FEDERAL COURT OF AUSTRALIA
WABZ v Minister for Immigration & Multicultural Affairs [2002] FCA 1345
MIGRATION – protection visa – judicial review – privative clause decision – Tribunal wrongly excluded Legal Aid WA solicitor from appearing before it on behalf of applicant – applicant’s case prepared on basis that she would be allowed legal representation at the hearing – solicitor sought to intervene later during hearing and was told (again wrongly) that her status was only that of an observer who could stay and take notes – respondent conceded Tribunal’s legal error in this regard – several weeks after hearing, applicant’s social worker wrote to Tribunal referring to her emotional distress and requesting indication as to when the Tribunal would make its decision – member instructed Tribunal staff to advise social worker that he hoped “to sign a decision” by week-ending 21 September 2001 – staff member of Tribunal advised social worker that date for decision would be about 21 September 2001 – decision made on 24 September 2001, but not notified to applicant until 19 October 2001 – in the meantime rights of review severely curtailed by amending legislation taking effect from 2 October 2001 – whether bad faith established – whether Tribunal’s decision otherwise reviewable.
Judiciary Act 1903 (Cth), s 39B
Migration Act 1957 (Cth), s 474
NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 followed
NAAG of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCA 713 referred to
SBAU v Minister for Immigration and Multicultural Affairs [2002] FCA 1076 referred to
NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 referred to
WABZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W527 of 2001
CARR J
30 OCTOBER 2002
PERTH
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
W527 OF 2001 |
|
BETWEEN: |
WABZ Applicant
|
|
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
|
|
DATE OF ORDER: |
|
|
WHERE MADE: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
W527 OF 2001 |
|
BETWEEN: |
Applicant
|
|
AND: |
MULTICULTURAL AFFAIRS Respondent
|
|
JUDGE: |
|
|
DATE: |
|
|
PLACE: |
REASONS FOR JUDGMENT
introduction
1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 24 September 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The application was filed in this Court on 13 November 2001 and thus falls to be decided under the Migration Act 1958 (Cth) (“the Act”) as amended by the various pieces of legislation which came into effect on 2 October 2001, including the Migration Legislation (Judicial Review) Act 2001 (Cth). The respondent has filed a notice of objection to competency on the basis that the Tribunal’s decision was a “privative clause decision” as that term is defined in s 474(2) of the Act which, as provided by s 474, is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called into question in any Court. The application was originally expressed as being brought under s 476 of the Act, but on the first day of the hearing was amended, by leave, into a form in which reliance upon s 39B of the Judiciary Act 1903 (Cth) was expressed. The hearing of the objection to competency and the application itself took place at the same time.
Factual Background
2 The applicant is a national of Iran who is married with two children. She arrived in Australia, on a visitor visa, on 22 August 1999. On 20 October 1999 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 16 March 2000, a delegate of the respondent refused to grant a protection visa to the applicant and on 27 March 2000 the applicant applied for review of that decision.
The Applicant’s claims and the Tribunal’s decision
3 The applicant’s claims were, in summary, as follows:
A. At the start of the revolution (in 1979), wages due to her husband were not paid and he wrote a letter of demand. The Iranian Revolutionary Guard labelled the applicant’s husband as “anti-government” and he has since been banned from public sector work. Her husband has successfully worked for a private company for the past ten years.
4 In relation to this claim the Tribunal found as follows:
“The Tribunal accepts that the applicant’s husband did not receive wages due to him at the start of the revolution some years ago and that he was, at least for a time thereafter, prohibited from working in the public sector. It notes that the applicant’s husband has had steady, remunerative and pleasurable employment in the private sector for a decade. The applicant has also had a lengthy history of remunerative employment. The Tribunal concludes, therefore, that the applicant has not encountered persecution in relation to her employment. To the extent that she has encountered any difficulty indirectly due to problems with her husband’s employment the Tribunal finds the evidence discloses a level of discrimination falling well short of a definition of persecution.”
B. In about 1997 her daughter’s 12th birthday party was celebrated at the applicant’s home in mixed gender company. The authorities burst into the family home and confiscated equipment such as tapes and a keyboard. The guests were detained for a short while and she and her husband were detained for a few hours before being granted bail. When they appeared in court they were fined 200,000 tomans which they subsequently paid.
