NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1046

FEDERAL COURT OF AUSTRALIA

NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1046 MIGRATION – Application for prerogative relief in respect of decision of Refugee Review Tribunal affirming refusal of protection visa – claims that the Tribunal failed to make a bona fide attempt to exercise its power, that the Tribunal was biased, and that the decision of the Tribunal was unreasonable – no error on part of Tribunal Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), ss 91R(2), 424A Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on 10 October 1984 R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 cited NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 cited Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 followed Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168 cited SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 cited Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 cited Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 cited Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 cited Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 cited Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274 cited Gnanasambanther v Minister for Immigration and Multicultural Affairs [2001] FCA 693 NASB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 729 of 2003 SACKVILLE J SYDNEY 2 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 729 OF 2003

BETWEEN: NASB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 2 OCTOBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 729 OF 2003

BETWEEN: NASB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 2 OCTOBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

the proceedings 1 The applicant is an Iranian citizen about 30 years of age. He is single and a Shi'a Muslim. He arrived in Australia without documentation on 12 December 2002 and claimed protection on arrival. He has remained in detention ever since. On 24 December 2002, he filed his application for a protection visa . On 4 February 2002, a delegate of the respondent ("the Minister") refused to grant the visa. 2 The applicant then sought review of the delegate's decision by the Refugee Review Tribunal ("RRT"). A solicitor made written submissions on his behalf and also represented him at a hearing held on 9 May 2003 (an earlier hearing lasted only a very short time). Following the hearing, the RRT wrote to the applicant raising doubts about documentary evidence said to relate to the death of his father. The solicitor forwarded a reply to the RRT on the applicant's behalf, addressing the RRT's concerns. 3 On 30 May 2003, the RRT handed down its decision affirming the delegate's refusal to grant a protection visa to the applicant. 4 The application filed in this Court seeks prerogative relief in respect of the RRT's decision pursuant to s 39B of the Judiciary Act 1903 (Cth). The document was filed by the applicant himself, but he appears to have had some assistance in preparing it, since the document employs legal terminology and gives what are described as "particulars" of a number of grounds. 5 The grounds identified in the application are as follows: "1. The decision-maker failed to make a "bona fide attempt to exercise its power". Particulars In the alternative failed to recognise that the applicant continues to harbour protection fears in respect of the persecution he experienced in his native country. 2. The decision-maker was not acting in good faith in making the decision to refuse the applicant a protection visa on 30 May 2003. Particulars Having recognised and accepted that the applicant was subjected to a degree of discrimination and harassment because of the position of his late father held in the former Regime. 3. Due to an administrative decision made by a Commonwealth officer where the ground for review is: (a) lack of reasonableness as to its decision ("reasonableness review") (b) failure or constructive failure to comply with Migration Act 1958, or (c) denial of natural justice in respect of legislative procedure. 4. The decision-maker failed to adequately consider the country information. 5. The decision-maker failed to adequately consider the documents provided by applicant." 6 A directions hearing was held by a Registrar of the Court on 10 July 2003 at which the applicant appeared without legal representation. At that time, the matter was set down for hearing by me on 20 August 2003. The applicant was directed to file and serve any amended application by 10 August 2003 and to file and serve written submissions by the same date. No amended application or written submissions were filed by or on behalf of the applicant. 7 On 15 August 2003, the applicant filed a motion seeking to vacate the hearing date. In the accompanying affidavit, the applicant stated that he had applied unsuccessfully to the Law Society of New South Wales and the Public Interest Law Clearing House for legal representation at the hearing. However, he had since been informed that a barrister had agreed to represent him, but that the barrister would be unable to appear until the week commencing 25 August 2003. 8 Very sensibly, the solicitor representing the Minister agreed that the matter should be adjourned until 27 August 2003, a date convenient to both parties' legal representatives. On 18 August 2003, I vacated the hearing date of 20 August 2003 and rescheduled the hearing for 27 August 2003. I made fresh directions requiring the applicant to file written submissions by 20 August 2003. 9 On 22 August 2003, the barrister informed my chambers that he was seeking further instructions from the applicant and that he would advise the Court in more certain terms on 25 August 2003 as to his position and that of his client. On 25 August 2003, the barrister informed me (and his opponent) by letter that he would seek leave to withdraw at the hearing as the applicant's counsel, but would remain in Court "to assist and advise the applicant as necessary for the purpose of the proceedings". The barrister also confirmed that he would not be filing written submissions on the applicant's behalf. 10 At the hearing, the applicant represented himself, although he received advice from time to time from the barrister. In his submissions, the applicant, as I followed him, advanced three arguments: * the RRT had been biased against him or had acted in a manner to give rise to a reasonable apprehension of bias; * the RRT had failed to pay heed to the evidence of physical abuse sustained by the applicant in Iran; and * he had been tortured in Iran in contravention of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on 10 October 1984 (and coming in to force in Australia on 7 September 1989). 11 In the course of his submissions, the applicant asserted from the bar table that the RRT member had so conducted the hearing as to manifest bias or at least give rise to a reasonable apprehension of bias. A summary of what is said to have occurred before the RRT appears in the RRT's reasons, and on the face of it gives no reason to apprehend bias on the part of the RRT. Further, the applicant, upon being questioned during the argument about his claims as to what transpired at the RRT hearing, appeared to withdraw some of his claims. Nonetheless, I considered that as a matter of fairness the applicant should be given an opportunity, if he wished, to tender a transcript of the RRT proceedings and make written submissions on the bias or apprehended bias issue. I made directions to enable that to be done, but continued with the hearing. 12 Subsequently, the applicant filed written submissions, signed by the barrister who had been present at the hearing. In these written submissions it was argued that the transcript revealed that the RRT had been biased and also that the RRT had denied the applicant procedural fairness. The complaints made by the applicant were that: * the RRT referred at the hearing to independent evidence to support its findings on such matters as the position of persons formerly associated with the Shah's regime without disclosing the source, contents or nature of the evidence; * the RRT declined to hear further evidence from the applicant on two important claims rejected by the RRT, namely the applicant's account of his home being forcibly searched and his claim to have used a false Iraqi passport to leave Iran; * the RRT relied on documents published by the Department of Foreign Affairs and Trade ("DFAT") and the Canadian Immigration and Refugee Board ("CIRB") to make adverse findings, but the applicant did not have access to those documents. 13 The Minister filed written submissions in answer to these contentions.

