FEDERAL COURT OF AUSTRALIA

SBBA v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1401

Judiciary Act 1903 (Cth), ss 39B, 91R, 474(1), 414

Migration Act 1958 (Cth), s 36(2)

Craig v the 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 - followed

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

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 - discussed

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 – referred to

Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 – referred to

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

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

SBBA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.5 of 2002

MANSFIELD J

15 NOVEMBER 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) to have declared invalid a decision of the Refugee Review Tribunal (the Tribunal) given on 18 December 2001.  The Tribunal affirmed a decision of a delegate of the respondent given on 17 October 2001 refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act).

2                     It is plain that the decision of the delegate and of the Tribunal turned upon whether the applicant satisfied the criterion for the grant of a protection visa specified in s 36(2) of the Act, namely that he 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, that depended upon whether the delegate of the respondent, and on review the Tribunal, was satisfied that the applicant is a “refugee” as defined in Art 1A(2) of the Convention, namely a person who:

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

3                     The applicant arrived in Australia, with his wife and three children, in April 2001.  He and his wife were interviewed following their arrival in Australia on 10 May 2001.  The applicant was born in Iran on 1 January 1953 and lived all his life in Iran until he arrived in Australia.  The nature of his claims to be a refugee, that is to have a well-founded fear of persecution if he were returned to Iran, were explained in his arrival interview, in the application for the protection visa, in interviews with the delegate of the respondent on 29 June 2001 and at the hearing before the Tribunal on 27 November 2001, and in submissions from his migration agent of 28 August 2001, 22 November 2001, and 7 December 2001.

4                     In essence, he claimed that, although he was born and lived all his life in Iran, he was an Iraqi national.  He claimed that he could not return to Iran because of his nationality, and that if he could return to Iran he would be discriminated against by reason of his Iraqi nationality.  He also claimed that if he returned to Iran, he would be discriminated against by reason of his religion, as he and his family are all members of the Sabean-Mandean religion.  Counsel for the applicant indicated that the status of the applicant’s wife and children would “stand or fall” with the applicant’s present application for a protection visa.

5                     The Tribunal did not accept those claims.  It did not accept that the applicant is an Iraqi national, rather than an Iranian national, so it rejected his claims that he would be unable to return to Iran, or that he would be discriminated against in Iran by reason of his Iraqi nationality.  The applicant through counsel accepted that the Tribunal’s findings on those matters were findings of fact which, even if erroneously made as he claimed, did not involve any jurisdictional error on the part of the Tribunal.  Its consideration of that aspect of his claims was not therefore a ground upon which the Tribunal was said to have committed jurisdictional error so as to enliven the Court’s power to make the orders sought under s 39B of the Judiciary Act. 

6                     In that circumstance, I need refer only briefly to the Tribunal’s reasons on that part of the claim.  As the Tribunal said, it had on the one hand the applicant’s evidence that he is an Iraqi national, corroborated by his wife and by documentation which he had produced.  Against that material it had independent evidence indicating that a person such as the applicant, born in Iran to a father of foreign nationality and resident there for one year after reaching the age of 18, would be considered to be an Iranian national unless he took positive steps to renounce Iranian nationality, a course available to such a person only after the age of 25.  The applicant did not claim to have renounced Iranian nationality.  The Tribunal decided to give greater weight to the independent evidence available to it.  It consequently found, on the basis of that evidence, that the applicant is an Iranian national.  It rejected the applicant’s claims that he is an Iraqi national, that he was only ever the holder in Iran of a resident permit or work permit, or that he was refused an Iranian travel document and left Iran on an Iraqi passport.  It found that the applicant had left Iran on an Iranian travel document with his wife and children, and that he had claimed to be an Iraqi national in an attempt to enhance the chances of his application for a protection visa being successful.

claims of persecution by reason of religion

7                     The applicant’s claims to have been persecuted by reason of his religion, and to have a well-founded fear of persecution if he were to return to Iran by reason of his religion, were based upon conduct which he claimed he had experienced in the past in a number of respects.  He claimed to have been adversely affected in his work and his work prospects, in the education of his children, in his immediate capacity to practise his religion, and in his general civil rights.