5 The Tribunal stated that it accepted that the applicant and others were present at a party some four years previously from which musical equipment was removed, that the party-goers were detained for questioning in relation to matters such as the playing of music and, in the case of the applicant, detained for a few hours before being released on a friend’s undertaking. In relation to a photocopy document submitted by the applicant and described by her as a “summons”, the Tribunal noted that the document was headed “court order” and stated that the applicant was given a “lower penalty” of a fine, with a written undertaking by her and her husband to refrain from holding “such parties in the future”. The Tribunal then said this:
“In light of factors such as the rambling wording of the charge and the lack of reference to any criminal code the Tribunal is not satisfied that the court document is genuine.
In any event, any charges that were laid more than four years ago were in accordance with laws of general application. In weighing the circumstances of this case the Tribunal finds that any charges against the applicant for partying in 1997 do not disclose a nexus with the Convention or indicate a real chance of persecution of her now or in the foreseeable future for any Convention reason.”
C. Shortly after this incident the applicant was apprehended and taken to a local prison where she was eventually told that she was being held for a breach of the Islamic dress code. Even though the accusation was false, she was insulted, detained overnight and taken before a court the day after her arrest. Her husband and a mullah prevailed upon her to sign an undertaking, as demanded by the investigating authorities, that she would not breach the dress code in the future.
6 In relation to this claim the Tribunal (immediately after the passage quoted above) said this:
“Similarly, even if the applicant was later detained and taken before a court for another alleged breach of the Islamic dress code the punishment was in accordance with Islamic laws of general application. There is no evidence of them having been applied in any discriminatory fashion against the applicant. While accepting the probability that the applicant would also have been insulted if the circumstances described by her had pertained such an outcome is not so significant as to constitute persecution.”
D. When her husband saw her distress at how she had been treated in prison he wrote a letter to local and other clerics complaining about the lack of observance of basic human rights. He was subsequently detained by members of the Revolutionary Guard for insulting the clergy and sentenced to 75 lashes and six months imprisonment, although money was ultimately paid to avoid those penalties. The applicant’s husband remained in prison for eight weeks and she and her husband were placed on monthly reporting conditions which were later reduced to quarterly. Her husband had a nervous breakdown and was hospitalised for three weeks before being sent home for a few weeks of further rest. During her reporting sessions she was put under pressure by a person with a key position in the Revolutionary Guard to have a sexual relationship with him. He threatened to kill her husband if she did not succumb to his wishes. This person was the source of her continuing problems with the authorities.
7 In relation to these claims the Tribunal made the following observations:
“The applicant’s initial statement of 20 October 1999 and her statutory declaration of 12 June 2001 indicate a close temporal connection between her arrest for a breach of the Islamic dress code and her husband’s letter of protest. Indeed, they indicate he responded with some immediacy. In the aforementioned statutory declaration the applicant claims that her arrest for breaching the dress code occurred about three weeks after the party of 7 July 1997. A document purporting to be a court order records a conviction of the applicant’s husband for an offence described as contempt of spirituality and holiness. The court order is dated 6 September 1997, some six weeks after the applicant’s alleged arrest that gave rise to her husband’s protest letter. The court order records a gaol sentence of six months that the applicant states was reduced to eight weeks. In the aforementioned statutory declaration she states that he was “taken from the prison to a mental hospital and was there for 3 weeks”. On that basis the applicant’s husband would have entered a mental hospital at the start of November 1997. A letter purportedly from a treating psychiatrist states that the applicant’s husband was admitted to the hospital on 21 November 1998 and discharged on 7 December 1998. The purpose of the psychiatrist’s letter, dated 11 January 1998, is puzzling.
While accepting that transposing dates from the Persian to the Christian calendar can pose some problems the sequence of events outlined by the applicant is at odds in several key respects with that indicated by the documentation. Additionally, the court report in relation to the applicant’s husband’s charge is vague and improbable. In weighing all the evidence the Tribunal finds that the applicant has fabricated her claims regarding her husband’s problems following her own alleged punishment for a breach of the dress code. Accordingly, it does not accept that either she or her husband were placed on reporting conditions. The fact that the applicant was subsequently permitted to depart Iran underscores that finding.
It follows from the aforementioned finding that the Tribunal does not accept the applicant was prevailed upon during alleged reporting sessions to engage in a sexual relationship with a member of the revolutionary guard. Such sessions have been contrived. As her own evidence indicates any pressure applied to her to have a sexual relationship with a revolutionary guard or any other individual is, without more, a personal matter that does not disclose a Convention ground. Even if the applicant had been so prevailed upon to provide sexual favours it is manifest that she would have been able to seek the protection of the State. That conclusion follows from the applicant’s own evidence that religious police and others are ceaseless in their endeavour to stamp out licentious behaviour, and from available information indicating that engagement in a sexual relationship outside marriage attracts serious punishment under the criminal code.” (The Tribunal then referred to country information).
