FEDERAL COURT OF AUSTRALIA

SAAO v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1326

MIGRATION – application for protection visa – review of decision of Refugee Review Tribunal – whether Tribunal erred in concluding that discrimination in employment and tertiary education did not amount to persecution as defined by the Convention and s 91R of the Act – whether Tribunal failed to independently consider the applicant’s claims – whether Tribunal had a mind closed to the acceptance of the applicant’s claims – whether the Tribunal attempted to review the delegate’s decision in good faith

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), ss 36(2), 91R(1), 91R(2), 418

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

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

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 - cited

NAAV v Minister for Immigration & Multicultural& Indigenous Affairs [2002] FCAFC 228 - applied

R v Murray; Ex parte Proctor (1949) 77 CLR 387 – referred to

SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076 - discussed

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 – referred to

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 – referred to

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 – referred to

Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559 – referred to

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 - cited

SAAO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.198 of 2001

MANSFIELD J

30 OCTOBER 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

INTRODUCTION

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) for an order that the decision of the Refugee Review Tribunal (the Tribunal) given on 5 October 2001 is null and void, and for consequential orders directing the Tribunal to hear and determine the applicant’s application for review of a decision of a delegate of the respondent according to law.  The delegate refused to grant the applicant a protection visa, for which he had applied under the Migration Act 1958 (Cth) (the Act).  The applicant had applied for a protection visa on 22 April 2001, shortly after his arrival in Australia on 24 March 2001.  The Tribunal affirmed the decision of the delegate of the respondent.

2                     The Tribunal’s decision turned upon whether the applicant met the criterion for the grant of a protection visa specified in s 36(2) of the Act, namely that the Tribunal be satisfied that the applicant is a person 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 practical terms, it was necessary for the Tribunal to be satisfied that he 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 Tribunal noted that s 91R(1) of the Act defines persecution as involving “serious harm” of a systematic and discriminatory nature, and that s 91R(2) of the Act explains some conduct which falls within the description of “serious harm”.

the applicant’s claims and the tribunal’s reasons

3                     Certain of the applicant’s claims were accepted by the Tribunal.  He is a married man aged 54, who was born in Iraq to Iraqi parents.  He is of the Faili Kurd ethnicity, and is a Shi’a Muslim.  He was expelled into Iran from Iraq in 1980, and has lived there since, until his departure for Australia.  He is married, and his wife and four children still live in Iran.

4                     By reason of his ethnicity, the applicant would face a real chance of persecution if he were to return to Iraq.  There was clear independent country information which confirmed that fact.

5                     The Tribunal also accepted that the applicant developed a particular interest in the Arabic language whilst in Iran, and sat an examination to qualify for tertiary studies.  It accepted further that he passed that examination, but was refused the necessary certificate to admit him to a tertiary college.  Its reasons for finding such conduct did not amount to persecution within the meaning of the Convention were a little confused.  It said:

“The Tribunal accepts that the applicant encountered some discrimination in education and that his origins could have been a factor in denying him due recognition of a recent educational achievement.  It notes, however, a report of DFAT (Country Information Report 502/00, 19 September 2000) stating that certification of university qualifications is available only upon payment of cash for persons who, like the applicant, are not working in the government sector.  The applicant said that he did not obtain an ID card for financial reasons and the Tribunal is not satisfied that his lack of a university certificate is attributable to other than financial considerations.  The Tribunal finds, in any event, that in the circumstances of this case any refusal to issue a certificate falls short of a definition of persecution.”

6                     The first part of that quoted passage appears to accept that the applicant’s ethnicity may have been a factor in his inability to gain entry to tertiary studies, although the latter part of that quoted passage suggests that the Tribunal found the reason he was not able to undertake university or tertiary studies was financial rather than for a Convention reason.  I do not think that apparent inconsistency of itself matters, because the Tribunal concluded that his inability to access tertiary studies did not constitute persecution as defined in s 91R(1) of the Act.

