FEDERAL COURT OF AUSTRALIA

W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398

MIGRATION - judicial review - Refugee Review Tribunal - well-founded fear of persecution - cumulative incidents of persecution alleged - whether considered by Tribunal cumulatively - whether error of law - jurisdictional error - failure to take into account relevant considerations - failure to observe procedures - inviting comment from applicant on matters of information - alleged disregard of request to take evidence from witnesses - alleged failure to set out findings - application dismissed.

Migration Act 1958 (Cth) s 424A, s 426, s 430(1), s 476

Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1

Craig v State of South Australia (1995) 184 CLR 163

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Paul v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 289

X v Minister for Immigration & Multicultural Affairs [2002] FCA 56

Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109

W352 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W352 OF 2001

FRENCH J

5 APRIL 2002

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant 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

Introduction

1                     The applicant who is an Iranian national was born in the town of Ahvaz in Iran on 16 August 1969.  He came to Australia by boat without lawful authority on 1 October 2000.  He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 8 March 2001.  A delegate of the Minister for Immigration and Multicultural Affairs refused to grant him a visa on 28 May 2001.  On 31 May 2001, the applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of that decision.  The Tribunal, on 27 July 2001, affirmed the decision not to grant a protection visa.  The applicant then filed an application on 9 August 2001 in this Court for an order of review of the Tribunal's decision.  The applicant takes issue with the Tribunal’s approach to the question whether he had a well-founded fear of persecution on account of all or any of his ethnicity, political opinion and religion, and in particular whether the Tribunal erred in law by failing to have regard to the cumulative effects of various incidents said to be of a persecutory character.  The applicant also raises the question whether, on account of its failure to take into account various relevant considerations, the Tribunal lacked jurisdiction to make the decision it did.  It is also contended that the Tribunal failed to comply with procedural requirements under which it was obliged to give notice to the applicant of certain matters which could affect its decision and to have regard to the applicant’s request that certain witnesses be called to give evidence to the Tribunal. 

Factual Background and Claims

2                     The applicant's father and mother are still living in Iran.  The applicant completed his high school education in 1988.  From 1988 until 1990 he underwent military service.  In 1991 he enrolled at a technical college in Ahvaz and in 1992 qualified as an electrician.  Between 1992 and 1994 he was employed by a firm called Water and Soil Engineering Co as an office clerk.  For four years thereafter he was unemployed.  In 1998, he obtained employment as an electrician with the Ahvaz Sugar Cane Co.  In submissions made to the Tribunal by his migration agent on 17 July, he was described as a thirty one year old Iranian male of Arab ethnicity and Shi'ite Muslim religious background. He is an industrial electrician.  His most recent employer was the Ahvaz Sugar Cane Co, which is a government-controlled company.  It is the largest sugar company in Iran.  The plant at which he was working was the subject of particularly tight security as it was frequently visited by high-ranking officials.

3                     It was submitted for the applicant that as an Arab and a non-practising Muslim he was under the constant eye and scrutiny of his superiors.  He made a conscious effort to distance himself from discussions of a political nature and to refrain from making comments regarding the running and management of the company.  He claimed to have become fairly well respected among his work colleagues and to have been instrumental in the organisation and running of his departmental section.  He was able to implement productive work systems and as a result he came to the direct attention of his superiors as a leader within the company.  The applicant said that about two years ago he was interrogated by a number of internal security agents of the company.  They wanted to recruit him and use him as a spy against other employees to find out their views and opinions.  When he refused, they accused him of insulting the Islamic leadership, insulting Islamic views, not attending public prayers, using drugs and alcohol and of promoting such practices to other employees.  He said he was also accused of stealing from the company.  He was told that if he did not co-operate with the demands to act as a spy then he would lose his job at the company and would never be employed by any other. 