E. The applicant travelled to England in March 1999 and remained there for about five months to support her sister-in-law around the time of the birth of a child. The Revolutionary Guard who had importuned her had told her that she would not be given a passport. She was only able to obtain a passport and depart Iran through the payment of bribes. She did not apply for asylum as a refugee in England as she had no intention of trying to remain there. She returned to Iran because she was still required to report to the authorities every three months. Upon return from England she was interrogated at the airport for 18 hours, probably in an endeavour to intimidate her further.
8 The Tribunal noted that the applicant travelled to England in 1999, on her own evidence, predominantly for personal reasons. It referred to independent country information and then said this:
“In view of the tight controls in Iran on exit and entry procedures; the range of checks at airports; the existence of a computerized blacklist; and the interest of the authorities in monitoring Iranian citizens, including in particular those who are regarded as political offenders, the Tribunal finds it implausible that the applicant would have been able obtain (sic) a passport and then pass through all airport checks if she was wanted by the authorities, especially in relation to any political matter.
While observing that her problems were essentially social the applicant’s capacity to depart Iran indicate that there was neither any social or political impediment of any significance at all to her freedom of movement. The applicant was not only able to depart Iran, thereby indicating a lack of any official interest in her, but she made no endeavour to obtain asylum during a significant period of residence in England. Her claim that she felt obliged to return to Iran because she was on reporting conditions there rather than to seek asylum abroad for, in very large measure, the same reasons she now claims a fear of persecution, lacks credibility.
The applicant’s voluntary return to Iran in 1999 underscores the Tribunal’s finding that she has fabricated claims of being on reporting conditions. In line with that finding the Tribunal does not accept that the applicant was interrogated upon return to Iran due to any political reason or for any other Convention reason. In view of the anomalies in the applicant’s story and her false claim of being on reporting conditions the Tribunal is not satisfied that she was actually interrogated at all. As well, the process outlined by the applicant at the airport on return falls short of a definition of persecution.”
F. Since her departure for Australia, her husband has had a court summons issued to him, and three summonses and an arrest warrant have been issued to the applicant.
9 In relation to this claim the Tribunal said:
“The three summonses and an arrest warrant issued after the applicant’s legal departure from Iran all contain wording that is vague about why there is, allegedly, an official interest in her or her husband. They are issued after the applicant has passed all security checks in leaving Iran. They are photocopies that, despite purporting to be documents issued by a court, contain no reference to any particular elements of the penal code or any other code of law. In assessing the foregoing the Tribunal finds that the documents are not genuine. It finds that they are self-serving and contrived in order to provide a false basis for a claim to refugee status.”
G. Her father, who was religiously liberal and a socialist, had influenced her thinking. She felt a vacuum in her life that caused her to explore Christianity, first in England and then more actively since arriving in Australia. She has attended the Uniting Church each Sunday and also meets with a retired minister and his wife each week for a couple of hours during which time they discuss the Bible and cultural and religious traditions. She has been baptised in Western Australia, has embraced Christianity and wants to teach others about it. She had not done so in Australia because her husband and children remain in Iran. Although Christians go freely to church in Iran, she would face persecution because of her wish to tell others about the Christian faith and also because she is a convert. If returned to Iran she would feel bound to declare her faith if asked and the local mullah would give her trouble as he will know who are the Christians in the area. As a Christian she will not accept the Islamic way of dressing and will, therefore, be at risk of serious punishment.
10 The Tribunal accepted that the applicant might have embraced Christianity over time, that she had been baptised in Australia, that she has attended church and engaged in other religious activities as outlined by her and a witness who gave evidence at the hearing. The Tribunal referred to independent country information and stated the following:
“The Tribunal is not wholly satisfied that the present applicant has genuinely embraced Christianity, at least from the outset, rather than engage in a “conversion for convenience”. Even accepting, however, that she has now done so the available evidence indicates that if she were to practise as a Christian in Iran she would be able to do so in ways she has practised her faith in Australia without facing a real chance of persecution. Although she claimed at the hearing that she wishes to tell others in Iran about her faith, more than she has sought to do in Australia, the evidence is that she is able to do so without facing any serious repercussions providing she does not proselytize. And although she claims that she has refrained from speaking openly about her faith in Australia because of the risk to her family in Iran, her claim that she would feel bound to do so upon return to Iran, despite at least the same risk to her family, is incongruous; the Tribunal finds the claim to be far-fetched and self-serving.
