WAJW v Minister for Immigration
[2004] FMCA 114
•17 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAJW v MINISTER FOR IMMIGRATION | [2004] FMCA 114 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal affirming decision of the Minister not to grant a protection visa – Sabean Mandaens – whether Tribunal correctly found discrimination was not persecution in a Convention sense – whether there was a breach of section 424(A) of the Migration Act – whether the exclusion in section 424A(3) of the Act applies – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.36(2), 424, 424A, 424A(a), 424(A)(1), 424(A)(1)(a), 424(3)(a), 474, 474(2)
Judiciary Act 1903 (Cth), s.39B
Federal Court Rules
Federal Magistrates Court Rules
Hickman; ex parteFox v Clinton (1945) 70 CLR 598
WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 266
Minister for Immigration and Multicultural Affairs v Rajamanikkan (2002) 210 CLR 222
NARV vMinister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 264
VHAJ vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186
VAAC v Minister for Immigration andMulticultural and Indigenous Affairs (2003) FCAFC 74 20
Baig v Minister for Immigration and Multicultural Affairs (2002) FCA 380
Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411
NACB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 235
Raza v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 350
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
| Applicant: | WAJW |
| Respondent: | MINISTR FOR IMMIGRATION & MULTICULTURAL & INDIGENEOUS AFFAIRS |
| File No: | WZ 87 of 2003 |
| Delivered on: | 17 June 2004 |
| Delivered at: | Melbourne (via video link to Perth and via telephone to Adelaide) |
| Hearing date: | 4 December 2003 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Ms M Kelly |
| Solicitors for the Applicant: | Refugee Advocacy Service of South Australia |
| Counsel for the Respondent: | Mr Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THAT the Application be dismissed.
THAT the Applicant pay the Respondent’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules based on Schedule 1 of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE (via video link to Perth and via telephone to Adelaide |
WZ 87 of 2003
| WAJW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENEOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
The applicant is a citizen of Iran who arrived in Australia with her husband and two children on 17 August 2000. The applicant and her family are Sabean Mandaens. On 22 January 2001 the applicant's husband lodged with the Department of Immigration and Multicultural and Indigenous Affairs (the Department) an application for a protection visa which extended to the applicant and their two children. The applicant wrote a letter to the Tribunal dated 7 June 2001 in support of her husband's protection visa application.
The applicant's husband's protection visa application was refused by a delegate of the respondent on 6 March 2001. The applicant's husband sought review of the delegate's decision by the Refugee Review Tribunal (the Tribunal) and on 6 September 2001 the Tribunal made a decision affirming the delegate's decision not to grant a protection visa as sought.
The applicant's husband applied to the Federal Court for review of the Tribunal's decision and on 26 November 2002 the Federal Court dismissed the application.
On 20 November 2002 the applicant made an application for a protection visa in which she made claims in her own right to be a refugee. The applicant's husband and children were included in the application. That application was refused by a delegate of the respondent on 20 January 2003. On 24 January 2003 the applicant applied to the Tribunal for review of the delegate's decision. Following a hearing on 17 March 2003 in which the applicant gave oral evidence, the Tribunal made a decision on 3 April 2003 affirming the delegate's decision refusing to grant a protection visa to the applicant.
On 23 April 2003 the applicant made an application to the Federal Court pursuant to s.39B of the Judiciary Act 1903 (Cth) for review of the Tribunal's decision. On 1 June 2003 Carr J ordered the proceedings be transferred to the Federal Magistrates Court.
Tribunal's Reasons for Decision
In its reasons for decision the Tribunal set out the relevant background, the relevant provisions of the Migration Act 1958 (Cth) (the Act) and set out the principal elements of the definition of "refugee" in the refugee's convention in accordance with the decision of the High Court to which it referred.
The Tribunal then set out the claims made by the applicant to the Department at the Tribunal hearing. After the hearing the Tribunal wrote to the applicant referring to the fact that neither she nor her husband had referred to her having been detained or summonsed by the Iranian authorities in their first protection visa application, that she had told the first Tribunal that she was not detained, but she now claimed these events had occurred and this information was relevant because it cast doubt on the truth of her claims that the events had occurred, and she was invited to provide further details if she wished.
