FEDERAL COURT OF AUSTRALIA

SBAP v Refugee Review Tribunal [2002] FCA 590

MIGRATION – application under s 39B of Judiciary Act 1903 (Cth) for relief in respect of decision of Refugee Review Tribunal – privative clause decision – whether breach of rules of natural justice and other administrative law grounds available

WORDS AND PHRASES – “bad faith”, “good faith”

Migration Act 1958 (Cth) s 474

R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 615 applied

Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 followed

NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 followed

Re Minister for Immigration & Multicultural Affairs; ex parte Miah (2001) 179 ALR 238 at [43], [90], [126], [181] and [183] mentioned

Kioa v West (1985) CLR 550 at 612 mentioned

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] and [108] applied

Sun Zhan Qui v Minister for Immigration & Multicultural Affairs [1997] FCA 324 followed

NABC v Minister for Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 539 at [6] mentioned

Minister for Immigration & Multicultural & Indigenous Affairs v Kord [2002] FCA 334 followed

Ayan v Minister for Immigration & Multicultural Affairs [2002] FCA 470 at [8] followed

Horrocks v Lowe [1975] AC 135 at 149-153 mentioned

SBAP v REFUGEE REVIEW TRIBUNAL & ANOR

S 235 OF 2001

HEEREY J

10 MAY 2002

MELBOURNE

THE COURT ORDERS THAT:

1.      The application is dismissed.

2.      The applicant pay the second respondent’s costs including reserved costs.

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

REASONS FOR JUDGMENT

1                     On 11 December 2001 the Refugee Review Tribunal (the Tribunal) affirmed a decision of a delegate of the Minister not to grant to the applicant and his wife and two daughters protection visas.  The applicant seeks certiorari, prohibition and mandamus under s 39B of the Judiciary Act 1903 (Cth) in relation to that decision.  It is accepted that the application is governed by the amendments made to the Migration Act 1958 (Cth) (the Act) by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (the 2001 amendments) and that the decision of the Tribunal is a privative clause decision within the meaning of s 474 of the Act.

2                     The applicant is a 35 year old Iranian citizen.  His religion is Sabian Mandaean (sometimes referred to as Sobbi).  He and his family arrived in Australia on 4 May 2001.  They lodged applications for protection visas on 31 July 2001, claiming to have a well-founded fear of persecution if returned to Iran for reasons of their religion.  Their application was refused by a delegate on 14 September 2001 and they applied for review by the Tribunal.

The applicant’s case before the Tribunal

3                     The applicant gave evidence of instances of discrimination.  In his third year of primary school the teacher used to ask him to take a chocolate out of his pocket.  The applicant now believes that the teacher wanted to touch him indecently. 

4                     During his tenth year at school he accidentally knocked a copy of the Koran onto the floor and was subsequently assaulted and humiliated by the teacher who also told some bigger students to deal with him outside.  He was then beaten up by the other students.  As a result one of his testicles was badly injured, there was an operation and it was removed.  His father complained to the police but nothing was done.

5                     About two to three years ago he purchased ice cream at a shop and then used a tap to wash his hands.  The owner of the shop came out and shouted that he was a Sabian and had eaten their ice cream and used a cooler that everyone used.  The shop owner threw money in the applicant’s face and got a hose and started hosing down the tap. 

6                     The applicant’s niece was being treated for blood cancer and was receiving chemotherapy.  One night she was having breathing problems and an emergency doctor was brought to the hospital.  He ordered an ICU.  However she was not taken to that area and died.  The applicant claimed there was a place free in the ICU room that night.

7                     About two years ago a Muslim woman came into the applicant’s shop and asked to see two necklaces.  She put one into her clothing and took it away.  But the applicant did not say anything because he did not want to be accused of touching her.

8                     One night the applicant went to a chemist to get medicine for his daughter.  The chemist criticised him for coming at a late hour.  On his way home the applicant passed the Mosque and somebody called out that he was a Sabian.  He was surrounded by a mob and told that he had a nerve to come near the Mosque.  The medicine was smashed. 

9                     Under their religion the applicant and his wife have been baptised six or seven times.  On the last occasion some Muslims threw stones and dirty objects at her during the baptism and their ceremony was destroyed.