4                     Shortly before he left Iran, the applicant's contract to work for the company was not renewed.  His employment was thereby effectively terminated.  He was not able to find suitable employment in his area of expertise after that.  He said that such treatment is typically meted out to Iranians of Arab ethnicity but not to Persians.  He said that as a result of the threats and persecution he believed his life was in danger and because of the psychological trauma and torment suffered throughout the course of his employment with the company he developed an untreatable skin disorder.  It was submitted that, in the light of his experience, the threats made to him, his subsequent health concerns, his Arab ethnicity and his political and religious beliefs, the applicant had a well-founded fear of persecution in Iran.  Not only had his life and well-being been threatened, but he had been intentionally persecuted in respect of the direct limitation of his employment opportunities.  His opposition to the strict observance of religious law as required in Iran had resulted in further persecution and the imputation that he was politically opposed to the Islamic regime.  This was said to indicate that he had a well-founded fear of persecution in Iran on the grounds of race, religion and political opinion. 

5                     In an earlier statement which had been prepared for the purposes of his application for a protection visa, the applicant claimed to have been initially accused, by security officers in the company, of insulting the Islamic leadership, not attending public prayers and insulting Islamic values.  He said he was interrogated by a few different agents and they then tried to make him co-operate with them to spy on other employees which he refused.  They also wanted him to co-operate with the Basiji organisation. 

6                     With the applicant's submission some country information was tendered to the Tribunal.  This was of a fairly general character in relation to the human rights position in Iran.  It was submitted that the information lent support to the applicant's fear that authorities would persecute him.  It was submitted that there was no way he could obtain protection in Iran.  He would not have recourse to the law because of the inherently flawed legal system.  It was also argued that he had not adhered to the Islamic code espoused by the Iranian authorities and as a result anti-government opinion might be imputed to him.  The fact that he had clearly indicated that he did not agree with strict observance of the Islamic religious law meant that he would be regarded by the Iranian authorities as in opposition to the prevailing regime.  In effect it was submitted that the applicant's religious views would cause him to be regarded as having a political opinion in opposition to the prevailing regime.  These factors, together with his Arab ethnicity, would cause him to have a well-founded fear of persecution in Iran within the ambit of the Convention.  Those factors combined could more than reasonably justify a claim to a well-founded fear of persecution on cumulative grounds. 

7                     The submission went on to deal with his sudden departure from Iran and application for refugee status in Australia.  This, it was said, was likely to attract suspicion on his return and meant that he would be likely to face mistreatment which could be characterised as persecutory.

The Tribunal's Findings

8                     The Tribunal accepted that the applicant was, as he said, an Iranian Arab from Ahvaz and that he had worked for the Ahvaz Sugar Co.  His evidence, however, did not  indicate that he suffered harm serious enough to amount to persecution prior to his departure from Iran.  If he were at some stage questioned by security guards at the company or by the Basiji, his evidence was that nothing further happened beyond that questioning.  If, as alleged, he had been accused of insulting the Islamic leadership, or not attending prayer meetings, or insulting Islamic values and had been questioned about those matters the Tribunal's view was that the questioning did not amount to persecution.  Moreover, the Tribunal did not accept that such matters led to the applicant having ongoing problems serious enough to amount to persecution.  If he were questioned about drinking alcohol and using drugs, again he did not experience any ongoing problems and such questioning was not serious enough to amount to persecution.

9                     The Tribunal noted that the applicant had given several reasons for losing his job.  One was that he would not succumb to pressure from the security people in the company and inform on his fellow employees.  Another was that his contract had expired and the third was that he was accused of theft.  The Tribunal regarded his explanation that he would not succumb to pressure to inform as the least likely of these alternatives.  The Tribunal said it was not satisfied that that was the case.  It found the applicant's evidence on this matter to be unsatisfactory.  The security officers at the factory were in a position to know what was happening there without forcing the applicant to inform.  According to the applicant, they knew he did not conform to their religious views, they did not want to get rid of him from work but wanted him to inform.  The Tribunal regarded this as unlikely. If the applicant had expressed his unwillingness to be involved, someone else would have been found who was more co-operative. As a result the Tribunal did not accept that the applicant was placed under any particular pressure to be an informer. 

10                  Nor did the Tribunal accept that pressure on the applicant continued after he finished work.  In the Tribunal's opinion such pressure would evaporate once the applicant had left the employment situation and no longer had the ability to inform on others.  The Tribunal regarded it as most improbable that resisting pressure to be an informer at his workplace would leave the applicant unable to obtain work elsewhere. 

