FEDERAL COURT OF AUSTRALIA

SBBH v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 986

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 - referred to

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 - cited

SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 - discussed

NADO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 797 - discussed

NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 - discussed

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 688 – referred to

Sun Zan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 – referred to

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

SBBH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.14 of 2002

MANSFIELD J

21 AUGUST 2002

ADELAIDE

THE COURT ORDERS THAT:

1.         The application is dismissed.

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 single young man from Iran.  He arrived in Australia on 20 April 2001, and subsequently on 18 July 2001 applied for a protection visa under the Migration Act 1958 (Cth) (the Act).  That application was duly considered by a delegate of the respondent, and rejected on 4 September 2001.  The applicant sought review of that decision by the Refugee Review Tribunal (the Tribunal).  On 19 December 2001, the Tribunal affirmed the decision of the delegate not to grant a protection visa to the applicant.

2                     This is an application under s 39B of the Judiciary Act 1903 (Cth) to have the decision of the Tribunal set aside.

3                     It is common ground that, for the purposes of determining the application favourably to the applicant, it was necessary that the Tribunal be satisfied that the criteria prescribed in the Act and the Migration Regulations for the grant of a protection visa were satisfied:  s 65(1) of the Act.  It was further common ground that, in this particular matter, the relevant criterion was that specified in s 36(2) of the Act, namely that the Tribunal be satisfied that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention).  In turn, that depended upon whether the Tribunal was satisfied that the applicant is a “refugee” as defined in Art 1A(2) of the Convention, namely a person who:

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

The applicant’s claims

4                     The applicant claimed to have a well-founded fear of being persecuted principally for reasons of his religion principally.  He claimed to have had a firm interest in Christianity whilst he was in Iran, and to have been in the process of converting to Christianity formally whilst at the Woomera Immigration Reception and Processing Centre (WIRPC).  The Tribunal described that as the “central plank of his application for asylum”.  He also claimed to have a well-founded fear of being persecuted for reason of his political opinion, or more correctly of a political opinion imputed to him of being an anti-government sympathiser.

5                     The applicant received 12 years of schooling, and qualifications in gas turbine operation.  After completing military service, he worked as a gas turbine operator for an oil company run by the oil ministry in Iran until he left Iran.  He was a Shi’a Muslim by upbringing, but claimed to have a significant interest in Christianity before he left Iran.

6                     The events which gave rise to his well-founded fear of persecution commenced during 1999.  Having worked for the oil company for some time, he applied for an employer-supported loan to build a house.  That application was refused, on the basis that he had an insufficient length of service.  He decided to complain of the decision, and travelled to Tehran on a bus operated by the Oil Ministry with a view to applying at the head office of the employer to review the decision not to grant him a housing loan.  Upon arrival in Tehran, the bus progress was delayed because it was caught up in extensive demonstrations by students against the authorities.  The applicant decided to get off the bus and walk to the head office of the employer.  Almost as soon as he had done so, he was arrested by two men, and then detained by the authorities for about one month.  He was assaulted during that period of detention.  He claimed to have been questioned regarding his involvement with opposition groups.  He was freed after signing an undertaking not to leave Iran.

7                     The applicant claimed that, upon his return to his home city, his employment was converted from permanent to casual employment and he was put on day shifts.  He was also placed under continuous surveillance by the authorities.  He found that uncomfortable and distressing.  Although he told the Tribunal that he and his family had had no political involvement or any involvement with dissident groups in Iran, he perceived that he was suspected of such activities.

8                     He also told the Tribunal that whilst he was in detention for that period of one month, his house had been searched by the authorities who found books and other material there concerning his interest in Christianity.  He had developed that interest over time in discussions with a friend who was a Christian.  He claimed that, in March 2000, he was required to report to the Ministry of Information in his home city where he was questioned extensively about his interest in Christianity and was beaten up.

9                     The applicant claimed then to have left Iran using a false Iraqi passport because of his ongoing fear of persecution by the authorities for the two reasons identified.

10                  The applicant also told the Tribunal that, since he had been in WIRPC, he had progressed his interest in Christianity and had been undergoing instruction with a view to formal conversion to Christianity.  He said that if he returned to Iran, he would feel obliged to proselytise in support of that religion.