10                  About a year and a half ago the applicant’s wife was in a fish shop and accidentally touched the water that some fish were in.  The shop owner demanded that the applicant buy all of the fish.  When the applicant’s wife said he did not have the money the fish and the water were tipped over him.  The applicant’s wife was being touched by Muslim men in a sexual way. 

11                  Two years ago the applicant’s wife was at a baker’s shop and the baker threw the bread down in front of her.  He told her to pick up the loaf she wanted.  In doing this she accidentally touched another loaf and so he threw the bread at her and then hit her with the pliers he had just used to take the bread out of the oven.  Her arm was burned. 

12                  Two and a half years ago the Sabian cemetery where the applicant’s wife’s father and brother were buried was completely ploughed up and the graves destroyed.  The cemetery was then tarred over and they were given another ceremony about two hours travel from the town. 

13                  The applicant and his family were forced to leave Iran as a result of a series of events which commenced on 21 January 2001.  The applicant was supposed to pick up one of his daughters, then aged about nine, from school.  He was distracted with other matters and forgot to do so.  The daughter arrived home about 45 minutes later than normal.  Her clothes were in disarray and she was quiet and lifeless.  She started vomiting.  There were found to be bruises on her body, she was not wearing underwear and there was a strong smell of semen.  The area around her anus was red and swollen.  She was put to bed that night.  She woke up calling the name of “(X)”.  This was the name of the man who lived on the school compound as a security guard.  The applicant and his wife took their daughter to a child psychiatrist who did not get any response from the daughter.  They went back the next day and the psychiatrist used hypnosis and from this and the earlier consultation concluded that the daughter had been abused by X.  The applicant obtained a letter of diagnosis from the psychiatrist and went to the police station.  The policeman there abused him because, the applicant believed, the policeman thought it was wrong that he made a complaint against a Muslim.  The applicant then produced some money and the policeman scooped it into a drawer.  The policeman said he would prepare the file and that the applicant should come to the police station the next day.  The letter from the doctor was put on the file. 

14                  Later there was a court hearing.  The judge opened the file and said it was not complete and ordered an investigation.  On the next day he said it was still not complete and there was no evidence.  The applicant mentioned the psychiatrist’s report but was told it was not there.  The applicant then went to the psychiatrist’s office but was told he could not have another report and that he had put the psychiatrist in a difficult position.  She told him that the Pasdaran (religious police) had visited her and accused her of giving a medical certificate to a Sabian to enable him to file a case against a Muslim.

15                  The applicant returned the next day to the court.  He asked the judge why he had taken the medical certificate off the file.  The judge then started abusing the applicant’s religion and his wife and daughter.  The judge said that whenever a Muslim had sex with a Sabian that it purifies the latter.  The applicant then lost control and abused the judge and his religion.  The judge spat on his face and slapped him.  The applicant pushed the judge who fell back in his chair.  The applicant was blindfolded and taken away.  He was then beaten and left in a room.  In the afternoon a person came and told him that he knew what Sabians experienced and told him that he could get him out of detention if he paid a certain amount of money.  This man went to the applicant’s father who paid a bribe of US$12,000 for his release. 

16                  After the applicant’s release he went to an address two streets away from his home.  He contacted a taxi and telephoned his wife and asked her to come.  They then went in a taxi to Teheran, a journey which took fifteen to sixteen hours.  They went to a guest house where they remained for two months before leaving Iran.

Other material before the Tribunal

17                  In its reasons the Tribunal quotes a substantial amount of country information relating to treatment of religious minorities in Iran.  Some of this was supportive of a determination of refugee status.  For example in the US Department of State publication 2000 Annual Report on International Religious Freedom: Iran it was said that:

“All religious minorities suffer varying degrees of officially sanctioned discrimination, particularly in the area of employment, education and housing.” 

18                  The publication said that members of religious minorities generally are barred from becoming school principals or serving in the army, the judiciary or the security services.  University applicants have to pass an examination in Islamic theology.  Religious minorities suffered discrimination in the legal system, receiving lower awards of damages and incurring heavier punishments than Muslims. 

19                  On the other hand there was some country information which pointed the other way.  According to an American academic, Dr Jorunn Buckley, writing in 2001:

“About two years ago the Iranian President Khameni issued a fatwa, an opinion, about the Mandaeans, stating that they seemed to be monotheists with a holy scripture and prophet and should therefore be recognised as a protected religion.  Since the fatwa, Mandaeans have had their hopes strengthened.” 

