FEDERAL COURT OF AUSTRALIA

SDAN v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 710

MIGRATION – protection visa – appeal from decision of Refugee Review Tribunal affirming decision of a delegate of the respondent not to grant a protection visa to the applicant – whether RRT failed to consider relevant material in a way that affected its exercise of power – meaning of persecution in context of s 91R of the Migration Act 1958 (Cth) – whether the Court should first examine the merits of the applicant’s case before it considers the privative clause issue.

Judiciary Act 1903 (Cth), s 39B, s 474

Migration Act 1958 (Cth), s 91R

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

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

Alam v Minister for Immigration & Multicultural Affairs [2002] FCA 630, referred to

Algama v Minister for Immigration & Multicultural Affairs [2002] FCA 1884, referred to

SBAB v Minister for Immigration & Multicultural Affairs [2002] FCAFC 161, applied

SDAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 88 OF 2002

MARSHALL J

ADELAIDE

31 MAY 2002

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

1                     By his amended application the applicant has sought judicial review of a decision of the Refugee Review Tribunal (“the RRT”). The application is made pursuant to s 39B of the Judiciary Act 1903 (Cth). The applicant requests that the Court set aside the decision of the RRT and remit the matter to a differently constituted RRT for further consideration in accordance with law.

Background

2                     The applicant is a citizen of Iran. He is nineteen years of age. He is a Sabean Mandean by religion. The applicant claimed that he had a well founded fear of being persecuted if returned to Iran by reason of his religion. He made an application to the respondent for a protection visa on 19 October 2001, having arrived in Australia by boat in 20 August 2001.

3                     A delegate of the respondent rejected the applicant’s application on 19 November 2001. The applicant applied for a review of that decision on 22 November 2001. On 26 February 2002, the RRT affirmed the decision of the delegate not to grant the applicant a protection visa.

The applicant’s claims

4                     The applicant made the following claims in the course of pursuing his application to the RRT:

·        he would have trouble doing compulsory military service in Iran because he would be taunted by Muslims;

·        he suffered mistreatment at school because of his religion;

·        his education and employment prospects in Iran will be restricted because of his religion; and

·        he will be denied the opportunity to make a film about Sabean people in Iran.

The RRT’s reasons

5                     The RRT accepted that the applicant had a genuine fear of persecution on account of his religion if he were returned to Iran.

6                     However, the RRT was not convinced that the applicant had suffered harm in Iran which was sufficient to be characterised as persecution. Earlier in its reasons the RRT had referred to the definition of persecution contained in s 91R of the Migration Act 1958 (Cth) (“the Act”) and to the requirement therein that the relevant persecution involve “serious harm to the person”, instances of which are set out in s 91R(2) of the Act.

7                     The RRT was satisfied that if the applicant were denied employment and education opportunities on return to Iran, such treatment would not prevent him from earning a living or threaten his “capacity to subsist” (see s 91R(2)(f) of the Act).

8                     The RRT did not accept that the failure of the authorities to allow the applicant to make a film about adherents to his religion amounted to persecution. It was also satisfied that the applicant would not be harmed because of his desire to make such a film if returned to Iran, given that he has not been harmed in the past by reason of that desire.

9                     The RRT observed that country information showed that the applicant, as a non-Muslim, would not be required to serve in the military if he were returned to Iran. It doubted whether the applicant would be required to perform military service in Iran and said that such a requirement would not amount to persecution. The RRT, in terms, did not address the applicant’s claim that he would have trouble during his military service because of taunts. It is difficult to see, however, how such taunts would fit within the concept of persecution referred to in s 91R of the Act.

10                  The RRT also found that if the applicant left Iran on a false passport and suffered harm as a consequence, such harm would not ensue for a Convention reason.

11                  The RRT was not satisfied that the applicant’s fear of persecution was objectively well founded.

Contentions of the applicant

12                  Mr Hanna, of counsel, appeared for the applicant on a pro bono basis. He submitted that the RRT failed to consider relevant material in a way that affected its exercise of power; see Yusuf v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 1 at [82].