7                     The applicant complained that he had left Iran because he was not able to obtain worthwhile work and did not have any future there.  He further claimed harassment because of his ethnicity, including on one occasion being struck in the street.  He said that his ethnicity precluded him from securing medical or social insurance, or from being entitled to own a house.  He was unable to change his address without official permission.  He was unable to publish a manuscript on the Arabic dialect which he had completed.  He told the Tribunal that he had arranged with the Iranian authorities to depart Iran legally by handing in his “green card” but that he also needed to obtain a false Iraqi passport and police clearance.  He no longer had those documents upon arrival in Australia.

8                     The Tribunal accepted that the applicant encountered occasional verbal abuse and harassment because of his former nationality and his ethnicity.  It accepted that he might not have had access to medical or social insurance, at least for a time after his arrival in Iran.  It noted that his claim did not extend to being denied medical treatment, and that independent country information about Iran did not indicate that he would be denied medical treatment in Iran if he required it.  It was not satisfied that his inability to publish his manuscript on Arabic dialect was by reason of any Convention related ground.  It also concluded that those disadvantages, even assuming them to be attributable to his nationality or his ethnicity, did not amount to persecution within the meaning of the Convention and as defined in s 91R(1) of the Act.

9                     There were, however, parts of the applicant’s claim which the Tribunal did not accept.  He had originally described himself as a shop owner or shop operator.  It was not satisfied that his claim at the hearing of being involved only in menial tasks in a shop was true.  He had provided from time to time a varied employment history indicating long term remunerative employment in the private sector.  Consequently, even if he was merely an Iraqi green card holder in Iran, the Tribunal was not satisfied that he was significantly impaired from earning a livelihood as a self-employed person with a varied work history and skills.  The detriment by any restriction imposed upon him in Iran as an Iraqi green card holder was not therefore sufficient a consequence to amount to persecution as defined in the Convention and in s 91R(1) of the Act.

10                  The Tribunal then turned its attention to whether the applicant is a green card holder in Iran.  It reviewed the independent country information disclosing that most Iraqi refugees in Iran carry green cards, and that the green card entitles the holder to temporary residence in Iran.  It does not permit employment or a right to property ownership.  It restricts the geographic mobility of its holders.  It is revocable.  The Tribunal concluded that it confers rights which “are substantially less than those applying to Iranian nationals”.  It indicated that Iraqi nationals who hold green cards in Iran are encouraged to leave Iran, and having left Iran, are not entitled to re-enter that country.  It is only an expelled Iraqi who is the holder of a “white card” or an Iranian national who has a right of re-entry into Iran.  Consequently, if the applicant held only a “green card” in Iran, he would now be unable to return there.

11                  The Tribunal therefore addressed whether the applicant, contrary to his claims, had been granted in Iran an identification booklet (shenas nameh) in effect so as to be treated as an Iranian national.  The shenas nameh would indicate that the applicant had Iranian citizenship, as distinct from merely a green card.

12                  In considering that question, it addressed the circumstances in which he was able to leave Iran.  He left Iran on a passport bearing his own name and photograph.  The independent country information concerning exit procedures led the Tribunal to conclude that he was at the time cleared by the authorities.  It was not satisfied that he would have been issued with a false Iraqi passport in Iran (as he claimed), and then have been able to pass through the airport checking system.  It said it was implausible that the applicant would have been able to pass through all airport checks on false documentation.  It was therefore not satisfied that the applicant obtained a passport illegally or that he left Iran on any false documentation.

13                  The applicant claimed he had been unable to obtain the police clearance or a copy of the police clearance he had required to leave Iran, which the Tribunal had requested.  The Tribunal regarded that explanation as “spurious”, having regard to where he had resided, his employment history, and the availability of telephones.  It said:

“It is of some significance, however, that the applicant did not make any timely endeavour to obtain the certificate in question through sources in Iran.  In weighing the material before it the Tribunal concludes that rather than the police now having a policy of not issuing certificates of clearance to anyone, as claimed in a letter of 28 July 2001 and submitted by the applicant at the time of the hearing, the applicant failed to take appropriate steps to obtain such a certificate as it would demonstrate his Iranian nationality.”

14                  It also had regard to the applicant’s work history, to the modification of his work history during the course of his application for the visa “for self-serving reasons” and to his ability:

“… to attend, albeit for a relatively short time and possibly without certification of his achievements, a university that is not open to green card holders.”