20                  A Department of Foreign Affairs and Trade (DFAT) country information report of 26 February 2001 Treatment of Civilian Mandaeans by Muslim Community in Iran stated that there was only limited information available.  The report stated:

“To the best of our knowledge there is no system in place for harassment or persecution of Sabians other than that referred to previously.

…

While legal protection exists for all individuals who encounter such harassment within Iran, we cannot comment on the willingness of local authorities to act or offer such protection.”

21                  More recently in a report dated 11 June 2001 DFAT stated:

“The Sobbis in Ahvaz very much keep to themselves although there is some interaction with the wider community.  Marriages outside the Sobbi community are rare, and Sobbis who marry Muslims or even associate with the wider community too much are ‘disowned’.  The Sobbis do not, however, have problems with members of the general community – they get along well with most ordinary Iranians.  The Sobbis do not get involved in politics and are a law - abiding community.  The main concern of the Sobbis in Ahvaz is to preserve their religion and their separate identity, which they feel are under threat.

…

In some respects Sobbis do not receive the same level of protection from the authorities that other Iranians enjoy.  The police will generally protect Sobbis and generally do not discriminate against them, but Sobbis often have problems in the courts.  If there is a legal dispute involving Sobbis and Muslims, the courts will often side with the Muslim party, especially if the judge is religious.

…as a religious minority, the Sobbis experience discrimination in employment and education and in the way the legal system operates.  However the sources did not say anything to suggest that the Iranian government actively harasses or routinely persecutes the Sobbis as a community.”

22                  Dr Marie O’Neill, a psychologist employed at the Woomera Detention Centre, provided a report dated 10 October 2001 which reported the applicant’s allegation that a Muslim adult male had sexually abused his daughter.  Another letter from the psychologist dated 7 November 2001 reported on the psychological state of the daughter.  This stated that the parents reported that the daughter still has many nightmares about the trauma.  The daughter had “not yet been able to discuss” the matter with the psychologist although she had a good relationship with her.  The daughter had been monitored over a considerable time as she had had several colds, had been eating very little and was very thin.  She seemed to be “intensely involved in the anxiety related to being rejected” by the Department and in preparing for the family’s appearance before the Tribunal.  She would require “continuing psychological and medical intervention”. 

23                  A letter dated 24 October 2001 was provided from Sister Anne Higgins, a parish pastoral associate with the Woomera Roxby Downs Catholic Parish.  This dealt with historical and religious aspects of the Sabian Mandaean religion, its relationship to Christianity and the attitudes of Muslims to its adherents.

Conduct of the hearing

24                  At the hearing before the Tribunal on 15 November 2001 the following exchange took place between the Tribunal and the applicant relating to the alleged assault on the applicant’s daughter.

Tribunal:         I wanted to ask you about this man called “(X)” who assaulted your daughter. … I just want to talk about X who assaulted your daughter.

Applicant:       Go ahead please.

Tribunal:         Was he somebody that you, you know his name, was he somebody that you knew, or somebody that your daughter you knew?  Was he somebody attached to the school?  I am just not sure where he comes from.

Applicant:       He was the person who was the house keeper of this school.  (Applicant’s wife interjecting)  These house keepers are people of lower employment ranking who look after the school and are responsible for cleaning.

Tribunal:         So does that mean he worked at the school everyday?

Applicant:       Yes.

Tribunal:         Right, and was there other children at the school he was accused of interfering with?

Applicant:       No, he didn’t have a charge of child abuse.  But my wife had seen him several times.  Sobbi girls who are leaving school he used to touch them from the bottom and also from the breast.  He used to have the newly grown breast and this was in the guise of saying good bye.

Tribunal:         And in addition to going to the court, did you talk to the school about him?

Applicant:       No, in no way; and if you want the reason, I can explain why.

Tribunal:         Why wouldn’t you complain to the school, particularly if he was employed by them.

Applicant:       Complain to whom?

Tribunal:         Why not in addition to going to the police, wouldn’t you be keen to tell the school that one of their employees has done this to your daughter?

Applicant:       Because in Iran, the principals of the school is chosen among the, the Hezbollah  And because they are Hezbollah, they won’t do anything.  In addition to that was I would have raised that? [sic]  something else at the school?  They could spread the rumour that my daughter has been subject to abuse, and when she grows up she would have difficulty in marriage.

