SZGOW v Minister for Immigration
[2006] FMCA 1689
•24 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGOW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1689 |
| MIGRATION – Refugee – claims to fear persecution based on political opinion, the applicant’s relationship with a Christian convert and the Iranian authorities becoming aware of her application for a protection visa if she were to return to Iran – Tribunal’s use of independent country information – whether irrelevant material considered – bias – procedural fairness – whether Tribunal’s decision was manifestly unreasonable – use by the Tribunal of a “dob-in letter” – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.422B, 36(2) |
| Craig v The State of South Australia (1994) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) [2004] FCAFC 263 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 NACP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 499 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773 SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 195 ALR 1 Re Minister for Immigration and Multicultural Affairs;Ex parte Applicant S20/2002 [2003] HCA 30 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 MZWBW vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705 S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 NAOO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 26 SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Liversey v New South Wales Bar Association (1983) 151 CLR 288 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 Minister v Jia Legeng (2001) 205 CLR 507 Johnson v Johnson (2000) 201 CLR 488 Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs and Anor (2006) FCAFC 62 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 Hindi v Minister for Immigration and Ethnic Affairs (1988) 16 ALD 526 Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 Pollocks v Minister forImmigration and Multicultural Affairs (2001) 195 ALR 73 |
| Applicant: | SZGOW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1641 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 24 July 2006 |
| Date of Last Submission: | 17 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms. K. Sant |
| Solicitors for the Applicant: | Legal Aid Commission of New South Wales |
| Counsel for the Respondents: | Mr. G. Johnson |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to these proceedings.
The reference to the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1641 of 2005
| SZGOW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application filed in this Court on 24 June 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 May 2005 and handed down on 31 May 2005 to affirm the decision of a delegate of the respondent Minister made on
19 November 2004 to refuse a protection visa to the applicant.The applicant before the Court now, along with her two children (who are not applicants before the Court), applied to the Minister's Department for a protection visa on 21 October 2004. The application and attached materials to that application are reproduced in the Court Book (“CB”) at CB 1 to CB 93. The applicant’s claims are particularly set out in an attached statutory declaration at CB 83 to CB 93.
Also enclosed with the application was what was described as “recent research materials”, being the Human Rights Watch World Report 2003: Middle East & Northern Africa: Iran. This report is reproduced at CB 37 to CB 59. The application for review to the Tribunal is reproduced at CB 106 to CB 109. This does not contain any statement as to the reasons for the making of the review application, nor any statement as to why the applicant considers herself to be a refugee.By letter dated 13 January 2005 (CB 117 to CB 118) the applicant was advised that on what had been put before it, the Tribunal could not make a decision in her favour, and the Tribunal invited the applicant to a hearing to give oral evidence and present argument in support of her claims. Ultimately, this hearing was held on 17 March 2005.
The Tribunal's account of the hearing is reproduced in its decision record at CB 141.8 to CB 146.7. Also present at the hearing was the applicant’s then adviser, and an observer from the Red Cross (CB 141.8 and CB 114). Following the hearing, the Tribunal received a statutory declaration (declared by the applicant) under cover of a letter from the applicant's adviser (“the post hearing submission”). This is reproduced at CB 123 to CB 127. The Tribunal's account of what was contained in this declaration is set out in its decision record at CB 146.8 to CB 147.7. The Tribunal also received a letter from a family support program worker with the Asylum Seekers Centre Inc., in support of the applicant's application. This is reproduced at CB 129 to CB 131, and is acknowledged by the Tribunal in its decision record at CB 147.7.The applicant’s claims to protection as ultimately put before the Tribunal derive from:
1)The view of the Iranian authorities of her political opinion and activities in Iran as they arose out of a series of (student) demonstrations (“the 18 Tir demonstrations”) which she claimed to have attended, in particular demonstrations in 2003.
2)Her relationship with a woman who converted from Islam to Christianity.
3)The fact that the authorities in Iran knew about her associations in Australia and, in particular, that she had applied for a protection visa.
The Tribunal’s Findings and Reasons
The Tribunal’s “Findings and Reasons” are set out at CB 149 to CB 152.6. The Tribunal understood the applicant's claims to derive from the following:
1)As to the ground of political opinion, from the applicant's annual participation in the 18 Tir demonstrations, and that she had criticised the government and had come to the attention of the authorities who had on one occasion detained her and harassed her at her home.
2)A close association with a Muslim woman (Akram) who had converted to Christianity because of her son's conversion, and who had been labelled by the authorities as an unbeliever (“Kafir”). Further, that the authorities were aware of her association and that, with her political activities, led to her being monitored and threatened prior to her departure from Iran.
3)The bridging visa issued by Australian authorities in her passport would, on her return to Iran, be a signal to the authorities that she had applied for protection. Further, that they had knowledge of her various associations in Australia, including associations with a “Christian woman”.
In its “Findings and Reasons” the Tribunal, after examining all the material before it, did not find the applicant's claims to be credible and could not be satisfied that there was a real chance of persecution if she were to return to Iran (CB 149.4). Specifically, in relation to this lack of satisfaction, the Tribunal:
1)Found that the applicant's claim as to the manner in which she criticised the Iranian government would not bring her to the adverse attention of the authorities and amounted to the “fairly common practice of grumbling about the government” (CB 149.8).
2)Was not convinced that the applicant's claim to have participated in the demonstrations was participation in anything more than in a “peripheral or occasional manner” (CB 149.9).
3)Found the applicant's oral evidence in respect of her involvement in the demonstrations to be “unconvincing” (CB 150.2).
4)Found that “taken collectively”, the matters above led it to reject the applicant's claim that she engaged in political activities to the degree that brought her to the ongoing adverse attention of the authorities (CB 150.3).
5)Did not accept that the applicant had been imputed with a religious opinion by the authorities, based on her claimed association with the woman apostate (Akram). The reasons for this finding were based on what the applicant herself put to the Tribunal at the hearing that it conducted with her (CB 150.5).
6)Did not accept that the applicant was detained, monitored or threatened by the Iranian authorities prior to her departure from Iran, and found the applicant's evidence to be unconvincing in relation to this aspect of her claims, and it gave reasons for this (CB 150.8).
7)Did not accept that the bridging visa in her passport would bring her to the adverse attention of the authorities in Iran. The Tribunal gave reasons for this, derived from what the applicant and her adviser had put to the Tribunal at the hearing (CB 151.4).
8)In all, that it did not accept that the applicant’s lodgement of the protection visa application would be known to the authorities such that she would be viewed with suspicion (CB 151.7).
9)Was not satisfied as to “the veracity” of claims arising from the applicant's “post hearing submission”, setting out a conversation between herself and her husband. The Tribunal noted in particular that this submission, and the timing of the claim, was subsequent to the hearing where the Tribunal had raised relevant reservations with the applicant (CB 151.9 to CB 152.1).
10)Did not accept that the authorities would have such an interest in the applicant in Australia that they would monitor who she associated with, or would impute to the applicant a particular political or religious view on the strength of “personal contacts” she had made in Australia (CB 152.3).
11)In all, did not accept that the applicant faced harm “by reason of the cumulative effect of a religious profile, political profile and applying for protection in Australia”, and it gave reasons for this (CB 152.4).
On this basis the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if she were to return to Iran.
Representation
At the hearing before the Court the applicant was represented by
Ms. K. Sant and the respondents by Mr. G. Johnson, both of Counsel. The Court relevantly had before it:For the applicant:
1)An amended application filed for the applicant on 28 September 2005 by the Legal Aid Commission of New South Wales containing 12 largely particularised grounds.
2)The affidavit of Elizabeth Biok, affirmed 27 September 2005, annexing a transcript of the interview conducted with the Tribunal on 17 March 2005. This was subsequently read into evidence without objection.
3)Written submissions for the applicant filed on 3 July 2006.
For the respondent:
1)The Court Book filed 1 August 2005.
2)Written submissions filed on 17 July 2006.
Applicant’s grounds of complaint
At the hearing Ms. Sant submitted that the applicant would not be pressing ground 12 in the amended application, and that the grounds of complaint therefore were:
“The decision of the Refugee Review Tribunal was invalid due to jurisdictional error because:
1.The Tribunal erred in finding that the applicant's criticism of the government was no more than the fairly common practice of grumbling about the government and of itself would not set the applicant apart from the populace at large in that:
a.There was no evidence to support the finding that public criticism of the Iranian government was common or fairly common;
b.In making the finding the Tribunal ignored relevant evidence that there was no freedom of speech in Iran and public criticism of the government was unsafe;
c.The Tribunal took into account irrelevant material in that the finding could only be based on the Tribunal member’s own experience that such grumbling is common (and safe) in Australia;
d.There was no evidence to support the finding that public criticism of the government would not set the applicant apart from the populace at large.
e.Alternatively and additionally, the Tribunal failed to make material findings of fact as to whether public criticism of the government was common and accepted in Iran;
f.The finding was manifestly unreasonable for the reasons set out above and because it was contrary to the overwhelming weight of evidence, which was ignored; and
g.The finding demonstrated bias and/or that there was otherwise a lack of procedural fairness in that the decision maker did not bring an open mind to the task and judge the case on its individual merits and the evidence before her but rather based her findings on preconceptions.