13                  The relevant material which it was alleged that the RRT failed to consider were:

·        submissions by the applicant’s migration agent (“the agent”) on what constituted persecution;

·        a submissions by the agent about “what harm beset the applicant by reason of his religion and membership of the Sabian Mandean community”;

·        country information released by the United States Department of State (“the State Department”) dated February 2001;

·        evidence of the treatment of Sabian Mandean detainees by Muslim detainees at the Woomera Detention Centre (“WDC”); and

·        a psychological report provided by Sr Anne Higgins, chaplain and Mr Russell Wilson, psychologist.

14                  It was further contended that the RRT should have found, on the basis of findings of fact made by it, that the applicant had a well founded fear of persecution for a Convention reason if returned to Iran.

Contetions of the respondent

15                  The respondent relied on s 474 of the Act to contend that, in the instant circumstances, judicial review of the decision of the RRT was precluded. For reasons which will soon become apparent I do not find it necessary to decide that issue. I consider it to be appropriate to first examine the merits of the applicant’s claim. In that context, I find persuasive the approach of Merkel J in Alam v Minister for Immigration & Multicultural Affairs [2002] FCA 630 at [3] to [12].

16                  The respondent contended that jurisdictional error is not established if the RRT does not expressly refer to all evidence and submissions raised by a claimant for refugee status. Reference was made in that regard, inter alia, to the judgments of Full Courts in Paul v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 289 at 312 and Algama v Minister for Immigration & Multicultural Affairs [2002] FCA 1884 at [128]; the latter in the context of the RRT not being obliged to refer to country information relied upon by an applicant.

Consideration

17                  Section 91R of the Act instructed the RRT in this matter as to the meaning of persecution. The RRT had specific regard to s 91R and applied it in the circumstances of the case before it.

18                  The RRT does not commit a jurisdictional error by failing to mention explicitly that certain submissions were made or certain evidence or material was relied upon by a refugee claimant. The question currently in issue is whether the RRT failed to consider relevant material in a way that affected the exercise of its power; see Yusuf at [82]; and SBAB v Minister for Immigration & Multicultural Affairs [2002] FCAFC 161 at [30].

19                  The material which Mr Hanna alleged that the RRT had failed to consider is contained in the five points set out at [13] above.

20                  The first raises an allegation that the RRT did not consider submissions about the meaning of persecution. That is not a proper ground of review or the basis for any reviewable ground. The RRT considered the meaning of persecution in the context of s91R as it was required to do, irrespective of any submissions which were or might have been made to it on that issue.

21                  The second concerns the question of harm which might “beset” the applicant by reason of his religion. The RRT specifically considered that issue in the first half of p 14 of its reasons for decision. This complaint is without foundation.

22                  The third concerned the State Department material dated February 2001. Although the RRT makes no express reference to that material, it accepted its basic tenets, that is, that Sabeans are mistreated by Muslims on occasions and that freedom of expression in Iran is very limited. It is not to the point that the RRT did not couch its reasons in the same terms as those used in the State Department material. This complaint is also without foundation.

23                  The fourth point concerns the treatment of Sabean Mandaen detainees by Muslim detainees at WDC. I do not see what relevance that issue has concerning the existence of a well founded fear of persecution if the applicant were returned to Iran. In any event there is no basis for the contention that the RRT failed to consider such material when it specifically referred to by it at p 6 of its reasons for decision.

24                  The final point concerns the failure of the RRT to refer to certain evidence about the applicant’s psychological state. Evidence about the psychological state of the applicant can assist the RRT in determining whether the applicant’s fear of persecution was subjectively well founded but that was a matter of which the RRT was satisfied. This complaint does not reveal that any jurisdictional error was made by the RRT in the circumstances of this matter. That is because the relevant letter did not identify any additional type of harm which might befall the applicant if returned to Iran, beyond the types of “harm” identified in the RRT’s reasons for decision.

25                  Mr Hanna also contended that the RRT’s findings of fact should have led it to find in favour of the applicant. I do not see why that is. In my view, the RRT properly applied the meaning of “persecution” and did not apply a wrong test to the facts found.

Disposition

26                  The application will be dismissed, with costs.

Associate:

Dated:              31 May 2002