                        And there are lots of … Hezbollah  Every Thursday, clergy come to school to try and convert the Sobbi girls.  Because on Thursdays, they take the Moslem children to the graveyard.  (Applicant’s wife talking at same time)  And they are forced to wear chador or the hijab.  And also force them to pray, the Muslim way.  When they say that they don’t know how to pray, they would say can you bend and get up and straighten up?  Do that.

Tribunal:         I still don’t understand.  You’ve told me you’ve gone off to the police, you’ve gone off to the court. You’ve been to the court three times, you’ve abused the judge, the judge has abused you, and you’ve had a big argument about it.  But you are scared to go to the principal and tell that this man who is employed at the school is interfering with your daughter.

Applicant:       And I was sure that going to the principal wasn’t going to solve the problem anyway.  And it would have been undignified to do so.  If it is rumour that the girl has been subject to rape, then when she grows up, she will have in our community difficulty to marry.

Tribunal:         Once you go the police you have the same problem don’t you?

Applicant:       The child abuse is a police and judicial matter. (Applicant’s wife interjecting)  If you go to the principal, the principal cannot sentence the employee for doing a crime like this.  The only thing that he can do is to report him or discipline him only.  But the police and the judiciary have the power to imprison him.  And because the principal is the Hezbollah himself, he will take the side of the Moslem employee rather than taking the side of Sobbi girl.

Tribunal:         He might also have been concerned that some of his peoples had been touched by someone you have described as one of the lower ranking employees at the school.  I said the principal also might have been concerned that some of his pupils had been interfered with by one of the lower raking employees at the school.

Applicant:       (part Applicant’s wife interjecting)  The officer won’t ever do such a thing to a Muslim girl because he knows that according to the Shaia that if the man was interfered with a Muslim girl, the rape of a girl by him would be a ?? death sentence.  He is fully aware that .. if the girl is a Sobbi, a non-Muslim, it’s just a mild .. punishment or lashes.  We are violated because they know that we have no support.  If a city has a guard and a gate, no-one would attack us.  But if a city has no guard or gate, no fence, everybody invades??  We are being violated and our children are abused, because they know in the market in the street, in the community that we are not being supported by the law.  We are an ethnic religious group which is not recognised in the Constitution.

25                  The applicant in his Response to Hearing Invitation form had nominated Sister Higgins as a witness.  In answer to the question, “What evidence will the witness give about your application?” he stated:

“Personal situation of daughter.  Difficulties arising from Mandaean religious faith.”

26                  At the hearing the Tribunal told the applicant’s representative that it had a report from Sister Higgins and that she was not in the room at the moment.  The Tribunal said:

“I have read that [report] and I also know that she has on other occasions told me about the difficulties that the Sabian Mandaeans have been having in the Detention Centre.  So I’ll take that into account without having to hear from her again.”

27                  On 10 December 2001, the day before its decision was handed down, the Tribunal received a letter from the applicant’s migration agents which stated, inter alia, that Dr O’Neill had said that the applicant’s daughter was threatening to harm herself and that she (Dr O’Neill) would be “writing a report on her condition” and would send it on to the Tribunal.  In its reasons the Tribunal said that it

“…does not intend to wait for this [report] as whatever actions the daughter may take or be encouraged to take in the detention centre cannot influence the Tribunal’s decision and the Tribunal considers that the source of the advice vindicates that the authorities are aware of this threat and are well placed to monitor the situation.”

Findings and reasons of the Tribunal

28                  The Tribunal quoted the relevant statutory provisions and some of the authoritative judicial interpretations of the terms of the Refugees Convention.  It then proceeded to recount the applicant’s case as set out above. 

29                  The Tribunal accepted that the Sabian Mandaean religion was not a recognised religion in Iran.  On the other hand, the country information indicated that the Sabians in Ahvaz lived in a small community which kept very much to itself.  They generally did not marry outside of their group and the most recent information indicated that they did not have problems with the general community.  The Tribunal, however, accepted that the applicant faced some discrimination at school and that on one occasion he was involved in a fight where one of his testicles was badly injured and had to be removed.  The Tribunal accepted that this may have been precipitated by a teacher who was not sympathetic to Sabians.  However, that was a long time ago and of itself did not indicate that the applicant faced a real chance of persecution.  The other incident about chocolates in the pocket was also a long time ago and was in itself not serious. 