The Tribunal then noted that in response to its invitation to provide further details, the applicant had submitted a letter dated 18 March 2003 from Professor Buckley from Maine, USA in relation to the applicant having withheld information in her husband's hearing and it also referred to an earlier paper written by Professor Buckley on 2 August 2002 in relation to the Mandaens in Iran. The Tribunal set out details from a submission made to the Tribunal by the applicant's solicitor on 24 March 2003 and then set out evidence from a variety of sources in relation to the Mandaeans in Iran, the dress code/hejab, court summonses in Iran and departure from Iran.
The Tribunal then set out under the heading, "Findings and Reasons" its principal findings and conclusions as follows:
a)The Tribunal was not satisfied that the applicant was being subjected to treatment amounting to persecution before May 2000.
b)The Tribunal was unable to accept the applicant's claim that she was detained or detained and assaulted in May 2000 as plausible for the various reasons which it set out at subparagraphs (a) to (h) of the Court book, pages 268-271.
c)For the reasons which were set out in subparagraphs (a) to (h) above the Tribunal considered that the applicant's claim that she was detained or assaulted in Iran by members of the security forces was a fabrication and consequently the Tribunal was not satisfied there was a real chance that the Iranian authorities would detain her now for any reason or in the foreseeable future.
d)In relation to the treatment of Sabean Mandaens generally the Tribunal was not satisfied that mere adherence to this religion gave rise to a well founded fear of persecution in Iran. While the Tribunal accepted that as a religious minority, the Sabean Mandaens experienced discrimination in employment and education and the way the legal system operates, it was satisfied that the applicant had not been exposed to this discrimination.
e)The Tribunal therefore found that the applicant did not have a well founded fear of convention related persecution in Iran.
f)The Tribunal concluded that having considered the evidence as a whole, it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention and that therefore did not satisfy the criterion in s.36(2) of the Migration Act for a protection visa.
By an amended notice of appeal dated 24 October 2003, the applicant seeks a review of a decision of the Tribunal on the following grounds:
a)The Tribunal exceeded or failed to exercise its jurisdiction to review the decision of the delegate:
b)The Tribunal failed to properly consider all the claims of the appellant as to why she faced persecution in Iran.
c)The Tribunal identified a wrong issue, asked her the wrong question, ignored relevant material and relied on irrelevant material in such a way as affected the application for the correct test of a well founded fear of persecution.
d)The Tribunal failed to apply, in respect of the claims made, the test of a well founded fear of persecution under the convention's definition.
e)The Tribunal failed to accord procedural fairness in not providing the appellant with a reasonable opportunity to answer material or information in the possession of the Tribunal.
The applicant's Claims to the Department
The applicant claimed that her religion is Sabean Mandaen and she was born in the city of Khoramshar. She was 26 years of age and had completed 11 years education. She was married in Shiriz in 1994. She had left Iran, "legally" via the airport in Tehran in July 2000 and arrived in Australia by boat on 21 August 2000. She had given her passport to "smugglers".
She claimed her religion was not officially recognised, the government recognised it as a Christian religion merely to cover up human rights abuses against Mandaens. She claimed Sabean Mandaens did not have the right to attend university or hold government positions.
The applicant made specific claims about herself. She said that on 27 May 2000 she had been out shopping in Shiriz when an "Islam Guidance Patrol" stopped her and asked her to cover her hair which had been revealed from under her scarf as she helped her son who had tripped. Because of her son she paid little attention to their request and was then asked to get into the vehicle and was taken to the office of "Anti-social Corruption". While there she was laughed at, the officers used vulgar language and a female officer slapped her face. With this slap she fell and struck her face on the table and her nose bled. When she stood up a female officer pushed her to the floor. She was then left alone by the officers. However, later a man entered the room and sexually assaulted her. She then had to sign an undertaking to cover her hair properly in public in the future and was released after her father-in-law bailed her. Her husband was not in Shiriz until a week later and she did not tell later tell him about the rape. She said she told no one about the rape until lodging her application for the protection visa (that is the present application). She was unable to tell an officer of the department about it either in writing or at interview because there was no opportunity to do it without her husband knowing.