It concluded:

“The Tribunal has considered an array of country information referred to by the applicant’s adviser.  While accepting that there are abuses of human rights in Iran and that a range of people remain at risk of persecution the Tribunal finds, for reasons canvassed above, that the applicant is not such a person.

 The Tribunal accepts that the applicant is subjected to a range of occasional discrimination in Iran due to his origins, but not that he faces consequences amounting to persecution.  It accepts that his unease about the prospect of being returned to Iran is genuine.  The weight of evidence is, however, that he is not merely a green card holder and that, like his immediate [family] that remains in Iran, he does not face a prospect of refoulement to Iraq.”

It was implicit in that finding that, because he is not merely a green card holder, he will in fact be able to return there because he holds a shenas nameh so as to be an Iranian citizen.

15                  The Tribunal also concluded that the applicant did not suffer a risk of persecution if he were to return to Iran by reason of him having left Iran and having sought a protection visa in Australia, even if he had departed Iran illegally.  Any penalty for illegally departing Iran or for having made an application for a protection visa in Australia would not be different from that applicable to any other Iranian national, and in particular would not be imposed for a Convention reason, or be greater than that applicable to any other Iranian national for a Convention reason.

the grounds of review

16                  The applicant contends that the Tribunal exceeded its jurisdiction, and refused to exercise its jurisdiction, in reaching its decision.  He also contends that the Tribunal, in reaching its decision, did not make a bona fide attempt to exercise its decision making power.  The second of those grounds of review invokes one exception to the Hickman principles:  R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 as discussed by Dixon J at 616.  Clearly that ground of review is directed to avoiding the consequence of the privative clause provision contained in s 474(1) of the Act as the respondent accepts that, despite the apparently unrestricted terms of s 474(1), it must be construed as being subject to the Hickman principles, including the exception that the decision must be made in a bona fide attempt to exercise the decision making power.

consideration

17                  In her thorough and careful submissions on behalf of the applicant, counsel who appeared pro bono publico for the applicant urged that the Tribunal had exceeded its jurisdiction for a variety of reasons.  She contended that jurisdictional error is shown if the Tribunal identified a wrong issue, asked itself the wrong question, ignored relevant material, or relied on irrelevant material, and in certain circumstances if it made an erroneous finding or reached a mistaken conclusion, so that the exercise of its power or purported exercise of its power was effected.  She relied upon the observations of the High Court in Craig v State of South Australia (1995) 184 CLR 163 at 179, and of McHugh, Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [82] where their Honours said:

“ ‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made;  he or she did not have jurisdiction to make it.  Nothing in the act suggests that the Tribunal was given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”

18                  The jurisdictional errors which were said to be apparent from the Tribunal’s reasons were:

(1)               that it misdirected itself as to the meaning of persecution by concluding that the detriments which the applicant had suffered or might suffer in Iran in his education and employment did not amount to persecution, having regard to the observations of McHugh J in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 431 where his Honour said:

“The denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.”

(2)               that the Tribunal wrongly concluded that the appellant had not satisfactorily explained his revised statements at the hearing about his work history, and that it had erred in rejecting his evidence that he had not engaged only in menial tasks in a shop, about the treatment in Iran of Faili Kurds from Iraq, including that it failed to take into account relevant information from the applicant concerning his work history and relevant independent country information.

(3)               that the Tribunal erred in concluding that it was not satisfied that the applicant would have been issued with a false Iraqi passport to facilitate his departure from Iran, by failing to have regard to relevant information from the applicant and to independent country information on that topic.

(4)               that the Tribunal wrongly criticised the applicant for having failed to take appropriate steps to obtain a police clearance certificate, which the Tribunal suspected would reveal that he held Iranian nationality, because it failed to take into account the applicant’s evidence and reached its conclusion adverse to the applicant without any evidentiary foundation for that conclusion;  in similar vein, that it erred in not being satisfied that the applicant had discarded his passport and more importantly in concluding that the applicant is not merely a green card holder when it did not explain how the applicant could have obtained a birth certificate which is a pre-requisite for Iranian citizenship when he was not within the categories of those who might obtain such a certificate as disclosed in the country information to which the Tribunal referred; and that its conclusion that the applicant was not merely a green card holder was inconsistent with it accepting that the applicant had not had better employment prospects or educational opportunities, that he was forced to live in cheap rental accommodation and to work in low paid menial tasks, and that he had chosen to leave Iran;  it was also part of that contention that the Tribunal’s finding that the applicant had been able to attend a university not open to green card holders was erroneous because it had ignored evidence from the applicant to the contrary and misused independent country information.

