FEDERAL COURT OF AUSTRALIA

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

MIGRATION – judicial review – protection visa – administrative review – review by Refugee Review Tribunal – duty of Tribunal upon review – duty to consider evidence and contentions relied upon as establishing criteria for grant of visa – reasons for decision – inferences to be drawn from failure to advert to particular contention and evidence in reasons – inferred failure to consider evidence and contentions – Iranian nationals – Sabian Mandaeans – various claims – marriage of Sabian Mandaean son to Muslim woman – claimed persecutory repercussions for parents if returned to Iran – failure to consider – jurisdictional error – appeal allowed

Migration Act 1958 (Cth)

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 cited

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 cited

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 cited

Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 cited

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited

APPLICANT WAEE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V141 OF 2003

FRENCH, SACKVILLE AND HELY JJ

15 AUGUST 2003

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is allowed.

2.         The decision of his Honour Raphael FM made on 25 October 2002 dismissing the appellant’s application and ordering that he pay the respondent’s costs of the application is set aside.

3.         An order in the nature of certiorari is made quashing the decision of the Refugee Review Tribunal made on 21 December 2001 affirming the refusal of a protection visa to the appellant and his wife and two children.

4.         An order in the nature of mandamus is made requiring the Refugee Review Tribunal to determine the appellant’s application for review according to law.

5.         The respondent is to pay the appellant’s costs of the appeal and of the application in the Federal Magistrates Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

Introduction

1                     The appellant is an Iranian national born on 26 December 1940 at Ahvaz in Iran.  He arrived in Australia by boat without lawful authority on 6 March 2001 accompanied by his wife and three sons.  He and his wife, who was born in 1955, have six children altogether, two daughters and four sons.  The two daughters were already living in Australia.  Their eldest daughter, L, had married an Australian citizen and is an Australian citizen herself.  The other daughter, B1, and one of their sons, B2, reside in Sydney having been issued with protection visas.  Another of their sons, S, who came to Australia with the appellant and his wife has since been granted a protection visa.  The appellant and his spouse and their children are members of the Sabian Mandean religion.  They claim, for a variety of reasons associated with their membership of that religion, to be at risk of persecution if returned to Iran. 

2                     On 7 April 2001, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  His wife and the three younger sons, S, Y and I, were included in that application.  The appellant and his spouse and their son, S, each asserted their own claim.  The two younger sons, Y and I, did not assert any independent claims. 

3                     S had become engaged (it appears while still in Iran) to an Iranian woman of the Muslim religion who ended up in the same detention centre as S.  He was processed by the Department of Immigration, Multicultural and Indigenous Affairs independently of the appellant.  It appears that he lodged his own application and on 7 June 2001 the grant of a protection visa to him was approved by a delegate of the Minister.

4                     The appellant’s application for a protection visa was refused on 20 July 2001.  His wife who had put forward her own claims to be a refugee and entitled to the issue of a protection visa as part of her husband’s application was refused on the same date.  On 24 July 2001, the appellant lodged an application for review of the delegate’s decision with the Refugee Review Tribunal (the Tribunal).  His spouse and the three sons, S, Y and I, were included as review applicants even though S had already been granted a protection visa. 

5                     The Tribunal held a hearing on 25 October 2001.  The appellant and his wife gave evidence at the hearing, as did three of the children, the two daughters, B1 and L, and the son who was already in Australia, B2.  The two younger children, I and Y, gave evidence on 8 November 2001.  S did not give oral evidence although there was a statement made by him among the materials before the Tribunal.  On 21 December 2001, the Tribunal affirmed the decision not to grant protection visas.

6                     On 17 January 2002, the appellant filed an application for an order of review in the Federal Court and on 1 May 2002, Carr J ordered that the application be remitted to the Federal Magistrate’s Court.  Raphael FM dismissed the application for review on 25 October 2002 and also made an order that the appellant pay the respondent’s costs in the sum of $4,000.  On 19 March 2003, Marshall J by consent gave leave to the appellant to file and serve a notice of appeal from the decision of Raphael FM and on 20 March 2003 the appellant filed a notice of appeal pursuant to that leave.  A notice of contention was filed by the respondent on 25 March 2003. 

