FEDERAL COURT OF AUSTRALIA SBAM OF 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 336 APPLICANT SBAM OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 122 OF 2002 HILL, BRANSON & STONE JJ 4 NOVEMBER 2002 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 122 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: APPLICANT SBAM OF 2001 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HILL, BRANSON & STONE JJ DATE OF ORDER: 4 NOVEMBER 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 SOUTH AUSTRALIA DISTRICT REGISTRY S 122 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: APPLICANT SBAM OF 2001 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HILL, BRANSON & STONE JJ DATE: 4 NOVEMBER 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an appeal from a decision of a judge of this Court given on 24 April 2002. The primary judge dismissed the appellant's application, made under s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act"), to set aside a decision of the Refugee Review Tribunal ("Tribunal"), given on 23 November 2001. The Tribunal had affirmed the decision of a delegate of the respondent to refuse the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act"). 2 The appellant arrived in Australia on 20 April 2001. He applied for a protection visa on 24 July 2001. Although the appellant had "no reliable documents of identity" with him, the Tribunal was prepared to accept that he is an Iranian citizen. As the primary judge noted, the appellant did not claim to have been interested in politics in any way. The Tribunal, however, accepted that the appellant's uncle had been executed in 1981 soon after Ayatollah Khomeini came into power, that his cousin had been executed in 1996 for having planted a bomb in an arms factory, and that his brother, who had been living with that cousin, was arrested in 1996 after police seized a gun and dissident publications from his residence. Apparently his brother was still in detention. The Tribunal accepted that the appellant: "would be known as belonging to a family where there was a strain of anti-government activity, and that this would be a factor taken into consideration whenever matters concerning the [appellant] and national security might emerge." The appellant claimed to have suffered certain sporting and employment discrimination because of a political opinion imputed to him as a result of these aspects of his family background. 3 The appellant also claimed to fear persecution if he was to return to Iran "for having written an anti-government slogan, for allegedly having murdered a government official, for allegedly having been in possession of a gun, and because of his family background." These claims arose from a series of incidents said to have commenced on 25 February 2000 and summarised by the primary judge as follows: "[The appellant] was present at a political rally linked to the Iranian general election, but merely as an interested observer. Violence broke out between the supporters of two rival candidates, and the police intervened. The [appellant] decided to leave the vicinity, but was struck by a policeman wielding a baton. He pushed the policeman back, causing him to fall, and the [appellant] fled. He was however then pursued by the police for many hours but had finally managed to evade them in the early hours of the next morning. He had then commenced to write an anti-government slogan "Death to Khatami … Death to Khomeini" on a public wall, but as he was writing it he was seen by a different group of police who had arrested him for that anti-government behaviour. He was taken to a Sepah (anti-revolutionary) prison, where he was beaten and threatened with death. After four days, fearing death had befallen his uncle and his cousin, he scaled the prison wall and escaped. The [appellant] then went into hiding. He learnt through his family that he had been falsely accused of a political assassination, to get rid of him. He moved about whilst in hiding, but at one place where he had been hiding the authorities hid a gun so as to be able to arrest him and accuse him of harbouring weapons. He moved on without being caught. After some months in hiding, he had paid a people smuggler to assist his escape from Iran." 4 The appellant also claimed to fear persecution because of the circumstances of his departure from Iran, and because he had applied for a protection visa in Australia. THE TRIBUNAL'S DECISION 5 The Tribunal was not satisfied that the appellant had been denied sporting opportunities, namely that he was prevented from participating in international wrestling competitions, or employment opportunities by reason of his family history. Even if the appellant had been so disadvantaged, the Tribunal concluded that the disadvantages were not sufficiently serious to amount to persecution. The Tribunal also concluded that the appellant was not a person of concern to the Iranian authorities. 6 The Tribunal analysed the remainder of the appellant's claims in light of its view that the appellant was not a person of concern to the Iranian authorities and the appellant's evidence that he had not been involved in any political matters. The Tribunal accepted that the appellant was present at the political rally referred to in [3] above, that he was struck by a policeman, that he pushed a policeman over, and that the police had pursued him for a time. The Tribunal was not satisfied that the appellant was pursued for many hours, or that any pursuit was due to the authorities regarding him adversely because of his family background. These findings were largely based on the appellant's lack of credibility. The Tribunal also failed to accept the appellant's claims in relation to his scrawling an anti-government slogan. These claims were described as lacking plausibility. The Tribunal concluded: "In all, given the implausibilities inherent in the slogan-writing claim, I am of the very strong view that the [appellant] invented the claim, using names that he imagined would be familiar to foreign decision-makers, to boost an application for a protection visa. I am not satisfied that the claim is credible." Similar findings were made in relation to the appellant's claim to have escaped from an anti-revolutionary prison. 