30                  As to the claims relating to incidents when food was purchased, the Tribunal said that, while it was possible that such events did occur, it did not consider that these three events about food constituted serious harm amounting to persecution or that they indicated the applicant and his family faced a real chance of persecution should they now return.  The applicants presumably buy food each week and they would not return to someone who treated them in this fashion.  Whilst these isolated incidents may have occurred, the Tribunal considered that they could shop elsewhere along with other Sabians at places that gave them respect.  There was no suggestion that they were unable to obtain their nutritional requirements without facing constant harassment.  The Tribunal did not accept the applicant’s wife’s claim that she was inappropriately touched in a sexual way. 

31                  The Tribunal accepted that the applicant had been robbed by a Muslim woman who visited his jewellery shop but did not accept that indicated a real chance of persecution.  The country information indicated that the police generally protect Sabians and the Tribunal did not accept that the authorities would countenance theft just because the shop owner was a Sabian.  The Tribunal did not accept that the applicant’s niece’s religion affected her treatment for cancer.  The Tribunal thought it was possible that the applicant may have been assaulted one night on the way home from the chemist, however this only happened once to the applicant and again the information about this that authorities generally protected Sabians.  As a result the Tribunal did not accept that this indicated the applicant faced a real chance of persecution should he now return.  The Tribunal summarised the foregoing part of the case as follows:

“None of the matters discussed above on the applicant’s own account caused them to leave Iran.  These matters do indicate some harassment and discrimination.  However even when considered together the Tribunal does not accept that they indicate that the applicants suffered persecution in the past.  There is one isolated incident of minor interference with a religious ceremony, a few problems buying food, a problem of theft, a problem relating to a relative’s medical treatment, a possible denial of further education, an institutional problem relating to the closure of a cemetery.  Taken together the Tribunal is not satisfied that these matters indicate that the applicants have faced persecution in the past or that they face a real chance of persecution should they return now.”

32                  The Tribunal then turned to the claim arising out of the assault on the applicant’s daughter and the subsequent court case.  The Tribunal did not accept that the applicant insulted the judge, was arrested and beaten and that he is still wanted as a result of this.  The Tribunal said:

“Firstly the country information above indicates that Sabians are protected by the police.  Whilst the country information does indicate that the court will often side with Muslims in a dispute involving a Sabian and a Muslim, the Tribunal does not accept that the courts would have such a response in relation to something as serious as sexual assault of a minor.  Secondly the Tribunal does not accept that it is plausible that the applicant would assault a judge but be released on payment of a bribe to the person imprisoning him.  The applicant told the Tribunal that neither the judge nor the three that beat him knew of his release.  However if the applicant had done something as serious as assaulting a judge the Tribunal considers it implausible that a guard would take a bribe to release him.  It simply would not be worth the guard’s while when he comes to explain to the judge what happened to the person.  Thirdly whilst it is possible the applicant travelled by taxi to Teheran, his description of his behaviour after his release is again not plausible.  If he really was released on payment of a bribe the Tribunal sees no reason why he could not return home to collect his family rather than ring them from nearby.  Fourthly the Tribunal considers it most unlikely that the applicant having complained about an incident in relation to his daughter would assault a judge.  Fifthly the Tribunal considers it also unlikely that the applicant’s religion would be insulted by the judge in the way claimed given the seriousness of his allegation.  Sixthly the Tribunal also considers it implausible that the judge would say to the applicant that having sex with a Sabian girl purifies her.  In the Tribunal’s view it is most unlikely given Muslim attitudes to marriage and sex that such a comment would be made.

When all of these matters are added together the Tribunal has concluded the applicant’s account of his run in with the Muslim cleric judge is implausible and far fetched.”

33                  The Tribunal then went on to consider the alleged sexual assault itself.  It did not accept that this had occurred. 

