FEDERAL COURT OF AUSTRALIA

NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 551

MIGRATION – application for review – whether RRT took into account irrelevant material – whether RRT neglected to take into account relevant material – whether RRT erred in finding that the applicant would not be committed to openly practice Evangelical Christianity – whether breach of procedural fairness – whether RRT should have inquired into previous applications – failure to mention claims in application for visa – whether Secretary of Department had failed to provide the RRT with relevant material – whether breach of s 418(3) of the Migration Act 1958 (Cth)invalidates the decision of the RRT – whether s 474 of Migration Act 1958 (Cth) applies – specificity of notice under s 78B of the Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth) ss 418(3), 474

Judiciary Act 1903 (Cth) s 78B

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited

Montreal Street Railway Co v Normandin [1917] AC 170 cited

Posner v Collector for Inter-State Destitute Persons (Vic) (1946) 74 CLR 461 cited

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 120 ALR 12 cited

F Hutley, “TheCult of Nullification in English Law”(1978) 52 ALJ 8

Aronson and Dyer, Judicial Review of Administrative Action 2nd ed. 2000

NACA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N89 OF 2002

TAMBERLIN J

SYDNEY

10 MAY 2002

THE COURT ORDERS THAT:

1.         The application for review is dismissed.

2.         The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Iran who arrived in Australia on 25 July 2001.  He applied for a protection visa and this was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) on 25 October 2001.  An application was then made to the Refugee Review Tribunal (“the RRT”) for review of that decision.

2                     The matter was heard on 3 January 2002 and on 22 January 2002, the decision of the delegate was affirmed by the RRT and the application for review dismissed.

3                     The applicant claims to be a refugee on the basis that if returned to Iran there is a real chance that he will be persecuted for reasons of religion and he is therefore unwilling to return.

4                     The claim is based on the fact that he and his family belonged to a minority Christian religious group, known as the Evangelical church.  In its decision the RRT expressed serious reservations about the applicant’s credibility because his claims had been inconsistent with those in the process of determination on his application for a protection visa.  There were discrepancies in his airport interview and his claims as set out in his protection visa application.  Importantly, for consideration before the RRT was the fact that he claimed to have departed Iran only on 20 March 2001 and that he had been arrested and detained for twenty days from 5 January 2001 until 25 January 2001 because he had taken a Muslim girl to a Christian church.  The applicant resiled from these claims after the Department of Immigration and Multicultural Affairs (“the Department”) informed him that departmental records showed that a visitor visa application had been lodged by him at the Australian Embassy in Athens in January 2001 which indicated that he had not been resident in Iran for the past seven years.

5                     The RRT found that in fact, the applicant had left Iran for Greece seven years ago at the age of fourteen years.  It was not satisfied that the applicant departed illegally from Iran.  It took into account country information and considered the contents and form of the passport.  The RRT found that the applicant departed legally from Teheran airport with a passport issued in his own name.

6                     The RRT did not accept that the applicant came to the attention of Iranian authorities because of his and his family’s involvement in the Evangelical church in Iran.  The RRT reasons included the fact that at the hearing, the applicant claimed that in 1992 and 1993 Iranian authorities had entered a church and held a gun to the head of his mother. It was noted by the RRT that in the protection visa application, no mention of these events had been made.  The applicant claimed that a gun had been held to his own head in one of these incidents.  Again, no mention was made of this in the application.  The RRT considered that claimed threats of holding a gun were so significant that they could not easily have been forgotten.  The RRT found that the events involving the threats with a gun had not occurred. It did not accept that the applicant feared religious persecution if returned to Iran, relying on country information to support its findings. 