2.The Tribunal erred in failing to take into account relevant material establishing that:
a.“Shadowy underground paramilitary forces, linked to hardline conservative clerical leaders” continue to operate as vigilantes and are involved in violence; and
b.Civilian authorities do not always maintain effective control over security forces.
3.The Tribunal erred in failing to take into account relevant material establishing the good reasons that the applicant would have for wishing to stay in Iran, if her claims were not true, including:
a.It was her home country where she had grown up and to which she continued to be attached;
b.She was financially comfortable in Iran;
c.Leaving would involve separating from her husband;
d.Leaving could involve some risk of separation from her children;
e.She would likely never again see her mother, who has breast cancer;
f.The rest of her family and all her friends remained in Iran;
g.She would have to start anew in Australia, without family, friends, work, accommodation or any financial resources;
h.She would have to learn a new language and a new culture and would be subject to all the disadvantages of being an immigrant whose first language was not English; and
i.Her financial security and comfort were likely to be much less in Australia compared to Iran.
4.The Tribunal erred in failing to take into account relevant independent country information with respect to the official and semiofficial attitude to other religions and specifically to apostates.
5.The Tribunal erred in taking into account that Akram's son attended university in circumstances where it failed to take into account the relevant fact that he was monitored by the authorities.
6.The Tribunal erred in finding that Akram's family were not undergoing any adverse attention by reason of her religion in that it failed to take into account the relevant fact that her son was monitored by the authorities.
7.Additionally and alternatively, the Tribunal erred in that the finding that Akram's family was not undergoing any adverse attention from the authorities by reason of her religion was manifestly unreasonable as it was:
a.Clearly contrary to the fact that her son was monitored by the authorities; and
b.Gave undue and unreasonable weight to the fact that her husband was working as evidence that he was not drawing any adverse attention from the authorities, particularly in circumstances where he worked in agriculture in another town.
8.The Tribunal erred in failing to take into account that Akram's son was monitored by the authorities in assessing whether other associates such as the applicant might also be monitored by the authorities and/or her risk of persecution.
9.The Tribunal erred in failing to take into account the relevant fact that a person had contacted it in order to oppose her application saying he or she did not think she was eligible for refugee status and that her husband is a wealthy businessman.
10.Additionally and alternatively, the Tribunal erred in failing to make material findings of fact with respect to the contact by that person.
11.The Tribunal erred in that it did not give proper consideration to the cumulative effect of her friendship with the Christian woman, Akram, and her involvement in the 18 Tir demonstrations.”
Grounds one and two – Country Information
Grounds one and two of the application derive and depend on independent country information that was put before the Tribunal and according to Ms. Sant was information that should have been but was not considered by the Tribunal. At the hearing before me, Ms. Sant took the Court to particular parts of this independent country information that she submitted was not considered by the Tribunal. Generally, this is the information reproduced at CB 37 to CB 59 which had been submitted with the applicant's protection visa application. The three documents to which specific references were made by
Ms. Sant are:1)Human Rights Watch World Report 2003 (CB 37) and in particular at CB 41.1 the references to:
“Shadowy underground paramilitary forces, linked to hardline conservative clerical leaders unwilling to relinquish their continuing grip on power, continued to be implicated in violent unrest”
2)US Department of State Country Reports on Human Rights Practices 2003, which deals with the enforcement of order in Iran and notes that there are various semi-official organisations involved in this activity (CB 44). The report also notes the Iranian government’s poor human rights record and (at CB 45) deals with such topics as arbitrary or unlawful deprivation of life (CB 45), disappearance, torture and other cruel, inhuman or degrading treatment or punishment (CB 46). At CB 49 the report addresses arbitrary interference with privacy, family home or correspondence, and there is a particular reference to security forces monitoring social activities of citizens, entering homes and offices, monitoring telephone conversations and opening mail without Court authorisation. Further, that the Iranian authorities in the semi-official organisations have a higher level of interest in the ordinary daily lives of citizens where it was thought they were against the government, or against Islamic belief. At CB 52, under the heading of “Freedom and Peaceful Assembly and Association” there is a reference to vigilantes who seek to enforce their vision of appropriate revolutionary comportment, and at CB 53 under the heading of “Freedom of Religion” there is reference to religious minorities suffering discrimination.
3)UK Home Office Iran Country Report for 2004 (CB 157), in particular paragraph 5.52 at CB 191, dealing with religious zealots who had been active in harassing government critics, and paragraph 5.47 at CB 190, dealing with paramilitary volunteer forces which have committed numerous, serious, human rights abuses. At paragraph 6.50 at CB 215 the following statement:
“The Government is highly suspicious of any proselytising of Muslims by non-Muslims and intimidation is rife, in particular against Baha’is and evangelical Christians.”
Further reference was made to CB 219 (where the report dealt with Muslim converts to Christianity), in particular the following:
“…those who activity display their new faith in public, in particular by proselytising, can expect to face severe repercussion, even if their conversion goes back decades.”
In essence, the applicant's position is that the Tribunal had before it, both by way of the information put by the applicant with the protection visa application and other material, information that established that political dissent was not tolerated in Iran, and that religious oppression continued (see particularly paragraph 21 of the applicant's written submissions).
The basis for the applicant's complaints in grounds one and two is that the Tribunal's decision record makes no reference to any of the “specific evidence” as now pressed by the applicant in submissions. In recounting the applicant's claims and evidence before the Tribunal in its decision record, the only reference to country information is that set out beginning at CB 147.8. This is an extract dealing with student unrest in June 2003, derived from the UK Home Office Iran Country Report of 2004. The submission was that neither the US State Department Report, nor the Human Rights Watch Report, was cited at all.
There are “only” two further references to independent country information in the Tribunal's “Findings and Reasons”. The first at CB 149.9, and the second at CB 150.2 (I note the reference in the Tribunal’s decision record at CB 150.2 to “page 13-14” of its record should be “page 12 -13”. But in any event, it is clear this is a reference to the independent country information that the Tribunal had identified and set out at CB 147).
Ms. Sant's submission was that this information dealt only with the information surrounding the demonstrations in 2003, and that the Tribunal did not deal with independent country information that was before it, or apply it to the applicant’s circumstances as they arose before the Tribunal.
Ms. Sant relied on authorities that she said established the proposition that a Tribunal can fall into jurisdictional error by ignoring relevant material. She relied on:
1)Craig v The State of South Australia (1994) 184 CLR 163 (“Craig”) at [179]:
“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
2)Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ., after having cited Craig:
“Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive [78] . Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
3)NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) [2004] FCAFC 263 (“NABE”) at [55]:
“…one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]…”
4)Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (“Htun”) at 259, and as cited and referred to in NABE at [57]:
“‘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 ... It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act... make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.’”
5)NACP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 499 (“NACP”) (on appeal from this Court) per Hill J., at [40]:
“It follows, I think, as a matter of principle, that whatever may be the case with an inferior court subject to certiorari, and whatever may be the case where the error relied upon is an error of law, where an administrative tribunal fails to exercise its jurisdiction by failing to consider the case advanced by an applicant before it the tribunal will have made a jurisdictional error, such that its decision will be a nullity. Failure to exercise jurisdiction will be a jurisdictional error: Public Service Association at 160 per Dawson and Gaudron JJ. Such a failure will exist in a case where a tribunal simply does not consider at all a case which an applicant to it wishes to advance.”
I note also at [41] His Honour said:
“The jurisdictional error may be labeled as a constructive failure to exercise jurisdiction (cf the classic statement of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420) or simply as a failure to exercise jurisdiction. Nothing turns upon the label here. In either case there is involved a failure to consider the substance of the claim. Constructive failure to exercise jurisdiction arises where there has been a misunderstanding of the duty, as, for example, a misunderstanding of the meaning of the word "refugee" in the Convention: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 82 per Gaudron J. Failure to exercise jurisdiction goes beyond that and encompasses the case where a Tribunal simply fails to consider at all the case which an applicant for a visa seeks to make or, as in the present case, fails to consider a substantial part of the case which the appellant seeks to make.”
6)Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (“Durairajasingham”) per McHugh J. where after reference to Craig at [36] stated:
“Clearly, the failure to take into account relevant considerations can constitute a jurisdictional error…”
7)Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773 at [20], [22] and [31]:
“[20] Section 414 of the Act describes the duty of the Tribunal. It was considered by the Full Court in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 292, [18] – [19]. The Court there held that the Tribunal has wide ranging powers in order for it to be able to review the initial decision. It has been said that the Tribunal stands in the shoes of the original decision maker and that it exists to do again what the primary decision-maker did in order that the correct or preferable decision is reached. The Tribunal must therefore consider all of the substantial claims, and information in support of them, put forward by the applicant.”
“[22] It is required to address each of the component integers of the applicant’s claims: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf); Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at 259, [42] per Allsop J, with whom Spender J agreed.”
“[31] I also consider that, alternatively, the Tribunal ignored material relevant to the making of the decision on the question whether the applicant has a well-founded fear of persecution. Counsel for the first respondent acknowledged that the 2001 letter was material relevant to that decision. He accepted that it was so directly relevant as to be material which the Tribunal was bound to take into account: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The Tribunal (if it did not commit error in the way I have already referred to) ignored that material. It must have done so to conclude that, after the first death threat, the Maoists displayed no further interest in the applicant. It was evidence which went directly to a criterion for eligibility for a protection visa.”