(5)               that the Tribunal erred in concluding that the applicant did not have a well-founded fear of persecution upon returning to Iran by reason of his application for a protection visa in Australia, because it did not consider the consequences for Iraqi nationals of Faili Kurd ethnicity who had fled or left Iran having previously been a green card holder, and did not have regard to relevant country information.

(6)               that the Tribunal erred in failing to determine whether as an Iraqi Kurd no longer the holder of a green card and having agreed not to return to Iran, if he did so he might face refoulement to Iraq.

Those matters attacked the Tribunal’s consideration of the applicant’s claim because it had erred in law in its understanding of the meaning of “persecution” under the Convention, and had made erroneous findings or conclusions about his work history, about the circumstances in which he left Iran, about his status within Iran and its consequences to him including in employment and educational opportunities, about the risk he faces in returning to Iran by reason of his application for a protection visa in Australia, and about the risk of him being refouled to Iraq if he were to return to Iran.

19                  Since the hearing of this matter, the Full Court has delivered reasons for decision in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.  The majority (Black CJ, Beaumont and von Doussa JJ, Wilcox and French JJ dissenting) decided that, once the Tribunal’s jurisdiction is enlivened by a valid application under s 414 of the Act, the manner of exercise of its authority and powers falls within the expanded area of authority and powers brought about by s 474(1) of the Act.  In effect, although the statutory and common law procedural law obligations applicable to it should be complied with (per von Doussa J at [674]), its expanded jurisdiction means that failure to comply with those obligations does not result in it exceeding its jurisdiction.  The sort of jurisdictional error referred to in Yusuf is no longer appropriately the measure of jurisdictional error on the part of the Tribunal, because the effect of s 474(1) is to expand its jurisdiction:  per von Doussa J at [639].  The Tribunal no longer commits jurisdictional error by wrongly identifying the applicable law, or by wrongly applying the applicable law, or by asking itself the wrong question, or by not addressing all the claims of a visa applicant, or by failing to accord procedural fairness to a visa applicant, or by failing to have regard to relevant considerations, or by having regard to irrelevant considerations:  see per Beaumont J at [91]-[104], [113]-[114], [118]-[229] and [274], and per von Doussa J at [636]-[639], and [648]-[659].  Black CJ agreed generally with von Doussa J at [4], although his Honour disagreed with Beaumont J and von Doussa J in identifying what constituted “jurisdictional facts” upon the proper construction of the Act in two of the five matters then under appeal.  To paraphrase the concluding sentence in the quotation from Yusuf referred to above, the Full Court took the view that s 474(1) of the Act did indicate that the Tribunal is given authority to authoritatively determine questions of law, including to determine them erroneously, and to make decisions otherwise than in accordance with the law.

20                  It follows from NAAV that, in my judgment, the grounds of review based upon alleged jurisdictional error on the part of the Tribunal must fail.

21                  However, such deficiencies in the Tribunal’s understanding of the law, or in its consideration of the applicant’s claims (if they are made out) may be relevant to whether the Tribunal did make “an honest attempt to deal with a subject matter provided to the Tribunal and to act in pursuance of the powers of the Tribunal …”:  R v Murray; Ex parte Proctor (1949) 77 CLR 387 per Dixon J at 400.  It is therefore necessary to consider those matters, together with other matters to which counsel for the applicant referred, in considering the alternative contention that the Tribunal’s decision was not the result of a bona fide attempt on its part to act in the course of its authority and was not an honest attempt to deal with the subject matter confided to it.