“Firstly the Tribunal considers that the applicant has fabricated the claims in relation to his visit to the judge and as a result the Tribunal considered that his credit worthiness is not such that it is mindful of accepting these claims about his daughter.  Secondly the Tribunal considers that it is highly improbable that if the sexual assault really occurred the husband and wife would not complain to the school.  These are very serious charges against the caretaker of the school, who was hardly a skilled or vital employee.  The Tribunal considers the suggestion that he had been seen trying to interfere with young girls before but that nothing happened to him most unlikely.  In the Tribunal’s view the school would have been the first place for them to approach to complain.  The applicants’ admission that they did not complain to the school indicates to the Tribunal that these events did not occur.  Thirdly the country information above indicates that Sabians are generally protected and not discriminated against by the police.  Given the seriousness of the charges and the relative position of the alleged offender at the school, the Tribunal does not accept, as stated above, that the applicants were treated in the manner claimed when they complained to the police.  In the Tribunal’s view the seriousness of the complaint makes it most unlikely the police would have demanded a bribe to proceed.  The Tribunal also considers the description of the approach of the psychiatrist, including the use of hypnosis to be far fetched.  As a result of these matters the Tribunal does not accept that any of these events occurred.”

34                  The Tribunal then concluded:

“As a result the Tribunal does not accept that the applicants left because of an assault on their daughter or the applicant husband getting into trouble with a judge.  Nor does the Tribunal accept given the country information available about the situation of Sabian Mandaeans in Iran and particularly the situation about the protection of the police that an allegation of sexual assault would not be properly investigated.  Further whilst the applicants claim that their daughter was molested because she is a Sabian, the Tribunal does not accept that this was the case.  In the Tribunal’s view those that prey on young girls do not do so to attack the person’s religious belief.  In the Tribunal view they prey on those vulnerable people who are available irrespective of their religion.  As a result the occurrence of sexual assault of a child who happens to be a Mandaean would not indicate to the Tribunal that Sabians or indeed the applicants faced a real chance of persecution for a Convention reason should they return.

As stated above the Tribunal accepts that Sabian Mandaeans do face discrimination and at times harassment.  However the Tribunal does not accept that in the applicants’ case this has been serious enough to amount to persecution.  Given these findings and the country information above about the situation of Sabian Mandaeans the Tribunal finds that the applicants do not face a real chance of persecution for a Convention reason should they return to Iran now or in the reasonably foreseeable future.  The Tribunal finds that the applicants do not have a well founded fear of persecution for a Convention reason.”

The applicant’s case on review to this Court

35                  By his further amended application dated 21 April 2002 the applicant sought relief on three grounds.  The first ground was that the Tribunal made the decision in breach of the rules of natural justice or procedural fairness.  The particulars allege that it was a “cardinal claim” of the applicant and his family that his daughter was sexually assaulted in Iran because she was a Sabian Mandaean, that the Minister’s delegate “accepted that the applicant’s daughter may have been assaulted in the way alleged” and that the applicant’s daughter’s treating psychologist Dr O’Neill was in attendance at the hearing on 15 November 2001.

36                  The Tribunal decided that the daughter was not sexually assaulted or, alternatively, she was not sexually assaulted for a Convention reason, and in doing so breached the rules of natural justice because:

(a)        the Tribunal failed to hear evidence from the daughter;

(b)        the Tribunal failed to hear evidence from Sister Higgins, or to consider the applicant’s wishes that Sister Higgins give evidence, about the “personal situation” of the daughter;

(c)        the Tribunal failed to “conduct an appropriate enquiry” or hear evidence from Dr O’Neill or from any other medical experts as to the cause of the daughter’s post traumatic stress disorder;

(d)        without giving any notice the Tribunal made its decision without waiting to receive the medical report from Dr O’Neill in circumstances where the Tribunal had been told that the report was being prepared and would be sent to the Tribunal;

(e)        the Tribunal gave no indication to the applicant or his family or their witnesses or proposed witnesses that the Tribunal did not believe that the daughter was sexually assaulted or, if she was, that it was not for a Convention reason.

37                  The second ground was that the Tribunal exceeded or alternatively failed to exercise its jurisdiction.  Particulars were:

(a)        The particulars relating to ground 1.

(b)        By failing to conduct an appropriate enquiry and not obtaining evidence from

(i)         Sister Higgins;

(ii)        The daughter;

(iii)       Dr O’Neill;

(iv)       Other medical experts “on the cardinal issue as to whether the daughter was sexually assaulted at all and the reason for it” the Tribunal declined to exercise its jurisdiction, failed its duty and purported to make a decision for which it did not have jurisdiction.

(c)        By reason of (a) and (b) above the decision was so unreasonable that no reasonable Tribunal could have so acted.