8                     The applicant told the Tribunal that he had acquired a university degree in geology, but had been unable to undertake work within that qualification because of his religion.  He had also been refused permission to open a fabric shop because of his religion.  He had worked in a gold shop, a family business operated as a goldsmith or jewellery business, and then in his own business operating a gold shop.  He had done so successfully, but had been forced to bribe officials to be able to keep trading.

9                     The Sabean-Mandean religion, he claimed, is not recognised in Iran.  Consequently, his children in the course of their education had to study the Koran and attend Islamic religious studies at school.  They were under pressure to convert.  They were taunted by teachers at the school.  They were not allowed to have direct contact with other students, and so could not touch the water taps as they were regarded as unclean and had to take bottled water for use at school.  They were not eligible for university studies.

10                  The applicant also complained that he was unable to carry out his religious ceremonies in the proper way.  The main temple of Sabean-Mandeans in Iran in his area had been confiscated, and they were forced to undertake baptisms in the public river in full view.  They were often stoned while doing so.  The Sabean-Mandean cemetery had been concreted over, and the community had been told that an area had been set aside for burials which was a long distance away from where they lived and from the existing cemetery.

11                  Unlike other Iranians, the Tribunal was told that the Sabean-Mandeans were unable to be entitled to “blood” money in the event of accident.  They did not receive the protection of the authorities, so harassment by radical Islamic elements in the street and whilst they were in public areas were simply ignored.  Sometimes they were stoned by such radicals, but had no practical recourse.  It had resulted in Sabean-Mandeans, such as the applicant, having a de facto curfew in evening hours and night hours for their own protection.  In December 2000 revolutionary guards had beaten his wife, and had beaten and robbed his aunt and uncle in their own house, and other Sabean-Mandeans had been robbed in their houses, assaulted and on a few occasions killed.  Similar conduct occurred in relation to shop premises of Sabean-Mandeans.  Complaints to the authorities about such harassment and mistreatment were simply ignored.  That too forced Sabean-Mandeans to live in a form of enclave or community housing for their own protection.

the tribunal’s reasons

12                  The Tribunal addressed each of those claims.  It accepted that the Sabean-Mandean community in Iran experiences discrimination in employment and education, and in the way the legal system operates.  However, it concluded on the material available to it that the applicant’s return to Iran, together with his family, did not involve a real chance that they would suffer discrimination in employment or education or as a result of the way the legal system operates to such an extent that it would amount to serious harm for the purposes of s 91R(1) of the Act.  It had regard to the applicant’s evidence that he had a successful business as a goldsmith in Iran in that regard.

13                  The Tribunal accepted that the applicant’s children are likely to be denied the opportunity to attend university.  Whilst completing secondary education they may be subject to “petty discrimination, for example with regard to touching water taps”.  The Tribunal considered those detriments also did not involve “serious harm” within the meaning of s 91R(1) of the Act.  Although it accepted that, due to the school system being Islamic, there would be a pull upon the applicant’s children towards Islam, it did not accept that there is pressure on the Sabean-Mandeans from the authorities or the community at large to convert to Islam.  It had regard to independent country information to that general effect, and also suggesting that the Iranian government did not actively harass or routinely persecute the Sabean-Mandean community.  It expressly acknowledged that the applicant through his migration agent had produced some independent country information to different effect, but it preferred that provided by the Australian Department of Foreign Affairs and Trade (DFAT) and the US State Department in the material which it quoted.  It therefore did not accept that Sabean-Mandeans are being pressured by the Iranian authorities or the Iranian community at large to convert to Islam.

14                  The Tribunal also accepted that one of the Sabean-Mandean temples in the applicant’s area had been confiscated, but on the basis of information available, it considered that there was another temple and other buildings used for festivals and ceremonies still available for the practise of the Sabean-Mandean religion.  Having regard to independent country information that the Iranian government does not actively harass or persecute the Sabean-Mandean community, it did not consider that unwanted attention from non-Sabean-Mandeans whilst performing their ceremonies in public occurred.  It specifically did not accept that stones or other objects were thrown at them or that they were otherwise prevented or restricted in performing their religious ceremonies.  It appears to have accepted the applicant’s complaint that the particular Sabean cemetery in their home town of Ahwaz had been desecrated.  However, it did not accept in the light of the same independent information as to the attitude of the Iranian government towards Sabean-Mandeans that the disrespect for that particular cemetery in Ahwaz was part of a larger pattern of harassment or persecution of the Sabean-Mandean community by Iranian authorities.