7                     Central to this appeal is the proposition that the Tribunal failed to consider an important aspect of the appellant’s case and that this failure amounted to jurisdictional error.  For the reasons that follow we are of the view that the Tribunal did so fail on this occasion and that jurisdictional error is made out

Evidence before the Tribunal

8                     The appellant’s case was outlined by the Tribunal in its reasons.  The Tribunal said that the appellant’s claims and that of his family focussed on their fear of persecution by reason of their Sabian Mandaean religion. 

9                     There were three matters central to the appellant’s contention that he and his wife and children were entitled to protection visas.  These matters were advanced in the context of an asserted background of general discrimination against Sabian Mandaeans in Iran.  The first matter concerned alleged verbal and physical abuse of the appellant’s two youngest sons, Y and I, at school. The second matter concerned the refusal of the appellant’s daughter, B1, to marry a member of the Revolutionary Guard and convert to Islam and the consequences of that refusal for the family.  The third matter concerned the marriage of one of the appellant’s sons, S, to a Muslim woman which was also said to have consequences for the rest of the family.  

10                  The appellant, in a statement made on 7 April 2001 in support of the application for protection visas, said that when his son Y went to school he had a lot of problems because it was known he was a Sabian Mandaean and that he was not circumcised.  He was told by people at school that he was dirty.  He was not allowed to drink from taps at the school.  The religious studies teacher constantly persecuted him.  In oral evidence to the Tribunal Y said that he and his brother were constantly harassed.  They were considered to be ‘naji’, meaning infidel, untouchable and unclean.  They were not allowed to go to the toilet.  They could not sit next to their classmates because they were untouchable.  He claimed that on some occasions he was asked to show his genitals to demonstrate whether he had been circumcised or not.  On the way home from school people would throw rocks and stones at him, spit at him and abuse him. 

11                  The appellant claimed, in his written statement, that children at the school would chant the word ‘dirty’ at I and say that he was a person without religion.  On one occasion he was pushed so hard that he fell through a glass window and sustained injuries to his wrist.  He was bleeding and no one was prepared to help him until a Christian boy ran to his parents’ home and told them what had happened to him.  The appellant said he had to go to the school and collect I.  No one was prepared to touch him because he was considered ‘dirty’ and had dirty blood.  The appellant said he took I to a public hospital where they were told that his hand could not be restored to normal function.  He then took his son to a private doctor who advised him to hospitalise the boy which he did.  Doctors in the private hospital were able to treat his hand. 

12                  The son, I, gave oral evidence to the Tribunal of these events.  He also told of not being allowed to touch the water tap to take a drink because he would make the water tap dirty.  The member asked I whether he had ever been physically harmed apart from the injury he received to his wrist.  I said he was frequently bashed and beaten and asked why he didn’t convert to Islam.  He claimed that he was bashed by teachers, particularly in religious classes and in study of the Q’ran.  The bashing comprised slapping on the face, sometimes using rulers or slide rulers.  He claimed that his fellow students who were Muslims were never beaten.

13                  The second matter concerned the appellant’s daughter, B1.  A member of the Revolutionary Guard had conceived a passion for her beginning around April 1999.  He began following her around and later telephoning her with proposals of marriage.  He visited her family home but was told by the son, S,  that B1 could not marry him because she was Sobbi (a term used for Sabian Mandaeans).  According to the appellant the man went to the mosque and claimed that B1 had accepted his proposal and that he was planning to marry her.  The appellant then suffered some harassment because his daughter planned to marry a Muslim.  B1 and another of her brothers complained about the man’s behaviour to the police but the police just laughed the matter off.  B1’s pursuer kept making demands by phone so in order to put him off she married her cousin, although they did not complete a religious wedding.  Subsequently her pursuer began throwing stones at the family house and continued to make phone calls.  On two occasions he tried to make the daughter get into his car but she refused.  In October 1999, B1 left the craft school she had been attending and went to Australia early in 2000.