The core of the applicant's complaint therefore is that in addition to having to deal with substantial claims that are clearly articulated by the applicant, a Tribunal is required to deal with claims which clearly arise on the materials before it, even if they are not clearly articulated.
The applicant's submission was that no regard was had to certain country information and that, therefore, no regard or consideration was given to other factors relevant to the applicant's case. The argument was that the evidence before the Tribunal was “so close” to the nature of the claims being made about Iran, and about the applicant's experience, that it was relevant material that had to be considered.The Tribunal's failure is said to derive from, and be seen in the context of, the Tribunal’s finding at CB 149.8:
“The Tribunal does not accept that the latter claim [criticising the government while shopping or in bus queues] would bring her to the adverse attention of the authorities and in essence amounts to fairly common practice of grumbling about the government and of itself would not set the Applicant apart from the populace at large.”
Further, it did not accept that her level of political involvement would bring her to the adverse attention of the authorities.
The respondent’s position in general is that the Tribunal's decision turned upon the applicant’s credibility and that this was a matter for the Tribunal “par excellence”, with reference to Durairajasingham at [67]. Further, that the applicant's submissions amount to a request that the Court engage in merits review, and that findings of fact are for the Tribunal. The respondent characterises the applicant's application as containing submissions as if it was the Tribunal, not the Court, being addressed.
Clearly, the relevant authorities establish that a Tribunal is required to deal with claims explicitly made by an applicant. Further, that there are situations where an applicant's circumstances as presented to the Tribunal may result in the Tribunal needing to consider claims that are implicit, and that arise from these circumstances.
In support of her submission, Ms. Sant referred the Court to NABE at [55]. It is important however to note the context within which the comments in NABE at [55] were made. Paragraph [55] of NABE was part of the Court’s consideration under the heading of “Failure to Deal with a Claim - Express and Implied Claims”. In NABE, in the Court’s analysis of the relevant authorities at [60], it referred to Selway J. in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17]. The Court in NABE stated (at [60]):
“…His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said:
‘The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.’
His Honour, in our view, correctly stated the position when he said (at [18]):
‘The question, ultimately, is whether the case put by the appellant before the Tribunal has sufficiently raised the relevant issue that the Tribunal should have dealt with it.’This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.”
Ultimately on this issue, the Court stated (at [62] and [63]):
“[62] Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa – Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 195 ALR 1 at 8-9 [31]-[32]. Gleeson CJ generalised from this, albeit in dissent, in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 at 114 [1]:
‘Proceedings before the Tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.’
[63] It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
‘If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.’
In that case the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The Court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The Court held that the Tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.”
Every case must be considered according to its own circumstances. In the case before me therefore, the question is what were the applicant's claims that were expressly put to the Tribunal, and what were the applicant’s circumstances that may have implicitly given rise to issues that the Tribunal was required to address in answering the question as to whether the applicant had a well founded fear of persecution for a Convention reason. Further, whether the Tribunal could be satisfied that the applicant met the definition of refugee such as to mandate the granting of a protection visa.
The applicant's claims to protection were set out in her statutory declaration of 20 October 2004 (CB 83 to CB 93). The Tribunal’s restating of these claims in its decision record is at CB 139.7 to CB 141.8. The applicant also gave oral evidence to the Tribunal on
17 March 2005. The Tribunal's account of this evidence is at CB 141.9 to CB 146.7. I also have before me the transcript of the hearing, as attached to the affidavit of Elizabeth Biok (see [7] above).
The applicant's claims and circumstances were also put to the Tribunal in a submission after the hearing, received by the Tribunal on 4 April 2005. This submission was from the applicant’s then adviser, and attached a statutory declaration by the applicant (CB 123 to CB 137). The Tribunal’s decision record contains a reproduction of what the applicant put in her statutory declaration (CB 146.8 to CB 147.7).I did not understand Ms. Sant’s submissions to be that the mere fact that the applicant, through her adviser, had provided independent country information (CB 37 to CB 59), or that there was other information before the Tribunal (CB 157 to CB 299), obliged the Tribunal to go through each and every detail that was included in this additional country information. The submission was that there was country information that was “so closely tied” to the subject matter, and relevant to the reasoning of the Tribunal, that it should have been taken into account. The applicant’s complaint is with the Tribunal's finding that it was a fairly common practice to grumble about the government in Iran. Further, the applicant complained that there was evidence in the country information that “went the other way”.
In particular, there was information that Iran is a repressive country, that there was monitoring of citizens including listening in on telephone calls and visits to homes and offices, and that there were serious human rights abuses, some of which had worsened in 2002 and 2003, and that there were “official” security forces which were guilty of these abuses, but also “semi-official” religious vigilantes who additionally committed a great number of serious abuses.Ms. Sant argued that in a country where free speech is restricted, and criticism of the government is not permitted, “it is hard to see how grumbling about the government could be tolerated”. The argument was that there was relevant material in this regard that should have been considered by the Tribunal, and the Tribunal's silence in relation to this material gives rise to the claim that it failed to properly address the applicant’s claim. Ms. Sant submitted that the issue of weight to be given to such material was a matter for the Tribunal, but that the Tribunal's “total silence”, in circumstances where this material was directly relevant to the applicant’s claims, amounted to a failure by the Tribunal of its obligation.
Specifically, the applicant says she told the Tribunal that she criticised the government in bus queues, in the supermarket, and in other public places, and that the implications that arose from this gave rise to a real chance that she would be persecuted. Ms. Sant, with reference to NABE, submitted that this is a claim that was made, and the Tribunal was, therefore, required to deal with it.
In support of this claimed failure to do so, Ms. Sant referred to the High Court Judgement in Re Minister for Immigration and Multicultural Affairs;Ex parte Applicant S20/2002 [2003] HCA 30 (“S20”). She sought to emphasise the distinction between fact and law as it applied in the context of the applicant’s case. Ms. Sant specifically drew the Court’s attention to [54] where McHugh and Gummow JJ. stated:
“The introduction into this realm of discourse of a distinction between errors of fact and law, to supplant or exhaust the field of reference of jurisdictional error, is not to be supported. The "jurisdictional fact" which supplies the hinge upon which a particular statutory regime turns may be so identified in the relevant law as to be purely factual in content…”
Further, in NACP at [40]:
“…where an administrative Tribunal fails to exercise its jurisdiction by failing to consider the case advanced by an applicant before it the Tribunal will have made a jurisdictional error, such that its decision will be a nullity.”
And further McHugh J. in Durairajasingham at [36]:
“Clearly, the failure to take into account relevant considerations can constitute a jurisdictional error…”
And even further in Applicant A99 at [20], [22] and [31] (as reproduced above at paragraph [14]).
Ms. Sant’s submission was that both ignoring relevant material, and misconstruing the question to be addressed, can be a jurisdictional error and that the failure to address evidence that went directly to a criterion for eligibility for a protection visa falls into the category of ignoring relevant material.
Mr. Johnson’s submission on behalf of the respondent was that the issue of whether material or evidence is important, or whether evidence is relevant, is a matter for the Tribunal, and not a matter for the Court. He emphasised the distinction between failing to consider a claim, and failing to consider evidence. The respondent relies on Allsop J. in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 (“Paul”) at [78], MZWBW vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 (“MZWBW”) at [26] to [27] per Black CJ, Sundberg and Bennett JJ., and Allsop J. in Htun at [42] (with whom Spender J. agreed), for the proposition that a failure to take into account a relevant consideration is not established just because some piece of evidence is not dealt with, or even not treated as the applicant would wish. Further, that a failure to consider a claim, that the Tribunal is obliged in the proper exercise of its jurisdiction to consider, is not made out by a failure merely to attend to evidence (even probative evidence) and resulting in a factual error.
The critical element of Mr. Johnson’s submission is that a failure by the Tribunal to consider a claim requires the Tribunal to have failed to have addressed a contention, whether express or implied from the circumstances, rather than a failure to have dealt with one piece of evidence. In MZWBW the Full Court, in dealing with an issue involving an alleged failure to take into account relevant information, stated at [26] to [27]:
“[26] In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Allsop J said that Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 231:
"does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account."
This passage was approved by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29].
[27] In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] a Full Court said:
"It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.... Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason."
I also note, although not specifically taken to this part of the Judgement in MZWBW, where in dealing with the specific issue before the Court in that case, the Court said at [28]:
“The relevant contention or issue before the Tribunal concerned the integration of the Guard Battalion with the Sri Lankan Army. That matter was squarely addressed. Assuming that the Tribunal overlooked the training evidence (which, as we have said, is a large and difficult assumption to make), that was but a failure to advert to evidence which, if accepted, might have led it to make a different finding of fact: cf WAEE above. It is not a jurisdictional error to make a wrong finding of fact…”
Relevant to the issue as to what may constitute a contention, and in circumstances where such a contention is not express but arises from the circumstances, is the Full Court's consideration of the issue of a failure to deal with a claim both express and implied in NABE: (at [57]):
“[57] The nature of the review function was described by Allsop J (with whom Spender J agreed) in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 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 ... It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act... make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.’”
And further at [60] and [61]:
“[60] In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 368 [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 that ‘[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made’ (at [16]). Selway J however went on to observe in SGBB (at [17]):
‘But this does not mean the application is to be treated as an exercise in 19th Century pleading.’