Information from DFAT indicates that converts who go about their devotions quietly, as the applicant has done in Australia, are not bothered; it is only those who actively seek public attention through conspicuous proselytizing who encounter a real chance of persecution. In weighing all the available evidence the Tribunal finds that the applicant would not choose to generally broadcast her practice of Christianity or conspicuously proselytize in Iran. If she were to choose to practise Christianity in Iran the Tribunal concludes there is not a real chance that she would face persecution as a consequence.”
11 The Tribunal also stated that it gave weight to the fact that the applicant was not a member of a denomination which exhorted its adherents to proselytise. It referred to evidence from the applicant’s witness in that regard and concluded:
“A requirement to proselytize is not a core component of her faith or, indeed, at all essential to it.
In weighing all the evidence, including the applicant’s practice of her faith to date and the tenets of that faith, the Tribunal finds that any avoidance of proselytizing or of actively seeking attention on matters of religion is consistent with her beliefs and practices. It finds that the present applicant is not constrained in the practice of her faith, nor would she be in Iran, due to a perception that to behave more openly or aggressively than she has done to date would leave her at risk of persecution.
While accepting that the applicant does not wish to adhere to the Islamic dress code as it operates in Iran there is nothing inherent in Christianity to exhort its followers to shun such a dress code. The applicant’s faith does not require an avoidance of the dress code in Iran. The dress code in Iran is imposed on all women, regardless of their religion, and punishment for any breach of it would be in accordance with laws of general application.”
the grounds of application and the applicant’s submissions
12 The application as originally filed (and signed by the applicant personally) contained some ten grounds of application.
13 The application first came on for hearing on 5 February 2002. Mr D P A Moen, a barrister, appeared for the applicant on a pro bono publico basis, and, as I have mentioned above, obtained leave to amend the application into a form in which reliance upon s 39B of the Judiciary Act was expressed. Mr Moen also obtained leave to amend the grounds of the application. The amended grounds were, in many respects, very similar (in most cases identically worded) to the grounds set out in the application as originally filed. The main difference was the addition of a ground which raised jurisdictional error. There were, at that stage of the proceedings, seven grounds of review which I will summarise as follows:
1. Error of law constituting jurisdictional error.
2. No evidence or other material to justify making the decision.
3. Error of law “being an incorrect interpretation of the law to the facts as found by the Tribunal”.
4. Error of law in making erroneous findings.
5. Further error of law as to what amounted to persecution.
6. Failing to have regard to relevant material.
7. Further alleged error in failing to have regard to whether there was a potential risk of persecution if the applicant were returned to Iran.
14 It soon emerged in argument that the applicant’s main point was that the Tribunal had illegally prevented her from being represented before it by Ms Janette McCahon, a solicitor employed by Legal Aid WA. The respondent did not deny that Ms McCahon was entitled, by reason of the fact that she was a solicitor employed by Legal Aid WA, to appear and represent the applicant before the Tribunal. The respondent also accepted that the Tribunal had barred Ms McCahon from actually participating in the hearing, although she had been allowed to remain as an observer. The respondent’s primary submission was that a breach of the rules of natural justice would not give grounds for review under s 39B of the Judiciary Act. The respondent’s alternative submission was that, taking into account the circumstances as a whole, there had not been such a denial of procedural fairness as would invalidate the decision.
15 Mr Moen then developed an argument to the effect that further jurisdictional error was exposed by the fact that the Tribunal had relied upon a document in which dates had been incorrectly translated when it decided not to believe the applicant’s claims.
16 Next Mr Moen submitted that the tape-recording of the proceedings before the Tribunal disclosed that the Tribunal had said that it believed that the applicant’s conversion to Christianity was legitimate and was corroborated.
17 At that stage of the hearing the transcript of the proceedings before the Tribunal was not in evidence.
18 The applicant sought and was granted an adjournment, with leave to file and serve an affidavit deposing to and annexing any portions of the transcript of the hearing before the Tribunal upon which she sought to rely, together with supplementary submissions. The respondent was given leave to file further affidavit evidence and submissions in reply.
19 As events transpired, it was the respondent who filed an affidavit which had annexed to it the transcript of the hearing of the application before the Tribunal. The application came on for further hearing on 20 June 2002.
