FEDERAL COURT OF AUSTRALIA

NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1554

MIGRATION – applicant recognised as refugee by UNHCR – applicant granted Refugee (Class 200) visa – subsequent application for a protection visa – whether protection obligations enlivened by grant of a Refugee visa – whether the granting of a Refugee visa involves an assessment of a well founded fear of persecution for a Convention reason

MIGRATION – application for protection visa – Refugee Review Tribunal determined application under s 36(3) – whether s 36(3) concerns the applicant's country of habitual residence or nationality and where applicant claims a well founded fear of persecution

MIGRATION – application for protection visa – whether failure to comply with s 424A – whether failure to afford procedural fairness – whether Tribunal considered a sur place claim

Migration Act 1958 (Cth) ss 36, 424A

Migration Regulations reg 101

Applicant M185 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 230 referred to

Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 47 referred to

QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 discussed

SWNB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1606 cited

Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 cited

R Germov and F Motta Refugee Law in Australia Oxford University Press, 2003 at pp 62-64

NBKS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 193 OF 2005

MOORE J

10 NOVEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.      The Refugee Review Tribunal be added as a party to the proceedings.

2.      The application be dismissed.

3.      The applicant pay the first respondent's costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This judgment concerns an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 17 January 2005 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") not to grant a protection visa.  In order to explain the context in which this application arose, it is necessary to set out the procedural history and background. 

Background

2                     The applicant arrived in Australia in 1992 on a permanent entry Refugee (Class 200) visa ("Refugee visa") issued on 28 June 1991 after having been recognised as a refugee under a mandate of the UNHCR in 1990.  Shortly after arriving in Australia the applicant committed serious crimes and in 1997 a delegate of the Minister made a decision to deport the applicant under s 200 of the Migration Act 1958 (Cth) ("the Act").  The applicant sought review of that decision by the Administrative Appeals Tribunal ("the AAT") under the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). 

3                     On 13 August 1999 the AAT affirmed the decision of the delegate of the Minister to deport the applicant.  In its reasons for decision, the AAT found that Australia would be justified in expelling the applicant under Art 33(2) of the Convention Relating to the Status of Refugees 1951 and as amended by the Protocol Relating to the Status of Refugees 1967 ("the Convention") on the basis that he had been convicted of possession and importation of a prohibited import, namely trafficable quantities of opium, and there was a real risk of him re-offending (at [92]).  The AAT noted (at [90]) that:

…The [AAT] does not believe that there is sufficient evidence to justify the application of the cessation clause of the [Convention] (Paragraph 1C(5)) to the circumstances of this case.  While there have been undoubted improvements in the human rights situation in Iran it remains a volatile and highly unpredictable society as recent well publicised events have illustrated.

The AAT also noted the evidence provided by the applicant's former wife and her brother "raised serious questions about the veracity of the refugee claim made by [the applicant] in India…".

4                     The applicant did not make himself available for deportation.  He was located on 1 September 2000 and taken into immigration detention, where he remains.  In October 2000, the applicant sought an extension of time to appeal from the decision of the AAT.  On 1 November 2000, Emmett J dismissed the application on the basis that, on the ground advanced, the appeal was doomed to failure.  The applicant sought an extension of time in which to appeal from the decision of Emmett J.  On 7 February 2001, Stone J dismissed the application on the basis that the appeal would be doomed to failure. 

5                     On 20 May 2003 the applicant filed, in this Court, an application under s 39B of the Judiciary Act 1903 (Cth) seeking an injunction to restrain the Minister from returning the applicant to Iran or removing him from Australia.  The applicant discontinued those proceedings on 23 June 2003.  He had not been deported because he had refused to complete an Iranian passport application for travel to Iran and Iranian authorities refused to accept citizens who were returned involuntarily.  The applicant made an application for the deportation order to be revoked and the Minister refused to revoke the order in July 2004.

6                     On 28 July 2004 the applicant applied for a Protection (Class XA) visa.  It would seem he was proceeding on the basis that if he held a current protection visa, which recognised that he was someone to whom Australia owed protection obligations, this would have to be taken into account if he made another application to revoke the deportation order.  His application for a protection visa was refused by a delegate of the Minister on 13 September 2004.  On 20 September 2004 the applicant sought review of that decision by the Tribunal.  On 17 January 2005 the Tribunal affirmed the decision not to grant the visa.  The decision of 17 January 2005 is the decision challenged in these proceedings.

Relevant legislative provisions and articles of the Convention

7                     It is desirable to set out provisions of the Act and articles of the Convention referred to by the parties in their submissions.  However, as discussed below, they are of limited relevance.  The relevant parts of s 36 of the Act provide:

(2)  A criterion for a protection visa is that the applicant for the visa is:

(a)  a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b)  a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen who:

(i)    is mentioned in paragraph (a); and

(ii)     holds a protection visa.

(3)  Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.

(4)  However, if the non‑citizen has a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

(5)  Also, if the non‑citizen has a well‑founded fear that:

(a)  a country will return the non‑citizen to another country; and

(b)  the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

       subsection (3) does not apply in relation to the first‑mentioned country.