In support of her claim to have an injury the applicant submitted a radiology report done at the Port Hedland Hospital on 4 September 2002. It stated in part that:
There are crack fractures of the nasal bones. These appear to have been present for some time.
The applicant claimed that she was two months pregnant at the time of her detention. In the car she had begun bleeding and was taken to hospital and miscarried. The miscarriage occurred on 28 May 2001 according to a copy of the medical certificate submitted in evidence.
After her release she received telephone calls from a man threatening to tell her husband about the rape. She also saw an officer hanging around her home for no reason.
Two weeks after her release from detention she received a summons to appear in Court in a month in relation to the issue of the hejab. As the family feared she would be flogged they decided they would leave Iran. As she did not go to Court on the date of the hearing, she now feared she would face a harsh punishment if she returned to Iran.
She claimed that to leave the country she and her husband paid someone they knew in Tehran to arrange for their departure on a valid passport. Bribes were paid and although it appeared legal her departure was in fact illegal.
The applicant said her life was in danger in Iran which was a Muslim country and that the authorities who arrested her would find her. There was no one to complain to about the rape and she would not get government protection as a Mandaen. When she returned she would be subjected to the same abuse or worse because she was a non-Muslim woman.
The Tribunal Hearing
The applicant told the Tribunal that she moved to Shiriz when she married. After her birth her father's employment required the family to move to Hasltapeh and then they moved to Ahwaz. She married four months after they moved to Ahwaz. She was 17 when she left school and she left school because she was forced to marry by her own culture but the two sets of parents agreed that she should marry her present husband which she had done at the age of 17.
She and her husband had always lived with the husband's family who owned a home in Shiriz (and were still there). She also visited her husband in Kuwait where he had been working. Between 1994 and 2000 she had visited Kuwait on seven occasions but her most recent visits on 26 March 2000 and April 2000, was much shorter. She said that they returned to Iran in 2000 because her husband had gone bankrupt and that had forced him to return to Shiriz. In Kuwait they had pretended to not be Mandaens but rather to be Muslims. Her husband returned from Kuwait to Iran when she was detained. The Tribunal found that when asked if she had considered moving to Ahwaz, which has a much bigger Sabean community, that she responded that they had not because until the occasion when she was detained, there was no imminent danger. There were hassles and discrimination but she and her husband had adjusted to that. The situation was tolerable until that incident occurred.
The applicant agreed that Sabean women dressed the same as Muslim women and her surname does not identify her as Sabean. However, she said she could be identified as Sabean because her father-in-law was the main Sabean support person for the Sabean Mandaens in Shiriz. Her father-in-law was known and when the authorities questioned her they recognised his address, thus realising she was a Sabean Mandaen. She said that her neighbours knew they were Sabean Mandaens because they had seen them wearing the traditional white clothing during fasting, but other community members did not know. She and her husband got on all right with their neighbours. She told the Tribunal that where she had written in her statement to the Department that she and her husband had left Iran because after she was summonsed to appear in Court they said she would be flogged, this was the least of their fears. It could be worse and there could be hassles and she also feared being assaulted in the same manner as before, a penalty beyond what the Court ordered. She said that of her ill-treatment her husband knew that her nose was fractured and she was beaten when they hassled her and he knew she had miscarried but he did not know about the sexual assault.