7                     The RRT said that the applicant claimed that he did not go to public churches in Athens because he did not speak Greek and that he preferred to meet with a small group of persons who spoke his language.  The RRT said that the applicant was unable to name or locate any Christian churches in Athens and it considered that the manner of the applicant’s religious practice in the seven years he was in Greece indicated that he was not committed to a public Evangelising form of Christianity because he had confined his worship to small private gatherings.  The RRT found that if he were to return to Iran he would not be committed to practising Evangelical Christianity as he shows no evidence of having done so during the seven years in Greece.  The RRT also referred to further country information which indicated that it was Evangelical Christians who actively proselytised, rather than Christians per se, who were subject to harassment.  The RRT rejected any claim for a protection visa on the applicant’s assertion of his illegal departure from Iran and his alleged avoidance of military service.  It considered that if the applicant were to return to Iran he would be required to perform his military service but that such risk of obligatory participation would not be persecution.

Applicant’s submissions

8                     The applicant submits that there were four key reasons given by the RRT for rejecting his application.  First, it did not accept that the applicant was an Evangelising Christian.  Second, it did not accept that the applicant and his mother had been mistreated by Iranian authorities in 1992 and 1993.  Third, it did not accept that the applicant had departed from Iran illegally when he went to Greece in 1994.  Fourth, it considered that the applicant and his family would have approached the United Nations High Commission for Refugees (“UNHCR”) or Greek authorities for asylum while they were in Greece if they had a genuine fear of persecution if returned to Iran and that their failure to do so indicated that they had no such fear.

9                     It is contended that the reasoning of the RRT was based on irrelevant matters and that it ignored relevant matters.  These were said to be so significant that it could be said the RRT constructively failed to exercise its jurisdiction.

10                  I now turn to address the matters raised by the applicant as to claimed errors in the RRT reasons.

Practising Evangelical Christianity

11                  The RRT found that if the applicant were returned to Iran he would not be committed to practise Evangelical Christianity in the sense that he would do so publicly and thereby attract danger because he had shown no evidence of having done so in his seven years in Greece before coming to Australia. There was ample evidence before it to enable the RRT to reach this conclusion. It is not contended that the finding as to the lack of evidence of Evangelising during his seven years in Greece is in fact wrong. However, the applicant says there were three errors made by the RRT in reaching this conclusion.

12                  The first is that it was incorrect for the RRT to state that it had asked the applicant several times if he could name or locate any Christian churches in Athens and that he failed to do so. It is submitted that in fact, questions in these terms were not asked but there were related questions as to his places of worship whilst in Greece. In fact, he did not nominate any particular church in Greece because he did not go to a church but worshipped in private homes with a small group of people. In my view, when read in the context of other evidence on this point as to the practise of his religion in Greece, this inaccurate statement does not constitute a reviewable error.

13                  The second matter relied on was that the applicant said that there was no Iranian Evangelical church in Greece whereas the RRT simply states that he did not know the location of, and had never attended, a formalised Evangelical church in Greece.  The first part of this statement is strictly not correct but the latter part, which is more significant, is more accurate. Again, I do not think that this relatively minor misstatement could have affected the overall conclusion as to whether the beliefs of the applicant were such as would lead him to practise his Christian faith in an Evangelising manner.

14                  The third matter raised is that the applicant said that he did not go to churches while he was in Athens because “we, my family, could not understand Greek”.  The RRT summarised this as a statement that he did not attend because he did not speak Greek. The important point, however, is that he did not in fact worship publicly and that the lack of ability to understand Greek, either on his own part or on that of his family, was the motive for non-attendance.  It is the fact of non-attendance that was really significant.  On a fair and reasonable reading this slightly imprecise formulation by the RRT would not give rise to any reviewable error.

15                  For these reasons, I am not persuaded that there was any error in the RRT reasoning or finding in relation to the nature of the applicant’s faith and the way in which he would practise if returned to Iran.

Failure to mention two incidents

16                  The applicant submits that the RRT decision is invalid because it failed to take into account two incidents said to have occurred in relation to the mistreatment of his family in Iran.  This omission is said to support his claims that his family are Evangelised Christians and subject to persecution because they were the focus of adverse attention.  The claims were that his mother had been detained, beaten and threatened on 22 January 1993 and that the applicant was threatened on 23 July 1993.  By failing to address these matters and make findings on them, it is said that the RRT failed to address the case presented to it and that, therefore, there had been a constructive failure to exercise jurisdiction.