8                     Article 1A(2) of the Convention, relevantly, provides:

A.   For the purposes of the present Convention, the term "refugee" shall apply to any person who:

…

(2)  As a result of events occurring before 1 January 1951 and 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 as a result of such events, is unable or, owing to such fear, is unwilling to return it.

The definition of a refugee under Art 1A(2) is qualified by Art 1C which provides:

C. This Convention shall cease to apply to any person falling under the terms of Section A if:

(1)     He has voluntarily re-availed himself of the protection of the country of his nationality; or

(2)     Having lost his nationality, he has voluntarily reacquired it; or

(3)     He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

(4)     He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or

(5)     He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

…

(7)     Being a person who has no nationality he is, because of the circumstances in connection with which he has been recognised as a refugee have ceased to exist, able to return to the country of his former habitual residence;

(Emphasis added)

Article 33 of the Convention provides:

Prohibition of expulsion or return (refoulement)

1.No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2.The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

The applicant's claims before the Tribunal

9                     Generally, the applicant's claims were that he feared persecution on the basis of actual or imputed political opinion.  In summary, the applicant's claims were as follows.

10                  The applicant was a supporter of Dr Shahpoor Bakhtiar, former Prime Minister and caretaker of the Shah monarchy.  He supported democracy and opposed the ruling Ayatollahs and the Islamic regime.  His business premises were raided several times by Sepah Pasdaran during 1984 and 1986.  The applicant was a leading member of a group of people working against the Iranian government and active in an underground anti-government movement, the National Movement of Iranian Resistance (NIRM, NMIR or NAMIR) ("NIRM"), and was involved in distributing anti-government literature.  He received information about what days to set for demonstrations, passed on that information to others in Shiraz, and participated in about twenty demonstrations against the government. 

11                  The applicant distributed anti-government literature, which led to his arrest in 1986.  He was detained for 11 months without trial, and during this time witnessed the hanging of other prisoners, including friends, and was tortured, both physically and mentally.  He was then brought before a judge who knew his father and who was lenient towards the applicant.  The judge ordered his released, noting he could have ordered his execution for the crime, and required him to report weekly to the security authorities (and sign at the local Komiteh, sometimes up to 5 or 6 times a week). 

12                  After his release, he continued his political activities and participated in four major demonstrations in Shiraz, with the last held in February or March 1988.  Following public demonstrations in early 1990 or late 1989 he fled Iran because dissidents were being arrested in the wake of the demonstrations.  There was a warrant for his arrest in Iran, issued in 1989 or 1990.  The judge that sentenced the applicant was replaced by a judge from Tehran who wanted to review his case on the basis that the applicant's friends had been executed and he had not.  In 1991 his younger brother was assaulted in the army because they knew him to be the applicant's brother. 

13                  One day, as the applicant and his wife were leaving his home in their friend's car, four to five Nissan Patrol vehicles from the Komiteh approached his home and, according to his neighbours, members of the Komiteh broke into his house.  Three days later, the applicant's father-in-law arranged for a soldier in the military and under his command to take the applicant and his wife to Pakistan.  He and his wife then travelled to India.  The applicant had been involved in some anti-government activities while in India (and later in Australia for a period of one year).

14                  After arriving in Australia the applicant travelled to India on an Iranian passport in 1992.  He returned to India at the request of his wife's family, as his wife's brother needed to leave Iran with the assistance of a smuggler and the applicant was required to assist the wife's brother in India.  On meeting with his wife's brother he realised he had been deceived, that the money he had sent for the brother to purchase a passport to leave Iran had not been required for that purpose, and the applicant returned to Australia.

15                  Following his release from detention in Iran, the applicant was unable to access medicine to alleviate his pain and stress, and resorted to taking opium, which he continued to use until he was imprisoned for possession and trafficking opium into Australia in 1995.  While imprisoned in Australia, his mother travelled from Iran to visit.  On her return to Iran, the applicant's mother was detained for two days for having made contact with the applicant.  The applicant also claims that before 1998, his mother, his sister and their neighbour had been stabbed by persons from "fanatical radical groups". 

The Tribunal's reasons for decision

16                  The Tribunal had before it all files relating to the applicant from the Department of Immigration and Multicultural and Indigenous Affairs ("the Department").  The Tribunal also had before it the transcript of the AAT hearing and it's reasons for decision, written statements provided to the AAT from the applicant's wife and her brother claiming the applicant had been gaoled for fraud in Iran and had not been involved in political activities, and evidence from the applicant's brother. 

17                  The Tribunal noted that the applicant had been recognised as a refugee in 1990 in circumstances prevailing in Iran at that time.  It indicated and considered the applicant would, for the purposes of the Convention, remain a refugee in relation to those circumstances until a cessation clause in Art 1C of the Convention applied.  The Tribunal also noted that Art 1C did not permit the Tribunal to reconsider the correctness of the grant of refugee status in 1990.  The Tribunal noted a report from Amnesty International on Iran that "scores of political prisoners, including prisoners of conscience, continue to serve sentences imposed in previous years following unfair trials and scores more have been arrested", and concluded that Art 1C(5) did not apply to the applicant.  The Tribunal then proceeded to consider whether the applicant had a "well-founded fear of Convention-related persecution in Iran, with reference to s 36(3) of the Act".  The reason given by the Tribunal for proceeding in this way was that:

In the event of any difference between Australia's obligations under the Refugees Convention and the Act, ss 36(3) – (5) make it clear that Australia will not be taken to have protection obligations to a person to whom subsection (3) applies.