20 At the start of the resumed hearing, the applicant sought and was granted leave further to amend her application by adding another ground of review. The ground was:
“That the interpreter failed adequately or properly to interpret the proceedings before the Refugee Review Tribunal and her request for a female interpreter was not granted, with the result that the applicant did not receive a fair hearing”.
21 During the adjournment Mr Moen had filed supplementary submissions on behalf of the applicant. He proceeded to make quite lengthy oral submissions. Those, to some extent, built upon a concession made in further submissions filed by the respondent between the two hearings, to the effect that the Tribunal ought to have allowed Ms McCahon to attend as the applicant’s legal representative at the hearing before it. Mr Moen submitted that the applicant was thus deprived of a fair opportunity of presenting her case.
22 The applicant also relied upon interpretation difficulties. First, given the sexual nature of part of her claims, the applicant had requested a female interpreter, but a male interpreter was provided. That interpreter was located with the Tribunal member at the Melbourne end of the video-link.
23 The applicant relied upon those circumstances, together with what were asserted to be errors in translation and transcription, as having resulted in her being deprived of a fair hearing. The applicant also relied upon a translation error in respect of dates in the letter, purportedly from a psychiatrist, which is referred to in the observations of the Tribunal which are set out at paragraph 7 above.
24 The essence of the applicant’s case thus emerged as being such a denial of procedural fairness as to amount to jurisdictional error.
25 The respondent submitted that there had not been any denial of natural justice, but that even if there had been, s 474 of the Act precluded review of this ground under s 39B of the Judiciary Act. A similar submission was made in relation to the allegations of an incorrect translation of the letter to which I have just referred.
26 I reserved judgment at the conclusion of the hearing on 20 June 2002. At that stage, a Full Court of this Court, comprising five judges, had heard and reserved judgment in five appeals which later received the citation NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. Shortly before reserving judgment, I discussed with the parties whether they would be content for me to defer giving my judgment in this matter until the decision in NAAV was delivered. The applicant agreed with that proposed course and the respondent had no objection.
27 On 15 August 2002, the Full Court delivered its judgment in NAAV. On 16 August 2002, I made directions granting leave to the respondent to file and serve supplementary submissions as to the significance of the decision in NAAV to the disposition of this application. The applicant was given leave to file and serve a response to those submissions, with the respondent having leave to file any further submissions in reply. The parties availed themselves of those opportunities, with the result that three further sets of written submissions were filed.
28 In summary, the respondent submitted that the decision in NAAV had the effect that this Court does not have jurisdiction under s 39B of the Judiciary Act to review the Tribunal’s decision on any of the eight grounds set out in the applicant’s further amended application.
29 The applicant, in her additional submissions, contended that the Tribunal’s decision could be reviewed on the basis that:
· the Tribunal did not make a bona fide attempt to exercise its powers;
· the decision was not reasonably capable of reference to the power given to the Tribunal; and
· the Tribunal acted in breach of an inviolable limitation upon the powers given to it.
30 The respondent, in submissions filed in reply, asserted that none of these three grounds were “pleaded” in the eight grounds of review and that, accordingly, the Court did not have jurisdiction to allow the application on the basis of any of them. The respondent submitted that the Court should not allow the applicant to amend the application to plead those grounds. This was because, so it was put, the grounds were raised at a very late stage of the proceedings, there was nothing to prevent them being raised earlier in the proceedings before the decision in NAAV and, in any event, there was no substance to any of the grounds now sought to be raised.
my reasoning on this objection by the respondent
31 I do not think that the applicant requires leave further to amend her application in order to raise what the respondent contends are three new grounds. My short reasons for that view are as follows.
32 The applicant has at all times submitted that the matters about which she complained brought her application within the grounds of review permitted under the principles explained in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. It is true that the main thrust of the applicant’s submissions was that as a result of a combination of the matters of which she complained, the Tribunal had committed jurisdictional error which enabled this Court to interfere, consistently (on her case) with the application of the Hickman principles. But, in my opinion, the question whether the Tribunal’s decision could be challenged under the Hickman principles has been before the Court in this matter since the application was amended to raise jurisdictional error. I do not think that it would be procedurally unfair to the respondent to allow the applicant to argue that the matters complained about, cumulatively, had the effect that the Tribunal’s decision was reviewable for the three reasons advanced.
the issues to be decided
33 The respondent has, quite sensibly, dealt with each of these three matters in his submissions in reply. I shall first endeavour to summarise the applicant’s submissions.