14                  At the time that B1 went to Australia the appellant’s wife was already there visiting one of the other children.  When she returned she came back to the family home and the daughter’s suitor continued to throw stones at the house, make telephone calls and send letters.  The appellant told the Tribunal that the suitor said in the letters that he loved their daughter, asked why he had been denied her and threatened to get revenge.  In the course of his telephone calls he asked why they hadn’t given him their daughter. 

15                  About three months before the appellant and his wife left for Australia three men, two of whom were armed, had come to the front door of their home at 1.30am and inquired about the whereabouts of B1.  The appellant refused to tell them of her whereabouts.  The intruders then threatened to take his wife.  They forced the appellant into a bedroom and abducted his wife.  The appellant said he saw them lead her away blindfolded.  He could get no assistance.

16                  The appellant’s wife told the Tribunal that when she was abducted she had been taken to a place where she had been beaten and had her hair pulled.  She had also been sworn at.  She claimed that eventually she had lost consciousness.  She said she was not given any food.  The following night she was taken home unconscious and, according to the appellant, still blindfolded.  She told the Tribunal that she was afraid she would be shot by the man who wanted to marry her daughter because she is Mandaean and he a Muslim who wanted her daughter to convert and to marry him. 

17                  The appellant’s wife told the Tribunal that when she was abducted she had been beaten because she refused to say where B1 was.  She was afraid she would be killed if she were to tell them that her daughter was in Australia.  She said she had received telephone calls asking about the whereabouts of her daughter.  Threats had been made to send her to heaven.  She also claimed she had received anonymous letters saying that if she didn’t give the writer her daughter, the family would be killed.

18                  The third matter concerned the marriage of the appellant’s son S to a Muslim woman.  S made a written statement on 7 April 2001 which was evidently in support of his own application for a protection visa but was included in the materials before the Tribunal in connection with the appellant’s application.  In that statement S described himself as a 27-year-old Iranian citizen of Sabian Mandaean religion.  He said that before coming to Australia he had worked as a telephone operator at a hospital in Iran.  He used to live with his parents who looked after him as he is blind.  He said that he relies on his parents for physical support. 

19                  S said he was working at a hospital in Ahvaz as a telephone operator when he fell in love with a girl who was also working there.  They decided, evidently in the first part of 2000, that they would get engaged.  He asked her if she was concerned about his religion.  She told him she wanted to marry him and was not concerned about his religion.  At first their relationship was confidential.  For a year not even their families knew.  Eventually they went to the marriage registry office in Ahvaz.  However the Mullah there laughed at them and told the woman that she was shaking the foundations of the Islamic religion.  He told her she could not marry S unless he became a Muslim.  According to S the Mullah at the registry office had obtained their details and as a result both of them were dismissed from their jobs.  They were rebuked for having a relationship.  Because the relationship was now out in the open, according to S, they were no longer safe.  S’s father, the appellant, was told by people from the Imam’s Office to tell S that he had to give an undertaking not to see the girl again or he would be killed.  S said in his statement that because their relationship was unlawful in the eyes of Islam they would be stoned if they were caught continuing in it.  However he said they were too much in love to break up and would no longer stay in Iran. After arriving in Australia S and the girl were married.  

20                  The implications of S’s marriage to a Muslim for the appellant and his wife was also raised in materials which were before the Tribunal.  In the initial unauthorised arrivals interview the appellant was asked whether he had any reasons for not wishing to return to his country of nationality.  The recorded answer was:

‘Because my life is in danger, thats why I cant go back.  Cause all the problems we had, we left Iran for the same reason we cant go back.  The fact is that my son is engaged to a Muslim girl is a problem too we may be stoned to death if its found.’ (sic)

In her first post-arrival interview the appellant’s wife was asked why she had left Iran and in her answer she said:

‘… and the third problem is the fact that this Muslim girl met my son in the hospital, fell for him …’

21                  The statement made by S on 7 April 2001 was enclosed with a letter dated 14 September 2001 to the Tribunal from the appellant’s migration agent.