22                  The submission, in addition to the particular matters to which reference has been made, was that the Tribunal focused entirely on trivial and irrelevant issues explained by difficulties or imperfections in translation, and ignored evidence and explanations provided by the applicant.  Counsel contended that an examination of the transcript of the hearing, in conjunction with the decision, indicated that the Tribunal had decided in advance of the hearing to reject the application, and it simply adopted the findings of the delegate of the respondent without any independent assessment of its own.  It is contended that the Tribunal’s conduct of the hearing indicates that it pursued a course of showing that the applicant had Iranian citizenship so as to reject his claim for a protection visa.

23                  In SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076 at [27]-[33], I discussed some decisions about the meaning of the “good faith” exception or qualification comprising part of the Hickman principles.  I will not repeat that consideration.  I concluded that the question whether there is a failure to attempt to address the review by the Tribunal in good faith involves a determination of fact.  As I there said at [32]:

“The Court must make a judgment about whether the fact asserted is made out.  Almost invariably it must do so by inference from what the Tribunal has done or has failed to do, or from what its reasons disclose as to how it approached its task or a combination of such factors.  If, allowing for the need for the Tribunal’s reasons not to be read over-zealously with an eye attuned to the perception of error, and having regard to the serious nature of the claim that the Tribunal did not approach its task in good faith, the Court is firmly persuaded that the Tribunal did not approach its task in good faith,  it is the duty of the Court to so conclude.”

24                  I turn to consider whether the claim of a lack of good faith on the part of the Tribunal in its conduct and determination of the review of the delegate’s decision is made out.

25                  It is not surprising that the general sequence of the reasons for decision of the Tribunal and of the delegate of the respondent are similar.  One would expect that rational minds, addressing the issues required by the Act to be addressed, would follow the same or a similar sequence of reasoning.  Moreover, s 418(2) and (3) require the Tribunal to be given the delegate's reasons for decision and the documents which were relevant to the delegate’s consideration of the applicant’s claims.  Thus, each decision deals with the applicant’s background, the law including the definition of “refugee”, and the applicant’s claims.  Nor is it surprising that each decision records the applicant’s claims in similar terms.  The Tribunal’s recital of the applicant’s claims is more extensive, indicating the applicant had provided further information to the Tribunal at its hearing on 23 August 2001.

26                  Each of the Tribunal and the delegate accepted the applicant originally came from Iraq, and could not return safely there.  Each of the Tribunal (implicitly) and the delegate (explicitly) rejected the applicant’s claim that he did not have Iranian citizenship.  The delegate gave his reasons for his conclusion:  they concerned the apparent freedom of movement of the applicant and his family around Iran over many years, and their ability to obtain accommodation where they had moved.  He did not accept the applicant had the employment restrictions imposed on Iraqi green card holders in Iran, because he had worked as a self-employed shop owner and an accredited translator for many years.  At interview with the delegate, the applicant had claimed that he had been able to work in that way only through subterfuge.  The delegate also had regard to the employment activities of the applicant’s family in Iran.  The delegate also had regard to the applicant’s claim that he had enrolled in a tertiary studies program at a particular university which independent country information indicated was not open to green card holders, but had been denied a certificate on completion of the course.  The delegate also had regard to the applicant’s failure to produce a “penal clearance certificate” from the Iranian authorities, which the delegate had requested, between 29 April 2001 when the request was made and the decision on 4 July 2001.  He thought the applicant, through his family, should have had no difficulty in obtaining such a certificate, so the applicant’s failure to produce it was indicative of it being likely to show he is an Iranian national.

27                  I do not consider that the Tribunal’s reasons amount to a mere replication of the delegate’s reasons to support the contention that it has not independently considered the applicant’s claims.  Apart from the prospect that minds addressing much the same material may reach the same or similar conclusions, the Tribunal’s reasons address the additional information which the applicant presented to it, some of which was to explain or confront findings made by the delegate.  The Tribunal took a different approach to the applicant’s claim to have been refused an educational certificate.  It accepted he had been discriminated against in educational opportunities, whereas the delegate did not.  The Tribunal also took a somewhat different view to that of the delegate about his employment opportunities.  Although it was not satisfied of his claim that he had only done menial work, it considered that restrictions on green card holders had not materially affected the applicant’s capacity to earn a livelihood to the extent that they amounted to persecution.  Nor did the Tribunal have regard to the employment history of the applicant’s family members.  It dealt with his claim of personal abuse and harassment, a matter not addressed by the delegate.  The Tribunal, only towards the end of its reasons, addressed whether the applicant was precluded from returning to Iran, because he was merely a green card holder.  Its reference to independent country information is more extensive than, and almost entirely different from, that to which the delegate referred.  The Tribunal reached its conclusion by a somewhat different path to that of the delegate:  it addressed the applicant’s claims about having a false Iraqi passport to leave Iran, the fact that he obtained a police clearance certificate before departing Iran which he had not produced and his reasons for not having done so, and his failure to produce his passport.