the applicant's claims 14 The applicant claimed to fear persecution in Iran by reason of actual or imputed political opinion. He said that his father had held an important position in the Shah's government. In 1981, his father had been executed by the new regime, the family house confiscated and an insurance payment which should have been received on his father's death stopped. 15 The applicant claimed to have been subjected to discrimination and physical harm because of his father's position. In particular, the applicant claimed that he had been * physically maltreated and verbally abused during his thirteen years of schooling; * questioned and assaulted during his military service; * detained by the authorities on five occasions for up to five days and physically maltreated while in detention including being lashed; and * denied entrance to university, refused a passport and a military service card, notwithstanding having performed military service for two years; and * denied the right to own property in Iran. The applicant also said that his sister had been detained in Iran after his escape and had been released only on strict conditions.

the rrt's reasons 16 The RRT addressed the applicant's claims in detailed reasons. At the outset, the RRT expressed the view that significant aspects of the applicant's evidence were implausible and inconsistent with reliable independent evidence. It found that the applicant had fabricated some aspects of his evidence and exaggerated others in order to create the profile of a refugee. 17 Nonetheless, the RRT accepted that the applicant's father was a military officer during the Shah's regime. While the RRT was "highly dubious" about the applicant's claim that his father had been executed, for the purposes of the decision it was prepared to accept that this claim was correct and that the family residential property had been confiscated and that no insurance payout had been made following the death of the applicant's father. 18 The applicant had given evidence that after his father's death he had lived with a friend of his father's and, following her marriage, with his sister. The RRT considered that in view of this evidence and the absence of anything to suggest that the applicant could not provide for the necessities of life, it was not satisfied that the confiscation of the father's property or the loss of entitlements had caused the applicant harm serious enough to be characterised as persecution. 19 The RRT accepted that the applicant had been treated less favourably during his school days because his father had been executed and that this treatment involved verbal and occasional physical abuse. But the applicant had completed his schooling, suggesting that the treatment had not been so serious as to constitute persecution. In any event, since the applicant was no longer a student, there was no real chance of a recurrence of such maltreatment. 20 The RRT also accepted that the applicant had not been offered a place at university despite having achieved the necessary academic requirements. While denial of education could constitute persecution, this would be the case only where the restrictions imposed amount to a significant detriment or disadvantage. The RRT did not consider that he had incurred significant detriment or disadvantage from the failure to be offered a university place. 21 The RRT further accepted that the applicant had been regarded with some suspicion while doing his military service and that he had been questioned on three occasions about his contacts and activities. On one of those occasions, the RRT found, the applicant had been physically assaulted. However, the RRT considered that if the applicant had been considered a threat he would have faced considerably more than questioning on three occasions and physical abuse on one of those occasions. While the applicant did not obtain his military service discharge card until some years after his military service was completed, he did ultimately obtain his card. Overall, the RRT was not satisfied that the treatment to which the applicant was subjected during military service was serious enough to be categorised as persecution for a Convention reason. Moreover, since he had completed his military service obligations, there was no real chance that he would be subjected to such mistreatment again in the future. 