That is, Australia will not owe a person protection obligations under s 36(2) if that person falls within s 36(3) of the Act.  Sections 36(3) and (4) contemplate that Australia is not taken to owe protection obligations to a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in any country apart from Australia, including countries of which he is a national, unless the non-citizen has a well-founded fear of persecution in the relevant country for a Convention reason.  In issue in this appeal is whether the Tribunal erred in reconsidering whether the applicant held a well founded fear of persecution under Art 1A of the Convention when determining whether the applicant the applicant fell within s 36(3). 

18                  The Tribunal found no evidence of his membership of or involvement with NIRM, other than his claimed involvement.  The Tribunal concluded the applicant was unable to explain with cogency the ideology of the NIRM and considered it highly implausible that he would not know which country he had been in when the leader of the NIRM had been assassinated, if he had been involved with NIRM to the extent and for the period of time which he claimed.

19                  The Tribunal noted the applicant's brother had provided evidence before the AAT from the Embassy in Tehran and had asked the AAT not to ask him about the 1980s as two Iranians were present.  However, the Tribunal considered the applicant's brother knew little about the applicant's past or present life and could not be relied on in so far as it concerned the applicant's political activities.  This was because the Tribunal could see "no reason why he could not have mentioned the applicant's past political activities more overtly given the applicant's claim that they were already known to the authorities and had been imprisoned for them, and independent evidence providing that past activities in support of the monarchy did not attract any serious harm in Iran today." 

20                  The Tribunal noted the applicant's former wife lodged a police report on 2 September 1994 that claimed the applicant had assaulted her.  The report also stated that in 1988/1989 "we" moved to India because of the political trouble in Iran and that in 1991 "we" came to Australia as refugees.  The Tribunal considered that those statements by the applicant's former wife concerned general political unrest in Iran at that time and that the reference to coming to Australia as refugees was most likely a reference to the category of visa they had been issued. 

21                  The Tribunal noted the applicant's former brother in law had provided a statement to the UN in India that the government's secret agency (Hezbbollah) "were keen to get some information regarding [the applicant] whom [sic] had same major conflicts with the government and left to India", and that the applicant's former brother in law had been recognised as a refugee by the UNHCR.  The applicant's former brother in law then claimed before the AAT in 1998 that he had never heard the applicant was involved in any political activities against the government.  The applicant claimed before the AAT that his former brother in law's claim of having experienced problems in Iran because of the applicant's activities was a lie, but then asked the Tribunal to treat the claim as truthful.  The Tribunal found it more likely than not the applicant's former brother in law's claim to the UN in 1992 was not truthful but considered truthful his the claim made in 1998 before the AAT. 

22                  The Tribunal accepted the applicant was imprisoned for 11 months in or around 1986 and had to report on a regular basis to authorities following his release, though it considered it implausible and did not accept that the reason for either was his political opinions or activities.  The Tribunal did not accept his claimed reason for imprisonment for a number of reasons.  The applicant's knowledge of NIRM was inconsistent with independent evidence and his claim to have been a leading activist within this group.  There was no documentary evidence supporting the claimed reason for his detention and reporting and there was no evidence that he has had any connection with NIRM in India, Australia or the United States and in circumstances where he claimed he had personal and direct contact with the late Shah's son and contact with many NIRM members over the years. 

23                  The applicant's former wife and her brother stated that the applicant was imprisoned on a criminal matter, and the AAT found the former wife to be a credible witness.  The Tribunal concluded that even if there were on going official interest in the applicant in Iran, it was not satisfied that the reason his mother was questioned after her return from visiting her son in Australia was because of a political opinion imputed to the applicant.  Nor could the Tribunal be satisfied that the stabbing incident in 1998 had any connection with the applicant's political opinions as a neighbour had also been injured.  Further, the Tribunal was not satisfied that the reason his brother was seriously assaulted in 1991 was because of a political opinion imputed to the applicant.  The Tribunal preferred the evidence of the applicant's former wife and her brother to that of the applicant's mother and brother. 

24                  The Tribunal considered independent evidence concerning the issuing of thousands of death sentences and tens of thousands of prison terms in the 1980s in Iran by the revolutionary court.  The Tribunal noted that judges of the revolutionary court were likely to be clerics who tried any crime considered subversive or a challenge to the system, and considered the revolutionary court would have heard the applicant's case had he been suspected of supporting an anti-government group.  Further, the Tribunal noted that the judges of that court would generally be reluctant to show leniency in cases involving anti-government activity.  The Tribunal considered as implausible the applicant's claim that his reporting conditions intensified as time passed because his activities increased, and noted that had the authorities suspected he was involved in anti-government activities he would have been rearrested. 