THE TRIBUNAL’S REASONS

11                  The Tribunal rejected the applicant’s claims to have a well-founded fear of persecution by reason of his interest in Christianity, either in Iran or whilst at WIRPC.  As its reasons for rejecting that claim, in so far as it related to the applicant’s interest in Christianity whilst he was in Iran, provide the ground upon which the Tribunal is said to have erred, it is appropriate to set out those reasons.  The Tribunal said:

“I have grave reservations about the genuineness of his claims regarding Christianity, a second and harsh interrogation/detention, and dismissal from his job given that he alluded not at all or most elliptically to these issues when he was first asked what had made him leave Iran and come to Australia.  The applicant and his adviser have given somewhat conflicting reasons for this omission, on the one hand stating that he was too tired and strained after his journey here to relate all his claims, and the other that he had made these claims and they had either been misinterpreted or not been taken down in the record of the interview.

Given that the applicant’s interview took place fully three weeks after his arrival in Australia, that the interview record appears to be comprehensive and liberally laced with warnings to the applicant to give a full and complete account of his claims, that the interlocutors are trained and under notice to take a comprehensive and properly-weighted account of all claims, and that the interpreter used for that interview is a professional, NAATI Level 3 interpreter, I am not satisfied that the applicant omitted claims out of tiredness or ignorance, or that the interviewer would have overlooked important claims, or that the interpreter omitted to convey them or misinterpreted them.  I am of the strong view that the new claims were invented by the applicant when he made his application for a protection visa, to boost that application.  I do not accept as credible evidence the applicant’s account of what he claims are notes that he had made of the evidence he allegedly gave at the first interview since I cannot be satisfied that such notes, which could have been written at any time, reflected what he had actually said.  I am not satisfied that claims made in the detail he ascribes to them (see pp. 14-15) would have been completely ignored by the interpreter and Departmental officer at the interview.  I have considered the applicant’s request that I should listen to the tape of the interview.  For reasons given above, I am satisfied that the written record of the interview is an accurate reflection of the information exchanged at the interview.  It is thus unnecessary for me to obtain the tape and listen to it.”

Earlier in its reasons, the Tribunal referred at some length to the information contained in the applicant’s interview by an officer of the respondent shortly after his arrival in Australia, on 12 May 2001.  It noted in particular that, in response to the question whether there was any reason why he did not want to return to Iran, the applicant was recorded as saying:

“I am really tired of the situation that has been created for me.  I wanted to get married and because of the incident [in 1999 when he claimed to have been arrested] that happened to me I was distanced from my fiancée.”

It also noted that, in response to a further question as to why he feared staying in Iran, the applicant was recorded as having replied:

“Because I am being hassled by the Intelligence officers more and more.  In year 2000, one of my friends who knew about my problem told me, ‘Let’s go to Australia’”.

In that initial interview, the applicant is not recorded as having told the interviewer of having been questioned and mistreated in March 2000, nor is he recorded as having told the interviewer that his employment had been terminated and he had been put on a casual basis although he is recorded as having said that he had been put on day shifts instead of rotating shifts when he returned from Tehran.

12                  The Tribunal also considered the applicant’s claims to have left Iran to escape persecution “even if he had made those claims at the outset”.

13                  It accepted that the applicant could accidentally have arrived in Tehran on the day of the mass student demonstration and riots in the city.  However, it found implausible his account of having been arrested and detained at the time.  It referred to independent country information about the demonstrations which took place at that time.  That information did not indicate that the security forces had engaged in large scale, indiscriminate arrests and detentions, but that they had targeted specific demonstrators or rioters.  The Tribunal was satisfied that those targeted, and then kept in detention for longer than one week, were people known to be linked with certain political groups and those clearly involved in provocative political acts or violent and destructive behaviour.  The applicant did not claim to have fallen into those categories, but maintained that he was a non-political, passive stranger in Iran.  The Tribunal was not satisfied that a person of that category would have been an object of adverse interest to the security forces.  It said:

“Such a claim is nonsensical and, moreover, is not supported by statistics of the actual numbers of those taken into detention and the reasons for which they were detained.”

