FEDERAL COURT OF AUSTRALIA

W41/01A v Minister For Immigration & Multicultural Affairs [2001] FCA 742

MIGRATION – protection visa – whether tribunal decision affirming rejection of application in error of law – whether tribunal failed to observe proper procedures – whether tribunal failed to apply the applicable law – whether tribunal under duty to inquire – relevance of exceptional findings made by tribunal in favour of applicants

Migration Act 1958 (Cth) s 476

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 followed

Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 referred to

Li v Minister for Immigration & Multicultural Affairs (1999) 96 FCR 125 not followed

Li v Minister for Immigration & Multicultural Affairs (No 2) [2000] FCA 122 not followed

Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 cited

Anthonypillai v Minister for Immigration & Multicultural Affairs [2000] FCA 1368 cited

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 referred to

Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 cited

Minister for Immigration & Multicultural Affairs v Amani [1999] FCA 1040 referred to

Ahmed v Minister for Immigration & Multicultural Affairs [1999] FCA 359 referred to

Saadik v Minister for Immigration & Multicultural Affairs [1999] FCA 825 cited

Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 cited

Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 cited

Candyah v Minister for Immigration & Multicultural Affairs [2000] FCA 869 cited

Gill v Minister for Immigration & Multicultural Affairs [2000] FCA 1057 cited

Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 cited

Kabir v Minister for Immigration & Multicultural Affairs [2001] FCA 248 cited

Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 169 cited

W41/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 41 of 2001

RD NICHOLSON J

20 JUNE 2001

PERTH

THE COURT ORDERS THAT:

1.                  The application for review be dismissed.

2.                  The applicants pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     This is an application by a father (and also his daughter) who are citizens of Iran, for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 December 2000.  That decision affirmed the decision of a delegate of the respondent not to grant protection visas (Class AZ) to the applicants. 

Relevant legislation

2                     Under s 36(2) of the Migration Act 1958 (Cth) (“the Act”) a non-citizen in Australia is eligible for a protection visa if that person is someone: “… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”  The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967.  The expression “Convention” will be used to mean the Convention as amended by the Protocol.

3                     Article 1a(2) of the Convention defines a “refugee” to be any person who:

“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

Background circumstances

4                     As outlined in the reasons of the Tribunal the following are the background circumstances.  The applicant father is a 46 year old divorced male.  He completed approximately 10 years of education in Iran.  He speaks, reads and writes Farsi and also speaks some German.  From 1971 to 1974 he served in the Iranian Army.  From 1974 to 1978 he worked as a guard at an oil company.  From 1978 to 1980 he was a guard for the then president of Iran, Mr Bani-Sadr.  From 1980 to 1986 he ran his own business in Iran.  In 1986 he travelled to Germany with his daughter to seek refugee status, which was granted.  His most recent German UN travel document was issued in Trier, Germany on 21 November 1994 and expired on 20 November 1996.  He travelled to Australia on a visitor visa which was valid until 2 April 1997.  He arrived in Australia on 5 October 1996.  His four brothers are permanent residents in Australia.  His mother is also in Australia.  His father was in Australia but has since passed away.

5                     The applicant daughter is a 19 year old single woman as at the time of the decision of the Tribunal.  She arrived in Australia on 10 August 1996. 

6                     The applicant father claimed that, partly due to his former close relationship to the former President of Iran, and partly because the former President used the applicant father as an internal contact in his dealings with the fledgling internal opposition, he became an enemy in the eyes of the Iranian regime.  He claimed that numerous attempts were made on his life and he felt threatened by possible arrest and torture.  He claimed to have fled Iran through the Turkish border.

7                     The applicant father claimed that whilst in Germany he had observed many instances of assassination, threats to other peoples’ lives and his own by what the Iranian community in Germany regarded as Iranian agents.  Things came to a head when he received information and later saw that an Iranian friend’s flat had been bombed.  He was warned that Iranian agents were on their way to his house and he saw them getting out of a vehicle.  He and his daughter escaped and stayed in hiding until they left Germany on a visit to Australia.  He also claimed that he and his daughter frequently endured racial abuse and discrimination.

8                     The applicant father claimed that he could not return to Iran because after his departure his whole family had become embroiled in politics as a result of his political activity.  He believes he would be imprisoned and tortured or even killed.  He also believes he is no longer safe in Germany where he had been involved, with others, in printing and distributing an Iranian oriented newspaper and because of a network he had established in smuggling leaflets into Iran.  He claimed his fear was well-founded because he saw many people in Germany assassinated by Iranian undercover agents. 