11                  The Tribunal thought it possible that he had been put under pressure at work to be more religious but did not accept that his account indicated such pressure was serious enough to amount to persecution.  The Tribunal considered it would have ended once the applicant left his employment.  It was accepted he had a skin problem and that stress was a triggering factor, but it considered that any stress could bring this on and it was not indicative of the applicant having the problems he had described.  It was possible that the applicant had been accused of stealing at work and that this had some part to play in the discontinuance of his employment.  Even if he were falsely accused, the Tribunal did not accept that this indicated he faced or would face a real chance of persecution.  He remained in Iran for six months after his employment ended which did not indicate that the accusation of theft was an ongoing problem.

12                  As to the claim that the applicant's Arab ethnicity had been a factor in his work problems, country information indicated that Arabs make up a significant proportion of the population in the town from which the applicant comes.  The Tribunal did not accept that his ethnicity would prevent him from obtaining work.  It had not done so in the past.  There was no real chance that he would face persecution because he was an Arab should he now return to Iran.

13                  In relation to the effect of his application for refugee status, country information indicated to the Tribunal that the penalty for illegal departure was not persecutory.  In any event the applicant had left legally and his only problem now was that he would have to obtain a replacement passport.  The country information indicated that applying for refugee status in a Western country did not result in any serious problems upon return to Iran.

The Grounds of Review

14                  The grounds of review emerge from the applicant's submissions which, in that respect, were incorporated by reference into a late substituted application for an order for review.  Paraphrased, they were as follows:

1.         The Tribunal incorrectly interpreted the legal meaning of persecution and applied that incorrect interpretation of persecution to the facts.

 2.        The Tribunal erred in law in such a way as to fail to conduct a review of the applicant's application and thereby exceeded its jurisdiction.  The errors of law relied upon were:

            (a)        the Tribunal did not take into account relevant considerations or took into account irrelevant considerations relating to the applicant's application; and

            (b)        the Tribunal did not interpret the law relating to persecution correctly.

3.         The Tribunal failed to review the applicant's case in that:

            (a)        the Tribunal failed to examine whether the combined consequences of the applicant's ethnicity, religious beliefs and imputed political opinion may have constituted persecution;

            (b)        the Tribunal made no findings of fact in relation to relevant matters.

4.         Procedures required by the Act or regulations to be observed in connection with the making of the decision were not observed in the following respects:

            (a)        pursuant to s 424A the applicant was not asked to comment on whether other stresses in his life had contributed towards his skin disease;

            (b)        pursuant to s 424A the applicant was not asked to comment on the reasons why his persecution would not have ended once he left his employment with the Ahvaz Sugar Company;

            (c)        the Tribunal did not have regard to the applicant's request for the Department to contact his father or his father's brother in accordance with s 426 of the Act.

5.         Even if the Tribunal did consider the cumulative effects of the persecution it had contravened s 430 for failure to set out its findings as required by the Act.

The numbering is adopted for convenience and does not reflect the paragraphing of the submissions.

Statutory Framework

15                  Part 7 of the Migration Act 1958 (Cth) as it stood at the time relevant to this review deals with the review of protection visa decisions.  Division 2 deals with review of decisions by the Tribunal.   Section 412 provides for applications for review by the Tribunal.  Section 414 provides that where application is made under s 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.  Division 3 deals with the exercise of the Tribunal’s powers.  Division 4 deals with the conduct of reviews by the Tribunal. 

16                  Section 424A provides:

“424A(1)  Subject to subsection (3), the Tribunal must:

(a)       give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)       ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)        invite the applicant to comment on it.

      (2)  The information and invitation must be given to the applicant:

(a)       except where paragraph (b) applies - by one of the methods specified in section 441A; or

(b)       if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

      (3)  This section does not apply to information:

(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; or

(b)       that the applicant gave for the purpose of the application; or

(c)        that is non-disclosable information.”