It also remarked adversely upon the applicant’s claim that he had not been searched when arrested or during his detention, so that his identity card which explained who he was and would justify his presence in Tehran at the time for innocent purposes.  He said the Authorities had only found his identity card after about one month, and he had then been released.

14                  Consequently, the Tribunal was not satisfied that the applicant had been arrested and detained as he claimed in 1999.  It followed that it was not satisfied that he had suffered any penalty at work as a result of a claimed month in detention.  Any detriment in his employment would have been for him having overstayed his leave in 1999, and not for any Convention related reason.

15                  The Tribunal also found that the applicant’s evidence concerning his employment terms, in particular whether he had been taken off a rotating shift or terminated from a permanent job, to be “confusing and inconsistent”.  It considered that the applicant had altered his evidence so as to dramatise his circumstances.  In any event, even if he were terminated from permanent employment, it was not satisfied that such an action was for any Convention related reason.

16                  As the Tribunal had rejected the applicant’s claim to have been arrested and detained in 1999, it followed also that the Tribunal was not satisfied that the applicant’s home was then raided, and consequently that Christian materials had been found at his home.  It also followed that it was not satisfied that the applicant would then have been threatened, beaten, detained and placed under surveillance for being a Christian.  It was not satisfied that he had been interested in Christianity as he claimed.  There were other reasons adding to its conclusion in that regard.  It observed in particular that it was quite implausible that a person in the applicant’s claimed situation was unable to explain or provide any details about the person with whom he had had lengthy discussions concerning Christianity or details of any churches or denominations of Christianity in his home city.  It concluded:

“In the light of all the above, I am not satisfied that the applicant was interested in Christianity in the way he claimed to be.  I am of the firm view that he has fabricated claims on this matter and that his inability to give practical information about conversion and churches in Iran is due to a wish to conceal his ignorance of such matters.  As stated above, I do not consider that he would have been ignorant of these matters if he really had been as interested in Christianity as he claims to have been.”

17                  The force of its conclusion is contained in the following passages from its reasons:

“I am of the firm view that he came to Australia for reasons that are not linked to a need to seek protection from persecution, and that he has invented a series of Convention-linked claims in order to support an application for a protection visa.

Given all of the above, I am not satisfied that the applicant had come to the adverse notice of the authorities in Iran for a Convention reason, or that he had left that country out of a well-founded fear of persecution.  I consider that he left that country for other, and non-Convention-linked reasons.  I am thus not satisfied that he used a false, Iraqi passport to leave, and consider that he left normally, using his own travel documents.”

18                  It then turned to address his claims arising from circumstances in Australia.  Even if the applicant had lost or disposed of his Iranian passport, the Tribunal found that the applicant would be able to return to Iran without undue difficulty on the basis of independent country information.  It referred to that country information.  It also found that, by reason of being a failed asylum seeker, he would not be persecuted upon his return to Iran.  Again, it referred to independent country information in support of that conclusion.

19                  The Tribunal also addressed the applicant’s claim to have been in the process of converting to Christianity whilst in Australia.  It was not satisfied that, in that regard, he is a witness of truth.  It said:

“Thus I am of the very strong view that he has opportunistically and insincerely linked himself with Christian facilities in the Woomera Detention Centre in order to boost his claim to have a genuine wish to convert to Christianity.”

In addition, it referred to independent country information upon which it concluded that Christians in general are not persecuted in Iran.  It accepted that they might face family disapproval and harassment, but was of the view that that did not amount to persecution within the meaning of the Convention.  Moreover, it noted independent country information that Muslims who convert to Christianity are not actively pursued unless they proselytise.  It rejected the applicant’s claim that he would proselytise if he were to return to Iran, as “a mala fide attempt to bring himself within the grasp of the Convention”.

20                  Consequently, the Tribunal was not satisfied that the applicant is a refugee as defined in Art 1A(2) of the Convention.  He did not therefore satisfy the criterion specified in s 36(2) of the Act.  It was necessary then for the Tribunal to affirm the decision of the delegate of the respondent not to grant to the applicant a protection visa.

the ground of review

21                  Senior counsel for the applicant sought to confront the obstacle presented by s 474(1) of the Act, the privative clause provision, in two ways.