9                     The applicant daughter made additional claims to those of her father.  She claimed she was 3 years (later revised to 4 years) of age when she and her father had to leave Iran because of her father’s political involvement.  She loved Australia because all of her family lived here.  She had finished high school and hoped to join the Australian Air Force if she gained permanent residency and had done work experience to that end. 

10                  In relation to Germany, the applicant daughter claimed that there was always dissent between her and German children because she was a foreigner.  Things had got worse when she reached high school.

11                  At the Tribunal hearing the applicant father indicated some of his written claims were untrue.  He said he had applied for citizenship in Germany but did not wait for the result of that application.  He claimed that he and his daughter did not have German citizenship.  He had been told that he had to go to the Iranian Embassy to declare he was no longer a citizen of Iran and he had done this.  About 1995 he had signed a document stating that he renounced his Iranian citizenship and his daughter signed the same document.  However, he and his daughter were required to go back to the Iranian Embassy to continue with the process but they had not done so. 

12                  The applicant father said he did not want anything more to do with Germany.  He wanted to stay in Australia because he and his daughter were happy here and she had achieved a lot, whereas in Germany she had suffered considerable hardships.  Neither he nor his daughter held Iranian passports because they handed them over to the German authorities when granted refugee status in Germany. 

13                  At the hearing the applicant daughter said that she believed that if she returned to either Iran or Germany she would not be able to find a job nor would she be able to continue her education.  Her father pointed to her successful progress in education, sport and in the cadets.

14                  Information was also tendered to the Tribunal indicating there was still a significant problem with racism in Germany. 

15                  The father is presently employed in security work in Australia.  He claimed that he and his daughter would be useful members of Australian society.

Tribunal’s findings

16                  The Tribunal made the following findings:

1.                  As to the reasons why the applicants left Germany the Tribunal found as follows:

“On the basis of the evidence presented by the applicants at the Tribunal hearing, the Tribunal finds that the reason the applicants left Germany to travel to Australia was mainly because they were lonely in Germany without their family and because they thought that Australia would present more opportunities for the applicant daughter in terms of sporting participation, education and employment.  The applicant father’s parents and all of his brothers, along with each of their respective families, all lived in Australia and mostly in and around Perth.  The applicants travelled to Australia to be reunited with their family.  The applicant daughter has formed particularly close bonds with her cousins in Australia.  She has also been able to excel in sports and in her education.  Although these personal reasons were the applicants’ main reasons for leaving Germany, the Tribunal notes that they also expressed some fear of terrorists and Nazi groups in Germany.”

2.                  On the question of whether or not the applicants still retained Iranian citizenship the Tribunal found as follows:

“Independent evidence before the Tribunal … indicates that there is a strict procedure involved in renouncing one’s Iranian citizenship.  It involves the filling in of forms, various checks including a check on military service obligations, a transfer of any property held in Iran to an Iranian national, and authorisation by the Iranian Cabinet.  It is clear to the Tribunal that the applicants’ application involved only the very first step.  The applicant father told the Tribunal that he and his daughter were invited back to the Iranian Embassy to attend to further procedures but they did not go through with this. 

…

On the basis of the independent evidence before the Tribunal and the applicant father's oral evidence, the Tribunal is satisfied that the applicants have not completed the process of renouncing their Iranian citizenship.  The Tribunal is satisfied that they still hold Iranian citizenship even though they no longer hold Iranian passports.  The Tribunal is also satisfied, on the basis of the evidence before the Tribunal (in particular, the applicant father’s oral evidence), that the applicants do not hold German citizenship.  The applicants’ country of nationality is therefore Iran.”

3.                  As to the applicant daughter:

“The applicant daughter was an infant when she departed with her father.  She has no independent claims against Iran and relies on her father’s claims.”

4.                  As to the claims of the applicant father:

“On the basis of the oral evidence given by the applicant father to the Tribunal, the Tribunal finds that, although the applicant father was questioned on a couple of occasions by the authorities between 1980 and 1986, and although he hated the regime, he remained safe, was able to run a transport business and was not subjected to persecution.  The Tribunal finds that the applicants left Iran in 1986 because of the chaos which was evident throughout the country as a result of the eight year Iran-Iraq war which lasted until 1988.  While the applicant father claims to have feared harm at the hand of the Hezbollah, no harm ever actually befell him in the five years between him ceasing to work for Bani-Sadr and his departure from Iran.  The Tribunal would have expected that if he were ever to be targeted by the Hezbollah because of his links with Bani-Sadr this would have happened closer to the time that Bani-Sadr fled Iran (1981) and not later.  The Tribunal is not satisfied, therefore, that the applicant father’s concerns about the Hezbollah harming him in 1986 for reasons of his association with Bani-Sadr were well-founded.”