25                  The Tribunal found that further doubt was cast on the applicant's credibility by the shift in his evidence about his reason for leaving Iran.  Before the Tribunal the applicant claimed he left Iran because a new judge had decided to revisit his previous sentence and, as a result, would be rearrested and further punished.  The Tribunal noted that while at one point during the hearing the applicant knew with certainty a new judge had ordered his previous case to be revisited, he had agreed it was possible the authorities did not suspect him of participating in demonstrations after his release.  The Tribunal did not accept the applicant's explanation, that there were difficulties with the interpreters and a lack of detailed questioning, for omitting to mention to the UNHCR or the Australian High Commission the reason for leaving Iran related to a new judge re-opening his case in any previous submissions or why there was no evidence of him ever having made such a claim previously. 

26                  The Tribunal found the applicant was not involved in NIRM related activities prior to his imprisonment in Iran, did not consider as plausible his accounts of events leading him to flee Iran, was not satisfied that he had commenced participating in any political activities after his release from prison, and did not accept that, at the time he left Iran, the authorities intended to arrest or harm him because of his participation in anti-government activities.  The Tribunal went on to consider whether, accepting that a judge did want to reopen the applicant's case, the case was related to the applicant's political opinion.  The Tribunal found it was unrelated to his political opinion and that the applicant's fear and reason for leaving Iran was not Convention related.

27                  The Tribunal went on to consider whether subsequent developments gave rise to a well founded fear of persecution for a Convention reason in Iran.  The Tribunal did not accept as plausible, and rejected, the claim by the applicant that he had been involved in NIRM activities after he left Iran.  The Tribunal noted that were the applicant to return to Iran, he would come to the attention of the authorities as he does not have a valid passport and inter-governmental arrangements would need to be made for his return.  Further, the Tribunal noted information from the Department from 1999 that it was possible Iranians returning from abroad will be questioned and detained if there is any evidence of participation in anti-regime activities while abroad.  The applicant's advisor submitted that details contained in the AAT decision and the fact that the UNHCR and Australia had recognised the applicant as a political refugee would lead the Iranian government to impute to the applicant anti-regime political opinions. 

28                  The Tribunal considered remote the chance that the AAT decision would come to the attention of the Iranian authorities on the basis that the applicant's name did not appear in any context when a general keyword search is done on the internet and it would be necessary to look up the AAT decision lists.  The Tribunal went on to consider that even accepting the Iranian authorities did read the AAT decision, the Tribunal did not accept that its content would give rise to a political opinion being imputed to the applicant by the Iranian authorities because of the repeated observations by the Presiding Member that the applicant was not a witness of credit and there were serious questions about the veracity of his refugee claim.  Further, the Tribunal noted the applicant had volunteered that Iranians recognised as refugees had later visited Iran and that independent information provided that deportations had taken place routinely from a number of countries from which Iranians have sought asylum without reprisals or persecution directed at the returnees. 

29                  The Tribunal did not accept the submission by the applicant's advisor that the applicant would become agitated and express views against the regime while questioned by the Iranian authorities on his return to Iran, with the consequence that the authorities would impute a political opinion.  The Tribunal accepted that the applicant might become agitated on his return but noted there was no evidence that the applicant was still physically violent.  Given the Tribunal's findings concerning the applicant's claimed past political activity, the Tribunal could not be satisfied the applicant would react in the way submitted.

30                  Notwithstanding the Tribunal's earlier finding that the cessation clauses did not apply, the Tribunal held that s 36(3) applied and that under that provision the Tribunal was entitled to reconsider the applicant's refugee claims.  The Tribunal concluded the applicant did not have a well founded fear of persecution for a Convention reason in Iran and that he had not taken all possible steps to avail himself of a right to enter and reside in Iran. 

The application and its disposition

31                  The amended application raised the following grounds of review:

1.    [The Tribunal] fell into jurisdictional error in that it did not consider the applicant's application in accordance with the requirements of s 36 of the Act.

[The Tribunal] failed to apply s 36(2) by failing to consider whether the applicant continued to be a refugee within the meaning of the Convention in accordance with its terms at the date of the determination.

[The Tribunal] erred by holding that s 36(3) allowed it to reconsider entirely the basis upon which the applicant had conferred upon him the status of a refugee under Article 1A(2) of the Convention.

2.    [The Tribunal] fell into jurisdictional error, and the exercise of its jurisdiction and power was affected in that the Prosecutor was denied procedural fairness:

The Tribunal did not put to Dr Nair the questions proposed by the applicant;

The Tribunal put to Dr Nair a leading question which did not allow the applicant the opportunity to adduce from Dr Nair an opinion which would assist his case;

The Tribunal did not allow the applicant to comment on the further report of Dr Nair;

The Triunal did not inquire into the whereabouts of the applicant's first wife and brother;

The Tribunal drew adverse inferences to the applicant from the evidence of the applicant's wife taken from the transcript of the AAT hearing without giving the applicant an opportunity to respond;

The Tribunal relied upon its own searches of the applicant's own name under the Google and MSN search engines without putting those matters to the applicant for comment.