22                  The first was to contend that the Tribunal did not make a bona fide attempt to exercise its power so as to fall within one of the pre-conditions to the valid exercise of decision-making powers specified by Dixon J in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 616-617.  The respondent accepts that, notwithstanding the apparently unrestricted terms of s 474(1) of the Act, the Tribunal is vulnerable to an order under s 39B of the Judiciary Act if it does not comply with those exceptions or pre-conditions.  In effect, the contention is that the Tribunal did not bona fide attempt to exercise its power, because it had a mind that was not open to persuasion in relation to the applicant’s claims at all times.  That attitude on the part of the Tribunal was said to be demonstrated particularly by its declining to listen to the tape of the interview on 12 May 2001.  The applicant claimed to have then reported his interest in Christianity whilst in Iran, and the termination of his permanent employment, and his detention in March 2000, although the record of that interview did not record those matters.  If they had been disclosed to the interviewer at the time, and the recording of the tape was (the applicant contended) sure to demonstrate that, then the Tribunal would have not been adversely impressed with the applicant’s credibility by reason of his making of those claims only at a later point in time.

23                  Alternatively, senior counsel for the respondent contended that the Tribunal had committed jurisdictional error of the type identified by the High Court in Craig v South Australia (1995) 184 CLR 163 at 179, and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, by failing to investigate and listen to the tape recording of that initial interview, and that such a jurisdictional error, on the proper construction of the Act, entitled the applicant to relief notwithstanding s 474(1) of the Act.

24                  Counsel for the respondent contended the Tribunal had endeavoured to exercise its power and obligation to review the decision of the delegate in good faith, notwithstanding its declining to listen to the tape recording of the initial interview.  Counsel also contended that, in any event, the Tribunal had acted in good faith, so that its decision was not vulnerable to review by reason of s 474(1) of the Act.  He also contended that, irrespective of whether the Tribunal erred in failing to listen to that tape recording, it reached a conclusion rejecting the applicant’s claims even if he had made those claims in his initial interview.  That is, it was contended that there was an independent basis upon which the claim of the applicant was rejected, and that the application must therefore fail.  Counsel further contended that the Tribunal had not committed any jurisdictional error of the nature contended for by the applicant.

25                  Counsel for the respondent also contended that, in the exercise of its discretion whether or not to grant relief under s 39B of the Judiciary Act, assuming that proper reason for exercising that jurisdiction might otherwise arise, the Court should decline to do so because the applicant had escaped unlawfully from WIRPC on 29 March 2002.  His present whereabouts are unknown.  It is not even clear whether he is still in the country.  The facts upon which that argument was advanced were not in issue.  Counsel for the respondent referred to a passage in the reasons for decision of Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [57] where their Honours said:

“Some guidance, though it cannot be exhaustive as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from … R v Commonwealth Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Limited.  Their Honours said further:

            ‘For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there have been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the Court to which the application is made.  The Court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.’”

26                  It was contended that the applicant’s escape from WIRPC disclosed “bad faith in relation to the Australian law generally and migration law in particular” so as to disentitle him, in the exercise of the Court’s discretion, from relief under s 39B of the Judiciary Act.  The respondent submitted that discretionary considerations also pointed towards declining to grant such relief, namely that there was no information now that the applicant is currently within Australia, or is still seeking the protection of Australia, and that the remittal of the matter to the Tribunal would present it with substantial procedural difficulties because it would be unable to serve the applicant with any proceedings for notices.  Finally, counsel for the respondent contended that the relief should not be granted because it would have the effect of altering the applicant’s legal status.  Presently, he is not lawfully in Australia and has escaped from WIRPC and his whereabouts are unknown.  The effect of making an order under s 39B of the Judiciary Act would be to prevent him from being removed from Australia whilst the application to the Tribunal remained unresolved, whereas at present, subject to his having left WIRPC, he could be removed from Australia following the Tribunal’s decision although the respondent in the exercise of his discretion had determined not to do so pending the hearing of the present application.