The applicant was asked why in his own written and oral submissions to the Department or the Tribunal her husband had not mentioned that she had been detained and summonsed or they left Iran for fear she would be flogged or otherwise harmed. She explained to the Tribunal that her husband had been scared to speak for himself in that fellow travellers would not look well on a woman who had been detained. In addition, at the detention centre, word would have got around. She said that because her father-in-law is the head of the Sabeans Mandaens community in Shiraz it would bring shame for them if she had been detained for "bad hejab" as they were expected to set an example. There would have been gossip and the matter would have been the subject of ridicule
The Tribunal asked her why, when she gave oral evidence to the previous Tribunal on 12 July 2001 (in support of her husband's application) she'd given responses to specific questions that she'd never been detained and she had never been physically mistreated by Iranian authorities. She agreed that she had said these things and said she had done so because she was fearful of the hearing and the tape might have gone to her husband. She said she was a witness in his case and he'd prevented her from saying she was detained. She said the main problem was that her husband was concerned to hide the fact that any family member had been detained. The Tribunal told her that it doubted the truth of her reasons for not having mentioned her detention for so long. She responded that she had raised the issue about a year ago because she had a problem with her nose and so she had to tell the whole story. During her injury interview she said she mentioned her gynaecological problems, saying that she had lost blood after the miscarriage and was still losing blood. She conceded that she had not told any of the staff at the Immigration Detention Centre about being detained and assaulted prior to her husband's application having been refused by the Refugee Review Tribunal. She later said that she understood the Tribunal's reservations of her account but that Mandaens must obey their husbands. She explained that she was able to leave the airport because blacklisting happened only after a third fine was issued.
The Tribunal asked the applicant whether her husband knew that the present hearing was taking place. She said that he did but that he had left her alone and that she had asked him to confirm her account of the events that occurred after she was released from detention, but that he was too upset and angry.
After the hearing the Tribunal wrote to the applicant putting to her that in her first application for a protection visa neither she nor her husband referred to her having been detained or summonsed by the Iranian authorities. She had told the first Tribunal that she was not detained. She now claimed these events had occurred. She was told this information was relevant because it cast doubt on the truth of her claims that they had, and could indicate that the Iranian authorities had no interest in penalising or detaining her. At the Tribunal hearing she had explained why the claims were not made earlier and was invited to provide further details if she wished.
In response, the applicant submitted a letter from Professor Jorunn J Buckley of the Department of Religion, Bowdoin College Maine USA, 18 March 2003.
The Applicant's Case
The applicant identified five grounds:
The persecution ground
That the Tribunal did not properly consider the evidence and ignored relevant material and took into account irrelevant material
It is contended the Tribunal wrongly identified harassment and treatment of Mandaens as discrimination when it is properly characterised as persecution. This can be described as the general persecution ground in which it is contended that the Tribunal erred in not being satisfied of persecution before May 2000 (and arguably after that time) as a result of being a Sabean Mandaen. It is contended that her claim was based on persecution of Sabean Mandaens in daily life and that coupled with the particular incident that made her no longer able to tolerate the continuing persecution the Tribunal erred in its characterisation of the treatment of Sabean Mandaens as being "discriminatory" rather than "persecutory".
The Tribunal considered a letter from Professor Jorunn J Buckley (Department of Religion Bowdoin College Brunswick Maine, USA) and considered a paper written by him dated 2 August 2002 as one of the few active scholars on the Mandaen religion. The Tribunal noted in detail[1] the matters raised by him regarding the treatment of Mandaens in Iran. The Tribunal also had before it a press article about Shi'a Muslims harassing Sabean Mandaens in the detention centre[2] and evidence from other sources including a 2001 paper by Professor Buckley, a paper from an officer from the Department of Immigration and Multicultural Affairs based in Tehran (2001), background information on the Sobies (Mandaens) and their situation in Iran, country information report 165/01, 4 June CX53482[3], country information from the UK home office[4]. Some details on court summonses from Canadian sources[5] and details about departure from Iran from DFAT and the UK home office[6].
[1] See Court Book, page 261.
[2] See Court Book, page 262.
[3] See Court Book, pages 263-65.
[4] See Court Book, pages 265-66.
[5] See Court Book, page 266.
[6] See Court Book, page 267.