28                  I accordingly do not consider that there is in fact a substantial identity of reasoning between the Tribunal and the delegate as contended in submissions.  It is not necessary to address whether, if such an identity of reasoning were shown to exist, that might indicate or tend to indicate that the Tribunal did not attempt to review the delegate’s decision in good faith.  I am not to be taken as acquiescing in that proposition in any way.

29                  I have also considered the transcript of the hearing before the Tribunal on 23 August 2001.  At the commencement of the hearing the Tribunal told the applicant it accepted he is a Faili Kurd born in Iraq, and was expelled from Iraq in 1980.  It identified the focus of the hearing as being whether the applicant has a right of return to Iran, and whether he would face a real chance of persecution in Iran if he were to return there.

30                  The applicant was asked about his background and family, about his claim that he was not admitted to a university to undertake tertiary studies, about why he left Iran, about his family movements around Iran, about his employment, and about how he left Iran and came to Australia, including why he destroyed his passport.  The information he provided is accurately recorded in the Tribunal’s reasons for decision.  I do not think the Tribunal’s questioning discloses by its content that it had a mind closed to acceptance of the applicant’s claims.  The topics it asked about were those it might reasonably have been expected to ask about.  The form of the questions does not appear to have been directed to trapping the applicant unfairly into certain answers, although the Tribunal invited his comments upon matters about which it was concerned.

31                  The Tribunal asked the applicant about a police clearance document.  The applicant volunteered that he was told  when he left Iran that he would routinely receive one, some time after surrendering his green card.  He did not do so, and arranged for his family to request one after it was raised by the delegate.  He claimed to have received a clearance certificate then, but the document he produced was not a police clearance certificate.  It was a letter dated 21 August 2001 from his wife and another person reporting that the Iranian authorities had refused to issue such a certificate.  The applicant claimed the Iranian authorities, from 30 July 2001, had stopped issuing such certificates.  Not surprisingly, the Tribunal observed that the timing of that policy was “puzzling”.

32                  In my judgment, the conduct of the hearing before the Tribunal does not support the suggestion that it had a mind closed to proper consideration of the applicant’s claims.  It is appropriate that the Tribunal at its hearing explain to the applicant the issues he should address, and invite his response to particular features of his evidence which it finds troubling.  The tenor of the questions does not, in my view, indicate any closed mind on its part.

33                  The applicant by affidavit of 23 May 2002 adduced to the Court a photocopy of a document which he claimed to be his green card.  It was suggested the Tribunal’s failure to ask the applicant for that document at the hearing indicates it did not bona fide attempt to consider his claim.  I do not accept that suggestion.  The applicant knew the basis of the delegate’s decision.  A valid green card, current to the time he left Iran, would clearly have been a very significant document to produce to the Tribunal, and indeed to the delegate.  It was not produced by him, and he did not suggest he had possession of, or access to, such a document in the course of his claims before the delegate or before the Tribunal.  He was at material times represented by the migration agent.  It is not referred to in the migration agent’s detailed submission to the Tribunal sent on 20 August 2001.  In my view, the fact that the Tribunal did not specifically ask for such a document to be produced at or after the hearing is of no moment to that issue.  It was reasonable for the Tribunal to assume the applicant would have produced any such document.  The affidavit also annexes a copy of what is said to be the applicant’s false Iraqi passport under which he said he left Iran.  The applicant told the Tribunal he had destroyed that passport en route to Australia.  The Tribunal cannot be criticised for not having sought any photocopy of the document.  If it had existed, the Tribunal could reasonably have assumed it would have been produced.