Consideration of submissions

27                  In SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547, I referred to some authorities in which the nature of the “good faith” qualification in the Hickman principles was considered.  I will not repeat that consideration.  Gyles J in NADO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 797 at [13] and Allsop J in NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 pointed out that good faith is not necessarily synonymous with actual bias.  That is because it involves an inquiry into the state of mind of the decision-maker, rather than an inquiry upon the quality of the decision-making process.  Of course, the quality of the decision-making process may be informed by the reasons for decision of the decision-maker, as that may be the material from which an inference might be drawn about the state of mind of the decision-maker.  Similarly, the quality of the decision-making process, or of the reasons for decision, may be relevant to the state of mind of the decision-maker, as well as to the quality of the decision-making process:  see e.g. the consideration by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [37] and [38].  Although actual bias might be found to exist at a subconscious level:  see e.g. Sun Zan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71, the circumstances are likely to be rare and exceptional that a combination of facts and circumstances will clearly prove actual bias:  per von Doussa J in SCAA at [38].  For the same reasons as his Honour expressed, an allegation of lack of good faith on the part of the decision-maker is also likely to be rare and exceptional.

28                  In this matter, there were two features upon which senior counsel for the applicant relied to demonstrate that the Tribunal simply undertook its review of the applicant’s claim in a way which involved “going through the motions” without genuinely considering his claim. First, as noted above, it declined to call for the tape recording of the interview of 12 May 2001, or to listen to that tape, to see if the applicant’s claim that he was forestalled from presenting fully the reasons why he had left Iran and why he feared returning there was correct.  He said that he was told to be brief and was cut short on occasions, so that he did not fully present his claims at the time.  He also claimed in any event to have mentioned at that interview his fear of harassment because of past harassment following the discovery of Christian literature in his house, his interview and maltreatment in March 2000, and his dismissal from permanent employment in 1979 following his return from Iran.  Secondly, senior counsel referred to unreasonableness on the part of the Tribunal in expecting the applicant to produce the tape recording of that interview, and to identify by reference to a transcript where he had said the things which he claimed to have said, or where the interviewer had said to him that which he claimed was said to him because the Tribunal knew it was physically impossible for the applicant to have done so.

29                  The relevant part of the Tribunal’s reasons is set out in [11] above.  It is apparent that the Tribunal declined to listen to the tape of the interview of 12 May 2001.  It was satisfied that the written record of the interview is an accurate reflection of the information exchanged at the interview, so it was “unnecessary” to obtain the tape and listen to it.  That may be said to be a curious judgment, given the applicant’s assertions as to what had been recorded in that tape.  The Tribunal’s reasons for declining to listen to that tape refer to “somewhat conflicting reasons” of the applicant for those three matters not having been mentioned.  The matter of tiredness and strain was referred to in a letter from the applicant’s migration agent to the Tribunal of 10 December 2001, largely based upon information provided by the applicant himself in a lengthy written submission to the Tribunal through his migration agent dated 7 December 2001.  In both of those documents, however, the assertion is maintained that the applicant did make the claims which the Tribunal found he did not make at the initial interview.  The Tribunal’s comment about somewhat conflicting reasons is, however, not shown to be unwarranted on the material provided.  In addition, the letter from the applicant specifically referred to by the Tribunal observed at one point a claim that the interpreter had misunderstood, and had therefore misinterpreted, the interview or that the interviewing officer ended up with the wrong impression of what had been said.  Consequently, subject to considering the particular matters referred to by senior counsel for the applicant, I think the Tribunal’s reasons for declining to listen to the tape are coherent and not capricious.

30                  The interview in question is on a pro forma document in which the answers are handwritten.  The interview was conducted with the assistance of an independent professional interpreter.  At the completion of the interview, the interpreter declared that he had interpreted the content of the document to the applicant before the applicant had signed it.  The applicant has signed the document.  The document includes those statements to which the Tribunal referred, namely:

This interview is your opportunity to provide any reasons why you should not be removed from Australia.  If you do not answer questions a decision may be made on the basis of the information we have.

You are expected to give true and correct answers to the questions I ask.

You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.”