15                  Consequently, the Tribunal concluded:

“I do not accept that, if the applicant and his wife and their three children returned to Iran now or in the reasonably foreseeable future, there is a real chance that they will be prevented or restricted in the practise of their religion in a way, or to such an extent, as to involve ‘serious harm’ to them as referred to in subsection 91R(1) and so to amount to ‘persecution’ for the purposes of the definition of a refugee in the Refugees Convention.”

Because of the same advice from the DFAT, it also did not accept that the applicant was harassed and forced to bribe officials because of his religion, or that there was a real chance that the applicant or his family would be so harassed and discriminated against by Iranian authorities if he were to return to Iran.  For the same reason, it did not accept the applicant’s claims to have a well-founded fear that people would intrude into the homes of the Sabean-Mandean community in Ahwaz, or his claims that stones were thrown at their houses, or that they were abused, and on occasions beaten and robbed and even killed by reason of their religion.  It did not consider that there was a real chance that the applicant and his family, by reason of their religion, might be singled out for criminal attacks if they are returned to Iran.

16                  Finally, the Tribunal considered the applicant’s claims that the Iranian government and the authorities did not respond to concerns on the part of the Sabean-Mandean community about criminal behaviour directed towards them because of their religion.  Again, it preferred the DFAT information which was to the effect that the police will generally protect members of the Sabean-Mandean community and that the police do not discriminate against them.  It therefore concluded:

“Having regard to this advice I consider that the Iranian authorities will provide the applicant and his wife and their three children with the same protection as other Iranian citizens and with a level of protection sufficient to remove a real chance of their being persecuted by way of criminal attacks if they return to Iran now or in the reasonably foreseeable future.”

In reaching that view, the Tribunal specifically considered a contention presented on behalf of the applicant that the information provided by DFAT might be less than well-balanced for fear of retribution from Iranian officials by those officers of DFAT in Iran who prepared the document.

the grounds of review

17                  On the application, counsel for the applicant contended that the Tribunal did not have jurisdiction to make the decision which it made because:

1.         it misconceived the concept of persecution as used in Art 1A(2) of the Convention, and as explained in s 91R of the Act;

2.         the Tribunal failed to address matters which it was required to address to exercise its jurisdiction because it failed to consider the possibility that independent country information provided by the Department of Foreign Affairs and Trade about the treatment of Sabean-Mandeans in Iran could be accurate and could be consistent with the accounts of harm given by the applicant and his wife; and

3.         the Tribunal failed to exercise its jurisdiction by failing to reconcile its findings about the way in which Iran treats Sabean-Mandeans generally in Iran with a further conclusion that the Iranian government does not encourage or condone criminal attacks against the Sabean-Mandean community, so it made inconsistent findings on that matter.

18                  The nature of the jurisdictional error alleged, so as to enliven the Court’s power under s 39B of the Judiciary Act, was that discussed by the High Court in Craig v the State of South Australia (1995) 184 CLR 163 at 179, and in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 30 where McHugh, Gummow and Hayne JJ said at [82]:

“’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 is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”

19                  The respondent contended that, in the light of s 474(1) of the Act, the type of errors alleged by the applicant in the Tribunal’s decision (even if made out) no longer give rise to jurisdictional error of the type which would entitle the Court to interfere with the Tribunal’s decision under s 39B of the Judiciary Act.  He contended that s 474(1) of the Act had the effect of extending the jurisdiction of the Tribunal so as to entitle it to make the sort of errors which the applicant alleged it had made without exceeding its jurisdiction, and that the formulation of jurisdictional error in cases such as Craig and Yusuf was no longer an appropriate measure of jurisdictional error by the Tribunal.  He also contended that the Tribunal did not commit the errors which the applicant alleged against it, but simply made findings of fact on material in a way which it was entitled to do.

consideration

20                  In my judgment, even if the applicant were to make out the particular complaints about the Tribunal’s decision which it has specified in its contentions, the applicant would not be entitled to the relief sought.  That is because s 474(1) of the Act provides:

“A privative clause decision:

(a)               is final and conclusive; and

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

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

In NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 the Full Court (Black CJ, Beaumont and von Doussa J, Wilcox and French JJ dissenting) decided that the effect of s 474(1) of the Act was to expand the jurisdiction of the Tribunal so as to permit it to make errors of the type of which the applicant complains without giving rise to jurisdictional error on its part.  Without jurisdictional error on its part, the Court is not empowered under s 39B of the Judiciary Act to declare its decision to be null and void.  In NAAV, von Doussa J (with whom Black CJ generally agreed) said at [636]:

“To construe s 474(1) so that it did not have the effect of validating decisions by extending the authority and powers of decision-makers so as to render lawful irregularities that would otherwise constitute jurisdictional error of the Craig type would defeat the clear object of Parliament …”

See also per Beaumont J at [91]-[104].

21                  Consequently, to commit an error of law by misconceiving the concept of “persecution” as used in the Convention and as expressed in s 91R of the Act, namely by misapprehending the level of harm required to constitute persecution, would not establish jurisdictional error on the part of the Tribunal:  see e.g. per von Doussa J at [651].  To reach its conclusion by making findings of fact which do not expressly acknowledge that it has considered the possibility that the evidence upon which it based its finding might be inaccurate or incomplete, or might be consistent with the complaints of the applicants about the degree of harm which he had experienced in the past, also would not amount to jurisdictional error on the part of the Tribunal in the light of s 474(1) of the Act:  see e.g. per von Doussa J at [639] and [650].  And to reach its conclusion without, as alleged, fully reconciling in a consistent way its findings about the attitude of the Iranian authorities to the Sabean-Mandean community in Iran with its conclusion that the authorities do not encourage or condone criminal attacks on the Sabean-Mandean community would also not amount to jurisdictional error in the light of s 474(1) of the Act.

22                  Accordingly, in my judgment, the consequence of s 474(1) of the Act as construed by the Full Court in NAAV, and in accordance with the contention of the respondent, is that the particular deficiencies in the Tribunal’s reasons of which the applicant complained, even if they are made out, would mean that the application must be dismissed.

23                  I have, however, also considered whether, by reason of the alleged deficiencies in the Tribunal’s reasons, it can be shown to have failed to make an honest attempt to conduct the review of the delegate’s decision, the task with which it was charged under s 414(1) of the Act.  It is therefore appropriate to consider whether the Tribunal did act in good faith in making its decision.  See R v Hickman: Ex parte Fox & Clinton (1945) 70 CLR 598 per Dixon J at 616-617.  The respondent accepts that, notwithstanding the apparently wide words of s 474(1) of the Act, the Tribunal would commit jurisdictional error if it failed to perform its review function in good faith.  NAAV clearly affirmed that to be the case.  Von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] pointed out that it will be a rare and extreme case that a conclusion of a lack of good faith on a part of the Tribunal is reached only by reference to its reasons for decision.  To the extent that the applicant put the contention in this matter, however, it was developed only by reference to the reasons for decision of the Tribunal including the material to which it referred in the course of its reasons.  In essence, counsel for the applicant contended that the three errors which it was asserted would give rise to a lack of jurisdiction on the part of the Tribunal also tend to demonstrate a lack of good faith on its part in the performance of its review function.

24                  I do not consider the Tribunal’s consideration of the meaning of “persecution” in s 91R and in the Convention tends to demonstrate that it did not undertake its review in good faith.  I do not think it is it clear that the Tribunal misapprehended the proper effect of s 91R of the Act.  Counsel for the applicant contended that s 91R(1) and (2) merely represent a legislative codification of the meaning of “persecution” in Art 1A(2) of the Convention.  There is clearly scope for the Tribunal to have taken a different view, having regard to the terms of s 91R.  Section 91R(1) provides:

“For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)               that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)               the persecution involves serious harm to the person; and

(c)               the persecution involves systematic and discriminatory conduct.”