5.                  Concerning the position which the applicants would face if they were to return to Iran:

(a)               “It appears that only those who have had a high opposition political profile while abroad or those wanted by the authorities for high profile opposition political activities in Iran prior to their escape and members of those political groups (especially the Mujahideen-e- Khalq (or MKO)) still engage in armed conflict against the regime’s interests would face real difficulties, if returned to Iran.  The applicants do not fall within this category of people.  There is no evidence before the Tribunal to satisfy it that former employees or supporters of Bani-Sadr face a risk of persecution in Iran today.”

(b)               “The Tribunal is, furthermore, not satisfied that the applicants were involved in any activities in Germany which would cause them to fear persecution upon return to Iran.  The applicant father told the Tribunal that he sometimes cut out newspaper articles in Germany and sent them to a friend in Iran.  However, there is no evidence before the Tribunal to satisfy it that this very low-key activity would have come to the attention of the Iranian authorities, nor that the authorities would have any interest in the applicant father because of this activity.  Furthermore, the applicant father’s occasional contact with Bani-Sadr in Europe was of a very personal and low-key nature.  The Tribunal is not satisfied that this contact with the former president would be of any interest to the Iranian regime.”

(c)               “Furthermore, there is no evidence before the Tribunal to suggest that a person of the applicant father’s profile would be of any interest to the Hezbollah now or in the reasonably foreseeable future.  The Tribunal notes, in particular, the lengthy passage of time since the applicant father worked for Bani-Sadr (around 19 years) and the lengthy period of time since the applicants departed Iran (14 years).  The fact that they have been away for so long suggest to the Tribunal that very few people in Iran would have any memory of them, nor have any knowledge that the applicant father was ever a former employee of the former president, Bani-Sadr.”

(d)               “The Tribunal accepts that life will be extremely difficult for the applicants if they were to return to Iran.  This is particularly so for the applicant daughter who has grown up in western nations and knows very little of life in the Islamic Republic.  While she speaks some Farsi, she reads very little.  The applicant daughter has expressed concerns about not being able to find a job in Iran and being unable to continue her education.  However, the applicant daughter has already received a basic education so any inability to further her education would not, in the Tribunal’s view be serious enough to amount to persecution.  Her claims about being unable to further her education are, in any case, speculative and there is in fact no evidence before the Tribunal to satisfy it that the applicant daughter would not be able to further her education if she returned to Iran.  While the applicant daughter may have concerns about her future employment prospects in Iran, this is also just speculation as she does not at this stage have any information about her employment prospects in Iran. The Tribunal notes, however, that she is an intelligent young woman who speaks several languages.  There is no evidence before the Tribunal to satisfy it that the applicant daughter will be unable to obtain employment in Iran.  While life may be initially difficult for the applicant daughter in Iran, the Tribunal is not satisfied, on the basis of the evidence before the Tribunal, that these difficulties give her a well-founded fear of persecution in Iran for a Convention reason.”

(e)               “In light of the evidence before it, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future in Iran”

6.                  Concerning Germany:

“As the Tribunal has found that the applicants are Iranian nationals and do not have a well-founded fear of persecution in Iran, the Tribunal does not need to consider whether they have effective protection in Germany.  However, the applicants may have the option of returning to Germany if they do not wish to return to Iran.  This is something, however, which they would have to take up themselves with the German authorities.  The ability or otherwise of the applicants to return to Germany does not form part of the Tribunal’s decision.”

17                  The Tribunal concluded that it was not satisfied the applicants were persons to whom Australia had protection obligations under the Convention so that they did not satisfy the criterion set out in s 36(2) of the Act for a protection visa. 

Grounds of review

18                  The grounds of the application as stated in the amended application seek to invoke the provisions of s 476(1)(a) of the Act in relation to the failure to observe procedures and s 476(1)(b) of the Act in relation to what is said to have been an incorrect application of the applicable law by the Tribunal.  These grounds are particularised in relation to the Tribunal’s findings concerning the second applicant suffering persecution if she were to return to Iran and the Tribunal’s conclusion that the first applicant was of Iranian nationality. 