22                  The appellant himself gave oral evidence about the implications of the marriage at the Tribunal hearing on 25 October 2001.  In the course of that evidence the appellant told the Tribunal that he had been threatened by the ‘Friday prayer Imam’ that if S did not become a Muslim he would be stoned.  The appellant added:

‘They said that we will stone his father.  Sir, they are going to stone us.’

The appellant repeated to the Tribunal that S and his daughter-in-law had both been working in the hospital and had both been dismissed from their jobs and were being pursued.  Asked by the Tribunal how this situation affected him, the appellant said:

‘When they can’t find the son, they will arrest the father.  If they can’t find them, they took me.’

He was asked who would be threatening him.  He replied:

‘It was from the office of the Imam of the Friday Prayers.  They had sent somebody from the Imam’s office.’

23                  Later on in the course of the hearing, the Tribunal asked the appellant who he thought would harm him if he went back to Iran.  He said:

‘The fact that they would kill us is obvious.  One is that because of my daughter and the other one is because of my son.’

He was asked who would kill him.  He said:

‘They are Moslems.  They are from the Imam’s office.  They are from the Imam’s office, and they kill my wife and I and the two children….’. 

24                  At the end of the hearing the Tribunal asked the appellant whether there was anything he wanted to say before the hearing finished.  He said:

‘But I don’t want to, you know, repeat whatever I have said so far; but whatever you think is the best considering the fact that the problem that I have with a Moslem daughter-in-law with one of my son who married Moslem, and considering the problem – difficulties that these people they face, then make a fair decision.’

25                  The appellant’s wife also gave evidence about the effects of S’s marriage.  She was asked who she thought would kill her if she went back to Iran.  She said, inter alia:

‘The mullah – those who are after my daughter and my son.  They will kill us…’

She repeated her claim that the Mullahs were chasing her daughter and her son and they would kill her and the appellant.  Asked again for what reason people would want to kill her she said:

‘Because they wanted our daughter and we denied them that.  They also we took their girls, and my son took her away.  They will stone us, member, they will, stone all of us.’

26                  The same claim was made by the appellant’s eldest daughter, L, who said she thought her parents would be persecuted in three ways.  One was what she referred to as ‘S’s problem’.  The other was B1’s problem and also the situation of the youngest son, I. 

The Tribunal’s Reasons for Decision

27                  In its discussion and findings on the evidence, the Tribunal accepted that the appellant and his family members are nationals of Iran.  It also accepted that they have subjective fears of persecution but was not satisfied that those fears were well-founded.  The Tribunal said:

‘To summarise the reasons and conclusions, if (sic) finds that the Applicants embellished or fabricated aspects of their evidence, particularly those related to the abduction of the Applicant spouse and persecution of the children at school and, while it accepts that Mandaeans, including the Applicants, encounter some discrimination, it does not accept that the Applicants face a real chance of persecution for reason of their religion.  Nor does it conclude that the making of a refugee application gives rise to a real chance of persecution for reason of an imputed dissident political opinion, even when considered in combination with the Applicants’ religion.’

The Tribunal regarded some parts of the appellant’s claims as not credible.  It noted that the appellant had consistently stated that Mandaeans are constantly harassed in Iran and that they had initially focussed on the alleged abduction of the appellant’s spouse.  In the Tribunal’s view that claim was inherently implausible.  The Tribunal found it strange that the daughter’s suitor would so persistently pursue a non-Muslim given that he was a member of the Revolutionary Guard/Pasdaran.  It referred to country information in which volunteer members of the Pasdaran are described as ‘… the most devout defenders of the revolution …’.  They were likely to have some demonstrated religious or ideological  fervour because of the nature of the organisation. 