3.    Further and in the alternative, [the Tribunal] fell into jurisdictional error, and the exercise of its jurisdiction and power was affected in that the Tribunal did not comply with the requirements of s 424A, 424B or 425 of the Migration Act in that:

The Tribunal did not put to Dr Nair the questions proposed by the applicant;

The Tribunal did not allow the applicant to comment on the further report of Dr Nair;

The Tribunal relied upon its own searches of the applicant's own name under the Google and MSN search engines without putting those matters to the applicant for comment.

4.    Further and in the alternative, [the Tribunal] failed to exercise its jurisdiction in that it did not consider the applicant's claim to be a refugee sur place by reason of imputed political opinion having been granted asylum by the UNHCR and a protection visa by Australia.

5.    Further and in the alternative, [the Tribunal] failed to exercise its jurisdiction in that it took into account irrelevant considerations, namely:

The experience of those with protection visas who returned to Iran, whilst holding those protection visas;

The experience of failed asylum seekers being returned to Iran; and

The experience of people having made applications for asylum which had not yet been determined returning temporarily to Iran.

6.    Further and in the alternative, [the Tribunal] failed to exercise its jurisdiction in that it failed to take into account relevant considerations, namely it did not consider the applicant's claim to be a refugee sur place by reason of imputed political opinion having been granted asylum by the UNHCR and a protection visa by Australia.

7.    [The Tribunal] has failed to exercise the jurisdiction conferred on it by the Migration Act in that it did not consider the substance of the Applicant's claims.

32                  Counsel for the applicant submitted and the Minister conceded, the applicant could apply for a Protection (Class XA) visa notwithstanding he has held and continues to hold a Refugee visa.  Counsel for the applicant explained the rationale behind the application for the protection visa and the proceedings that have flowed from that application, including these proceedings.  Essentially, the applicant sought to obtain a decision from the Tribunal that he continued to be a person in respect of whom Australia had protection obligations (both because of his claims leading to the grant of a Refugee visa and his further sur place claim), for the purpose of fortifying an application to the Minister to revoke the deportation order made by the Minister in 1997 and affirmed by the AAT in 1999.  The Tribunal process for determining whether there is a further protection obligation gives the applicant the opportunity to attend a hearing, present evidence and put submissions.  Counsel for the Minister submitted that if the applicant established jurisdictional error on the part of the Tribunal, I should, for discretionary reasons, refuse to grant relief. 

33                  In relation to the first ground of review in the application, the applicant’s argument focussed on two aspects of the Tribunal’s approach.  The first was whether the Tribunal could, by recourse to s 36(3), go behind, in effect, the initial recognition of the applicant as a refugee under the Convention.  Counsel for the applicant submitted that s 36(2) as qualified by subs 36(3) and (5) did not allow the Tribunal to freshly determine those claims which were made in 1990 to the UNHCR.  The Tribunal used subs 36(3) as a way of circumventing the operation of Article 1C(5).  The applicant submitted that implicit in subs 36(3) was the qualification that it did not relate to the country in respect of which the person claimed a well founded fear of persecution.  Subsection 36(3) provided that Australia would not have obligations under the Convention where that person has a right to enter and reside in, whether temporarily or permanently, and subs 36(4) preserved Australia's protection obligations in respect of that country where the applicant has a well founded fear of persecution for a Convention reason.  In particular, the applicant referred to the judgment of Selway J in SWNB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1606 at [12] where his Honour noted:

Section 36(3) of the Act should be interpreted in its usual and ordinary meaning.  So interpreted, it adds little to the terms of section 36(2) of the Act where the issue involves the return of the applicant to his country of nationality.

The applicant submitted that Australia's protection obligations had not ceased in accordance with the terms of the Convention.

34                  Counsel for the Minister submitted the question for the Tribunal to determine was whether, at the time of its decision, the applicant had an existing well founded fear of persecution.  Further, counsel submitted the Tribunal was entitled to revisit factual matters considered at the time the previous visa was granted, and referred to the judgment of Emmett J in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 1373 and more generally SWNB (supra) and NBEM v Minsiter for Immigration and Multicultural and Indigenous Affairs [2005] FCA 161. 

35                  On 27 July 2005 and while judgment was reserved in this matter, a Full Court handed down judgment in QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136.  I invited submissions from the parties on the effect, if any, of that judgment on the present application. In that matter, an Afghani national had been granted a temporary Protection (Class XA) visa in 2001.  While it is unnecessary to detail what occurred before he applied for a permanent protection visa, the question arose as to how the permanent protection visa application was to be assessed.  The leading judgment was given by Wilcox J (with whom Madgwick J agreed).  His Honour said at [65] and following:

It follows that, although, literally, s 36(2)(a) poses the question to be determined by the Minister (or her delegate) or, on review, the Tribunal as being whether Australia has protection obligations, to the particular applicant, under the Convention, the real question is whether the person falls within the Convention’s definition of ‘refugee’.  As Lord Brown explained, if the person has not previously been recognised as a refugee, the inquiry required by the definition will be whether the person satisfies Article 1A(2) of the Convention; only if the person satisfies Article 1A(2) will Australia have any protection obligation to him or her.  If the person has previously been recognised as a refugee in Australia, again as explained by Lord Brown, Australia has a protection obligation to that person, by force of the Convention itself, unless and until Article 1C(5) has caused cessation of that obligation.