Whether second applicant would suffer persecution in Iran

19                  The first particularisation is that the Tribunal did not properly, genuinely and realistically consider the merits of the applicants’ claim for refugee status in that it made no decision or finding on the question of whether the second applicant would suffer persecution if she had to return to Iran because she is a western educated woman with only limited Farsi language skills.  This matter was the subject of the Tribunal’s findings set out above in pars 1 and 5(d) of the findings above.

20                  The submission for the applicants is that the issue was squarely raised in relation to the applicant daughter but had not been properly dealt with because the Tribunal was under an obligation to make further inquiries which it had not undertaken. 

21                  The case for the applicants is developed in the following way.  It is accepted that any duty to inquire cannot, because of the provisions of s 476 of the Act, be based on any ground of “reasonableness” or failure to take into account relevant considerations.  Likewise, it is accepted that any such duty cannot be based on s 420(2)(b) of the Act in light of the decision in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611.  Further, it is accepted that the preponderance of authorities states that s 427(1)(d) of the Act is permissive and does not create any duty on the Tribunal to inquire:  Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470.  Nevertheless, reliance is placed on dicta of Drummond J in Li v Minister for Immigration & Multicultural Affairs (1999) 96 FCR 125 at [66] and Li v Minister for Immigration & Multicultural Affairs (No 2) [2000] FCA 122 at [8] where Drummond J said (in the latter case) “the unexplained failure by the Tribunal to seek out information as the Tribunal itself identified as of importance to its decision, in my opinion, amounts to a failure to follow the inquisitorial procedures it is required to follow.  Such a failure amounts to reviewable error within s 476(1)(a).”  In short the submission is that when a tribunal undertakes a review it sometimes requires it to seek out information and a failure to do so constitutes a failure to carry out its proper function.  In other words the nature of the inquisitorial function may in some circumstances require something more than acting on the case presented by the party.  It is said that the relevant test is whether the proper execution of the Tribunal’s function requires the necessary steps to be taken.  This approach of Drummond J is said to receive support from the judgment of Merkel J in Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 at 387 – 388.  Specifically it is said that in relation to the Tribunal finding set out above in par 5(e) it would have been a simple exercise for the Tribunal to obtain further information on employment, education and other matters relevant to the second applicant as a western educated woman with limited Farsi skills.  Alternatively, it is argued, if that is not the case, the second applicant’s position was dealt with in such a way that there was a failure to give a proper genuine and realistic consideration to it upon the merits:  Anthonypillai v Minister for Immigration & Multicultural Affairs [2000] FCA 1368 at [12] – [14].

22                  For the respondent it is accepted that the duties of a tribunal may, if the legislature chooses, include a duty to make inquiries.  However, it is said the more elaborate the provisions, the more compelling the inference that whatever was omitted was omitted so as to exclude the duty suggested.  Here it is said that the length, complexity and general nature of the scheme of the Act, coupled with the omission of any express duty such as the one for which the applicants contend, militates against the appropriateness of applying such a duty.  It is submitted that older authority such as Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 and Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 651 (decided on s 420 before the High Court’s decision in Eshetu) suggested that any such duty would arise only in rare cases.  In Minister for Immigration & Multicultural Affairs v Amani [1999] FCA 1040, Lee J left open the issue of whether there was such a duty, taking the view that, if there was, it arose only in the circumstances identified by Wilcox J in Prasad.  Similarly, Hely J seemed to accept, in Ahmed v Minister for Immigration & Multicultural Affairs [1999] FCA 359, that there might be rare cases importing such a duty.  Even accepting that such a duty may be implied in exceptional circumstances, it is said that more recent authorities have generally refused to and have spurned attempts to read duties to inquire into particular sections of the Act, in particular ss 425 and 427:  Saadik v Minister for Immigration & Multicultural Affairs [1999] FCA 825; Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 at [18] – [23]; Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 at [29] – [32]; Anthonypillai v Minister for Immigration & Multicultural Affairs [2000] FCA 1368 at [13] – [15]; Candyah v Minister for Immigration & Multicultural Affairs [2000] FCA 869 at [32] – [38]; Gill v Minister for Immigration & Multicultural Affairs [2000] FCA 1057 at [12] – [14]; Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [42] – [44]; Kabir v Minister for Immigration & Multicultural Affairs [2001] FCA 248 at [50 – [56].  It is submitted that the decisions in Li are against the preponderance of authority and are wrongly decided.  It is also said that those decisions were expressly not followed in Anthonypillai at [13]:  see also Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 169 said to have expressly not been followed in Kibir. 