(d)        The Tribunal made the decision in breach of “indispensable conditions or imperative duties” for the exercise of jurisdiction or power under the Act.  The Tribunal breached s 426(3) of the Act by failing to hear evidence from Sister Higgins or to consider the applicant’s wishes that Sister Higgins give evidence about the personal situation of the daughter. 

(e)        The decision involved an error or law being a jurisdictional error in that the Tribunal identified a wrong issue, asked itself a wrong question, ignored relevant material and relied on irrelevant material in such a way as affected the exercise of its powers by an erroneous understanding of what constituted a “well-founded fear of persecution”.

38                  The third ground was that the decision “was not made in good faith or it was not a bona fide attempt to act in the course of the (Tribunal’s) authority”.  Particulars given of this ground were:

“(a)     (The Tribunal) made the decision in breach of the rules of natural justice and failed to afford procedural fairness: see particulars to ground 1 above.

(b)       (The Tribunal) made the decision in excess of jurisdiction, alternatively without jurisdiction: see the particulars to ground 2 above.

(c)        (The Tribunal) made the decision by a process that did not constitute a bona fide exercise of the jurisdiction.”

The operation of s 474

39                  Section 474(1) of the Act in the form introduced by the 2001 amendments provides:

“A privative clause decision:

            (a)        is final and conclusive; and

(b)        must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)        is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

40                  The Minister accepts that this provision does not prevent judicial review based on the absence of one of the more essential elements of validity identified by Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 615, namely that the decision of the decision-maker “is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the (decision-maker)”.  Looked at in the context of an allegation of jurisdictional error, the jurisdiction of the decision-maker is the jurisdiction to make a decision that meets those requirements.  The Hickman principle can be seen as the solution of a dilemma.  Parliament may wish, for reasons which seem good to it (such as the need for speedy large scale multiple decision-making and the existence of machinery for administrative review), that ordinary judicial review should not be available for certain decisions.  But Parliament would presumably want those decisions made by the administrators to whom it has given power, and not by others.  And Parliament would presumably want powers it conferred exercised honestly and for the purpose intended, even if mistakes of fact and law and procedural error might remain uncorrected.  The Hickman principle reconciles these competing demands.

41                  As I said in Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 at [40], I agree with the construction that has been put on this section by Gyles J in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263.  In my opinion, the expression “on any account” in s 474(1)(c) means on any account.  It does not mean “on any account (except breach of the rules of natural justice)”.  Still less does it mean

“on any account (except breach of the rules of natural justice, failing to conduct an appropriate inquiry, making a decision so unreasonable that no reasonable decision-maker could make it, making a decision in breach of indispensable conditions or imperative duties, or identifying a wrong issue, asking itself a wrong question, ignoring relevant material or relying on irrelevant material by an erroneous understanding of what constitutes a ‘well-founded fear of persecution’)”

42                  There are of course, as senior counsel for the applicant submitted, many cases of the highest authority which support the proposition that the rules of natural justice apply to an administrative decision unless clearly excluded: see for example Re Minister for Immigration & Multicultural Affairs; ex parte Miah (2001) 179 ALR 238 at [43], [90], [126], [181] and [183].  Nevertheless senior counsel did not submit, and I know of no case which holds, that sufficient clarity of intention cannot be found unless the words “natural justice is hereby excluded” appear in the statute in question.  The teleological considerations discussed in Turcan at [41] to [44] point against a reading of s 474 which has it failing to reveal a sufficiently clear intention.  In particular, I cannot accept that Parliament somehow intended to reinsert in the Act, after express deletion by the 1992 amendments, the “chameleon-like” (Kioa v West (1985) 159 CLR 550 at 612) concept of natural justice with all its subtleties, such as the argument advanced in the present case, that the decision of NAAX is to be distinguished because Gyles J was there dealing with a different sort of natural justice, namely not referring an applicant to country information reports.  Such an argument would require s 474(1)(c) to read

“not subject to prohibition, mandamus, injunction, declaration, or certiorari in any court on any account (except breach of natural justice of such a particularly serious kind as courts may from time to time determine).”

43                  Senior counsel for the applicant argued that the rules of natural justice were incorporated by the requirements in s 420(1) that the Tribunal is to pursue the objective of providing a mechanism of review that is “fair” and “just” and in s 420(2)(b) that it is to act according to “substantial justice”.  However, such an argument seems precluded by the decision of the High Court in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] and [108] which held, approving the decision of Lindgren J in Sun Zhan Qui v Minister of Immigration & Multicultural Affairs [1997] FCA 324, that s 420 contains “general exhortatory provisions, the terms of which do not conform to the common understanding of a ‘procedure’”.