Interpreted in this way, there is a symmetry between Australia’s Convention obligations and the availability of protection visas.  That would not be the case if the present issue was resolved in the manner suggested by counsel for the Minister.  If an already-recognised refugee was in the same position, in relation to a permanent protection visa application, as a person who had not previously been recognised as a refugee, a person might fail to satisfy the decision-maker of facts bringing his or her case within Article 1A(2), and so be denied a permanent protection visa, yet there had been no cessation of Australia’s protection obligations to him or her, Article 1C(5) not having been applied to the case.  Once the temporary protection visa expired, the person would be left without protection despite that person’s continuing status as a refugee.

It seems inherently unlikely that Parliament would have intended to leave such a potentially embarrassing lacuna in Australia’s ability to fulfil its international obligations.

Later in his reasons Wilcox J said at [83] and following:

It is important to distinguish between recognition of a person as a ‘refugee’, within the meaning of the Convention, and the grant to that person of protection.  Recognition is a function of the Convention; protection is a function of the Act.  Recognition is necessarily of indefinite duration; protection may be for a limited period, or until the happening of a particular event.  A person may continue to have refugee status (because the person has successfully invoked Article 1A(2) and Article 1C(5) has not yet operated against him or her) notwithstanding the expiration of a temporary protection visa.

It seems to me, with great respect, that Lander J, and those who have shared his view, have overlooked the significance of the distinction just made.  They interpret the requirement of s 36(2)(a) of the Act (and reg 866.221), that the Minister be ‘satisfied Australia has protection obligations’ under the Convention, as necessarily requiring the Minister (or her delegate or the Tribunal) to make a de novo decision that the particular applicant for a permanent visa then satisfies Article 1A(2) of the Convention; even though that applicant might have obtained such a decision at an earlier point of time, and thus achieved the status of being a ‘refugee’ within the meaning of the Convention, and that status has not ceased pursuant to Article 1C(5) of the Convention.

Although this might have led to failure by Australia to give full effect to its Convention obligations, it would have been constitutionally possible for the Parliament to have enacted such a requirement.  However, it chose not to do this.  Parliament chose, in s 36(2)(a) of the Act (and reg 866.221), to tie the selected criterion directly to Australia’s protection obligations to the person.

What emerges from this case is that, in relation to a refugee seeking asylum, the Convention contemplates that a Contracting state first determines whether the asylum seeker is a refugee for the purposes of the Convention and if it does then its protection obligations are enlivened.  If enlivened, the protection obligations continue until circumstances identified in the Convention arise which result in the obligations ceasing.  In the present case the relevant circumstances identified by the Tribunal which result in the obligations ceasing is Art 1C(5) of the Convention. 

36                  Ground one of the amended application for review alleges jurisdictional error because the decision of the Tribunal was not made under s 36 of the Act.  Underpinning this contention was an assumption that it had been determined by or on behalf of Australia (as a contracting state to the Convention) that Australia owed the applicant protection obligations because he was granted a Refugee visa in 1991. 

37                  The Refugee visa is an off-shore visa.  In 1991 the material criteria for a Refugee visa were set out at reg 101 of the in the Migration Regulations:

101. The additional criteria in relation to a refugee visa are the following criteria:

(a) the applicant is a person subject to persecution;

(b) the applicant is living:

(i) outside the country of which the person is a citizen; or

(ii) if the person is not usually a resident of that country-outside the person's usual country of residence; and

(c) the Minister is satisfied that:

(i) permanent settlement in Australia is the appropriate course for the applicant; and

(ii) such settlement would not be contrary to the interests of Australia.

Of importance is the first criterion, the applicant is a person subject to persecution.  That criterion does not require consideration of whether the applicant has a well founded fear of persecution as that notion arises in the definition of refugee in the Convention, nor is the first criterion limited to persecution for the reasons identified in the Convention:  see Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 47 at [9] and [22]. 

38                  The present criterion for a Refugee visa is discussed in R Germov and F Motta Refugee Law in Australia Oxford University Press, 2003 at pp 62-64.  However, that discussion relates to the relevant criteria of a Refugee visa found in the current Migration Regulations 1994 (Cth).  While the criteria for such a visa under the Migration Regulations 1994 (Cth) differ from those operative in 1991 (and set out at [38] above), the authors' comments are, in my opinion, apt to describe the criteria for a Refugee visa in 1991.  They say at 63-64:

These requirements are clearly narrower than those set out under Article 1A(2) of the Refugees Convention – in that the decision-maker does not have to consider whether the applicant has a fear of persecution and whether this fear is ‘well-founded’. Indeed, the regulations require consideration by the Minister or his delegate…as to whether the applicant is outside their home country and is actually subject to persecution. The Minister can also have regard to the ‘degree of the persecution’ to which the applicant is subject – meaning that, even though the applicant has suffered ‘persecution’, the Minister may not consider it severe or grave enough to qualify the applicant for the grant of this particular visa. … Furthermore, there is no right of appeal against a decision to refuse a Subclass 200 (Refugee) Visa. In this regard the off-shore Refugee Visa, despite employing the term ‘refugee’, is only loosely connected with the Refugees Convention, since, strictly speaking, the Refugees Convention only operates to ensure non-refoulement to a refugee recognised according to its definition once they are in the territory of the protecting state. In other words, a person cannot claim refugee status under the Refugees Convention outside the territory of the state concerned (and in Australia’s case, outside the migration zone) – and this is reflected in the requirements of the Subclass 200 (Refugee) Visa.   