34 The applicant submitted that the Tribunal’s decision was not “on its face” a bona fide attempt to exercise its function. The applicant contended that the Tribunal “started out and persisted” with the view that the applicant was not entitled to be represented at the hearing. That approach was said to reflect both an erroneous understanding of the law and a lack of good faith. The applicant submitted that the conduct of the Tribunal in its treatment of the applicant indicated:
“… a degree of capriciousness and a failure to endeavour in good faith to review the delegate’s decision.”
35 The applicant argued that the requirement of bona fides “… embraces at least some aspects of natural justice …”.
36 The applicant further submitted that:
“In considering the circumstances in which the Tribunal member dealt with the Applicant and the surrounding circumstances including the errors of law and fact these alone and in conjunction demonstrate or tend to demonstrate a lack of good faith on its part.”
37 Next the applicant submitted that the question of legal representation at the Tribunal was one of law and that it “… would seem inherently unlikely that the Parliament intended that the Minister be given power to decide” that question in a way that was wrong as a matter of law. The correct answer to the legal question about representation was, so it was put, in the nature of an inviolable limitation upon the power given to the Tribunal member and as such its decision was reviewable, notwithstanding s 474(1).
38 The applicant asserted, twice, in her additional submissions that the Tribunal’s decision was not reasonably capable of reference to the power given to it. But no separate or additional submissions were made under this ground. The applicant also made submissions based upon the observations of Wilcox J and French J in NAAV. As I am, of course, bound by the decision of the majority in NAAV. I took those submissions to have been formal in nature, thus preserving the applicant’s rights upon any appeal.
39 I do not think that it would be useful to summarise the respondent’s two further sets of submissions. They are, to a substantial extent, reflected in my reasoning below.
my reasoning
Whether the Tribunal made a bona fide attempt to exercise its powers
40 On the present state of the authorities, it seems clear that s 474(1) of the Act prevents the applicant from relying on a denial of procedural fairness as a basis, on its own, for relief under s 39B(1) of the Judiciary Act. That was decided by the majority in NAAV – see also NABM of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294 at [17].
41 But, in my view, there is nothing in the authorities which would preclude a court from having regard to a denial of procedural fairness as part of the evidence tendered to establish one or other of the Hickman conditions. Failure to accord procedural fairness when added to blatant disregard of statutory requirements might, in an appropriate case, justify an inference that the decision-maker has not honestly attempted to exercise the relevant statutory power: see von Doussa J in NAAV at [674].
42 Before turning to the matters relied upon by the applicant, I think it is useful to refer briefly to some recent authority on the approach which it is appropriate for a court to take where it is alleged, as here, that the Tribunal did not make a bona fide attempt to exercise its powers. In considering the question of what was meant by a bona fide attempt to exercise powers, Allsop J in NAAG of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCA 713 at [24], in a passage quoted with approval by Beaumont J in NAAV at [107], said:
“Dixon J in R v Murray; Ex parte Proctor, supra at 400, made it clear that the phrase involves an ‘honest’ attempt to deal with the subject matter conferred to the executive. Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question. Finn J in Daihatsu Australia v Federal Commissioner of Taxation (2001) 184 ALR 576 at [36] referred, by way of exemplification, to the exercise of a power knowingly for an improper purpose or where no attempt is made, knowingly, to act conformably with duty. Heerey J in SBAP v Refugee Review Tribunal [2002] FCA 590 at [47] said that the phrase ‘bona fide’ involved a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law. It must be clearly identified and proved.”
43 I agree, respectfully, with the observation of Mansfield J in SBAU v Minister for Immigration and Multicultural Affairs [2002] FCA 1076 at [31] that:
“Errors of fact or law apparent in [the Tribunal’s] reasons will not of themselves demonstrate a lack of good faith on [the Tribunal’s] part, at least other than in exceptional circumstances.”
44 See also Kiefel J in NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 at [31].
45 The facts upon which the applicant bases her claim that the Tribunal’s decision was not made in good faith fall within a fairly narrow compass.
46 First, there was the important matter of legal representation. The respondent concedes that Ms McCahon, as a solicitor employed by Legal Aid WA, had the right to appear for the applicant at the hearing before the Tribunal. As appears from the first page of the transcript of those proceedings, the Tribunal wrongly excluded Ms McCahon from taking that role, on the basis that she was not a registered Migration Agent. The Tribunal told Ms McCahon that she could “remain as an observer”.