17                  Section 425 provides for the Tribunal to invite the applicant to appear before it.  Section 425A requires a notice of invitation to appear to be given to the applicant.  Section 426 provides:

“426(1)  In the notice under section 425A, the Tribunal must notify the applicant:

(a)       that he or she is invited to appear before the Tribunal to give evidence; and

(b)       of the effect of subsection (2) of this section.

     (2)  The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

     (3)  If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.”

18                  Division 5 deals with the decisions of the Tribunal.  By s 430 the Tribunal is required to record its decisions.  Subsection 430(1) provides:

“430(1)  Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)       sets out the decision of the Tribunal on the review; and

(b)       sets out the reasons for the decision; and

(c)        sets out the findings on any material questions of fact; and

(d)       refers to the evidence or any other material on which the findings of fact were based.”

19                  Part 8 of the Act deals with review of decisions under the Act by the Federal Court.  Only those decisions designated “judicially-reviewable decisions” in s 475 of the Act are reviewable.  They include decisions of the Tribunal.  The grounds of review are set out in s 476 which, relevantly for present purposes provides:

“476(1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)       that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b)       that the person who purported to make the decision did not have jurisdiction to make the decision;

.

.

.

(d)       that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)        that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

.

.

.

    (3)  The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a)       an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b)       an exercise of a personal discretionary power at the direction or behest of another person; and

(c)        an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d)       taking an irrelevant consideration into account in the exercise of a power; or

(e)        failing to take a relevant consideration into account in the exercise of a power; or

(f)        an exercise of a discretionary power in bad faith; or

(g)       any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).”

Subsection (4) is not relevant to this application.

Cumulative Approach to Assessment of Persecution - Ground 1

20                  Despite the plurality of the grounds of review the primary submission on behalf of the applicant was that the Tribunal erred in its interpretation of the concept of "persecution" in the Refugees Convention.  The error was said to reside in the failure to appreciate that persecution can arise out of a number of different instances taken cumulatively.

21                  It may be accepted that in determining whether an applicant for a protection visa has a well-founded fear of persecution for a Convention reason, the Tribunal must have regard to the whole of the case advanced by the applicant - Khan v Minister for Immigration & Multicultural Affairs  [2000] FCA 1478.  It may be that in a particular case there is a number of factors which individually might not support the existence of a well-founded fear of persecution but which taken together would support such a fear.  In Khan's case these were described, in the submissions put to Katz J, as "risk factors".  They were causative factors which might collectively engender the relevant risk.  That is not the same as a cumulative concept of persecution itself which appeared to underpin the applicant's submissions.  Authorities cited on behalf of the applicant did not cast much light on the submissions in this respect.  The observations of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294-295 related to the requirement that the delegate "…consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the 'real', as distinct from fanciful, 'chances' would bring if the applicant were returned to China".

22                  In his written submissions counsel for the applicant referred to what were described as "individual instances" of persecution claimed by the applicant.  They were:

(i)         interrogation of the applicant by security personnel concerning his religious beliefs;

(ii)        interrogation of the applicant by security personnel about his use of alcohol and drugs;

(iii)       the application of pressure at his workplace to be more religious;

(iv)       the accusation of stealing at work;

(v)        persecution because of his ethnicity;

(vi)       persecution upon his return to Iran.

23                  The Tribunal made no finding as to whether the applicant was questioned as claimed.  It determined that if such questioning occurred it did not amount to persecution.  If he were accused of insulting Islam, failing to attend prayer meetings or insulting Islamic values, that did not amount to persecution and the Tribunal did not accept that he had any ongoing problems serious enough to amount to persecution arising from such questioning.  Similarly, the Tribunal found that he did not experience any ongoing problems arising from his interrogation in relation to alcohol and drug use.

24                  The pressure at work to be more religious was not thought by the Tribunal to be  sufficiently serious to amount to persecution.  It was also possible that he was accused of stealing at work and that this had something to do with the non-renewal of his contract.  However, even if he had been falsely accused, the Tribunal did not accept that this indicated a real chance of persecution.  Taken together, the claims did not point to any particular Convention ground.  Nor were they enhanced in any way by the general contention, rejected by the Tribunal, that the applicant will face persecution because he is an Arab or that he may face a penalty for illegal departure.