His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said:
‘The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.’His Honour, in our view, correctly stated the position when he said (at [18]):
‘The question, ultimately, is whether the case put by the appellant before the Tribunal has sufficiently raised the relevant issue that the Tribunal should have dealt with it.’This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
[61] In STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705, Selway J questioned whether the comments made by Merkel J in Paramananthan accurately reflected the position. He said (at [15]):
‘Whether or not those comments were correct when they were made, they may not now accurately reflect the jurisdiction of this Court. That jurisdiction is limited to the identification of jurisdictional errors. The question in this context is whether the Tribunal has made a jurisdictional error in not considering a claim that has not been made. In my view it does not make a jurisdictional error in such circumstances, providing, of course, that it correctly identifies the legal issues relevant to the claim that is made: contrast the majority and minority reasons in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112.’
We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.”
In looking therefore at what this Tribunal has done, it is important to note that relevantly the question for the Tribunal was whether it could be satisfied on what was before it, by way of express claim or claims, in the sense of contentions that arose from the circumstances put before it, that the applicant had a well founded fear of persecution for a Convention reason as at the time of its decision, or if she were to return to Iran in the foreseeable future.
As was set out in NABE, every case must be considered according to its own circumstances, and while claims that can be implied from what the applicant has put forward in her circumstances would need to be considered by the Tribunal, not every piece of evidence before the Tribunal needs to be considered by it. Clearly, the weight to be given to each piece of evidence is a matter for the Tribunal.
The particular of the applicant’s complaint as set out in grounds one and two arises from the Tribunal’s finding at CB 149.8:
“The Tribunal does not accept that the latter claim would bring her to the adverse attention of the authorities and in essence amounts to fairly common practice of grumbling about the government and of itself would not set the Applicant apart from the populace at large.”
As to what exactly the “latter claim” is, and how it arose, is important in how the Tribunal dealt with the claim.
In this regard, the applicant's claims to fear persecution in Iran are set out initially in a statutory declaration (CB 83 to CB 93).
This declaration was submitted to the first respondent’s Department by the applicant’s then migration adviser. Further, the applicant submitted “recent research materials” which are reproduced at CB 37 to CB 59, including the Human Rights Watch World Report 2003 and the US Department of State Country Report on Human Rights Practices 2003 for Iran. The claims raised by the applicant in her statutory declaration, which can be said to arise from the declaration (“In this statement I explain the reasons for which I feared for my safety and was forced to leave Iran”: CB 83.4) are:1)That her active involvement in politics begun during the street demonstrations (the first “18th of Tir”) which took place in 2000. The claim was that she wanted to support students who were opposed to the regime in Iran for reasons of the lack of freedom for women and the press and other freedoms that were guaranteed by the Iranian constitution (CB 84.4).
2)That her interest in political issues “intensified” after the “incident” of 2000 and that with “some other old lady friends” she regularly discussed political issues and organised ladies only meetings (CB 85.6).
3)She continued to participate in street protests in the years following 2000 and in 2003 at the 18 Tir protest of that year, she was arrested by “security authorities” (CB 85.9).
4)She was detained for four hours (CB 87.1). She was interrogated (CB 87.4) about her “opposition to the Islamic Republic” for the reason that “they have photographs of me taken during the pervious [sic: previous] 18th Tir street protests” and threats were made against her (CB 87.8). Subsequently, her husband spoke with the interrogators (CB 88.8), and she signed an undertaking “to stay out of trouble” (CB 88.9).
5)At the same time she continued her friendship with a woman who had converted previously to Christianity, and that “my close friendship with Akram created new problems for me” (CB 89.4). Further that she began receiving “suspicious and threatening phone calls” in relation to her relationship with Akram.
6)Notwithstanding that she had signed the undertaking, she took every opportunity to “reveal the injustices of the regime to people who crossed my path”. She did this when she was waiting in queues at the bus stop and when shopping, and that this was done in the context of there being no freedom of expression in Iran, and living in fear of being harassed, or being killed, if she criticised the government's policy (CB 89.8).
7)That she was harassed at her home by the authorities on one occasion shortly before she left Iran and then two weeks later. She was threatened and told not to “talk against the regime” and not to keep “seeing that Christian friend” (CB 91.7).
8)That she left Iran as a result of the fear that arose from these circumstances.
It is relevant to note here that the country information (“relevant research materials”) to which the applicant now refers was submitted on the applicant's behalf by her adviser at the same time as the application for a protection visa. The adviser’s letter (CB 1.7) states that “further submissions will be made in due course”. Nothing further appears to have been submitted.
Following refusal of the protection visa application the applicant, again under cover of a letter from her adviser, sent the application for review to the Tribunal which did not contain any additional claims by, or on behalf of, the applicant.
On 13 January 2005 (CB 117 to CB 118) the Tribunal advised the applicant, and her adviser, that it had considered the material before it but was unable to make a decision in her favour and invited the applicant to a hearing before the Tribunal (to take place on 17 March 2005).
The applicant attended a hearing before the Tribunal. She was assisted by an interpreter in the Farsi language. Her adviser was present at the hearing as was an observer from the Australian Red Cross.
The Tribunal's account of what occurred at the hearing is set out in its decision record at CB 141.9 to CB 146.7. As stated above a transcript of the hearing (“T”) is also before the Court. At the hearing, it is clear that the applicant's relationship with Akram, her own religious persuasion, her contact with her husband since coming to Australia, her political activities in Iran, and in particular her involvement in demonstrations, were all discussed. The applicant’s adviser submitted that there was an adverse perception of the applicant on the part of the Iranian authorities, based on the increased level of involvement between the applicant and Akram (who was a convert from Islam to Christianity). The adviser stated:“That coupled or combined with her political profile brought her further to the attention of the authorities to the extent that she was threatened by them on the last visit that they made or paid to her house.” (T36.9)
The adviser raised the concern that this would be combined with the adverse view taken by the Iranian authorities of the applicant because she had applied for asylum in Australia (T34.5). The adviser sought to summarise the specific circumstances attendant on the applicant as (at T37.5):
“All of these [a reference clearly in the context to all her claims], in my respectful submission, create a profile of a person who had a low level of political involvement. Nevertheless, I think [the applicant], more than anything else, is a conscientious objector and not a political activist as such. She felt a moral obligation to voice her political views and raise people's awareness politically. A person of that profile within the Islamic (indistinct) of Iran may not necessarily be harassed or persecuted or discriminated or punished, but it is not uncommon for a person of her profile to be treated in the way that she gave evidence before this tribunal”.
Following the hearing the Tribunal received a facsimile communication from the adviser attaching another statutory declaration made by the applicant (CB 123 to CB 127), which advised the Tribunal of more recent events that occurred in Iran and in particular the visit of “three plain intelligence officers” to her husband who told her husband that they knew that she had applied for refugee visas in Australia for herself and her children and that she had “used religious freedom that exists in Australia” to change her religion to Christianity. Reference was also made to an Armenian Christian friend “Janet”.
In its decision record the Tribunal made specific reference to country information available to it, being, particularly, information about the student unrest in Iran in June 2003 contained in a UK Home Office Iran Country Report of October 2004 (CB 147.7 to CB 148).
How the Tribunal dealt with all of this is of course set out in its “Findings and Reasons”, reproduced at CB 149 to CB 152.
The opening paragraph of its “Findings and Reasons” is the Tribunal's summary of the applicant's claims, which it saw as being the fear of harm on her return to Iran for several reasons. It saw her claims as (CB 149.2):“She claims to have participated in [sic] annually in the 18 Tir demonstrations in Iran and to have criticised the government. She claims to have a close association with a woman who converted to Christianity who is considered to be a ‘kafir’. She claims that the authorities are aware of this association and of her political activities and for these reasons were monitoring her and threatened her prior to her departure from Iran. She further claims that given that she has a bridging visa in her passport should she return to Iran the authorities will know that she has applied for a protection visa in Australia and that the authorities in Iran know about her associations here in Australia.”
Also relevant to the applicant's complaint now is, particularly the first sentence in the Tribunal's next paragraph (at CB 149.3):
“The Tribunal has carefully examined the Applicant's claims in her protection visa and review applications, her oral evidence and the adviser's submissions and supporting documents...The Tribunal did not find the Applicant’s claims to be credible on several key aspects as outlined below. Not being satisfied in respect of the aspects of her claims, which are discussed below, leads the Tribunal to conclude that the Applicant is not in genuine fear of persecution nor is there a real chance of persecution on her return to Iran”.
The applicant specifically complains that the Tribunal was in error in finding that her criticism of the government was no more than the “fairly common practice of grumbling” when there was independent evidence before the Tribunal (being country information) which the applicant says was highly relevant to every aspect of her claims, and to a proper assessment of her credibility. I am not persuaded by the applicant’s submissions that the Tribunal’s decision was “invalid” due to jurisdictional error for the reasons set out, and put forward, in support of ground one and ground two of the applicant's application to the Court. I agree with Mr. Johnson that it is clear that a Tribunal must not only address and consider an applicant's express claims, but also claims that can be said to arise in an implied or inferred way from an applicant's circumstances. However, wherever the line is drawn between errors in the exercise of jurisdiction and in the making of findings of fact, a distinction must and can be drawn between evidence (and in this case evidence that is said to be contained in independent country information) and circumstances which impliedly can be said to give rise to a claim or even an integer of a claim.