(Emphasis original)

The significance of this is that the grant of the Refugee visa in 1991 did not involve a determination or assessment by Australia as a contracting state to the Convention that the applicant was a refugee to whom Australia owed protection obligations.  It is true that some assessment was made by UNHCR.  However that assessment does not, on the material presently before me, suggest it was made on behalf of Australia.  There is, in that material (as reproduced in the Tribunal's reasons), a letter from the principle migration officer at the Australian High Commission in New Delhi in March 1991.  However all the letter reveals is that the officer appeared to be satisfied that the applicant had suffered persecution in Iran.  In so far as the letter evidences any assessment by that officer, it was that the applicant's "claims" were "acceptable under Class 202".  This is probably a reference to a global special humanitarian program visa dealt with, specifically, by reg 103 of the Migration Regulations in force at the time.  The Tribunal proceeded on an assumption that was not correct.  That is, the Tribunal assumed that because of the name attaching to the visa granted to the applicant in 1991, there had been an assessment, in the applicant's favour, of whether Australia owed him protection obligations under the Convention. 

39                  In my opinion, the Tribunal erred in concluding that the question of whether Australia had protection obligations towards the applicant was to be determined by reference to Art 1C(5) and subs (3) of s 36.  It is more likely than not that the Tribunal erred in the way it applied that subsection.  The subsection requires a decision maker to consider whether the applicant has sought protection by entering and residing in a country other than Australia.  However the subsection does not raise for consideration whether the applicant could have entered and resided in the country of nationality or habitual residence, being the country the applicant has fled and about which the well founded fear of persecution was said to exist.  However by approaching the matter in the way it did, the Tribunal addressed the question it should have answered, namely whether Australia had protection obligations because the applicant was a refugee for the purposes of Art 1(2) of the Convention.  The Tribunal sought to do indirectly (and erroneously) what it should have done directly.

40                  The second challenge to the Tribunal's decision concerned the procedures it adopted in obtaining and evaluating certain evidence. The first argument concerned Dr Nair’s report and the conclusion drawn by the Tribunal, namely, that it was not satisfied the applicant would express views against the regime were he to return to Iran, and the Tribunal’s reliance, in reaching that conclusion, on the fact that Dr Nair had not said he would react this way.  This was said to involve a failure to comply with s 424A and, in the alternative, a denial of procedural fairness.  As to the alleged failure to comply with s 424A, it was submitted the Tribunal failed to provide particulars of relevant information, namely that there was no comment by Dr Nair in his report that the applicant would react in the way he was contending.  As to the denial of procedural fairness, it was said that the applicant was not given an opportunity to deal with the failure of Dr Nair to comment on the way the applicant might react.

41                  Counsel for the Minister responded by submitting that there was no relevant "information" which was not provided as required by s 424A and, in any event, the entire report of Dr Nair was provided to the applicant.  It was submitted that there was no denial of procedural fairness because the representatives of the applicant were given a copy of Dr Nair's report and subsequently made a written submission relying on part of it.  Further, the representatives did not repeat an earlier request that Dr Nair be asked to comment on how the applicant was likely to react when returned to Iran and how he would respond if placed under pressure by Iranian authorities.

42                  In my opinion, the submissions of counsel for the Minister are correct.  Without foreclosing the possibility that circumstances could arise where what did not appear in or was not referred to in a document was "information" for the purposes of s 424A, this is not such a case.  What is "information" was discussed by a Full Court in Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212.  Information must be provided to give an applicant an opportunity to demonstrate the information should not be relied on by the Tribunal.  In the present case, the applicant was given Dr Nair's report.  It was clear, on its face, that it did not specifically address the question of how the applicant would react in a confrontation with Iranian authorities even though it had been a specific matter the applicant had suggested that the Tribunal ask Dr Nair to address.  That it did not address it, would have been obvious to the applicant or his advisers.  Why it did not would have been also clear.  It was because it was not a specific matter on which Dr Nair was ultimately asked to comment.  In my opinion the Tribunal was not obliged by s 424A to provide particulars of what was obvious, namely the report did not discuss how the applicant would react in a confrontation with Iranian authorities.

43                  Nor can it be said that the applicant did not have the opportunity to comment on this lacuna in the report.  Quite plainly, something could have been said in the submission on behalf of the applicant made after the applicant's advisers were provided with a copy of the report.  But nothing was.  I accept that there is a troubling curiosity about the Tribunal failing to act on the request of the applicant's representatives that Dr Nair specifically address the likely conduct of the applicant were he to return to Iran and confronted by the authorities, and then point to the failure of the report to address that question as supporting its view that the applicant would not react as his representative submitted.  However that is not the point raised and if it were, then the characterisation of any potential jurisdictional error would be problematic particularly in circumstances where the Tribunal had found, as matter of fact, that the applicant had not engaged in political activities before leaving Iran as he had claimed.