23                  I do not consider that this is an instance in which it can be said that the circumstances were such that a duty rose upon the Tribunal to make inquiries in the manner in which the applicants’ submissions suggest.  These concerns did not form part of the applicants’ case in respect of the applicant daughter in terms of the basis of a well-founded fear for a Convention reason.  There was no claim that the applicant daughter had any fear of the nature described in this ground.  Not only was it not suggested that the applicant daughter did not have the relevant fear, but there was no claim that such a fear came from the Iranian regime.  Nor was it suggested that her sex would give rise to the perceived fear or that her western education would do so.  The only fear expressed was the fear of wasted potential which is not a relevant fear for Convention purposes.  Absent the expression of any relevant fear, no duty to inquire could arise.

24                  In my opinion neither in relation to s 476(1)(a) or s 476(1)(e) of the Act is the particularisation relating to the applicant daughter made out. 

Whether finding of Iranian nationality made improperly

25                  For the applicants it is contended that the finding of their Iranian citizenship (seen above in finding 2), was the product of pure speculation on the part of the Tribunal and lacked any proper foundation.  I am unable to accept this submission.  The country information before the Tribunal emphasised that such citizenship requires formal renunciation and that the procedure for abandoning it is rarely implemented.  The applicant father’s claim to the Tribunal was that he and his daughter were required to go back to the Iranian Embassy to continue with the renunciation process but they did not do so.  No error of law can be made out in terms of either of the two paragraphs of s 476 relied upon.

26                  In further support of this ground it is particularised that the Tribunal did not consider whether, in the event that the applicants had no nationality, they would suffer persecution if they had to return to Germany.  There was, however, no need for the Tribunal to consider this issue in view of its finding that the applicants were Iranian nationals.  Furthermore, there was no suggestion on the evidence or in any other way that the applicants held a fear of persecution for the reason mentioned in this sub-ground. 

Conclusion

27                  For these reasons I consider that the application for review should be dismissed.

Special addendum

28                  There is, however, one outstanding feature of the reasons of the Tribunal in this matter which must draw additional reference.  It is the comments and findings of the Tribunal concerning the nature of the applicants made in the Tribunal’s concluding observations as follows:

“The Tribunal notes that the main reason why the applicants wish to remain in Australia is that all of their family lives in Australia and they have formed particularly strong bonds with their family.  They have no family in Germany and are not in contact with any family members in Iran.  The applicant daughter has grown up in western countries.  She speaks fluent German and English and only a little Farsi.  She may experience personal hardships if forced to return to Iran.  Both applicants are extremely distressed at the thought of leaving their family behind in Australia and returning to either Iran or Germany.  The applicant daughter has blossomed under the Australian educational system.  She has worked hard and has received many good reports from her school and others who have been associated with her progress.  She has achieved a great deal with the Air Force Cadets and wishes dearly to join the Australian Air Force.  She has also had some outstanding achievements in her martial arts training, having won many medals at the state championship level.  There is no doubt that she would make a wonderful Australian citizen.  There is no doubt that the applicant father had done a wonderful job of raising his daughter under very difficult circumstances. 

However, the Tribunal’s role is limited to determining whether the applicants satisfy the criteria for the grant of a protection visa.  A consideration of their circumstances on other grounds is a matter solely within the Minister’s discretion.”

29                  It must be rare among the vast array of Tribunal decisions that such favourable findings are made in relation to applicants even though their case for review of the decision to grant them a protection visa has not succeeded.  Clearly, both in terms of their assumption of responsibilities in the Australian community and their personal growth and development (particularly that of the applicant daughter) within the Australian environment, it is open to conclusion that the applicants are potentially worthy Australian citizens, subject to their compliance with whatever migration controls are relevant in their case.  While it is apparent that they do not qualify for a protection visa and hence for admission as refugees, the findings of the Tribunal bring to mind that the provisions of s 417 of the Act by which the Minister may have a discretion to further consider their case.

30                  These findings of the Tribunal in relation to the applicants cannot assist this Court in the discharge of its function, which is to determine the application for review in relation to legal considerations which it is permitted to take into account by the Act.  However, the Minister’s function under the section would permit him to take into account the exceptional findings of the Tribunal in relation to these applicants.  I therefore draw attention to those exceptional findings and make the suggestion that it would be appropriate for them to be brought to the attention of the Minister for consideration as to whether it would be appropriate for him to exercise the powers in the above section or any other provisions which may be available to him to consider whether these applicants might otherwise qualify for admission to Australia.  Whether or not that occurs, of course, is entirely a matter for the Minister in the exercise of his discretion.

Associate:

Dated:              20 June 2001