Ms. Sant submitted that while the Tribunal was not required to deal with every piece of evidence before it, it was required, in this case, to deal with the country information evidence that was highly relevant such that it became part of the applicant's claim. I do not accept this submission as it relates to the case before me. While the Tribunal did not make any specific reference in its “Findings and Reasons” to the country information supplied by the applicant, by specifically naming such information in its decision record, on at least a fair reading of the Tribunal's “Findings and Reasons” the reference, in context, to “and supporting documents” (at CB 149.4) does, in my view, include all the material submitted by the applicant's adviser on her behalf. This would include the country information which the applicant complains the Tribunal did not take into account.
If the applicant complains that the Tribunal did not take into account specific evidence by way of general country information, then what is said to be the Tribunal's alleged failure to take this evidence into account is not established, in my view, merely because the Tribunal made no specific reference by naming the report in which this material was contained. In the plain words of the Tribunal, as seen in its “Findings and Reasons”, it carefully examined the applicant's claims in her protection visa, review applications, submissions and evidence at the hearing. Given that no actual claims were made in the body of the application form for a protection visa, in context, this reference (at CB 149.4 to “supporting documents”) in my view must be taken to include all the documentation put forward by the applicant’s adviser as being part of the application for a visa, and includes not only the statutory declaration and other necessary forms but “recent research materials”. Further, the specific reference to “supporting documents” also, in my view, adds further weight to the conclusion that the Tribunal acknowledged that it had all of this material before it. In other words its existence was not overlooked.
Further, I also take into account the respondent’s submission that in a review of the kind before this Court, it is not for the applicant to argue what weight should be given, or indeed what findings should have been made, on the basis of country information. In NAOO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 26 at [14] the Full Federal Court held:
“The Tribunal was, of course, entitled to have regard to all of this information in its assessment of the appellant’s claims. Further, there is no ground for judicial review available, as the appellant now claims, because country information ‘was not actually utilized properly’. This is no more than a claim for ‘merits review’.”
In SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 (a matter involving the refusal of special leave) Hely J., at [16], held:
“I cannot accept these submissions, because it was a matter for the RRT to decide what weight should be given to ‘country information’ as part of its fact finding function. The question of the accuracy of country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court.”
In this regard I also note NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 where the Full Court said at [11]:
“By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on "country information". The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to "guidance", as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on "country information" that is not true. The question of the accuracy of the "country information" is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of "country information", it would be engaging in merits review. The Court does not have power to do that.”
Similarly and further, in the circumstances of this case, I do not accept that this material can be elevated to some implied claim arising from the applicant’s circumstances. The material makes reference to vigilante action (CB 44.5) and the lack of respect for human rights (CB 45.3). Further, that a “morality force” chased people and beat them in the streets for offences such as listening to music, and in the case of women wearing makeup or clothing that were not modest enough (CB 46.4). Further still, that there was arbitrary interference with privacy and the family home and that authorities entered homes to remove such items as television satellite dishes or to disrupt private gatherings (CB 49.8). Also, that paramilitary organisations and vigilantes sought to enforce their vision of appropriate comportment (CB 52.5) and that religious minorities suffered varying degrees of officially sanctioned discrimination (CB 53.5). Clearly this presents a situation in Iran where limits are placed on political expression and religious freedom. But I cannot see in the applicant's circumstances that this material can be elevated such as to be said that there is a further implied claim on the applicant's part with which the Tribunal failed to deal. Nor, in all the circumstances, putting aside for a moment the issue of whether the Tribunal is obliged to deal with each and every piece of evidence before it, can I see that the Tribunal's failure to make specific reference to the various parts of this information can reveal error in itself on the Tribunal's part.
The Tribunal dealt with the applicant's circumstances as presented by the applicant and her adviser in the various declarations, submissions and at the hearing. I cannot see that there is any obligation on the Tribunal to go through every piece of independent country information put before it and to specifically deal with each and every part of that information, and to deal with theoretical possibilities that do not directly relate to the applicant's circumstances. For example, there is nothing in the applicant's account of her circumstances to show that she was subjected to harassment by vigilantes for such reason as the wearing of clothing that were not “modest enough”. Nor had she insulted the memory of Imam Khomeini. Further, there was nothing to show that visits to her home were as a result of vigilantes or violence or even, in fact, that the authorities entered her home to remove a television satellite dish or to disrupt a private gathering. (Although the applicant claimed that private gatherings had been conducted by her and her friends, the claimed visits to her home by the authorities were said to be as a direct result of her involvement in the 18 Tir demonstration of 2003, and not for the purposes of disrupting any gathering).
There was nothing in her claims to show that paramilitary organisations were seeking to enforce their vision of an appropriate revolutionary comportment upon her or indeed (as discussed in detail later) that she suffered as being a part of a religious minority.
The country information shows that the Iranian authorities both implemented and condoned actions that could be said to curtail freedoms that are available in other countries. But the mere presentation of this information does not create a claim for the Tribunal to consider, unless it can be said to arise from the circumstances of the applicant’s case, or can be said to be directly linked to it. Nor does the mere fact that such information was put to the Tribunal create an obligation for the Tribunal to use this information in the way now suggested by the applicant.The Tribunal articulated the applicant's claims as arising from her political activities and views, in particular her involvement in the 18 Tir demonstrations, her association with a woman who had converted to Christianity, and the claimed awareness of the authorities that she had applied for asylum in Australia. The Tribunal did not find the applicant's claims to be credible, and it gave reasons and made findings in this regard. As McHugh J. said in the now often relied upon passage from Durairajasingham at [67], this is the role and function of the decision maker “par excellence”. The Tribunal clearly could not be satisfied in respect of each of the applicant's claims, which led it to conclude that the applicant was not in fear of persecution, nor that there was a real chance of persecution should she returned to Iran.
In the context of the specific claim in ground one, it was the applicant's own claim, reinforced at the hearing the Tribunal conducted with her, that her political activism (separate to the other claimed reason for the interest of the authorities – her relationship with Akram) was the annual participation in the 18 Tir student demonstrations, and in criticising the government. The transcript of the hearing reveals at T18.4 that the Tribunal sought an explanation from the applicant as to the reasons for the visits to her home by the authorities:
“Q:The reason they came to see you, is because you associated with your friend?
A: That and also always objections towards the government.
Q: What were you doing to object to the government?
A:For example, when I was doing my daily shopping or standing in the queue to catch the bus, I was always giving my objections that this is a country that it’s rich and why do people have to live so poor in this country. And I was always talking about the poor standards of the country, living standards of the country, talking about why do we have to one million drug addicted people in this country, heroin, sorry. We don’t have any media freedom and we don't have any news freedom. And I was always complaining about the situation who can just object to any policy, they have to go through punishment, imprisonment and death, threatening to life. And I was always saying that we have an ancient history of 10,000 years, why do we have such a poor education level.”
The applicant went on to explain (at T18.8) that these views would be expressed when she went shopping and in queues waiting to catch a bus. Her aim was to “lighten up people”. The applicant’s evidence was clearly that she did not belong to any particular political organisation, had not written letters, articles, or published any of these views in any such fashion. Importantly, particularly in the context of the applicant's claim now that the Tribunal failed to take into account independent country information of the nature outlined above, there was nothing in the applicant’s evidence to show that the interest that the authorities showed in her arose out of these public utterances. On the applicant's own evidence the authorities took an interest in the applicant as a result of her involvement in the 18 Tir demonstration of 2003, and with reference to her involvement in these demonstrations in earlier years, and because of her relationship with Akram.
Further, the applicant's adviser characterised her political profile, both in relation to her claims to have made these criticisms of the government, and her participation in the demonstrations, as (at T37.5):
“All of these, in my respectful submission, create a profile of a person who had a low level of political involvement. Nevertheless, I think [the applicant], more than anything else, is a conscientious objector and not a political activists as such. She felt a moral obligation to voice her political views and raise people’s awareness politically. A person of that profile within the Islamic (indistinct) of Iran may not necessarily be harassed or persecuted or discriminated or punished, but it is not uncommon for a person of her profile to be treated in the way that she gave evidence before this tribunal.”
That the Iranian government sought to curtail certain freedoms in Iran is evident from the general material before the Tribunal. But I cannot see that in making the finding complained of now (at CB 149.8) the Tribunal ignored relevant evidence relating to freedom of speech in Iran and reaction to public criticism of the government. In the applicant's circumstances, and based on the evidence she both gave to the Tribunal and in her adviser’s submission, she was not a political activist and had a low level of political involvement. Further, given the nature of the circumstances of her claimed criticism of the government (in bus queues etc), it was in my view open to the Tribunal not to accept that this claim would bring her to the adverse attention of the authorities. Certainly, the other evidence before the Tribunal was that she had not come to the particular attention of the authorities for this reason.
Further, I also do not accept the submission by Ms. Sant that the Tribunal took into account irrelevant material in that such a finding was based on the Tribunal's own experience of “grumbling” being common and safe in Australia. There is nothing to support such an assertion on the material before me. To the contrary, the plain meaning of the Tribunal's words (at CB 149.8) makes it clear that it was talking about the applicant in Iran. The statement “of itself would not set the applicant apart from the populace at large” could only refer to the applicant in Iran.