28                  Even assuming that B1’s suitor was besotted by her despite the indications that he may have been a ‘devout defender of the [Islamic] revolution’, the Tribunal did not accept that he harassed family members.  There was no claim that either of the two minor sons was the target of any threat.  The daughter had already been married in Iran and had subsequently been residing in Australia for a lengthy period at the time of the alleged abduction of the appellant’s spouse.  The appellant’s wife had visited her daughter in Australia.  The Tribunal regarded it as ‘odd’ that she would return from Australia in September 2001 if she and other family members had been harassed since her daughter left Iran in early 2000.  It was implausible that the daughter’s pursuer would not have known that she had left given that the appellant and his family had suggested he constantly monitored them and was a senior security official who could be expected to have access to information about people who had sought exit documents and had left the country.  It was not credible, in the Tribunal’s opinion, that the three alleged abductors came to the house to kidnap the daughter at the behest of her suitor and unexpectedly finding that she was not there took the appellant’s wife in her place.  Nor was it credible that the appellant and her spouse would not tell the men that their daughter was in Australia when they were allegedly threatened if they did not disclose her whereabouts.  Nor was it believable, in the Tribunal’s opinion, that the appellant and his wife would not have complained to the authorities that they were being stalked by the suitor, let alone that the wife had been abducted.

29                  The Tribunal characterised the problems confronting the appellant and his wife as not legal problems but criminal matters.  The Tribunal said:

‘It is not credible that the Applicant and his spouse would fail to report her abduction, particularly as they claim to know the instigator of that offence, and the Tribunal is satisfied that they would have received proper protection.  Nor is it plausible that, if the suitor was constantly harassing them, they would not have sought to leave the country.  They have a history of visits to Australia and free exit from and re-entry to Iran, so there appeared no reason they could not make arrangements to leave in the face of the constant harassment.’

The Tribunal eventually concluded that while some harassment was directed at the daughter while she was in Iran and that this affected other family members, it was not satisfied that the appellant and other members of the family were subsequently harassed by the unhappy suitor.  The claimed fears that the appellant and his family would be shot or otherwise harmed by the rejected suitor had no Convention nexus.  The claimed aim of the harassment was to force the appellant and his wife to let their daughter marry him.  His objective was not to harm them on account of their Mandaean religion, but to place pressure on their daughter.   This was not related to the Refugee Convention.  The Tribunal said:

‘In summary, the Tribunal does not accept that the Applicants have been persecuted by the rejected suitor in the past and, given the passing of time since their daughter married and came to Australia, it concludes that there is not a real chance that they will be persecuted by him in the reasonably foreseeable future.  In any event, the alleged persecutor is not motivated to harm the Applicants for reason of their religion but for personal reasons that are unrelated to the Refugees’ Convention.’

30                  The Tribunal then noted that the focus of the appellant’s claims shifted to the possible persecution of I at the review stage on the basis that he had been personally attacked and persecuted in the past because of his religion and that there was an ongoing likelihood of further persecution in the future.  The Tribunal accepted that he had cut his arm at school and that it was plausible that this arose as a consequence of being teased because of his religion.  If this was so, the Tribunal was satisfied that the incident was a one-off incident that did not indicate that I faced a real chance of persecution for reason of his religion if he returned to Iran.  The Tribunal was satisfied that I, his brother and his parents had exaggerated and fabricated the school experiences of I and Y.  A number of other aspects of claims relating to the persecution of I and Y were rejected by the Tribunal.  It said:

‘In summary, the Tribunal does not accept that the school experiences of either [I] or [Y] have been faithfully represented.  It is not satisfied that the acceptable aspects of the claims related to those experiences provide a basis to conclude that [I] or other family members face a real chance of persecution for reason of their religion, even when considered in combination with the claims about harassment of other family members and the general information about Mandaeans in Iran, discussed below.’

There was then some extensive reference to country information about the position of Mandaeans in Iran. 