The concluding parts of the interview include the questions as to why the applicant left his country of nationality, and his reasons for not wishing to return to his country of nationality.  The answer to those questions is quite lengthy.  It is handwritten.  He said, after referring to the reasons for his trip to Tehran:

“When I got to the city, there was riots going on by uni students.  Then for no reason, I was abducted by two men and taken to an unknown place, assaulted and questioned about my involvement with any opposition groups.  This went on for a month.  Whilst I was in custody, the intelligence people went to my house and searched my belongings and took some of my books about Christianity.  After a month, I returned and there is a group of people called ‘Hiat Badvi’ that examines and investigates complaints against employees.  I was called by this group because of my absenteeism from work because I had only seven days leave. …They told me to go back to work until further notice and for the time being to work only dayshift instead of rotating shifts until the end of the year.”

31                  Given the Tribunal’s concerns about the suspected recent invention of certain of his claims, following the hearings, on 4 December 2001 it wrote to the applicant in accordance with s 424A of the Act for his response.  It referred to the fact that he had not given any real indication at his initial interview that he wanted to convert to Christianity, or faced harm in Iran because of his interest in Christianity although ultimately conversion to Christianity became his main claim.  It also referred to his failure to state that he had been demoted in his place of employment and sacked from permanent work, but merely that he would change from nightshift to dayshift.  Finally, it referred to his failure to mention being harshly interrogated in March 2000.  It invited his comments.  It also requested if the applicant wished to rely on the tape of that interview to show he had made those claims at the interview, to provide a transcript of the tape with the relevant portions marked.  On 10 December 2001, the migration agent for the applicant responded to that request.  It sought to explain and respond to the Tribunal’s queries.  It made no reference to the tape of the interview.  However, the enclosed handwritten memorandum of some length from the applicant dated 7 December 2001 included the following:

“Because I was never given a copy of my initial interview tapes and I still do not have access to them, I would plead with you to listen to the tapes.  If you don’t mind please, as I am very confident that I have mentioned all the abovementioned important aspects of my claims and have also sufficiently answered all questions asked.  By listening to the tapes you would see the truth of what I did say and will verify it.”

32                  In fact, the applicant through his migration agent made a request under the Freedom of Information Act 1982 (Cth) on 5 September 2001 for relevant documents including any recording of the initial interview.  On 12 September 2001, an officer of the respondent in the “On-shore Protection Operations” section provided a response giving access to much of the documentation.  That officer decided that copies of the initial entry interview tape and report were exempt from release because their release might involve unreasonable disclosure of operations of agencies.  The release of the report may do so.  The release of a tape recording which, purportedly, has been transcribed and released to the applicant, could not possibly do so.  It is impossible to understand that decision, but nevertheless that decision was made.  Review of that decision was not sought.

33                  In my view, consideration of the materials before the Tribunal, and of the transcript of the hearing before the Tribunal on 7 and 9 November 2001 does not indicate that the Tribunal approached its consideration of the applicant’s claim with a closed mind.  Indeed, it was not suggested by the senior counsel for the applicant that it had done so.  The contention was that, in the course of its decision-making process, the Tribunal had somehow resolved simply to go through the motions and so to discount without proper consideration material to which it should have had regard and failed to make an inquiry which was an obviously necessary inquiry.

34                  I am not persuaded that the Tribunal failed to endeavour in good faith to determine the application for review of the decision of the delegate of the respondent.  Its reasons for decision demonstrate a thorough rehearsal of the material which the applicant had presented from time to time in support of his application, including at the two hearings before the Tribunal.  The transcript of those hearings indicates that the Tribunal carefully sought to explore with the applicant the details of his claim, and sought from him responses to its concerns about aspects of his claims.  In making its findings and reasons, it has had regard to extensive independent country information on a range of topics.  It has not been criticised for the selection of that material.  It is on the basis of such material that it found significant parts of the applicant’s claim to be implausible or to lack credibility.

35                  It appears that, in relation to the terms of his initial interview, it ultimately decided not to pursue an apparently obvious line of inquiry.  That may have been an error on its part.  In a case where it is obvious that directly relevant material is readily available, normally proceeding to a decision without making any attempt to obtain that information may constitute an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have exercised it.  See e.g. per Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 170.  It is easy to understand the criticism of the Tribunal’s approach to that particular piece of information.  On the other hand, the Tribunal did not ignore the material but sought from the applicant details of it.  The applicant’s migration agent did not pursue the attempt to obtain the recording, or seek from the Tribunal further time within which that agent could obtain the recording of the interview so as to be able to respond directly to the Tribunal’s inquiries.  At the end of the Tribunal’s process of inquiry, it appears that it was told that the applicant did not, at the time, have access to the material and so could not respond in the way that the Tribunal sought.  That does not involve the Tribunal failing to make any attempt to explore the topic at all.  At most, the Tribunal’s decision in the particular circumstances of this matter, could be described as an error of judgment.  It does not persuade me that the Tribunal failed to endeavour to exercise its review obligation in good faith.