34                  The particular criticisms of the Tribunal’s reasons, having regard to the material available to it, need also be considered.  The contention is not that the Tribunal’s reasons without reference to the evidentiary material demonstrate a lack of good faith on its part:  see the observations of von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38].

35                  In my view, many of the criticisms of the Tribunal’s findings in the light of the material available to it really amount to an attempt to attribute to evidentiary material weight which the Tribunal did not attribute to that matter.  The circumstances in which the findings of the Tribunal were made are not so perverse as to lead one to question its bona fides.  It is a matter essentially for the Tribunal as to what weight it gives to particular evidence, and it does not demonstrate error nor tend to demonstrate a lack of good faith on its part because another mind might have ascribed different weight to the evidence or might have made different findings:  see e.g. per Kenny J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146].

36                  The Tribunal’s approach to whether the discriminatory treatment to which the applicant had been, or might be, exposed did not amount to persecution does not suggest any lack of good faith on its part.  Section 91R(1) of the Act directs that Art 1A(2) of the Convention does not apply in relation to persecution unless the persecution involves “serious harm” to the person.  Section 91R(2) gives some examples of serious harm.  The Act has sought to limit the circumstances in which a visa applicant will meet the criterion in s 36(2) of the Act.  The Tribunal noted that section.  It was open to the Tribunal to conclude, in the light of those provisions, that the discriminatory treatment which it found the applicant had been, or might be, exposed to in Iran did not amount to persecution, or more accurately that Art 1A(2) of the Convention did not apply to the applicant by reason of that discrimination.  I do not see any reason to infer that its conclusion in that regard might involve a want of good faith on its part in its consideration of the application.

37                  The Tribunal formed an adverse view about the reliability of the applicant’s evidence, including about his past work history, and about his status before he left Iran and about how he came to leave Iran.  It identified the applicant’s initial description of his work, and his work history, as being inconsistent with his later claims about the work he had done since 1988.  It did not misstate that information.  In that respect, it had a foundation for not accepting what he said at the hearing and through his migration agent.  It need not have taken such a view, but I do not think the fact that it took such a view tends to indicate any endemic adverse approach to the applicant’s claims so as to cause suspicion that it was not performing its review in good faith.  In reaching its conclusion, it has referred extensively to independent country information.  I do not think it has been shown that it used that information selectively or inappropriately.  Indeed, it concluded about green card holders:

“The available evidence indicates that a green card provides for temporary residence in Iran.  It does not permit employment or a right to property ownership, and it restricts the geographic mobility of holders.  It is revocable and confers rights that are substantially less than those applying to Iranian nationals.”

38                  In effect, the Tribunal found that despite those restrictions, even if his status were only that of a green card holder, he had shown in the past an ability to get and retain work to such a degree that any restrictions did not amount to persecution, or at least by reason of s 91R did not enliven Art 1A(2) of the Convention.

39                  The adverse view of the applicant’s credit was critical to the Tribunal’s conclusion that the applicant was entitled to re-enter Iran.  The finding involved the Tribunal rejecting the applicant’s claim that he was merely a green card holder, as it accepted that an Iraqi who was a green card holder and had left Iran was not entitled to re-enter Iran.

40                  As counsel for the applicant pointed out, there were five reasons why the Tribunal concluded that the applicant’s status was not simply that of a green card holder, and in effect that he was an Iranian national holding a shenas nameh.  They were:

“(a)     it is not satisfied that the applicant obtained a passport illegally or that he left Iran on false documentation and it is satisfied that he was cleared by police at the time he departed Iran.

(b)               because the applicant did not make any timely endeavour to obtain a police clearance certificate through sources in Iran.

(c)               because it is not satisfied the applicant has discarded his passport.

(d)               because it is satisfied that he owned and/or operated a business that he modified his employment history during the course of the application for a protection visa for self serving reasons and that

(e)               because he was able to attend albeit for a relatively short time a university that is not open to a green card holder.”