22 The RRT noted the applicant's claim that he had not been able to obtain government employment. It pointed out that that he had not claimed that he had ever been interested in obtaining such employment. Nonetheless, the RRT accepted that a person in the applicant's position could have considerable difficulty in obtaining government employment. It pointed out that under s 91R(2) of the Migration Act 1958 (Cth) ("Migration Act"), serious harm includes a denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant's capacity to subsist. In this case, the applicant had been able to make a living as a mechanic and a trader. He had not been denied the right to work. Nor had any restriction on his ability to obtain government employment threatened his capacity to subsist. If he were to return to Iran, there is nothing to suggest he would be denied the right to work so as to threaten his capacity to subsist. Accordingly, the RRT was not satisfied that any restriction on his ability to obtain government employment amounted to persecution for a Convention reason. 23 The RRT did not accept that the applicant had been prevented from owning property in the past or that he would be prevented from owning property in the reasonably foreseeable future. 24 As I have noted, the applicant claimed that he had been detained on five occasions between 1995 and 2002 (in addition to the three occasions during military service when he had been interrogated). The RRT did not accept that two of those incidents, in 1999 and 2001, had occurred. It did accept that the applicant had been detained on the other three occasions. However, in two cases, in 1995 and 1997, the RRT found that he had been detained not because of his connection with his father or because of any actual or imputed political opinion, but because he had been working as a street trader. The fact that he had been released without charge indicated that he had satisfied those questioning him. 25 The final occasion on which he had been detained occurred six months prior to his departure from Iran. According to the applicant, he had been stopped at a checkpoint because he was suspected of consuming alcohol. He had been detained and lashed the next day. The RRT had some difficulty with the applicant's claim to have been lashed. However, it found that if the applicant had been detained and lashed as he claimed, it was because he had been suspected (correctly or not) of having consumed alcohol and of thus having breached a law of general application. Accordingly, the RRT was not satisfied that the Iranian authorities would have any continuing interest in the applicant arising out of this incident. 26 The RRT referred to independent evidence indicating that the situation in Iran in relation to those associated with the Shah's regime had considerably moderated over the years since the revolution. The RRT accepted that a person in Iran might be considered politically suspect because of his father's profile. The evidence did not suggest, however, that a person with absolutely no history of political activity would be targeted merely because his father had been an official in the Shah's regime. The applicant had done nothing to attract adverse attention for political reasons, had never expressed a political opinion and had never been charged with a political offence. The RRT was not satisfied that the applicant would have been of any adverse interest to the Iranian authorities merely because of his father's history. 27 The RRT rejected the applicant's claim that he had been obliged to report to the authorities and that he had not been allowed to leave Tehran without permission. Nor did the RRT accept that the applicant's sister had been detained or that the applicant himself had been unable to obtain a passport. The RRT found that the applicant had left Iran legally using a passport in his own name. The claim that he had left using a false passport had been fabricated in an attempt to enhance his claim to refugee status. 28 The RRT also rejected the applicant's claim that he was at risk of persecution in Iran because he had applied for refugee status in Australia. Such a claim was inconsistent with the independent country information. 29 Since the applicant had not been involved in any political activity in Iran in the past, the RRT found that the chance that he would become involved in such activities if he returned to Iran was remote. Accordingly, it considered that the chance that the applicant would attract the adverse attention of the Iranian authorities for reason of his political opinion in the reasonably foreseeable future was remote and insubstantial. While it accepted that the applicant had some scarring that may have been caused during physical assaults at school or during military service, it could not conclude that he had a well-founded fear of persecution for reasons of his political opinion or for any other Convention reason. Taking account of all the evidence, the RRT was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