What emerges from the applicant's own evidence before the Tribunal, and her adviser’s submissions, is that it was not her public criticism in queues or shopping that attracted the attention of the authorities.
Her own evidence was that her expression of this criticism was confined to the circumstances as she had set out, namely while waiting in queues.The applicant also complains that there was no evidence to support the Tribunal's finding that the public criticism of the government would not set the applicant apart from the population at large. Conversely, there was no evidence that someone in the applicant's circumstances would be so set apart. A plain reading of what the applicant put at the hearing and the adviser’s submissions indicate that “a person of that profile within the Islamic (indistinct) of Iran may not necessarily be harassed or persecuted or discriminated or punished” (T37.6). It was clearly her involvement in the 18 Tir demonstrations, and her association with Akram, that drew the attention of the authorities.
In any event it is the case, as Mr. Johnson submitted, that the Tribunal is not required to accept a claim in absence of positive evidence to the contrary (SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358 at [36]). Further, as the Court said in NABE at [54]:
“…The observations in the joint judgment in S20/2002 did not offer any clear guidance upon the circumstances in which factual error may amount to jurisdictional error for the purposes of the exercise by the High Court of its constitutional jurisdiction under s 75(v) or the exercise by this Court of its analogous statutory jurisdiction under s 39B of the Judiciary Act. The comments did, however, indicate that, absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error are likely to be quite limited.”
I am not persuaded by the applicant's argument that in the circumstances of this case, as presented by the applicant, the Tribunal was in error in characterising what the applicant claimed to have done as “a fairly common practice of grumbling”. In my view, it was open to the Tribunal to characterise (“in essence amounts to”) the “common practice of grumbling” about the government in the way it did.
There was nothing put forward by the applicant (and indeed the Court is mindful of the need not to cross the line into impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) to show that the applicant's activities in this regard would set the applicant apart from the populous at large. As I have already set out above, based both on the applicant’s evidence and the submissions, the attention of the authorities was attracted by other behaviour. I cannot see that there was anything in the applicant's submission to this Court which would show that this country information (which is now said to have been overlooked) went directly to the issue of the criticism of the government while standing in various queues, unless such criticism were to entail some specific matters (for example criticism of Imam Khomeini). I am also mindful in this regard, as Mr. Johnson submitted, that it is unlikely that any finding of non-jurisdictional fact may be said to give rise to jurisdictional error, merely because there is no evidence of that fact (see NABE).The same considerations set out above generally apply to the applicant's complaint in ground two - that the Tribunal was in error in failing to take into account relevant material that established that “shadowy underground paramilitary forces linked hardline conservative clerical leaders” continued to operate as vigilantes. Further, that the civilian authorities in Iran do not always maintain effective control over security forces.
In my view, the applicant's complaint in this regard is of even less strength than what is asserted in ground one. That there were shadowy underground paramilitary forces is certainly referred to in the country information. But I cannot see that the applicant's claims and circumstances create a situation where this information is relevant to them. The applicant made no claim to fear harm from “shadowy underground paramilitary forces”, or indeed from any “vigilante” action. The applicant's claims were that she feared harm from the authorities who had detained her following the 18 Tir demonstration of 2003 and who harassed her in her home. The Tribunal directly addressed the issue of the applicant having come to the attention of the authorities in these circumstances. For reasons which it gives, the Tribunal stated at CB 150.3:
“The points outlined above, taken collectively, lead the Tribunal to reject the Applicant's claim that she engaged in political activities to a degree or in a manner that brought her to ongoing adverse attention from the Iranian authorities as she so claims.”
This was based on its finding that the applicant's oral evidence in respect to her involvement in demonstrations, which she then said led to her coming to the attention of authorities, was “unconvincing” (CB 150.2) and that, in any event, the Tribunal was unconvinced that the applicant participated in these demonstrations “in anything more than a peripheral occasional manner” (CB 149.9). Further, in relation to the imputed religious opinion by the Iranian authorities through her association with Akram, the Tribunal, with reasons, did not accept that the applicant had been so imputed with this opinion by the Iranian authorities (CB 150.4). Further, the Tribunal did not accept the applicant had been detained, monitored or threatened by the Iranian authorities prior to her departure from Iran. It found her evidence to be unconvincing in respect of these claims and gave reasons (CB 150.8). In these circumstances therefore, the fact that there may be evidence that civilian authorities do not always maintain effective control of security forces is not in my view relevant to the disposition of the applicant's claims, given that the Tribunal found (with reasons open to it) that the applicant was not of interest to the Iranian authorities.
The applicant's complaints arising from her relationship with Akram were set out in a statement attached to her protection visa application (see CB 89 and CB 90). In its decision record the Tribunal acknowledged this claim (CB 141.1). The applicant's claims in this regard were also put to the Tribunal at the hearing it conducted with her. The relevant part of the transcript is from T6.4 to T9.7. The Tribunal's account of what occurred at the hearing is set out in its decision record, and the relevant part is at CB 142.4 to CB 143.2.
Ms. Sant submits that the Tribunal failed to deal with the claim as put by the applicant, in that her claim did not depend upon her having an interest in Christianity or converting, but that the applicant had been very clear in saying that she had not been converted by Akram.
Ms. Sant submitted that the claim was clearly that it was the level of friendship between her and Akram that had led to the authorities becoming suspicious of the applicant.I cannot see that this complaint can be made out. Ms. Sant submits that at CB 150 the Tribunal’s reasoning is infected by two errors. That it was infected by the Tribunal’s failure to take into account relevant country information, and that it failed to deal with the claim as put by the applicant.
In regard to the first, I understood the claim to be that the Tribunal failed to take into account country information that “established” that apostasy is regarded “extremely seriously” by the authorities and punishable by death. In the circumstances of this case (and as further explained below) this again is an attempt to argue now for a different outcome as to the merits of the applicant’s claim for protection.
The importance, significance, weight and application to the applicant’s circumstances of such information is for the Tribunal, as already dealt with above. The Tribunal found that the applicant herself was clearly not an apostate and, as set out below, that the applicant had not been imputed with a particular religious viewpoint because of her friendship with Akram (CB 150.7). These findings were open to the Tribunal on what was before it.In submissions Ms. Sant complained of the Tribunal’s analysis as set out at CB 150. At paragraph 36 of written submissions Ms. Sant quoted a large part of the Tribunal’s “Findings and Reasons” which she said revealed the “flawed reasoning”. This is that part of the Tribunal’s decision record from CB 150.4 and is reproduced in this Judgment at paragraph [103].
Yet Ms. Sant omits from her quote the very paragraph preceding that part which clearly sets out the context and explains what follows. At CB 150.3 the Tribunal states:
“The Tribunal does not accept that the Applicant has been imputed with a religious opinion by the Iranian authorities through her claimed association with a woman considered to be an apostate. The Tribunal reason to this finding as follows.”
The Tribunal’s reasoning at CB 150, and in my view the lack of any analytical flaws as claimed by Ms. Sant now, can further be seen with reference to the hearing the Tribunal conducted. When recounting in its decision record what had occurred at the hearing with the applicant, the Tribunal set out, after reporting on other aspects of its discussion with the applicant about Akram, at CB 142.7:
“The Applicant was asked about her own particular religious persuasion. The Applicant stated that she herself is a Shia Muslim and that she holds very different views from Akram and that she herself had not ever attended any Christian activities whilst in Iran”.
This is in accord with what the applicant had consistently maintained. There was never any question that the applicant herself had converted to Christianity or agreed with her friend’s religious views. The issue was always the adverse view the authorities took of her friendship with Akram. I cannot see any error in the Tribunal confirming in its “Findings and Reasons” that the applicant had no particular interest in Christianity, and had not attended any Christian activities. Further, that her claim was not dependent upon her own interest in Christianity or converting to Christianity. On any plain reading of the Tribunal's decision record (and this is clear in the context of the reports of how the applicant herself put this particular claim to the Tribunal from the transcript of the hearing that the Tribunal conducted with her) it is clear that the Tribunal well understood what the applicant's claim was in this regard and dealt with it when it found at CB 150.7:
“…the Tribunal does not accept that the Applicant has been imputed with a particular religious viewpoint by the authorities…because of a friendship with Akram.”
Ms. Sant criticises the Tribunal's reasoning as being “heavily dependent” upon its assumption that Akram's own family was not undergoing any adverse attention from the authorities. The transcript at T8 to T9 reveals that the Tribunal examined the applicant at the hearing as to what level of interest, or focus, the authorities had on Akram. At T9.2:
“Q.She came to the airport to see you off?
A.Yes, and she came to farewell me and say goodbye to me.
Q. So I gather she hasn't been detained by the authorities. They’re just monitoring her. Is that the idea?
A. She’s only monitored at the moment because she’s not evangelising, but if she starts evangelising people then she will be in trouble.
Q. What about her husband and children? Are they monitored or anything?
A.Her husband no, because as I mentioned, he doesn't believe in any religion, but her son, her eldest son is in Uni and he's monitored as well.
Q. When you say they’re monitored, do you know how that happens, what that involves?
A.If they find out that they are trying to evangelise Muslim people to convert to another religion, they will come and punish them. They might set up their houses on fire and other punishment.