17                  In fact, these two additional claims are referred to in the RRT’s reasons along with the other incidents mentioned above at [6], which I will refer to as the “gun incidents”.

18                  After referring to the “gun incidents” and to the two additional incidents when setting out the background, the RRT said that:

“The applicant was asked why he had not made mention of these events in either his original application or in his response to the Department when they informed him that they knew he had come from Greece.  The applicant stated that his first adviser Dr Jabiri had told [him] that what he needed to do was to apologise for having lied.”  (Emphasis added)

19                  This observation included the threatening incidents relied on as having occurred in 1992 and 1993 although clear specific findings were made in relation only to the “gun incidents”.  The Tribunal went on to conclude that:

“The Tribunal considers that the claimed threats of holding a gun to the applicant’s head are significant events that would not be easily forgotten.  The Tribunal further considers that the significance of these events in respect of a claim of religious persecution is far greater than the incident outlined by the applicant in his protection visa application that of, the principal of his school berating him for a [sic] wearing a cross to school.

…

The Tribunal therefore considers that the fact that the applicant made no mention in his protection visa application that the Iranian authorities had threatened the applicant and his mother in 1992 and in 1993 indicate that the threats did not take place.”

20                  In my view, on a fair reading of this finding taken in context, it is evident that the RRT formed the view that none of the incidents occurred, because they had not been raised prior to the RRT hearing in the protection application.

21                  Accordingly, I am not satisfied that the RRT reasons for decision are in error by reason of not having considered a relevant matter namely the occurrence of these additional incidents.

Natural justice

22                  At the conclusion of the RRT proceeding, after the applicant stated that he had concluded his submissions, he was asked whether he wanted to make a final statement.  He then began to repeat his basic case as previously recounted.   When this was pointed out to him on two occasions, the decision-maker said:

“What I will do is when I work through this information and some of it is adverse as we call it adverse. I will put it to you formerly [sic] through your advisor to give you a right to reply and you’ll be given seven days to reply.  That can also provide you with further opportunity to make any further statement you’d like to make.  But that information shouldn’t simply repeat what’s been stated.  …

As I said I will put anything that I need to put through to you through your advisor and [in] the same way you can submit to the tribunal.

What we’ll do is call an end to the hearing and I will then proceed to write the decision and you will be given a copy of that decision and a copy will also be given to your advisor.  In the meantime it is your decision to make submissions to the tribunal as you so wish.”

23                  The applicant in fact sent in further written submissions on 8 January 2002 five days after the hearing before the RRT.

24                  The RRT did not send the applicant or his advisor any further information or seek a response prior to delivering its decision and reasons.  It is therefore said that there was a breach of natural justice because the indication given by the RRT was not performed.  I do not agree.

25                  The statements as to the intention of the decision-maker are ambiguous.  When read as a whole, they are vague and conflicting.  However, I do not think that this consideration is determinative.  The timing of the statements is important.  The statements made by the decision-maker were made at the conclusion of the hearing, in the course of which the applicant was given every opportunity present his case in full.  Furthermore, the applicant took advantage of the invitation to make further submissions after the close of the hearing. 

26                  There have been extensive submissions, both oral and written, made on behalf of the applicant in relation to this point on the hearing of the application before me.  The applicant has had every opportunity through counsel to submit to me why the reasons for decision were in error but has not succeeded.  There is no statutory obligation on the RRT to provide a preliminary report or to notify an applicant of adverse considerations while considering its decision after a full hearing.  On a fair reading, the statements made by the RRT relate to “information” and, in context, this indicates that the information was intended to mean country information relating to, among other things, the killing of Christian pastors in Iran.  The decision-maker, as I read the statements, was not offering to provide a draft copy of the decision for comment or any similar document setting out in detail all adverse views which were reached, but simply to raise any matters of country information which might be considered particularly important.  The indication in relation to “adverse” country information is contrary to the final statement in the transcript on this aspect which refers only to a period for further submissions and forwarding a copy of the decision. 