In its findings and reasons the Tribunal considered the particular claims of the applicant to persecution however it also considered the treatment of Sabean Mandaens generally[7] and found that mere adherence to the religion did not give rise to a well founded fear of persecution in Iran. While the Tribunal accepted that as a religious minority the Sabean Mandaens experienced discrimination in employment and education and in the way the legal system operates, it was satisfied that the applicant had not been exposed to this discrimination. The Tribunal noted that she herself agreed that her life was tolerable at least before the claimed incident of detention and that her Muslim neighbours who knew she was a Sabean Mandaen, were not unfriendly towards her. The Tribunal noted that she had completed eleven years of education in Iran and left school because of a family decision rather than religious discrimination. She had not sought paid employment or tertiary education and the Tribunal therefore found had not been subjected to any discrimination by the manner in which the legal system operated in relation to Sabean Mandaens.
[7] See Court Book, pages 271-72.
The applicant contends that her claim was based on persecution in daily life and the Tribunal ignored relevant material going to the general question of whether Sabean Mandaens in Iran suffered persecution rather than discrimination. In particular the applicant claimed that the Tribunal had failed to have regard to a letter from the wife to the husband's Tribunal in relation to his claim detailing in general persecution and the observations of discrimination raised before and dealt with by the husband's Tribunal.
First, the Tribunal indicated that it had before it the Department's file including a protection visa application and the delegate's decision record. The Tribunal said:
The Tribunal also has regard to the departmental and RRT decisions in relation to the applicant's husband. (CLS 2001/7/593 and NO1/37538 respectively). The Tribunal has also had regard to the material referred to in the delegate's decision and other material available to it from a range of sources[8].
[8] See Court Book, page 254.
It is difficult to see how the applicant could claim that the Tribunal had ignored matters dealt with by the husband's Tribunal because the husband's Tribunal having considered the material regarding Sabean Mandaens led that Tribunal to conclude that neither the applicant's husband nor the applicant had faced harm in the past amounting to persecution for the purposes of the Convention for reasons of their religion. Furthermore, as the respondent contends, the initial application by the applicant[9] is clearly a claim based upon the personal experience of the applicant and her concern that as a result of the events she described had occurred to her personally she was unable to complain to the authorities because she was a non-Muslim woman. I agree with that submission. On a fair reading of her application, her claims are based upon her own experiences.
[9] See Court Book, pages 119-121.
Furthermore, the question for the Tribunal in this respect was whether this particular applicant has a well founded fear of persecution and the Tribunal is obliged to consider that issue in the context of her Sabean Mandaen religious beliefs. As McHugh J said in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 429-431:
The term "persecuted" is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes "being persecuted". The notion of persecution involves selective harassment. … As long as the person is threatened with harm and that harm can be seen as a part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is "being persecuted" for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances that the government has failed or is unable to protect the person in question from persecution.
It was for the Tribunal to decide and reach a position of satisfaction as to whether she was persecuted for a Convention reason and it is clear that the Tribunal would have done so had they believed her.
Thus, in a sense, the context in which her personal complaints were made was accepted by the Tribunal but what the Tribunal did not accept was that, absent any individual circumstances giving rise to a well founded fear of persecution, her Sabean Mandaen religious beliefs per se amounted to persecution for a Convention reason. In particular the Tribunal said at Court Book, page 268:
There is no doubt that, if her claim is true, she was subject to persecutory treatment, a significant reason for which was either her religion (Sabean Mandaen) or alternatively her membership of a political or social group which could be defined as "non-Muslims".
However as to her claims, the Tribunal did not believe them.
In particular the Tribunal noted that the applicant had said that they had not considered moving to Ahwaz which had a much bigger Sabean community because until the occasion that she claimed to have been intercepted by the "Islam Guidance" patrol there was no imminent danger, and although there were "hassles and discrimination" she and her husband had adjusted to that. The situation was tolerable, she said, until that incident occurred. The issues thus raised by the applicant in relation to this ground simply asks the Court to come to a different view about the treatment of Mandaens than the Tribunal found, and the matters which go to the merits of the Tribunal's decision. That does not establish any jurisdictional error on the part of the Tribunal (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24).