Section 91R(2) then provides instances of “serious harm”.  It can be seen that the effect of s 91R(1) is that Art 1A(2) of the Convention does not apply in relation to persecution for a Convention reason unless it involves each of the characteristics specified in subs (a)-(c), including that the persecution involves “serious harm” and that it involves systematic and discriminatory conduct.  In my view, the Tribunal does not demonstrate a lack of good faith by taking the view that s 91R imposed a threshold for discriminatory conduct to engage Art 1A(2) of the Convention which was somewhat higher than that which the concept of persecution in the Convention imposes:  see e.g. Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 388, 429-431; Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [55]-[65].  It is not necessary finally to decide whether the Tribunal was correct in that view.  I am also of the view that the way the Tribunal made its findings about what had happened to the applicant or his family in the past, or to other Sabean-Mandeans in Iran, does not tend to demonstrate a lack of good faith on its part.  Its findings about the disadvantages Sabean-Mandeans experience in Iran were in part based upon the evidence of the applicant and his wife, and in part upon independent country information.  It then had regard to the DFAT report, and accepted it.  It did not simply ignore the applicant’s evidence, or the independent country information to which it was referred on the applicant’s behalf.  It explained why it preferred the information in the DFAT report.  It did not seek to contrive reasons to reject the applicant’s claims of his particular experiences and those of his family or friends as not believable by reference to any perceived inconsistencies or by his demeanour.  It simply preferred the other evidence which it identified.  It is not contended that it misstated or overstated the effect of that evidence.  But the terms of s 91R are not so clearly to the contrary of the Tribunal’s approach as to indicate any attempt on its part to do other than properly apply to the law.

25                  The Tribunal’s approach to the question must be seen in the context of its acceptance as a matter of fact of the reliability of the DFAT report to the effect that the police generally protect members of the Sabean-Mandean community and do not discriminate against them, and that generally Sabean-Mandeans do not have problems with members of the Iranian community.  It was in that context that the Tribunal concluded, as well as in the light of the other matters to which it referred, that the disadvantages or discriminatory treatment to which the applicant and his family might be exposed in Iran by reason of his religion did not amount to persecution.  That judgment is one of fact and degree.  Even if different minds might have differed about the conclusion, the Tribunal’s decision does not savour of any failing on its part to conscientiously undertake its review.  Heerey J in Minister for Immigration & Multicultural & Indigenous Affairs v Kord [2002] FCA 334 at [3] described the Tribunal, when addressing such a question, as engaging:

“… in a qualitative assessment of the harm it accepted the [applicants] had suffered … The qualitative assessment was a question of fact.  No legal error is disclosed.”

Nor is legal error or lack of good faith disclosed simply because the Tribunal may have made erroneous findings of fact, or may have found facts upon a doubtful basis:  Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146].  Such errors do not of themselves demonstrate any lack of good faith on the part of the Tribunal.

26                  In this matter, I also do not consider that the asserted inconsistencies in findings in the Tribunal’s reasons, even if made out, would tend to demonstrate a lack of good faith on its part.  The inconsistencies asserted are not of such a character.  The Tribunal accepted that the Sabean-Mandean religion is not a formally recognised religion in Iran.  It accepted that certain laws in Iran impose discriminatory hardship against Sabean-Mandeans.  It did not then proceed to findings which were directly contradictory of those which it had earlier made.  Its findings were that, notwithstanding those disadvantages, Sabean-Mandeans are not generally precluded from protection by the authorities against criminal behaviour in the same way as other Iranians.  Those findings do not leap out as inconsistent.  They are part of a web of findings upon which the Tribunal, ultimately, was not satisfied that the applicant has a well-founded fear of persecution if he were to return to Iran by reason of his religion.  Certain parts of the web might be a little discordant.  But any discordancy is oblique rather than direct, and does not lead me to the view that the Tribunal was not undertaking its review in good faith.

27                  In view of the limited grounds of review available to the applicant on this application, as explained above, it is not useful to determine whether the Tribunal did in fact err in law in the way the applicant alleges, or whether it erred in the findings of fact which it made.  I am not to be taken as accepting that it committed those errors.  I have reached the view, in the circumstances of this matter, that the alleged errors even if made out would not demonstrate a lack of good faith on the part of the Tribunal.  That is, in practical terms, the only real ground upon which the applicant might succeed in his application under s 39B of the Judiciary Act.

28                  For those reasons, the application must be dismissed.  I so order.

Associate:

Dated:              13 November 2002