25                  It was submitted for the applicant that the Tribunal was obliged to make a finding of fact about each instance of persecution and that in the absence of such findings it could not logically make a finding about the cumulative effect of persecution.  In my opinion, however, the Tribunal was not obliged to make a finding of fact about each of the allegations if none of them disclosed persecution for a Convention reason.  Indeed the same approach could be taken by referring to the allegations cumulatively in determining whether, if established, they could together make out a case of persecution. 

26                  The question of Arab ethnicity was dealt with globally, the Tribunal concluding from country information and the applicant's history, that there was no real chance he would face persecution because he is an Arab should he now return to Iran.  In my opinion, the complaint that the Tribunal failed to take into account the cumulative effects of various incidents of persecution is a complaint about the Tribunal's approach to fact finding.  It is not surprising that the Tribunal did not expressly address the cumulative effect of the applicant's claims.  As counsel for the Minister submitted, its findings on the claims did not leave any scope for considering their cumulative effect because the individual claims were either rejected or were the subject of findings that they did not lead to ongoing problems for the applicant.  The logical outcome of the cumulative position was consistent with the Tribunal's conclusion that it was not satisfied the applicant was a person to whom Australia had protection obligations. 

27                  In oral argument counsel for the applicant submitted that the Tribunal reached its conclusion on assessments of possibilities rather than findings of fact.  There is no basis for this criticism.  The Tribunal concluded that, even on the hypothesis that the applicant’s claim as to interrogation by security guards was correct, this did not disclose a case of persecution.  It followed a similar line of reasoning in relation to the alleged request that he inform on others, the claim that he was pressured to be “more religious” and the claim that he was accused of stealing. 

28                  The applicant’s counsel also sought to rely upon a tape of the hearing before the Tribunal to indicate that the applicant had linked his religious affiliation to the persecutory pressures to which he said he was subject.  Assuming that to have been raised before the Tribunal, it does not undermine the contention that, on the Tribunal’s findings about the various incidents relied upon, the contention of a well-founded fear of persecution for a Convention reason or for Convention reasons was not made out.  The tape was marked for identification at the hearing.  In the event, I was not persuaded that there was any need to receive it in evidence having regard to the use sought to be made of it.

Jurisdictional Error - Ground 2

29                  The second ground of the application, jurisdictional error, relied upon error of law arising out of failure to take into account relevant considerations, taking into account irrelevant considerations and failing to interpret the law relating to persecution correctly.  Reliance was placed upon the enunciation of the concept of jurisdictional error in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 and Craig v State of South Australia (1995) 184 CLR 163 at 169.

30                  Section 476(3)(e) of the Migration Act, as it stood at the time relevant for the purpose of this application, expressly excluded from the concept of improper exercise of power failure to take a relevant consideration into account in the exercise of the power.  The failure to take into account a relevant consideration enters into the present case by virtue of its relevance to the question whether the Tribunal had jurisdiction to make the decision it did, or whether the decision involved an error of law.  It was observed in the joint judgment of McHugh, Gummow and Hayne JJ in Yusuf that s 476(3) limits the construction of the reference, in s 476(1)(d), to improper exercise of power by excluding questions of relevant and irrelevant considerations from its ambit.  However, as their Honours said, that qualification does not apply to the other paragraphs of s 476(1) and casts no light on how these paragraphs should be understood (ALR at 21 [80]).  Jurisdictional error which is a ground of review under s 476(1)(b) was said to embrace a number of different kinds of error which might well overlap:

“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.” (ALR at 21-22 [82])

31                  The relevant considerations which it is said the Tribunal failed to take into account were:

(a)        the lack of religious freedom in Iran;

(b)        documents concerning the freedom of religion in Iran;

(c)        the applicant's request for the Department to contact his father or brother in accordance with s 426 of the Act;

(d)        the failure to consider whether stresses other than those associated with the risk of persecution did in fact bring on the applicant's skin disorder;

(e)        the requirement under s 424A to ask the applicant to comment on whether other stresses had contributed to his illness;

(f)         whether the treatment he had suffered (due to his religion, ethnicity and imputed political opinion) posed a threat to his mental health;

(g)        the claim that his house was under surveillance;

(h)        the dire consequences of a conviction for theft in Iran and the effect that this might have on the gravity of an allegation of theft.