Q. I guess the question was not so much that, but how do they monitor the son and the wife – what do they do to monitor?
A.First of all, they have control over their telephone calls. And there is another way of control, that at the schools we have to tick the religion box for the application at school to enrol our kids. For official religions, which are Islam, Kalini, Christian and Zoroastrians and any religion besides those four will be under question.
Q.I'm asking more about her being monitored.
A.I don't know, because my friend hasn't spoken about this monitoring to me but when I received a phone call, that phone call, I was told that your friend is under monitoring as well.”
It is quite clear that it is not for this Court to engage in impermissible merits review. It must be said that much of what Ms. Sant has put in submissions in support of the applicant's complaints about the Tribunal's decision, on a most charitable description, seeks to blur the line between discerning jurisdictional error in what the Tribunal has done, and taking issue with its findings of fact. The complaint now that the Tribunal's finding that Akram's family was not undergoing any adverse attention was “manifestly unreasonable”, or that the “challenged finding” was invalid for Wednesbury unreasonableness (as illuminated in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223), is simply not made out on all the material before the Court now. On what was before it, and in particular on the basis of the explanation provided by the applicant herself at the hearing, it was clearly open to the Tribunal to find that Akram's own family was not undergoing any adverse attention from the authorities.
First, the Tribunal established with the applicant that Akram had not been detained, and that “she’s only monitored”. The applicant herself put to the Tribunal that Akram would only be in trouble if she “starts evangelising people”. There was nothing before the Tribunal to show that that had occurred.
Further, the Tribunal clearly pressed for some details about what was meant by “monitoring” of both Akram, and her son at university. The Tribunal clearly asked:
“…do you know how that happens, what that involves?”
Plainly, from her own statement, the applicant said she did not know because Akram had not spoken to her at all about being monitored, but that she was relying on the assertion that Akram had been monitored by what she had been told by someone else in some other telephone conversation. I cannot see how the Tribunal's finding can be said to be “unreasonable” (to the extent that such a ground is available to the applicant as claimed by Ms. Sant) in circumstances where on the state of the applicant's own evidence, her statement that Akram and her son were being monitored was “second-hand”, and that she was unable to provide any detail whatsoever as to what this meant in practice.
In any event, the Tribunal's finding that they were not undergoing any adverse attention from the authorities was clearly open to it on what the applicant herself had put to it at the hearing. The plain meaning of the applicant's evidence was, at best, in the context of her understanding that the religious authorities had “control over” telephone calls and that Akram and her son were “just” being monitored. Further, that Akram and her son (who after all appeared to have been allowed to continue his studies at university) would only be in trouble if “she starts evangelising people”. When the Tribunal pressed the applicant as to Akram “being monitored” the applicant’s answer was: “I don’t know”. She was told when she “received a phone call” that her “friend is under monitoring as well”.
That there may have been other independent evidence in existence that indicated that in Iran there was a growing intolerance of apostasy, does not indicate any lack of reason, or flaw, in the Tribunal's analysis.
It was clearly open to the Tribunal to make the finding that it did, based on what the applicant herself put to the Tribunal. While the applicant had been advised (second hand) that Akram's telephone calls were being monitored, it was nonetheless open for the Tribunal to find that Akram’s family were not subject to “adverse attention” (CB 150.6). The Tribunal clearly derived and used the word “adverse” in the context of the applicant’s own statement that Akram would only be in “trouble” if she started evangelising people. There was nothing before the Tribunal to show that Akram had indeed acted in this way.The applicant also complains that the Tribunal also acted unreasonably in that it gave “unreasonable weight” to the “fact” that Akram's husband was working (in circumstances where it failed to take into account that he worked “in agriculture” in a different town to that in which Akram lived). The complaint is that in circumstances where Akram's husband's (and the applicant asserts that the Tribunal “assumed” this) freedom from adverse attention was to be accorded the weight that it was, then it was “essential” that the Tribunal give some consideration as to whether he was out of harm's way, or whether his work and physical location in another town decreased his level of persecution.
With the greatest of respect to Ms. Sant, I can only say that this is a very long “stretch” from showing that the Tribunal acted unreasonably, or that it gave “unreasonable” weight to the husband's situation, let alone that it is capable of showing jurisdictional error on the part of the Tribunal. The applicant herself put Akram's husband's work and living circumstances to the Tribunal (see T8.5). That the Tribunal understood what the applicant was saying in this regard can be seen from its account of what occurred at the hearing. At CB 142.5, the Tribunal accurately reported the applicant’s statement that Akram's family resided in Tehran, that Akram's husband owned a business in a square in Tehran, as well as being involved in an agricultural business, which in context clearly reflects what the applicant herself said at T8.5: that “…at the moment he is doing agriculture and farming” and he lives in another place.
The argument put forward by Ms. Sant now as to the view that the Tribunal should have taken from what had been put before it (“unreasonable weight”) is perhaps an argument that the applicant, and more particularly her adviser, could and should have put to the Tribunal in the process of seeking to persuade it to making a favourable decision. There was certainly ample opportunity to do so. But in my view, it is not an argument that can be put now to this Court that can show jurisdictional error on the part of the Tribunal. On what was before it, and in context, it was clearly open to the Tribunal (CB 150.5) to draw from the information before it, that at the hearing the applicant “gave no suggestion that they [Akram’s immediate family] were under threat of harm from the authorities” and that in relation to the husband, that he was not “undergoing any adverse attention from that the authorities”. I cannot see that the Tribunal's decision is infected with any flaw in reasoning, nor that its analysis in terms of the weight that it may have given to certain elements of the claims was “manifestly unreasonable”, or that the Tribunal's finding complained of at CB 150 was “Wednesbury unreasonable”. Grounds four to eight therefore are also not made out.
Grounds nine and ten – Anonymous Information
The applicant also complains (in grounds nine and ten) about one aspect of how the Tribunal dealt with “anonymous information” in relation to the applicant, which had been put to it. This issue was raised by the Tribunal with the applicant at the hearing. At T33, towards the end of the hearing, the Tribunal told the applicant that an anonymous person had rung the first respondent Minister's Department, and that the Tribunal had seen a summary written by “somebody” from the Department of Immigration that stated that a person had rung to say that they did not think that the applicant was eligible for refugee status because “the father” is a wealthy businessmen who runs a Persian rug business. The Tribunal told the applicant and her adviser that “I won't be putting any weight on it at all”. At T34.2:
“But as I said I'm not putting any weight on it. That's why I would have brought it up a lot earlier in t [sic: the] hearing if I thought it meant anything. There's nothing about it that I can put weight on anyway.”
The Tribunal made reference to this issue in its decision record, in its account of the hearing. At CB 146.2 the Tribunal stated:
“The Tribunal also raised with the Applicant that the Tribunal had received a “dob-in” letter but as the letter did not raise any relevant facts but only referred to the family as a wealthy family the Tribunal would not place any weight on this letter.”
The Tribunal made no reference to this issue in its “Findings and Reasons”. Clearly, having noted with the applicant and her adviser at the hearing that it intended to place no weight on this letter, it was not therefore a part of the reasons for the Tribunal's decision in refusing a protection visa to the applicant.
Ms. Sant agreed that the Tribunal was “undoubtedly correct” in giving the “tip-off letter” no weight in terms of counting against the applicant’s application (see also paragraph 43 of written submissions). However, she submitted that the Tribunal was nonetheless in error in giving the “tip-off letter” no weight because it was relevant in supporting the applicant's case. Further, that the Tribunal failed to take into account those parts of that “tip-off” that would have been of benefit to the applicant's case. Ms. Sant submitted that the “tip-off letter” supported the truth of the applicant's claims as to her life in Iran, and that it was capable of giving some credence to the claim that the authorities had some interest in her, and further that it was relevant to the claim that the Iranian authorities had become aware that she had applied for refugee status in Australia. Even further, that it was relevant to whether the applicant had a “subjective fear” and should have been given an opportunity to say whether the “tip-off letter” increased her fear.
In all, and in the context of all that is set out above, I cannot see that this rises above a request for impermissible merits review. I can only agree with Mr. Johnson that it is a matter for the Tribunal as to what weight, if any, it gave the letter. In all the circumstances, I cannot see that the Tribunal was under any obligation arising from the exercise of its jurisdiction to have dealt with the letter as Ms. Sant now contends.
But even if some obligation did exist, it is clear as the Tribunal's decision record at CB 146.2 sets out, that the Tribunal did note that the “letter” made reference to the applicant’s family “as a wealthy family”. But because this was the only reference in the letter, and the letter did not raise any relevant facts, the Tribunal said it would not place any weight upon it. The applicant's complaint now that the letter supported “the truth” of her claim as to the material circumstances of her life in Iran (her wealthy family) was specifically noted by the Tribunal. It was plainly a matter for the Tribunal as to how much further it chose to take this issue. That it chose not to take it further does not reveal jurisdictional error.
Even beyond this, any plain reading of the transcript of the hearing reveals that the anonymous provenance of this information, and the paucity of the information, was such as to cause the Tribunal not to place any weight on it. The Tribunal was entitled to deal with this letter on this basis. Particularly so as on the issue of the family's wealth, the adviser himself said at T33.6:
“The husband is not wealthy. He’s never even owned a house.” (If indeed “father” in the letter was a reference to the “husband”).