47 Part of the applicant’s case is that she at all times had a reasonable expectation that she would be represented at the Tribunal by a solicitor from Legal Aid WA, that she would have a female interpreter (given the sensitive nature of one of her main claims), and, further, that her sister would be called to give evidence on her behalf.
48 The question of legal representation arose again later in the proceedings before the Tribunal.
49 As can be seen from the extracts from the Tribunal’s reasoning set out above, a key factor in the Tribunal’s credibility finding was the obvious discrepancy in the psychiatrist’s letter dated 11 January 1998 which purported to state that the applicant’s husband was admitted to hospital on 21 November 1998 and discharged on 7 December 1998. The transcript of the proceedings before the Tribunal shows the following exchange:
“MS McCAHON: May I just intervene – one matter about the ---
MR BREWER: Well, you’re here as an observer. I’m letting you stay and you can take notes, but you don’t have, I’m afraid, status other than that.
MS McCAHON: I am [applicant’s name] solicitor. I’m not, I recognise that I’m not a migration agent. It was just – I just wanted to make one small point about the dates, given that Ms Moss [the applicant’s former Legal Aid WA solicitor, then on maternity leave] mentioned in her submissions the difficulty of translating the Farsi dates and how that can end up with a period of more than one year between dates when that isn’t in fact the case. That was the only point I wished to make.”
[There was no response or comment from the Tribunal, which continued its interrogation of the applicant].
50 Later in the proceedings the Tribunal member said this in relation to the applicant’s religion-based claim:
“MR BREWER: I will accept that you’ve been baptised and that you attend church each Sunday and that you also attend a Bible study class for 2 hours weekly. On that basis it seems to me that I probably would not be assisted by hearing from any of the people outside but that’s a matter you can discuss during the break and let the attendant know. Okay?
THE APPLICANT: I just want you to talk to the minister.
MR BREWER: Well, we will have a break for 10 minutes anyway, but why – what advantage do you think would be (sic) in me talking to the minister?
THE APPLICANT: No, I wanted and I wish the minister who baptised me can introduce me much better to you.
Mr BREWER: What can he say about your religious practice other than what you’ve already told me? That’s a rhetorical question. That’s what I want you to consider during the break. Okay?”
51 After the adjournment the Reverend Richard Treloar gave evidence. Rev. Treloar is a retired minister of the Uniting Church in Australia.
52 There is in evidence in these proceedings an affidavit from the applicant’s sister in which she deposes to what transpired at the hearing before the Tribunal. I shall refer to the applicant’s sister as Ms WABY. Ms WABY swore that she attended the hearing having previously been advised by both her sister and by Legal Aid WA that she was required to do so in order to give evidence. She says that she and the Reverend Treloar were requested to leave the hearing room as they were to be witnesses. The applicant also had with her some supporters, including Mrs Treloar and a counsellor from the Catholic Migrant Centre. Ms WABY says that the Tribunal member also ordered them from the hearing room. She said that the Tribunal did not request her to give evidence.
53 Ms WABY does not say what evidence she might have given, but it seems to me that that does not bear on the question of whether the Tribunal acted in good faith. The focus is on what the Tribunal said and did.
54 On 16 July 2001, Ms McCahon (under the letterhead of Legal Aid WA) wrote to the Tribunal referring to its ruling that she could not participate or represent the applicant, and setting out the basis upon which she was entitled to do so. On 26 July 2001, the Tribunal wrote to the applicant referring her to sections 276 and 280 of the Act and the decision of the High Court of Australia in Cunliffe v The Commonweath (1994) 182 CLR 272. On 2 August 2001, Ms McCahon (again under the letterhead of Legal Aid WA) wrote to the Tribunal pointing out the exception provided by s 280(4) of the Act to the prohibition contained in s 280(1) which, by virtue of the definition of “Official” in s 275, meant that she was entitled to appear at the Tribunal on behalf of the applicant.
55 In the first set of supplementary submissions filed on behalf of the applicant the applicant raised what it stated was “an important point” namely the delay by the Tribunal in handing down its decision, the effect of which was, so it was put, to ensure that the application to this Court would be governed by the amendments to the Act which came into force on 2 October 2001.
56 The hearing before the Tribunal took place on 10 July 2001. On 10 September 2001, in response to an inquiry as to when the Tribunal expected to hand down its decision, the Tribunal responded by informing the social worker who made that inquiry on behalf of the applicant that the date for the decision would be about 21 September 2001. It is apparent on the face of the Tribunal’s decision that it was made on 24 September 2001. But, for some reason which is not explained, its decision was not forwarded to the applicant until 19 October 2001 under a covering letter which referred to her limited right to seek review in the Federal Court and/or the High Court. In the meantime, the Act was amended with effect from 2 October 2001.