Detention and Assault Ground
The applicant contends that she gave a plausible and understandable explanation for the delay in mentioning the detention and serious assaults, consistent with country information as to the demeanour of a Sabean Mandaen wife. The applicant further contends that the Tribunal did not ask itself whether the rape and detention occurred, but rather concentrated on the delay in reporting. It is submitted that the Tribunal ignored relevant material namely:
a)The evidence about the detention and assault and the applicant's inherent credibility.
b)The evidence of an injury to her nose not inconsistent with her story.
c)Evidence of her miscarriage at the time the detention and assault was alleged to have occurred.
d)Evidence of her departure from the country at a time consistent with fleeing as soon as practicable.
e)The summons produced to the Court that coincided with her evidence.
f)Her absence when the second summons arrived.
g)The plausibility of her explanation about her departure from the country.
h)The country information and evidence about consequences for her marriage and family of revealing the incident to her husband or anyone who might inform him.
i)Country information and evidence about difficulties for Iranian women in revealing such information to strangers et cetera in the circumstances of concern about whether the information would be kept confidential.
However put, this ground cannot succeed. Whilst it is accurate to say that some of the evidence produced by the applicant was not inconsistent with her story, or put more positively was consistent with her story, it does not necessarily prove her story. The Tribunal was not obliged to refer to every piece of evidence in its reasons for decision (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67] - [68]).
It is clear from the Tribunal's reasons that they did not consider all of the matters raised by the applicant but considered her allegation that she was detained or assaulted by members of the security force was a fabrication.
Further, it is contended the Tribunal failed to consider to what would happen if the family returned to Iran from Australia. In particular the applicant contended that the summons was still in existence and that the community in which they lived is claimed to have dispersed to other countries.
If the Tribunal concludes there is no chance or probability of persecution, such conclusion excludes any alternative hypothesis or any alternative probability. In that case the Tribunal is not required to assess fanciful possibilities, per French, Merkel and Gyles JJ in Raza v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 350.
The Tribunal relied upon irrelevant material in concluding that the applicant had not been detained or assaulted as claimed.
The applicant claimed that the Tribunal had found her assertion difficult to believe because her own injuries would have been visible and she was apparently going out of the house. It is contended there was no material before the Tribunal that injuries would be visible given the clothing women in Iran wear. Nor was there any material before the Tribunal that she was going out of the house so as to be seen in public. It is contended the evidence was that she went to her grandmother's house and stayed with her for three weeks and then left Iran. Further the applicant contends that the Tribunal disputed she was so dominated by her husband that she did not reveal she had been detained and it relied on irrelevant material and failed to consider relevant material as to the position of women, particular Mandaen women, in Iran. Finally, it was contended that there was no material on which to find that it was appropriate to reveal her detention to her husband and for it then to be reasonable for her to tell her husband to tell other detainees lies about her detention.
These are really objections to the reasoning process of the Tribunal. It is complained in addition that the Tribunal relied on material from a Canadian source about summonses and about the legal system and these matters are also objections to the reasoning process. However, it is clear that even if there was a want of logic by the Tribunal in drawing an inference of fact, that does not per se constitute an error of law (see Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411; NACB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 235 at [21] to [30]).
Procedural fairness
The applicant contended that the Tribunal failed to provide a reasonable opportunity to the applicant to answer material in its possession. In particular:
a)Canadian source material about court summonses and procedure.
b)Telephone interviews with Tehran Lawyer in 1999 about court documents.
c)DFAT and UK home office material about leaving Iran if one was wanted by the authorities.
It is contended that the material relied upon by the Tribunal was critical to the decision in turn because it was information used by the Tribunal to evaluate, and reject, the credibility of the applicant. Thus it is submitted she should have been given an opportunity to respond and s.424A(a) of the Act was not complied with. Section 424A provides relevantly as follows:
(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal C:\doc-conversion\inputToHtml\s337.html - tribunalconsiders appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
Subsection (2) refers to the methods by which an invitation must be given subsection (3) provides as follows:
The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(c)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(d)that the applicant gave for the purpose of the application; or
(e) that is non-disclosable information.