27                  Given the timing of the statements and the extensive nature of the hearing, together with the imprecise wording of the assertions, I am not satisfied that the circumstances disclose any breach of natural justice.  Nor am I satisfied that any of the matters which counsel has put to me on this hearing, after full argument, demonstrates that there has in fact been any reviewable error of law, which could amount to a constructive failure to exercise jurisdiction.  I have reached the conclusion that there is no substance in any of the matters put to me on the merits of the application and there has been nothing raised by the applicant to show he could have raised any further useful information or submission even if he had been furnished with a copy of all adverse findings. 

28                  I consider, however, that generally speaking, it is unsatisfactory for a decision-maker after a hearing to offer to furnish notice of adverse matters and then not to follow up that offer in circumstances where an applicant may rely on such opportunity to his or her detriment in presenting their case.  I should add that, in this case, I do not see that there has been any disadvantage caused, because the applicant has had every opportunity to present his case and had concluded his case at the time the statements were made.  Counsel for the applicant agreed during the hearing that if the discussion towards the conclusion of the hearing had closed prior to the statements in question, then there could be no arguable case for the denial of natural justice.

29                  In all the circumstances, I do not consider that the submission as to breach of natural justice has been made out.

Applications for Asylum in Australia

30                  It is submitted that the RRT, while noting that the applicant had not made any application to Greek authorities or to the UNHCR whilst he was in Greece for seven years seeking asylum, had failed to take into account that during that period the applicant and his family had sought asylum in Australia on four occasions.

31                  I am not satisfied that the RRT failed to take this matter into account.  The decision-maker expressly refers to the inclusion of the applicant’s name in the four previous applications to migrate to Australia since 1994.  The fact of these applications having been made (as distinct from the evidentiary material in each application) were important matters before the RRT because of the findings as to the applicant’s lack of credibility on the basis that the previous applications indicated that the applicant was in Greece during this period and, not, as he claimed, in Iran.  It is highly unlikely that these applications were not taken into account when the RRT referred to them specifically.  The significant fact remains that neither the applicant himself nor his family made any application to Greek or to UN authorities and this could be properly taken into account in considering whether the applicant had a well-founded fear of persecution in Iran.  The relative weight to be given to the fact that there were four previous applications, when balanced against the failure to seek asylum in Greece or by application to UN authorities is a matter of fact and degree for determination by the RRT and not for this Court.

STATEMENTS IN OTHER APPLICATIONS

32                  An important finding by the RRT was that the applicant had not raised the “gun incidents” before the RRT hearing on the application presently before me for a protection visa.  The RRT found that they had not occurred.  The applicant says that this finding was wrong because, in fact, in another unresolved application involving the applicant, there was a reference to these incidents.  It is submitted that the RRT should have been aware of these statements having being made in the other applications and that therefore the conclusion of the RRT alleging what amounts in effect to “recent invention” was clearly wrong.  In the present application before the RRT for a protection visa there is no reference to the “gun incidents”.  The applicant says that the attention of the RRT was specifically drawn to the earlier applications.  This is said to have been indicated by a letter dated 20 September 2001 from the Department to the applicant indicating that certain information will be taken into account in assessing whether he met the criteria for a protection visa.   The letter refers to the fact that:

“Your family has lodged four applications to migrate to Australia since 1994.  These applications were all lodged at the Australian Embassy in Athens.  The last application was lodged on 29 June 2001.  Your name is included in all four applications.”

33                  This letter was written by the Department to give the applicant an opportunity to explain why it was that he firstly claimed to have lived in Iran until 20 March 2001 and then to have fled across the border into Turkey where he remained for a few months before coming to Australia in July 2001.  The facts put to the applicant in the letter of  20 September 2001 were seen to be contradictory to his assertions.  It is important to note that it was not said that all the material and claims in the applications would be taken into account but rather that the fact that the family had lodged four applications from Athens, which indicated that he was not in Iran until 20 March 2001, would be taken into account.  In my view, this is not an undertaking to closely examine the contents of previous applications to search for all claims that the applicant may have made for a protection visa.  It is simply an indication that there are contradictory facts in respect of which the applicant is requested to give an explanation on the question of his departure from Iran.

