated upon their return to Iran on 6 October 2000 for a Convention reason, that the Tribunal was not satisfied they held a well-founded fear of persecution for a Convention reason.  It may be that the Tribunal did not firmly reject the claim that the applicants had been taken into custody upon their return to Iran on 6 October 2001.  Whatever may have occurred to the applicants at that time, the Tribunal was unable to be satisfied that any event or activity or experience or past relationship of the applicants was or may have been a cause of that happening.  In Guo the High Court majority explained at 574-575 that to determine the degree of probability that an event will occur in the future usually depends upon or may depend upon whether past events had occurred as alleged. Events which are past events provide a guide to the future, so that the future depends on the degree of probability that past events have occurred and the regularity with which they had occurred. Their Honours said:

   ‘In many cases when the past has been evaluated, the probability that an event will occur may border on certainty.  In other cases the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded.  In between these extremes, there are varying degrees of probability as to whether an event will or will not occur.  But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or Tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

   … In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.’

9. That is what the Tribunal did in this instance.  It did not need to conclude whether the applicants had been arrested upon their return to Iran on 6 October 2001 as they alleged, or mistreated, because it appears to have assumed that that past event had occurred.  It addressed whether that past event, assuming it had occurred, might have been related to some Convention related cause.  The applicants identified three possible related causes.  The Tribunal found that none of them were such causes.  In doing so it was entitled to make findings about those matters.  In making findings about those past matters, so as to inform its consideration of whether the applicants had a well-founded fear of persecution for a Convention reason, the Tribunal is not shown to have erred in law.  When it addressed that question, in the light of its findings, it is not shown to have imposed any onus of proof upon the applicants.  It asked whether, upon the whole of the material, it was satisfied that the applicants have a well-founded fear of persecution for a Convention reason.  It did not, in my view, misunderstand or misapply the law in addressing that issue.

10. In some cases, the Tribunal’s findings about what has or has not happened in the past may be made with some diffidence.  As it must address whether there is a real chance of persecution for a Convention reason, there may therefore sometimes be the need to allow for the chance that its findings of fact may not be correct.  In Guo at 576 the majority explained:

    ‘It is true that, in determining whether there is a real chance that an event will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.  If, for example, a Tribunal finds that it is only slightly more probably than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.’

11. The Tribunal in this matter appears to have had no real doubt about its findings of fact.  Consequently, it was not bound to consider the consequences of its findings of fact were wrong.

    WERE ALL THE CLAIMS CONSIDERED

12. There remains the contention of the applicants that the Tribunal did not address all the integers of its claim.

13. In Htun v Minister for Immigration & Multicultural Affairs 194 ALR 244; [2001] FCA 1802 Allsop J (with whom Spender J agreed) said at 259, [42]:

    ‘The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant.  To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.  The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 LCR 24; 66 ALR 299 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225.’

14. The contention is that the Tribunal addressed the claim that they were arrested upon their return from India on 6 October 2002 by reason of their political or religious beliefs, but that it failed to address their claim that they were arrested by reason of political or religious beliefs which might be imputed to them.  It is plain that the applicants did claim to be vulnerable to persecution by reason of political beliefs which may be imputed to them, and (apart from their professed religious beliefs in Osho) by reason of having Osho religious beliefs imputed to them.

15. The applicants told the Tribunal they were not told the reason or reasons why they were charged with ‘mortad’ in October 2000.  The male applicant said he was questioned about Osho.  The female applicant said that, as a result of her questioning, she ‘determined’ she was being charged with following Osho, anti-Islamic behaviour, and with being involved with people belonging to political groups.

16. The Tribunal’s reasons for decision are meant to inform, and not to be scrutinised over zealously:  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. It is in that light that the Tribunal’s reasons must be measured.

17. In relation to the claim based upon imputed political beliefs, the Tribunal has accurately recorded what the applicants said.  In its reasons, however, it described the fear as based upon ‘a claimed association with political activists’.  That expression is capable of accommodating a fear based upon imputed political beliefs, as well as actual political beliefs.  The reference to an association with political activists tends to point to the former alternative.  The claim itself was rejected because it lacked details which the Tribunal regarded as necessary.  It explained that the applicants had been unable to dilate upon the political views of their associates, despite the contact with them.  The failure to provide those details led the Tribunal to reject the claim that they were declared ‘mortad’ because they were associated with political activists.

18. In my view, the Tribunal has addressed the claim based upon imputed political opinion.  Its findings were to the effect that there was no association with political activists and therefore no reason for any political views to be imputed to them.  The use of the word ‘associated’ in that passage tends to point to an appreciation of the nature of the claim, as distinct from one based upon actual political opinion.  The reasoning points to doubts about the exposure to political activists at all.  The conclusion is consistent with the general concern the Tribunal expressed about the reliability of their evidence.

19. I am not persuaded that the applicants claimed to have a well-founded fear of persecution by reason of imputed religious beliefs, namely a belief in Osho.  Their claim was that they had such religious beliefs.  The Tribunal rejected their claim because, even if they had such beliefs, that fact was not known to the authorities.  Even if the claim were additionally made of persecution based on imputed political beliefs, the Tribunal has dealt with the facts upon which the claim is made.  It did not accept the female applicant’s evidence that she took Osho books and tapes with her into Iran on 6 October 2002.  It had regard to what the applicants had done publicly which might have been seen as a commitment to Osho.  It rejected the claim that the Iranian authorities would have been aware of those activists.

20. For those reasons I do not consider the Tribunal is shown to have failed to address the integers of the claims made by the applicants.

    CONCLUSION

21. I do not consider jurisdictional error on the part of the Tribunal has been made out.  The application should be dismissed.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             19 March 2004

Counsel for the Applicants:	P Charman
Solicitor for the Applicants:	Refugee Advocacy Service of South Australia
Counsel for the Respondent:	M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 November 2003
Date of Judgment:	25 March 2004