36                  For those reasons, I do not think that the matters to which senior counsel for the applicant referred demonstrate such a combination of flawed reasoning and conduct by the Tribunal antithetical to the applicant’s claims as to demonstrate that, at any point in its process prior to its ultimate decision, it resolved upon rejecting the applicant’s claims so as to lead to the conclusion that it was not considering them in good faith.

37                  In Yusuf at [73] and [74] the Court said:

“The considerations that are, or are not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider … What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision maker has properly applied the law.  They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision maker acts”.

In this matter, notwithstanding the arguable error to which I have referred, the Tribunal correctly identified the law and correctly applied the law to the facts.  It is not shown to have had regard to irrelevant considerations.  It was not contended that any of the Tribunal’s reasons for concluding that the applicant had not reported on the three matters referred to at his initial interview in the way he claimed were themselves erroneous.  The submission was simply that it had failed to listen to the tape of the interview itself.  That was a piece of evidence relevant to what the applicant had said at his initial interview, but a piece of evidence which the Tribunal did not itself choose to explore for reasons which it gave.  The Tribunal’s finding about what the applicant said at that interview then fed into its assessment of the applicant’s creditworthiness about his claims of a firm interest in Christianity prior to leaving Iran, of dismissal from his permanent job, and of a second and harsh interrogation in March 2000.  In my judgment, even if it be accepted that the Tribunal should have pursued a piece of evidence to which its attention was directed notwithstanding its reasons for not having done so, the Tribunal did not err in such a way as to demonstrate jurisdictional error in the sense discussed in Yusuf.  The relevant consideration which the Tribunal was required to take into account was what might happen to the respondent if he were to return to Iran.  For that purpose, the Tribunal was required to consider what had happened to him in the past.  It made findings about that matter.  In doing so, it considered, but did not pursue the inquiry of ascertaining precisely what the tape recording of the interview of 12 May 2001 disclosed although it made a positive finding that:

“The written record of the interview is an accurate reflection of the information exchanged at the interview.”

It can be seen, therefore, that the Tribunal’s failure, if it be a failure, was not a failure to have regard to a relevant consideration in such a way as to effect the exercise of its jurisdiction (Yusuf at [83]), but was simply a failure to ascertain by inquiry the content of a particular piece of evidence which could have added further light to the finding it made as to what the applicant said at the interview on 12 May 2001.

38                  In my judgment that does not amount to a jurisdictional error within the meaning explained in Craig and Yusuf, and accordingly that alternative ground of review is not made out.  It is therefore unnecessary to address whether, if such an error had been established, it would have amounted to jurisdictional error so as to empower the Court to make an order under s 39B of the Judiciary Act in the face of the privative clause provisions in s 474(1) of the Act.

39                  It is therefore also unnecessary to consider the alternative contention of the respondent that, in the particular circumstances, the Court in any event in the exercise of its discretion should refuse to make an order under s 39B of the Judiciary Act because:

• the applicant had escaped from custody contrary to s 197A of the Act and so had “acted in bad faith in relation to Australian migration laws and in relation to his application for a protection visa”;
• the applicant would no longer be available to the Tribunal so that it could fully carry out its review, including notifying the applicant of matters of which it was required to notify him, and indeed it might be unable to ascertain whether the applicant is still in Australia (cp s 36(2) of the Act);
• an order declaring the Tribunal’s decision invalid would mean that his application has not been finally determined:  cp s 198(6) of the Act, and his legal status in Australia would thereby be altered.

40                  For those reasons, I consider that the applicant has not established any grounds upon which the Court should make an order declaring the Tribunal’s decision to be null and void.  I order that the application be dismissed.

Associate:

Dated:              6 August 2002