34                  There is also a reference to the previous applications in the decision of the Ministerial delegate of 25 October 2001.  That reference is in these terms:

“Computer records also indicate that the person who applied for a visitor visa in Athens in January 2001 was included in applications for Subclass 202 Global Special Humanitarian visas lodged with the Australian Embassy in 1994, 1995 and 1996 (all three applications were subsequently refused) and in an as yet undecided application, lodged on 29 June 2001.”

35                  Again, this is simply a reference to the fact of those applications having been made in the context of the applicant’s assertion that he was in Iran until March 2001 which was plainly wrong and which he conceded to be false.  Again, this does not mean that all the claims in those applications and supporting documents should have been before the RRT or in the application for the protection visa with the consequence that the RRT should have been aware of these assertions in relation to the “gun incidents”. 

36                  The matter was referred to in the transcript of the hearing before the RRT where the applicant was asked:

“Why didn’t you at that point in time also lay out what you have just told me at the hearing?

Because my lawyer told me that they know everything that is regarding Greece. …

Because all these issues and so on they are in the case regarding Greece.  You can extract all of those and see how they are mentioned in there.  I have not done a mistake the mistake that he has done I have to answer for.

The mistake who has done?

My lawyer.” (Emphasis added)

37                  In my view, these references, in a vague and confused series of answers, were not sufficient to put the RRT on inquiry as to possible consistent prior statements in some of the applications in relation to the “gun incidents”, concerning a different type of visa, which required investigation and checking by the RRT when no prior submission had been made in the application before it.

38                  For these reasons, I do not consider that the RRT was obliged to examine the other applications to see if the applicant had made earlier consistent statements and therefore no error of law has been shown in this respect.

Section 418(3) – Duty of the Secretary to furnish material

39                  Section 418(3) of the Migration Act 1958 (Cth) (“the Act”) reads as follows:

“(3)     The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.”

40                  The applicant submits that the Secretary was in breach of obligations under this sub-section in not forwarding to the RRT the previous applications.  It is said that a breach of this duty by the Secretary operates to invalidate the RRT decision given the central importance of a proper and full hearing of the applicant’s case.  Consequently, it is said the RRT decision was made beyond jurisdiction.

41                  There are several difficulties with this submission.  The first is that the obligation on the Secretary in this case is directed to the particular application for review of a protection visa refusal and not to the other applications for a visa by the applicant’s family.  The second is that it is the conclusion of the Secretary as to relevance which is the determining consideration and not that of some other body, tribunal or court.   Therefore, to succeed on the submission, it must be shown that the earlier applications are so clearly relevant to the present application that the Secretary acting in a reasonable manner could form the opinion that the documents were relevant to a review of the protection visa decision by the applicant.

42                  When considering this matter, it is important to bear in mind the context in which the Secretary is required to forward documents or parts of documents to the RRT.  The obligation arises after the Secretary is notified of the application for review.  At that point in time, the Secretary might be expected to know, at least constructively, what matters had been raised in the record up to that point in time before the Department and the delegate in relation to the application under review.  At that point in time, when the matter was concluded under subs 418(3), nothing had been raised in relation to the “gun incidents” relied on.  The Secretary cannot be expected, prior to these matters having been raised by the applicant in the application in respect of which the decision must be made, to speculate as to what new matters may be advanced at the hearing before the RRT.  If a “new matter” is raised for the first time at the RRT hearing, it is not reasonable to suggest that it should have been contemplated by the Secretary that documents which may have assisted in determining such a matter should have been sent to the RRT.  The relevance of material at the RRT hearing should not be evaluated by the application of hindsight but rather having regard to what might reasonably be considered to be an issue at the time of consideration by the Secretary. 