41                  The applicant criticises the Tribunal’s approach on each of those matters.  I have referred above to the Tribunal’s processes of reasoning.  I have considered the evidentiary material referred to by the applicant’s counsel not expressly referred to by the Tribunal in its reasons.  It is, however, not incumbent upon the Tribunal to explain why it did not accept particular pieces of evidence:  see per McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [82].  I do not consider its failure to do so in this instance indicates a lack of good faith on its part in its consideration of the application.  For example, the Tribunal did not refer in detail to the applicant’s evidence that in fact he had only worked as an employee, paying the shop owner an allowance to apparently run the shop, or that his work as a translator was only very rare.  But the Tribunal said there was no satisfactory explanation for the initial job description provided by the applicant, and must have rejected that evidence.  It was open to it to do so.  It had the benefit of seeing him give those explanations and was not persuaded by them.  It concluded he had modified his work history for self-serving reasons.  Its observation in that regard is not unwarranted, even if the modification process started before the delegate’s decision at its interview on 24 April 2001.  The Tribunal was entitled to have regard to the change by the applicant in his story when assessing his reliability as a witness.

42                  The Tribunal’s rejection of the applicant’s claims about how he left Iran also, in my judgment, does not tend to indicate any lack of good faith on its part.  The country information it noted did indicate that Iran encouraged Iraqi green card holders to surrender their green cards and to leave Iran.  But it explained why it did not accept his claim that he left in those circumstances.  It was part of that presentation by the applicant that he had to acquire a false Iraqi passport and a police clearance certificate.  It accepted he received a police clearance certificate.  It could not understand why that document, or a copy of it, could not be produced.  It could not understand why the false Iraqi passport could not be produced, or why it would be possible to pass through Iran’s exit procedures on false documentation.  I think its attitude is understandable, even though it had copies of letters from the applicant’s migration agent seeking a police clearance certificate.  Although the independent country information to which it referred indicated that the green card system did not function consistently and coherently, the Tribunal was in my view entitled to be suspicious of the absence of those documents and to suspect they might reveal that the applicant’s status was not simply that of a green card holder.

43                  Finally, in this respect, I do not consider the Tribunal’s use of certain of the applicant’s evidence about the refusal to admit him to tertiary studies tends to suggest a lack of good faith on its part.  He gave evidence about the university concerned.  Independent evidence confirmed it was not open to non-Iranian nationals.  The Tribunal raised at the hearing whether his inability to carry out tertiary studies was financial.  It raised with him why the University concerned should have let him sit the entrance examination.  It raised with him his suggestion at an early point that he had completed the course, but was refused the degree.  It drew from all the answers the probability that his dealings with that university were not dictated by him having the status of a green card holder.  In my view, it was entitled to take that view.

44                  There are aspects of the Tribunal’s reasons which are a little unsatisfactory.  Although it concluded that he does not have a well-founded fear of persecution for a Convention reason, it has not expressly concluded that he is an Iranian national with a shenas nameh.  That conclusion must be drawn by inference from its reasons.  It has not therefore explained the degree of confidence which it has in that conclusion.  It expresses its findings on “the weight of evidence”.  It has not expressly indicated that its findings earlier in its reasons that the applicant encountered some discrimination in education, and that his origins could have been a factor in that discrimination, are alternatives to its principal finding that the applicant can return to Iran because he is “not merely a green card holder”.  It does not explain how these earlier findings, apparently based upon him being a green card holder, lie with the later finding.  If he were an Iranian national with a shenas nameh, there was no independent country information to suggest he would then suffer any discrimination at all in education.  Its findings do not give any indication of the circumstances which might have qualified the applicant for Iranian nationality, including a birth certificate.  Its findings are not expressed in terms which clearly lead to the view that it had no doubt about them, so that it did not have to consider the possibility that despite its findings there is a real chance that, if the applicant is re-admitted to Iran, he might suffer persecution there, or that he might not be entitled to return to Iran:  see Rajalingam, Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559.

45                  However, I do not consider those matters indicate a lack of good faith on the part of the Tribunal in undertaking its review.  They are consistent with the Tribunal attempting to perform its review function in good faith, and to deal with the detailed and somewhat complex claims or explanations of the applicant in support of his application.  The reasons of the Tribunal indicate that it attempted to address those claims as presented, and to make findings about them.  Such deficiencies as those I have identified in its reasons do not persuade me overall that it did not undertake its review task in good faith.

46                  For those reasons, in my judgment, the application must be dismissed.

Associate:

Dated:              25 October 2002