reasoning 30 The first ground identified in the notice of appeal is that the RRT failed to make a bona fide attempt to exercise its power. The second ground is that the decision-maker did not act in good faith. It is not clear what difference, if any, there is between the two formulations, although the first presumably derives from the so-called Hickman provisos at one time thought to govern the construction of privative clauses such as s 474(1) of the Migration Act: see R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598, at 615, per Dixon J; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449. 31 Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24, the applicant's claim for prerogative relief under s 39B of the Judiciary Act can succeed only if he can show jurisdictional error by the RRT in the sense discussed in Plaintiff S157/2002. A failure by the RRT to make a bona fide attempt to exercise its power will ordinarily constitute a jurisdictional error in that sense: Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168, at [45]. 32 The principles governing whether a decision constitutes a bona fide attempt to exercise a statutory power of review have been stated by the Full Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749, at 756; Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, at [7]ff; Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, at [18]ff. It is clear from those authorities that this inquiry is directed to the actual state of mind of the decision-maker. As was said in Minister v SBAN, at [8], "[t]here is no such thing as deemed or constructive bad faith. It is the ultimate decision – in the case of the RRT, affirming the rejection of a protection visa application – which must be shown to have been taken in bad faith. Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty." 33 There is no basis for the contention that the RRT did not make an honest attempt to perform its duty. The RRT addressed the applicant's claims in considerable detail. While it found that the applicant had fabricated part of his account, the RRT nonetheless accepted some of his claims. These included his claim that his father had been executed which the RRT ultimately accepted, notwithstanding doubts expressed in a letter sent, pursuant to s 424A of the Migration Act, after the hearing. The RRT ultimately concluded that the applicant did not have a well-founded fear of persecution in Iran by reason of imputed political opinion. It explained carefully its reasons for doing so. It may be that not all decision-makers would have taken the same view as to whether the applicant's mistreatment amounted to persecutory conduct. Whether or not all decision-makers would have reached that conclusion is not to the point. On no view can dishonesty be attributed to the RRT in making its decision to affirm the delegate's refusal to grant a visa. 34 The applicant, in his oral submissions, contended that the RRT was biased against him and advanced arguments suggesting (in legal terms) that the conduct and reasoning of the RRT would lead a hypothetical reasonable observer to apprehend bias. I am prepared to assume that both bias and a reasonable apprehension of bias on the part of the RRT would constitute jurisdictional error in the context of decisions made under the Migration Act: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 20/2002 (2003) 198 ALR 59, at 71, per McHugh and Gummow JJ; SBAN, at [10]. In my view, the reasoning of the RRT does not disclose a mind so committed to a conclusion already formed so as to be incapable of alteration, regardless of the evidence or arguments presented: SBAN, at [10]. I appreciate that the applicant feels a sense of grievance and does not accept the unfavourable factual findings made by the RRT. That is not sufficient, however, to establish bias or a reasonable apprehension of bias. 35 I have referred to the applicant's written submissions. The assertion made there that the applicant was denied an opportunity to give evidence on important issues is simply not made out by an examination of the transcript. It is true that at one point the RRT said that it did not want to hear more about the applicant's alleged detention. But later in the hearing the RRT invited the applicant and his representative to put anything further that they wished. Indeed the RRT specifically asked the applicant whether there was anything else he wanted to say where he felt he had not had an opportunity to do so at the hearing. The applicant declined the opportunity. 36 It is clear enough that the applicant has misunderstood the RRT's questioning of him on matters of concern as a manifestation of bias. But as the RRT explained to the applicant, its job is to assess the material before it and that includes, as a matter of fairness, putting to an applicant concerns the RRT may have about his or her evidence. 