44                  Senior counsel also referred to Pt 8A of the Act headed “Restrictions on court proceedings” which clearly contemplates that some litigious challenge might be made to a privative clause decision; see for example s 486A.  But under Hickman judicial review is not totally excluded; indeed the essence of the decision is that where a privative clause applies review will be available, but on very limited grounds.   So Pt 8A has work to do that does not involve an implicit reinstatement of natural justice as a ground of review.

45                   As I said in Turcan (at [46]), it seems wrong in principle to deal in detail with contentions made as though s 474 did not exist, a view with which Gyles J has since agreed: NABC v Minister for Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 539 at [6].  In the present case counsel on both sides produced written submissions totalling 69 pages and the hearing took a full day.  It is not easy to see how the case could have taken any longer, or raised any more points, had it been conducted under the Act in its pre-2001 amendment form, or even under its pre-1992 amendment form.  If this case is a valid example of how s 474 might work, then for practical purposes the section has been a waste of Parliamentary time, and Hickman can be ignored.

46                  As a matter of forensic necessity, senior counsel for the Minister had to deal with all points raised while maintaining the primary argument that they were not open.  While I think, for the reasons already mentioned, that the points were not open, I should however say that his submissions provided a convincing answer on the merits.  For example, the central complaint that there was unfairness in not warning the applicant that the sexual assault claim might be disbelieved simply cannot stand with the passage quoted above from the hearing which shows firm questioning as to the reasons for the lack of complaint to the school authorities.  Such a line of questioning is consistent only with the existence then of a state of doubt on the part of the Tribunal as to the veracity of the claim.  It should be noted also that the applicant was represented by an experienced migration agent.  And evidence by Dr O’Neill, “other medical experts” or Sister Higgins as to the present condition of the applicant’s daughter could not assist in any identification of the perpetrator of the alleged assault.  More importantly, such evidence could not affect a finding that the assault, if it did occur, was not for a Convention reason.

Were the Hickman requirements satisfied?

47                  As to the second and third requirements, it is beyond argument that the decision of the Tribunal related to the subject matter of the legislation, namely the review of “RRT-reviewable decisions” (s 411), and was reasonably capable of reference to the power given to the Tribunal, namely the affirmation, variation or setting aside of RRT-reviewable decisions (ss 414 and 415).

48                  The decision of the Tribunal was on its face a bona fide attempt to exercise the power just mentioned.  There is no suggestion of any personal animus against the applicant nor of any ulterior or collateral purpose.  The Tribunal recorded the applicant’s case, made findings of fact which in part accepted and in part rejected claims by the applicant.  The Tribunal quoted other relevant evidence such as country information.  It stated the relevant law and applied it.  In particular, it dealt with the issue whether such discriminatory conduct as it found had occurred amounted to persecution within the meaning of the Refugees Convention. This was a question of fact: Minister for Immigration & Multicultural & Indigenous Affairs v Kord [2002] FCA 334.

49                  Good faith or what I think is the same thing, the absence of bad faith, is not a term of art.  In the context of administrative decision-making bad faith is a serious matter involving  personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process.  As such, it is an allegation not to be lightly made and must be clearly alleged and proved: Ayan v Minister for Immigration & Multicultural Affairs [2002] FCA 470 at [8].  The ways in which bad faith can occur are infinite and no comprehensive definition is possible.  Nevertheless it can be said that the presence or absence of honesty will often be crucial.  So also will be a purpose to achieve some end (perhaps even one not in itself reprehensible) which is not an end for which the statutory power was conferred.  The principles which the common law has developed in relation to malice in the law of defamation, while by no means an exact analogy, may provide some helpful concepts: see for example Horrocks v Lowe [1975] AC 135 at 149-153.

50                  In the present case, particulars (a) and (b) of lack of good faith simply re-badge the allegations of breach of natural justice and jurisdictional error.  This does not get to the threshold of bad faith.  Particular (c) alleges that the decision was made “by a process that did not constitute a bona fide exercise of the jurisdiction”.  For the reasons given above (at[48]), I do not see how this could be so.

Orders

51                  The application will be dismissed with costs including reserved costs.

Associate:

Dated:  10 May 2002