57 In oral submissions made on the second day of the hearing, Mr Moen said in relation to this matter:
“I only raised that just to set it in some context. No form of complaint proper is raised in the grounds of appeal in relation to that.”
58 Counsel for the respondent, in oral submissions, described the applicant’s position somewhat colloquially as having “… a bob each way …” i.e. by drawing the matter to the Court’s attention and then saying in effect that the applicant was not placing any particular reliance on it. In any event, so the respondent’s counsel submitted, there was nothing in the point.
59 I shall approach the matter on the basis that the applicant relies upon it as evidence of bad faith.
60 In my view, the evidence upon which the applicant relies does not demonstrate a lack of good faith on the Tribunal’s part. In relation to the matter of legal representation, there was an error of law, in my opinion, a serious error of law. But that on its own does not show bad faith. In fact, counsel for the applicant, when referring to the exchange of letters after the hearing said this:
“That goes to show the continuing misunderstanding, I’d suggest, of the tribunal in respect of this particular matter and the position of the Legal Aid Commission and [the] representative from the Legal Aid Commission coming forward to represent a particular person at the tribunal, and they obviously being of the view that Ms McCahon couldn’t appear because it would be a breach of the law which is wrong – completely wrong, your Honour. So we suggest that letter there goes to support the misapprehension that the tribunal was acting under at the material time, and continued to act upon, even in the face of correspondence ...”.
61 The Tribunal’s failure to call Ms WABY does not, in my opinion, amount to any evidence of bad faith. I have not ignored the possibility that Ms WABY might possibly have given evidence that, based on her knowledge of how her sister was likely to behave, the applicant would, if returned to Iran, have been likely to proselytise, thus putting herself at risk of very serious persecution.
62 The fact that, despite the applicant’s request for a female interpreter, a male interpreter was provided, does not, in my view, indicate bad faith. There was simply no evidence as to how and by whom that choice was made or whether a female interpreter was available.
63 I must say that in the context of the Tribunal’s attitude towards Ms McCahon’s attempt to represent her client, the Tribunal’s delay in publishing its reasons aroused my suspicions. The Tribunal had a letter from a social worker outlining the stress which the delay was causing to the applicant and requesting an indication of when the Tribunal’s decision would be given. The Tribunal had responded with an approximate date (21 September 2001). It was widely known at the time that amendments to the Act were proposed which would severely curtail review of the Tribunal’s decision and in that context, having made its decision on 24 September 2001, the decision was not notified to the applicant until 19 October 2001.
64 But that evidence is equally consistent with administrative oversight within the bureaucracy of the Tribunal.
65 Taking all of the circumstances of the matter into account together, I do not think that the applicant has established that the Tribunal did not make a bona fide attempt to exercise its powers.
Whether the decision was reasonably capable of reference to the power given to the Tribunal
66 In my opinion, it is quite clear that this ground has not been made out. There was a clear connection between the decision and the power. The Tribunal was given power to conduct a review of the decision made by the respondent’s delegate to refuse a protection visa. Its powers included the making of a decision about whether the delegate’s decision should be affirmed or set aside. The Tribunal reviewed and affirmed the delegate’s decision.
Whether there was a breach of an inviolable limitation
67 The facts upon which the applicant relied as establishing this ground, were the same as those in respect of the bad faith allegation, other than the alleged delay in handing down the decision.
68 On the present state of the authorities, those matters do not involve inviolable limitations or restraints upon the Tribunal’s authority and powers under the Act. That is the case, whether one adopts the narrower view of von Doussa and Beaumont JJ in NAAV or the views of Black CJ, Wilcox and French JJ in the same case – see also Heerey J in VDAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1071 at [27].
Conclusion
69 For the foregoing reasons the application will be dismissed with costs.
|
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr. |
Associate:
Dated: 30 October 2002
|
Counsel for the Applicant: |
Mr D P A Moen (who appeared on a pro bono publico basis) |
|
Counsel for the Respondent: |
Mr M T Ritter |
|
Solicitors for the Respondent: |
Australian Government Solicitor |
|
Date of Hearing: |
5 February 2002 and 20 June 2002 |
|
Date last written submissions filed: |
26 September 2002 |
|
Date of Judgment: |
30 October 2002 |