31                  The Tribunal found that Mandaeans have historically been recognised by Muslims in Iran as ‘people of the book’ but that the protection flowing from that recognition was curtailed in the early 1980s.  It agreed that the Mandaeans did not constitute a ‘legal’ religion in the sense that they could operate their own schools for example.  However they had at least been recognised as a minority religion in the past and their status partly restored since President Khamenei had issued a favourable fatwah in more recent times. 

32                  The Tribunal accepted that I and Y encountered some harassment at school but was of the view that these claims had been exaggerated and that the harassment was not of sufficient seriousness to amount to persecution.  It accepted that access to government employment and university education was restricted for Mandaeans but noted that the appellant was able to pursue a successful livelihood as a jeweller and able to employ Y and continue to earn sufficient income to fund a trip to Australia for his wife, presents for his daughters and the final journey to Australia for five family members.  Although the restrictions on employment and study were discriminatory, the Tribunal noted that the appellant and his family were able to pursue a successful livelihood.  It was not satisfied that work and study restrictions constituted such serious harm as to amount to persecution. 

33                  The Tribunal then went on to consider general complaints of discrimination against Mandaeans in Iran and the contention that the appellant might suffer difficulties if returned to Iran, having regard to his claim for refugee status in Australia.  It rejected this contention.

34                  The Tribunal made no express reference in its discussions and findings to the claimed fears of persecution arising out of the marriage by S to a Muslim woman.  It did make reference to the appellant’s contention in the course of its overview of what it called ‘the applicant’s case’.  In that overview the Tribunal said:

‘The Applicant conceded he had once visited Australia and that his spouse had made three previous visits to Australia.  In response to the Tribunal’s comments that their return to Iran on each occasion suggested they did not fear persecution because they are Mandean, the Applicant’s spouse responded that they had no personal problems other than the problems caused by [B1’s] suitor and [S’s] marriage to a Muslim.  In regard to [S], the Applicant explained that [S] went to the Imam’s office to register his intention to marry and that act provoked the Imam’s officers into threatening to arrest him.’

Further in its reasons the Tribunal said:

‘The Applicant and his spouse both told the Tribunal they feared they would be killed by Muslims from the Mullah’s office because of [B1] and [S].’

These were the only references in the reasons to the contentions about S and the Tribunal made no express finding on it.  After referring to extensive country information it encapsulated the appellant’s claims thus:

‘The Applicants have put forward various claims about the sexual humiliation of [I] and [Y] abduction of a Mandaean woman and the seeking of forced conversion to Islam.’

In its concluding paragraph, the Tribunal said:

‘In all of the circumstances, the Tribunal finds that the Applicant spouse’s claim about her abduction was fabricated and that claims the family was harassed by [B1’s] rejected suitor have also been contrived or broadly embellished.  Similarly, the claims regarding the school experiences of the minor Applicants have been embellished, although it is plausible [I] was injured in an accident that arose from some teasing about religion.  The Tribunal accepts that the Applicants are members of a minority religion but it is not satisfied that they have any well founded fears of persecution for reason of their religion.  Nor do they have well-founded fears of persecution for reason of political opinions that might be imputed to them because they have applied for refugee status in Australia.  In the absence of other Convention-related claims the Tribunal is not satisfied that they are persons to whom Australia has protection obligations and it finds that they do not meet that criterion for the purposes of the grant of a protection visa.’

The Reasons for Judgment of the Learned Federal Magistrate

35                  Raphael FM set out the grounds upon which the appellant sought review of the Tribunal’s decision which were expressed in general terms and without particulars.  However his Honour identified the appellant’s claim that he and his family were members of the Sabian Mandaean community and that as members of that community his family suffered particular hardships.  The ‘particular hardships’ referred to was actually a summary of the matters upon which the appellant relied before the Tribunal as giving rise to his well founded fear of persecution.  One of these matters was summarised thus by his Honour:

 ‘(e)     An older son who travelled to Australia with the [appellant] on the boat had married a Muslim women which caused ill feeling and, the [appellant] believed, great danger to him.  The son and his wife have now been accepted as refugees in Australia.’