The complaint about the source material arose from the evidence by the applicant that directly after her release from detention she received a summons to appear in Court in a month in relation to the issue of the Hejab. As the family feared she would be flogged it was decided they would leave Iran. As she did not go to Court on the date of the hearing she now feared she would face a harsher punishment if she returned to Iran. When asked by the Tribunal to comment on evidence that if there had been a summons for her to appear in Court she would not have been able to leave Iran through the airport she responded that such black listing only happened after the third summons was received.
The Tribunal referred to Canadian sources to note that arrest warrants are issued in serious cases. However in the case of lesser charges including misdemeanours such as a breach of trust or failure to pay alimony the defendant receives a summons to appear in Court. The Tribunal also informed itself in a telephone interview with an attorney from a Teheran law firm. He described the system of law as being similar to that of France but added that there were a number of different Courts/Tribunals that issued a wide range of forms or notices. However the forms used by one Court/Tribunal were generally consistent throughout the country. He stated that what could be referred to as a "Court summons" was used in both civil and criminal cases but that in Iran they were generally known as a "notice to appear." He described the summons/notices "warning" in a civil case, that legal action was being taken and as such if the summons was ignored then the law suit would proceed without the participation of the person named in the summons/notice.
The Tribunal found that the claimed detention occurred in May 2000 and she received the first summons on 12 June 2000. The Tribunal noticed that she claimed to have received two of three summons before leaving Iran, those two having been delivered to her home. It noted that because a third summons had not yet been delivered her name was not on the black list at the airport. The Tribunal opined her that it was unclear why there would be three summons when the first one named the date of hearing (16 July 2000) and noted the evidence from the DIRB that only one summons is issued in such cases. The Tribunal noted that in her application for the protection visa the applicant stated she left Iran "legally" however she later claimed that bribes were paid to arrange her departure and it was in fact an "illegal" departure.
The Tribunal concluded that that inconsistency coupled with the evidence from DFAT and the Home Office that it would be at least difficult to depart Iran in this way if one was wanted by the authorities, cast further doubt on the plausibility of the claim that she had the experience of receiving any summonses at all.
The respondent has three contentions on this point. The first is that the information is of a general nature and not required to be provided to the applicant. This is the exception in s.424A(3) regarding information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member." This issue was dealt with in NARV vMinister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 264. The Full Court there considered the meaning of s.424A and the cases in which it has recently been considered (see VHAJ vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186; VAAC v Minister for Immigration andMulticultural and Indigenous Affairs (2003) FCAFC 74 20; and Baig v Minister for Immigration and Multicultural Affairs (2002) FCA 380).
VHAJ was a case concerning the affect of an Italian law governing resident workers by virtue of which the Tribunal found that the applicants were entitled to re-enter Italy. Accordingly, being able to avail themselves of the effective protection of a "third party" state they were not persons to whom Australia owed protection obligations. In that context Kenny J expressed her understanding of the effect of the reasoning in Baig at [52]:
This passage illuminates the operation of paragraph 424A(3)(a) by focusing on the relevance of the information in question to the Tribunal's decision making. His Honour's analysis is premised on the assumption that whether or not information is 'just about' a class of persons of which the applicant or any other person is a member depends on whether or not the information is relevant to the decision making simply because it concerns this class. See also VEAJ of 2002 at [43-44]. If the information is relevant only because it concerns a class of individuals who have an attribute in common with the applicant or any other person, then the information will be 'just about' a class of persons of which the applicant or other person is a member. If however, the information is relevant to the Tribunal's review upon some other basis, then it will not fall within s 424A(3)(a) even though it does not concern the applicant and it is about (but not just about) a class of person for which the applicant or another person is a member. ...
[at 55] The information in VAAC was relevant merely because it tended to show that there was a class of persons, which included the applicant, who could obtain an Afghan passport from the Afghan consulate in Canberra. This information was significant because there was other material before the Tribunal showing that, if he had a passport, the applicant could enter and reside in India where he would not have a well founded fear of persecution on convention grounds. There is no relevant difference, it seems to me, between the information at issue in VAAC and the information in this case. In a sense, the Information in this case is about Italian law, but it is relevant only because it is also about holders of current Italian permits. As already noted, information does not cease to be information 'just about' a class of person merely because it can be characterised in one way. For the purpose of paragraph 424A(3)(a), information is just about a class of persons (even though for another purpose it could bear some other characterisation) if it is relevant to the Tribunal's decision only because it is about this class of persons. The information in this case was relevant only because it provided the basis for the Tribunal's conclusion that the appellant could enter Italy and reside there.