37 The applicant's third ground involves the concept of unreasonableness, presumably in the sense that the RRT's determination was irrational, illogical and not based on findings or inferences of fact supported by evidence. As Gleeson CJ observed in Re Minister; Ex parte S20/2002, at 62 [9], it is often unhelpful to discuss in the abstract the legal consequences of irrationality, illogicality or unreasonableness, as distinct from identifying and characterising the legal error said to have occurred. Be that as it may, the reasoning of the RRT cannot be regarded as irrational, illogical or devoid of any evidentiary support. The RRT appears to have asked the correct questions and applied the correct legal standards. There is an evidentiary basis for each of the findings it made. 38 So far as the natural justice argument is concerned, it is relevant to note that the applicant was represented at the hearing by a solicitor who made written submissions on his behalf. After the hearing, the RRT sent the applicant a notice under s 424A of the Migration Act, drawing his attention to apparent discrepancies in documents provided by him. In the result, as I have noted, the RRT resolved those particular issues largely in the applicant's favour. 39 Both the applicant and his solicitor heard the references to the country information made by the RRT in the course of the hearing. Indeed, the point of the RRT referring to the material was to invite the applicant to comment. It is difficult to see any unfairness in the approach taken by the RRT. Moreover, no suggestion has been made that the applicant wishes to adduce evidence contradicting the country information or suggesting that the RRT's reliance on it was misplaced. 40 The applicant did not invoke s 424A of the Migration Act in support of his case. It is sufficient to note that s 424A(3) provides that the obligations imposed by s 424A(1) do not apply to information: "(a) 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." Clearly enough, the country information falls into this category. 41 In his oral submissions, the applicant made it clear that he disagreed with the RRT's findings. His criticisms of the RRT's reasons, however, went only to the merits of the decision and cannot establish jurisdictional error. 42 The reference by the applicant to the Convention Against Torturedoes not assist his claim for prerogative relief. His application to the RRT was unsuccessful because many of his factual claims were not accepted and the RRT was not satisfied that he had a well-founded fear of persecution for a Convention reason. 43 Finally, although this was not raised by the applicant, I should record that on a first reading of the RRT's decision, I had a concern as to whether it had directed itself to the correct issue or committed an error of law. The RRT accepted several of the applicant's claims to have been the victim of discrimination and abuse in Iran. However, it found that in no instance had he suffered harm sufficiently serious to constitute persecution. But the fact that the harm he suffered as a student or soldier, for example, was not sufficiently serious to constitute persecution does not necessarily mean that any future abuse for reasons of political opinion would not constitute persecution. If the applicant were at risk in Iran of being discriminated against and abused by reason of his imputed political opinion, he might well have a well-founded fear of persecution for a Convention reason even though he had never previously experienced harm amounting to persecution: Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1, at 26 [83], per McHugh J; Perampalam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274, at 282 [14], per Burchett and Lee JJ; Gnanasambanther v Minister for Immigration and Multicultural Affairs [2001] FCA 693, at [24], per Emmett J. 44 I am, however, satisfied that the RRT did not fall into error. Towards the end of its reasons, the RRT found that the applicant had never been suspected of having a political opinion against the regime and that there was no more than a remote chance that he would become involved in political activities. The RRT also considered that the applicant was not of any adverse interest to the Iranian authorities by reason of his political opinion. More importantly, the RRT found that the situation in Iran in relation to those associated with the Shah's regime had considerably moderated and that a person with no history of political activity would not be targeted merely because his father had been an official in the Shah's regime. Accordingly, the RRT concluded that the chance that the applicant would attract the attention of the Iranian authorities for reasons of political opinion or any other Convention reason was remote. 45 In these circumstances, it seems to me that the RRT made findings inconsistent with the applicant's claim to have a well-founded fear of persecution for a Convention reason. It did not fall into the error of assuming that a prior history of persecution was essential to establishing such a fear.

conclusion 46 In his written submissions filed after the hearing, the applicant requested a further hearing. In my view, the applicant has had ample opportunity to put his case. Nothing has been put which shows that a further hearing is required as a matter of fairness or indeed that such a hearing would serve any useful purpose. 47 The application must be dismissed, with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE .

Associate: Dated: 2 October 2003

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr G J Johnson

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 27 August 2003

Date of Last Written Submission: 23 September 2003

Date of Judgment: 2 October 2003