His Honour noted that the Tribunal did not accept the appellant’s story about the abduction of his wife and it found that he had embellished or fabricated evidence and that in certain regards his allegations were not believable. 

36                  Because the appellant was unrepresented the learned magistrate considered the whole of the Court Book and the Tribunal’s decision. 

37                  He considered whether or not any ground of want of bona fides emerged from the Tribunal’s reasons for decision on the basis of pre-judgment of the case.  This possibility emerged from an observation by the Tribunal in its reasons that it had observed a similarity in many cases brought by Mandaean applicant’s in detention.  His Honour however was not prepared to make any finding of prejudgment grounding want of good faith on the part of the Tribunal.  His conclusions in this respect are not under challenge.  His Honour however expressed concern about the absence of any discussion by the Tribunal of the effect of S’s marriage to a Muslim woman.  He quoted a sentence in the Tribunal’s reasons in which it referred to the appellant and his spouse telling the Tribunal that they feared they would be killed by Muslims from the Mullah’s office because of B1 and S.  His Honour went on:

‘18.  This matter is not then referred to again or mentioned in the discussion and findings.  That section of the decision deals at great length with the abduction claim, claims in respect of the younger son at his school and the general claims of persecution as a Mandaean minority.  The concern about his son’s marriage completely falls away.’

Referring then to the last paragraph of the Tribunal’s reasons, his Honour said:

‘This failure to take into account what the [appellant] sees as a very important fear of persecution which arises out of inter-marriage would be a matter that would enliven the court’s power to overturn the decision of the Tribunal and refer the matter back to be heard according to law.’

His Honour concluded that the Tribunal not only ignored relevant material significant to the appellant’s claims but failed to address and deal with how the claim was put to it.  He said:

‘To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked upon.’

He cited Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42] per Allsop J (Spender J agreeing).

38                  His Honour then considered the effect of the privative clause, s 474 of the Migration Act 1958 (Cth).  He had delayed giving judgment pending the decision of the Full Court in NAAV v Minister for Immigration and  Multicultural and Indigenous Affairs (2002) 193 ALR 449.  Having regard to the majority reasoning in NAAV his Honour concluded that the decision of the Tribunal was outside the scope of judicial review and he was therefore obliged to dismiss the application.  This decision of course was handed down prior to the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 which held, in substance, that s 474 did not preclude judicial review based upon jurisdictional error – see the recent discussion in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 and the cases there referred to.

The Grounds of Appeal

39                  The grounds set out in the Notice of Appeal are as follows:

‘1.        His Honour erred in holding that, notwithstanding that the decision of the Refugee Review Tribunal (“the Tribunal”) affirming the decision not to grant protection visas to the Appellant, his spouse and two children involved jurisdictional error, section 474 of the Migration Act 1958 takes the decision of the Tribunal outside the scope for review and obliged his Honour to dismiss the Appellant’s application.

2.         His Honour erred by not allowing the Appellant’s application for review of the Tribunal’s decision on the ground that the decision of the Tribunal affirming the decision not to grant protection visas to the Appellant, his spouse and two children involved jurisdictional error.’

Notice of Contention

40                  The respondent Minister filed a Notice of Contention seeking to affirm the judgment of the learned Federal Magistrate on the following bases:

‘2.        The Respondent contends that his Honour should have held (contrary to the finding in paragraph [22] in the judgment below) that the Refugee Review Tribunal did not fail to consider all the claims made by the appellant or complete the exercise of jurisdiction embarked upon.

3.         The Respondent contends that his Honour should have held that the Refugee Review Tribunal did not fall into an error of law which caused it to ignore relevant material and did not commit a jurisdictional error.’