Most relevantly however, even taking the applicant's complaint now on its face, the Tribunal clearly put the applicant and her adviser on notice of the existence of this letter, and the applicant and her adviser thereby had the opportunity of putting forward all, or any, of the arguments now put forward by Ms. Sant. The transcript of the hearing (at T34.3) reveals that after the Tribunal had put this issue to the applicant, and following the applicant’s “thanks”, the Tribunal's stated:
“I've asked you all the questions. I don't know whether your adviser wants to suggest anything or make any comment.”
The adviser, and the applicant, clearly had the opportunity to comment on this and indeed on any other aspect or issue that was raised at the hearing. The transcript reveals that the adviser did raise a number of matters and indeed that the applicant had a further opportunity by way of a submission in the form of a statutory declaration (received by the Tribunal on 4 April 2005) and further evidence provided on 18 April 2005 (CB 146.7 to CB 147.7). Again, I can only repeat what I have set out above, that the appropriate opportunity and the appropriate context within which these submissions now made before the Court should have been made, were to the Tribunal, which was relevantly concerned with the critical issue of a well founded fear of persecution for a Convention reason. That these arguments were not put to the Tribunal, despite opportunity, or that the Tribunal chose not to place any weight (either way) on the “dob-in letter”, does not now reveal any breach of the Tribunal's obligations in relation to how it dealt with the letter and nor does it reveal jurisdictional error on the part of the Tribunal.
Ground eleven – Consideration of Claims on a Cumulative Basis
Ground eleven in the amended application complains that the Tribunal was in error, in that it did not give “proper consideration” to the cumulative effect of the applicant's friendship with Akram and the applicant's involvement in the 18 Tir demonstrations. The applicant's complaint in this regard is that her claims to fear persecution were based on adverse attention from the authorities in Iran for a number of reasons. Further, that her claim to protection in Australia was not only dependent separately on each individual reason, but that the cumulative effect of having been involved in political protests, her informal political activities (described by the Tribunal as “grumbling”) and her friendship with Akram were all issues that if considered cumulatively had “great potential” to engender persecution once the authorities took an interest in the applicant and her activities.
Ms. Sant referred the Court to the Tribunal's decision record at CB 152.4 where the Tribunal's stated:
“The Tribunal does not accept that the Applicant faces harm by reason of the cumulative effect of a religious profile, political profile and applying for protection in Australia because the Tribunal does not accept any of the discrete claims, for the reasons outlined above, thus the Tribunal does not accept that the sum total of these claims gives rise to a well found fear of persecution for a Convention reason on return to Iran.”
Ms. Sant's argument was that while the Tribunal considered, separately, each of these issues, it did not properly consider, in answering the question as to a well found fear of persecution, the cumulative (combined) impact of these claims in answering that question. Ms. Sant referred the Court to Sein v Minister for Immigration & Multicultural Affairs [2001] FCA 1579 (“Sein”), with reference in particular to [22] where his Honour Gray J., said:
“In the present case, the Tribunal identified a wrong issue and asked itself a wrong question, when it treated the applicant's case as being capable of resolution piece by piece, without considering the interaction of its various elements. Put simply, the Tribunal failed to deal with the case that the applicant put that she had a well-founded fear of persecution by reason of a combination of circumstances. This error of the Tribunal was an error that went to the exercise of its powers. It was an error of law, in that the Tribunal failed to appreciate the task imposed on it by the Migration Act of considering the applicant's claim that she is entitled to protection. The applicant had a right to have her claim considered in the terms in which she put it. Failure to consider it in those terms deprived the Tribunal of jurisdiction or of authority to make the decision under the Migration Act. The Tribunal did not have jurisdiction, or authority, to make a decision on something other than the applicant's claim.”
In reviewing what the Tribunal had done in that case (with reference to paragraphs [6] to [14]) His Honour then at [15] noted:
“By way of conclusion, the Tribunal said this:
"The Tribunal finds that the Applicant did not have a political profile at the time she left Burma. It finds that then and in the foreseeable future she could avoid the difficulties of living in the Shan ethnic area by re-locating [sic] to Rangoon. It is not satisfied that her sur place claims are sufficient to permit a finding that she would be persecuted for this reason. On consideration of all the evidence, the Tribunal is satisfied that she is not a refugee.
CONCLUSION
Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa."
His Honour then found at [16]:
“The basis of the case put by counsel for the applicant was the proposition that, while the Tribunal dealt thoroughly with each aspect of the applicant's claims, it failed to consider her case as a whole. It did not give consideration to the effect of the totality of the various claims the applicant made, or even of more than one of her claims in combination.”
His Honour at [18] said that he did not think that the words used by the Tribunal (as reproduced above) could be taken as an indication that it performed the relevant task required of it. That is, that it considered the totality of the claims in combination.
In Sein (at [7]) that Tribunal accepted that the applicant before it had a subjective fear of returning to Burma. Then, quite clearly as Grey J. set out, it dealt separately with each of a number of claims. There was nothing in its decision record to indicate that it had turned its mind to the cumulative effect of these claims on the question that it was required to answer. The case before me can clearly be distinguished. The Tribunal at CB 152.4 specifically turned its mind to the question of the “cumulative effect” of the three broad bases of the applicant's claims. That is, the religious profile, the political profile and the fact of having applied for protection in Australia. His Honour in Sein could not be satisfied that the broad reference by the Tribunal to “on consideration of all the evidence” could show that the Tribunal before him went beyond considering all the evidence as it applied separately to each of the claims. This phrase was clearly not sufficient to enable a finding by the Court that the Tribunal had applied its mind to the cumulative impact of all of the claims, or even more than one, in combination. However in the case before me, the plain statement by the Tribunal is that it did turn its mind to the combined, or cumulative, effect of each of the claims taken together. This was not some broad reference to “all the evidence” as in Sein, but a specific reference to a consideration “of the cumulative effect”.
Ms. Sant submitted also that a mere assertion by a decision maker that he or she has acted in a particular fashion, will not necessarily conclude the matter (see Hindi v Minister for Immigration and Ethnic Affairs (1988) 16 ALD 526 and 529 per Shepherd J.). Further, that the Tribunal did not give “proper, genuine and realistic consideration” to the cumulative impact of the applicant's claims. Ms. Sant's submission is that there is more to a proper consideration of the claim of cumulative effect than “a mere mathematical addition”, and that even if the level of risk in relation to each separate claim is low, it may of course be high when added together.
That the Tribunal made a reference to what could be said to be a mathematical term (“sum total” – CB 152.5) could give rise, in one sense, to some strength to Ms. Sant's submission that this characterises what the Tribunal has done. However, what is required is not to overzealously scrutinise the Tribunal's decision record with an eye attuned to error (Wu Shan Liang), but to look at what the Tribunal has actually done. In my view, the Tribunal clearly rejected each of the applicant's separate claims. It then also clearly turned its mind to the cumulative effect and impact on the relevant question of a well founded fear. I read plainly the words “sum total” as being the outcome once its consideration was given to the claims (which it had previously considered separately) in a “cumulative” manner. The Tribunal found that the basis on which (“for the reasons outlined above”) it rejected each of the “discrete claims” meant that even when viewed cumulatively, it still could not accept that the applicant had a well founded fear of persecution for a Convention reason. In my view, the Tribunal has properly discharged its obligation to address not only each of the individual claims, but the applicant's situation if all of the claims were viewed cumulatively.
Ms. Sant's submission that there may have been, and could have been, a different outcome (see paragraph 55 of written submissions) for the applicant, does not in my view, given the above, rise above yet another request for impermissible merits review. I note further in this regard Mr. Johnson's submissions that the phrase “proper genuine and realistic consideration” is not to be used as:
“... a kind of general warrant, involving language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised.”
(see NABE at [51] referring to Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 and Pollocks v Minister forImmigration and Multicultural Affairs (2001) 195 ALR 73). This ground also does not succeed.
Conclusion
In all therefore, the applicant put before the Tribunal claims arising out of her political activities and beliefs, the perception by religious authorities of her relationship with an apostate, and her fears arising from the circumstance of having applied for protection visa in Australia. The Tribunal considered each of these claims, and the cumulative effect of these claims. The applicant was given every opportunity to explain and enhance her claims both at a hearing conducted with the Tribunal (with her adviser present and with an observer from the Red Cross), and by way of submissions made subsequent to the hearing. The applicant and her adviser by this time were on clear notice as to the Tribunal's concerns with what had been put before it, and the view that it took of critical aspects of the claims. That there may have been other arguments that could have been put to the Tribunal, that the Tribunal chose to rely on certain information and not other information, that the Tribunal chose to give weight to certain information and not to other information, or chose information on which it relied and gave weight in a manner not consistent with the applicant's view or desire, does not reveal jurisdictional error on the part of the Tribunal. Further, it does not provide a basis for this Court to find any such jurisdictional error on the part of the Tribunal. The Tribunal clearly made findings which were open to it on the material before it and it gave reasons for doing so. It must be said, given the nature of submissions made about how the Tribunal approached its task, that the Tribunal’s conduct of the hearing (based on the transcript provided by the applicant herself) reveals that the Tribunal complied with, and exhibited, conduct consistent with a high standard. Its questioning in my view was forensic, but sympathetically conducted, and an appropriate opportunity given to the applicant and her adviser to explain and enhance her claims. I can see no jurisdictional error arising from any of the grounds put forward by the applicant in the amended application. The application is dismissed.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 24 November 2006
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