32                  In considering whether there has been a judicially reviewable failure by an administrative decision-maker to take into account relevant considerations it is necessary to bear in mind the requirement that the relevant consideration be one which the decision-maker is bound to take into account.  It is useful to restate the criteria enunciated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39:

(a)        the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision;

(b)        what factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion;

(c)        not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.  A factor might be so insignificant that the failure to take it into account could not have materially affected the decision;

(d)        the limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind.  It is not the function of the court to substitute its own decision or that of the administrator by exercising a discretion which the legislature has vested in the administrator.  Its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned. 

It has also been said that “Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction…they do not…encompass a failure expressly to mention or grapple with part of the competing body of evidence before the tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed.” - Paul v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 289 at 312 (Allsop J, Heerey J agreeing).

33                  The allegation of failure on the part of the Tribunal to take into account the applicant’s request that the Department contact his father or brother in accordance with s 426 of the Act is a procedural complaint which does not fall within the rubric of failure to take into account a relevant consideration.  Nor does the alleged failure to ask the applicant to comment upon whether stresses other than persecutory stresses had contributed to his skin disorder.  These matters are considered below in connection with the ground concerned with non-observance of procedural requirements.

34                  The Tribunal did have regard to the possibility that the applicant was under pressure at work to be “more religious”.  It did not accept that this was serious enough to amount to persecution.  In coming to that conclusion, the Tribunal was entitled to consider, as it did, whether the applicant’s claims amounted to claims of persecution in the relevant sense.  It was not required in so doing to refer explicitly to the general state of religious freedom in Iran.

35                  In relation to the applicant’s skin disorder, the Tribunal accepted that he suffered from such a disorder and that stress is a triggering factor for it.  Its conclusion that “any stress will bring this on and it is not indicative of the applicant having the problems he has described” was plainly reasonable.  The notion that a stress-based skin disorder is evidence upon which the Tribunal could have made a finding that the applicant was at risk of persecution for a Convention reason is improbable.  The Tribunal’s approach to that contention was an approach to factual finding which is not informed by any reviewable error.

36                  The Tribunal recorded in its reasons for decision the applicant’s claim that his life was in danger in some mental as distinct from physical sense.  The Tribunal did not explicitly deal with the claim.  But the claim, whatever it meant, was subsumed in the Tribunal’s findings that whatever pressure the applicant had been put under did not amount to persecution in a Convention sense.

37                  As to the applicant’s claim that his house was under surveillance, the Tribunal recorded that he said he was watched all the time even after his employment was terminated.  The Tribunal again did not expressly deal with this allegation although it was referred to in the reasons for decision.  It is, however, subsumed in the Tribunal’s rejection of the applicant’s claims in relation to the security officers employed at his place of work.  Such pressure as they may have exerted on him to be more religious was found to have ended after he left his employment.

38                  The Tribunal did accept that it was possible the applicant had been falsely accused of stealing at work.  However, as a matter of fact, it did not accept that this indicated he faced a real chance of persecution.  The fact that he remained in Iran for six months after his employment ended was not indicative of any ongoing problem in relation to allegations of theft on his part.  Having regard to this conclusion there was no necessity for the Tribunal to proceed to consider explicitly the dire consequences of a conviction for theft in Iran.  The conclusions the Tribunal reached on this issue were factual conclusions it was entitled to reach.  No reviewable error is indicated.

39                  The so called relevant considerations which the Tribunal is said to have failed to consider were either considered by it or subsumed in its findings.  In any event, and having regard to the criteria for reviewability of failure to take into account relevant considerations enunciated in Peko-Wallsend, no error going to jurisdiction is disclosed.