Whether the Tribunal Made a Jurisdictional Error

41                  The effect of the decision of the High Court in Plaintiff S157 is that s 474 of the Migration Act does not operate to bar judicial review of decisions under the Act where jurisdictional error is alleged.  The debate on the hearing of this appeal understandably therefore focussed on the issue raised by the Notice of Contention namely whether there was jurisdictional error on the part of the Tribunal.

42                  Section 414 of the Migration Act requires that, if a valid application is made under s 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.  There was in this case a valid application for review of an RRT-reviewable decision. 

43                  The Tribunal is empowered by s 415(1) of the Act ‘for the purposes of the review of an RRT-reviewable decision’ to ‘exercise all the powers and discretions that are conferred by this Act on the person who made the decision’.  The Tribunal may, under s 415(2), affirm the decision, vary it, remit it for reconsideration or set it aside and substitute a new decision.  If the Tribunal fails to discharge the obligation to review the decision and then purports to affirm it the decision to affirm it would be vitiated by jurisdictional error. 

44                  It is central to the exercise of the dispositive powers conferred by s 415 that the Tribunal has first conducted a review.  That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself.  So much is contemplated by ss 423, 424, 425 and 426 of the Act.

45                  In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:

‘… a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;’ (s 36(2)(a) read with s 415(1))

The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons.  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. 

46                  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.  It may be that some evidence is irrelevant to the criteria and some contentions misconceived.   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 (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at  [87]-[97]) 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. The Tribunal is not a court.  It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications.  Each of the applications it decides is, of course, of great importance.  Some of its decisions may literally be life and death decisions for the applicant.  Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’.  Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47                  The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

48                  In the present case it was clearly a significant element of the appellant’s application before the Tribunal that the marriage of his son S to a Muslim woman would have repercussions for him and his wife upon their return to Iran.  It was clear also that he was contending that these repercussions would amount to persecution for a Convention reason.  That is to say the religion of S and his wife.  The contention was advanced in the wider context of general attitudes to members of the Sabian Mandaean religion by Muslim people in Iran. 

49                  The material put before the Tribunal on the son’s intermarriage issue and the contentions advanced in respect of it went directly to the criterion for the grant of a protection visa set out in s 36.    While the Tribunal recounted the appellant’s claims on this issue early in its reasons, its failure to consider the evidence and the contention leads to the inescapable conclusion that it failed to address the issue. 

50                  It was submitted for the respondent that the intermarriage issue was somehow subsumed in the generality of the Tribunal’s finding that, although the applicant would be subject to some discrimination if he returned to Iran, the discrimination would not amount to persecution and that proper protection would be forthcoming from the authorities in Iran.  In this connection the respondent cited a passage from the joint judgment of McHugh, Gummow and Hayne JJ in Yusuf  at [91] where reference was made to ‘a finding at a higher level of generality than the question of specific incidents’.  Such findings it was said could well explain why a decision-maker would make no detailed finding about a particular incident.

51                  It was submitted for the respondent that the Tribunal in this case at most failed to attend to evidence and so committed a factual error which did not amount to a failure to deal with the appellant’s claim for protection based on religious belief.  That is to say, the error made by the Tribunal was not, despite the characterisation adopted by the learned magistrate, a jurisdictional error.  Any failure of the Tribunal to have regard to the evidence about the repercussions said to have been caused by S’s marriage was not a consequence of or caused by an error of law on the part of the Tribunal.

52                  We respectfully disagree with this contention.  As appears from the review of material put before the Tribunal, the failure by the Tribunal to consider the evidence about S’s marriage and the repercussions flowing from it and the contentions based on that evidence, amounted to a failure to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied.  The Tribunal therefore in our opinion, failed to discharge its duty of review and made a jurisdictional error.

Conclusion

53                  For the foregoing reasons the appeal should be allowed, an order in the nature of certiorari should be made setting aside the Tribunal’s decision and an order in the nature of mandamus made requiring the Tribunal to determine the case according to law. 

Associate:

Dated:              15 August 2003