43                  In terms, subs 418(3) does not require the Secretary to consider material in relation to all applications made by the applicant.  That is not to say that in some cases, other applications may not be considered relevant by the Secretary for the time being.  But relevance is a matter on which minds may reasonably differ.  In the present case, the specific material in the other applications was not assigned any particular importance.  There were some references to other applications for the specific purpose of highlighting the fabrication of the original version as to the circumstances given by the applicant.  No other purpose was relevantly foreshadowed in relation to the application for review of the refusal of the protection visa up to the point in time when the Secretary had to make a decision under s 418 in relation to what documents should be given to the RRT.

44                  The application on which the Secretary is required to focus under subs 418(3) is the particular application for review, namely the application protection visa in the present matter.  It cannot be reasonably expected that the Secretary should trawl through a number of other applications involving the first applicant to seek out assertions which can be used as corroboration or as a prior consistent statement.

45                  In my view, there is no substance in the suggestion that there has been any breach of subs 418(3) in the present case.

EFFECT OF BREACH OF SUBS 418(3)

46                  In addition, I am not satisfied that any breach of subs 418(3) would operate to invalidate the decision given by the RRT in this case.  The sub-section makes no reference to the consequences of a failure to comply with it.  In the absence of clear and specific wording, it is not to be readily inferred that an error of judgment resulting in a failure to comply under subs 418(3) must necessarily mean that the decision of the Tribunal is void and of no effect.  The question is one of legislative intention.  Courts are reluctant to find that the consequence of a breach of a statutory procedural provision results in total invalidity for all purposes in the absence of clear and express wording to that effect: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391; F Hutley, “TheCult of Nullification in English Law”(1978) 52 ALJ 8; Montreal Street Railway Co v Normandin [1917] AC 170; Posner v Collector for Inter-State Destitute Persons (Vic) (1946) 74 CLR 461 at 483 and Aronson and Dyer, Judicial Review of Administrative Action  2nd ed. 2000 at 268-270.  There is no such clear or express wording in this case.

Section 474

47                  Reliance was placed by the respondent on the provisions of s 474 of the Act which in the present form embodies a privative clause. 

48                  Having regard to the findings which I have made above, it is not necessary for me to consider the question raised by the applicant as to the constitutional validity of s 474 in the present case.  Nor is it necessary to consider the application of the provisions of that section.

49                  When these proceedings commenced, I was informed that all the Attorneys-General had been notified under s 78B of the Judiciary Act 1903 (Cth) of the constitutional question to be argued.  None of the Attorneys-General for the States and Territories had at that time indicated that they wished to appear.

50                  When the argument as to the invalidity was outlined by counsel for the applicant, it became apparent that the questions sought to be raised, although indirectly, were of more wide ranging significance than that notified to the Attorneys-General.  That notice simply informed them that there was to be an argument based on s 474 in relation to the operation of sub-sections 75(iii) and 75(v) of the Australian Constitution.  In fact, the argument foreshadowed by counsel went beyond the terms of that notice and if it had been necessary for me to consider the constitutional question, I would have required fresh notices to be issued to properly and fully apprise the Attorneys-General of the arguments sought to be made.  The arguments as outlined essentially seek to distinguish decisions made under the Conciliation and Arbitration power made in s 51 (xxxv) of the Constitution in construing privative clauses, and privative clauses enacted under other heads of constitutional power such as the Immigration power.  The precise form of the constitutional question was not foreshadowed in the written submissions lodged by the applicant’s counsel and I am satisfied that, in any event, counsel for the respondent should be given an adjournment on this issue, if such an application had been made.  It is necessary to “specify” with some precision the constitutional issue: see Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 120 ALR 12 at 14.

Conclusion

51                  In my view, there is no substance in the suggestion that there has been any reviewable error committed by the RRT in this case and, accordingly, I dismiss the application with costs.

Associate:

Dated:              10 May 2002