Failure to Review the Applicant’s Case - Ground 3

40                  This ground is based upon s 414 of the Act which provides that where a valid application is made for review of an RRT-reviewable decision, the Tribunal must review the decision.  The duty so imposed requires the Tribunal to have regard to all of the material and evidence before it - X v Minister for Immigration & Multicultural Affairs [2002] FCA 56 at [13] (Gray J, Moore J agreeing).  The applicant’s written submission indicates that this ground seeks to canvass, albeit under a different heading, the matters canvassed in the previous two grounds.  Suffice it to say that for the reasons already given there was no failure on the part of the Tribunal to fulfil its duty to review the delegate’s decision.

Failure to Observe Procedures - Ground 4

41                  In grounds 4(a) and (b) of the substituted application it is alleged that the Tribunal failed to seek comment from the applicant on the possibility, adverted to by the Tribunal, that stresses other than the claimed persecutory pressures, were responsible for his skin disorder.  It is also said the Tribunal did not ask him to elaborate on his contention that his persecution would not have ended after he ceased to be employed by the Ahvaz Sugar Co.

42                  Section 424A does not appear apposite to these grounds.  It imposes on the Tribunal an obligation to give to the applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review.  It also requires the Tribunal to invite the applicant to comment upon such information.   The operation of the provision was recently discussed in Paul v Minister for Immigration and Multicultural Affairs at 316, when Allsop J, with whom Heerey J agreed, said:

“The tribunal must give the particulars which have a certain character: particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision.  It is not just a question of general adverse relevance.”

Further, the information of which particulars must be provided is information or knowledge that has come to or been gained by the Tribunal and is not the subjective appraisal or thought process of the Tribunal - Paul  at [94] citing with approval Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 (Sackville J).  In the present case, the relevant information is not identified in the grounds or in the submission.  The fact that the Tribunal may have formed a particular view of the inferences to be drawn or evaluations to be made of claims or evidence advanced by an applicant does not constitute information of the kind that is the subject of the section.  Neither of these grounds is sustainable by reference to s 424A. 

43                  Ground 4(c) invokes s 426 of the Act and asserts that the Tribunal did not have regard to the applicant’s request for the Department to contact his father and his father’s brother in accordance with s 426 of the Act.  Prior to the hearing the applicant completed a form nominating witnesses from whom he wished the Tribunal to take evidence.  These were his father and his older brother.  According to the form, each resides in Iran and speaks Farsi.  A phone number was given for each.  The evidence to be elicited from them was described on the form thus:

“you can ask him “why did I leave my country”?”

Section 426 requires the Tribunal to have regard to the applicant’s wishes in respect of witnesses, but specifically provides that the Tribunal is not required to obtain evidence from a person named in the applicant’s notice.   The Tribunal did not refer to the request in its reasons for decision.  It was submitted for the applicant that, in the absence of any indication by the Tribunal that it had regard to his request, the Court should infer that the Tribunal did not have regard to it. 

44                  Whether an inference of the kind propounded can be drawn from absence of reference to a written request will depend upon the circumstances.  In this case the Tribunal may have concluded that there was nothing the proposed witnesses could have added to the applicant’s contentions.  There was no reference to the applicant’s request in the submission made on his behalf by his legal representatives, Macpherson & Kelley.  The Tribunal plainly had the request before it.  There is no duty on the Tribunal to refer to it in its reasons, although it would be preferable were it to do so.  There is no material on the record or in the notice of the request which could lead me to infer that the Tribunal disregarded it.  In fact it is difficult to see how the Tribunal could have disregarded it.  In my opinion this ground is not made out.

Failure to Set Out Findings - Ground 5

45                  The written submissions do not elaborate on this ground beyond the assertion that the Tribunal contravened s 430 because it failed to set out its findings as required by the Act.  The duty of the Tribunal under s 430 is to set out the findings it has made, not to make particular findings - Minister for Immigration and Multicultural Affairs v Yusuf  (2001) 180 ALR 1 at 17:

“All that section 430(1)(c) obliges the tribunal to do is to set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.”

In my opinion the Tribunal has set out all the relevant findings and reasons which support the conclusion at which it arrived. 

Conclusion

46                  For the preceding reasons, the application will be dismissed with costs.

Associate:

Dated:              5 April  2002