44                  The next submission made by counsel for the applicant was that the Tribunal had denied the applicant procedural fairness having regard to the way it dealt with the evidence of the applicant’s former wife and her brother given to the AAT.  It is not entirely clear to me how the argument is put on behalf of the applicant.  One complaint is that the Tribunal did not hear from or summons the applicant’s former wife and her brother.  But it was not obliged to do so, nor was it procedurally unfair to follow the course it did.  A particular complaint was made that the Tribunal reconciled, in its opinion, the former wife's statement to the AAT with a statement she had given to the police at Kogarah.  The basis upon which the Tribunal reconciled those two statements (in particular the reference in the police statement to her and her husband having left Iran because of "the political trouble in Iran" was a reference to the general political unrest in the country) was not the subject of evidence in the AAT or the Tribunal and was never put to the applicant.  But the manner that the Tribunal reconciled these statements did not have to be the subject of evidence.  The Tribunal had two detailed statements and it was entitled to form a view about what they meant.  The Tribunal was not required to raise with the applicant its reasoning processes leading to its ultimate conclusion.  It did provide the applicant with a series of propositions which squarely raised for comment by the applicant the gravamen of the evidence of the former wife and the brother.  The response of the applicant was to seek to impeach the former wife's and brother-in-law's accounts and, in doing so, furnish the evidence actually given by them to the AAT.  Whether the Tribunal's findings are correct are beside the point.  The Tribunal gave the applicant an opportunity to answer the former wife's and former brother-in-law's accounts in their statements to the AAT, and the process adopted did not involve any procedural unfairness.

45                  The applicant submitted he should have been given an opportunity to comment on the results of the web searches, and the failure to provide him with an opportunity to comment was a failure to comply with s 424A.  This issue arose because it had been submitted on behalf of the applicant that the Iranian authorities would become more aware of his history in Australia.  The particular submission made on behalf of the applicant was that his history would be apparent to the Iranian authorities because the AAT decision was on the Internet.  The Tribunal undertook two searches on the Internet using the applicant's name which, it appears, revealed no electronic records available on the Internet containing his name.  It did not invite the applicant to comment on this "information", namely that the two searches revealed no relevant electronic records.

46                  On the present state of the authorities, the Tribunal almost certainly should have provided this "information" to the applicant if it was the reason or formed part of the reason for its decision.  However counsel for the Minister submitted it was not of that character.  In my opinion, this submission is correct.  The central question raised on behalf of the applicant and addressed by the Tribunal was whether the applicant's history in Australia would become known to the Iranian authorities with the result that the applicant would be imputed with a particular political opinion critical of the regime in Iran.  The Tribunal answered that question by pointing out that the AAT's decision recorded the applicant as not being a "witness of credit" and that there were "serious questions about the veracity of the refugee claim" made by him in India.  Its rejection of this aspect of the applicant's claim (that the AAT decision would result in imputed opinions on his return) rested on what the AAT said, and not whether what the AAT said was readily available on the Internet.

47                  The last matter raised on behalf of the applicant concerned whether the Tribunal had erred in its consideration of his "sur place" claim.  It was submitted that the Tribunal had considered the circumstances of Iranians with protection visas who returned to Iran while holding those visas, returning Iranians who had unsuccessfully sought asylum and those who had sought asylum but whose applications had not been determined before they returned temporarily.  It was said that the Tribunal's consideration of the evidence concerning all but the first category, involved irrelevant considerations and that the Tribunal failed to take into account a relevant consideration, namely the experiences of those returning to Iran having been granted refugee status but no longer having the protection of the state through recognition of that status.  Whether there is a legal foundation for this submission may be doubted:  see Applicant M185 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 230 at [8]-[9].  In any event, none of the evidence considered by the Tribunal was irrelevant.  It considered the evidence as part of its evaluation of the attitude taken by Iranian authorities to individuals who asserted (whether successfully or not) imputed antipathy towards the Iranian authorities.  My attention was not drawn to any evidence directly concerning the class the applicant claimed should have been considered let alone evidence the Tribunal did not take into account.

48                  The last matter was also put on the footing that the Tribunal failed to consider the claim actually made by the applicant.  It is true that a distinction might be able to be drawn between a person such as the applicant who had enjoyed the status of refugee in Australia for a number of years and someone who had simply sought asylum abroad.  However, ultimately the applicant's claim was that he would be imputed with a political opinion were he to return.  That claim was assessed by the Tribunal in the context of the applicant having volunteered that Iranians recognised as refugees had later visited Iran, and that such people did not have any difficulties there merely because they had been recognised as refugees.  Plainly the applicant's case was not being put as highly as his circumstances necessarily setting him apart from other Iranians who had sought, both successfully and unsuccessfully, asylum abroad.  The real issue he raised by his claim was that, because of his circumstances, he would be imputed with a political opinion and, in the result, he had a well founded fear of persecution.  The Tribunal dealt with that claim.

49                  The application should be dismissed the costs.

Associate:

Dated:              10 November 2005