The Full Court in NARV said at paragraph [29] as follows:
The touchstone, according to the majority in VAHJ, is the manner in which the information is relevant to the Tribunal's decision. In VAHJ the questions to which the information was relevant were, first, whether a general class of persons (certain permit or visa holders) had a right to re-enter Italy, and, second, whether the applicant was a member of that class. However, in Baig the information 'bore specifically upon the question' of the applicant's claims (at [33]). According to Kenny J, if information 'is relevant to the Tribunal's decision only because it is about this [the relevant] class of persons' then it is information which is 'just about' that class of persons, and, as a consequence of s 424A(3)(a), the Tribunal need not put it to an applicant for comment.
The Full Court, per Ryan and Finklestone JJ, at paragraph 30 went on to say:
s 424A(3)(a) has two limbs, both of which must be satisfied in order for the information to fall within the exemption. Those limbs are:
1) information 'that is not specifically about the applicant or another person; and'
2) information that is 'just about' a class of persons of which the applicant or another person is a member (emphasis)
According to the views of the majority in VHAJ it is mistaken to regard all information before the Tribunal as falling into one or other of two mutually exclusive categories of information 'specifically about the applicant or another person' or information 'just about a class of persons (indistinct) applicant or another person is a member.' The words 'just about' have been included as words of limitation. Information which is 'just about a class of persons' is information possessing only one characteristic, in the sense of being information solely about that 'class of persons' and not going to another issue before the Tribunal. The majority in NARV found that the information was not specifically about the appellant or another person but nor was it just about a class of persons and accordingly found that particulars should have been provided to the appellant.
Downs J, took a different view of the two limbs described and at [54] said:
Information about a class can only attract the attention of s 424 if it 'would be the reason, or a part of the reason, for affirming the decision that is under review'. (424A(1)(a)). Such information must always touch upon some relevant issue to the applicant. However, where this is merely because the information relates to a class of which the applicant is a member it will not be required to be disclosed. This is the ordinary situation to which the exclusion in s 424A is directed.
In my view this is a case which is analogous to VHAJ. The material regarding Court summonses and procedure "is not specifically about the applicant or another person" and "is just about a class of persons of which the applicant or another person is a member" that class being Iranians who have received a summons and Iranians who wish to leave Iran whilst being wanted by the Iranian authorities. But even if I am wrong about the exemption in s.424(3)(a) would remain to be satisfied that the "information" which was information for the purpose of s.424A(1) was "the reason or a part of the reason" for the Tribunal's decision. That means that the applicant must establish, on a proper analysis of the Tribunal’s reasons for its decision, that in the absence of that particular information, the Tribunal would not have affirmed the decision under review (see Minister for Immigration and Multicultural Affairs v Rajamanikkan (2002) 210 CLR 222 at [241] per Marshall, Weinberg and Jacobson JJ in WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 266.
The information itself in this case was not part of the reasons for decision but went to the issue of disbelief of the applicant's claim. It is difficult to see how the applicant could establish on a proper analysis of the reason for decision, that in the absence of information relied upon as part of the reason for not accepting the applicant's evidence regarding the summons, the decision under review would not have been affirmed. The applicants have not been able to establish that and for that reason as well in my view, there is no breach of s.424A.
I am not thus satisfied therefore that there is any jurisdictional error in the Tribunal's decision and thus in the absence of jurisdictional error the decision is a privative clause decision within the meaning of s.474(2) of the Act. The reasons for decision do not demonstrate that any of the very limited grounds upon which a privative clause decision may be reviewed or established are against Hickman; ex parteFox v Clinton (1945) 70 CLR 598 and the application must be dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 17 June 2004
0
9
0