7 The Tribunal also considered that the appellant's claims of being falsely accused of political assassination and the authorities planting a gun at his residence were not credible. The Tribunal was therefore not satisfied that the appellant was wanted by the police in Iran, or that he had been hiding from authorities. The Tribunal was not satisfied that the appellant had left Iran illegally and it did not accept that the appellant would face any punishment for illegal departure from Iran. The Tribunal noted that even if the appellant would face any punishment for an illegal departure, the independent country information showed that the punishment was a small fine which was not of such magnitude as to amount to persecution. The independent country information also showed that the appellant would not face persecution for being an asylum-seeker abroad. The Tribunal concluded that, based on its findings, it was not satisfied that the appellant had a well-founded fear of persecution. DECISION OF THE PRIMARY JUDGE 8 The primary judge noted that the only ground on which the appellant's counsel presented oral argument was that: "the Tribunal erred in law by analysing only some of the [appellant's] claims against the background of his family history, rather than examining the totality of his claims against that background." The primary judge went on to note: "It was contended that that error pervaded the Tribunal's consideration of all [the appellant's] claims, other than those of persecution by being deprived of the opportunity to participate in international weight-lifting competitions and of the opportunity of government employment. Emphasis was placed upon the Tribunal's remark in introducing its consideration of all but those two claims … that the Tribunal had the view that the [appellant] is not a person of concern to the authorities and had not been involved in any political activities. It is contended that that amounts to jurisdictional error such as to invalidate the Tribunal's decision, being of the kind discussed in Craig v State of South Australia (1995) 184 CLR 163 at 179 and in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21. Finally, it is contended that s 474(1) of the Act does not operate to render the Tribunal's decision immune from review if such a jurisdictional error is made out." 9 The primary judge also received written submissions directly from the appellant, although his counsel had not had a full opportunity to consider them. The primary judge indicated he would have regard to the submissions to the extent that they identified any grounds which might enliven the Court's powers under s 39B of the Judiciary Act. It is sufficient to note the following comments made by the primary judge in respect of the appellant's written submissions: "That document does not, in my view, raise any such matters. It refers to findings of the Tribunal, and alleges that some of those findings are in error. In my judgment the nature of the alleged errors is factual. It is not said that any of them are the consequence of any misunderstanding or misapplication of the law, nor that they involve any jurisdictional error on the part of the Tribunal. I do not consider, therefore, that those alleged errors even if established would entitle the Court to set aside the Tribunal's decision under s 39B of the Judiciary Act. … The balance of the document does no more than to seek to reargue the merits of the Tribunal's findings of fact based upon the evidence which was before the Tribunal. … I add that I am not persuaded that the Tribunal fell into the factual errors alleged by the [appellant]." 10 The primary judge was mindful of the requirement that the Tribunal's reasons should not be approached with an eye keenly attuned to the perception of error; Minister for Immigration & Ethnic Affairs v Wu (1996) 185 CLR 259 at 272. His Honour noted that the Tribunal's finding that the appellant was "not a person of concern to the authorities" did not "amount to the Tribunal from that point ignoring the [appellant's] family background, or assessing his claims as if that family background did not exist." After considering the proper construction of the Tribunal's reasons the primary judge concluded that certain passages of the Tribunal's decision did in fact show that the Tribunal had regard to the appellant's family background in assessing his claims. 11 His Honour did not, therefore, find it necessary in the circumstances to consider the scope of the operation of s 474(1) of the Act, under which the decision of the Tribunal is a privative clause decision, and dismissed the application. APPEAL 12 The appellant's notice of appeal, filed on 14 May 2002, sets out six grounds of appeal. Some of these grounds overlap. It should be pointed out that none of these grounds appears to have been argued before the primary judge. This may in part be because the appellant was represented by counsel before the primary judge, but is now unrepresented. The grounds may be summarised as follows: 1. the primary judge erred in not finding that the Tribunal had acted in violation of an imperative duty, or inviolable limitation, placed upon it by s 424(1) of the Act; 2. the Tribunal failed to take into account information in documents before it concerning harassment, killing and disappearance at the hands of the Iranian authorities of persons imputed with an anti-government political opinion. As a result of this failure, and because the material was central to the issue of whether the appellant had a well-founded fear of persecution because of his imputed political opinion, the primary judge should have found that the Tribunal erred in not having regard to the material; 3. procedures required by the Act were not observed in connection with the making of the Tribunal's decision; and 4. there was no evidence or other material to justify the making of the Tribunal's decision. 13 At the hearing of this appeal the appellant appeared for himself assisted by an interpreter. His submissions in the main focused on the Tribunal's failure to accept his account of his treatment in Iran and took issue with the weight that the Tribunal attributed to that part of his account that it did accept. These aspects of the appellant's claim go to the merits of his claim. They are not issues that this Court has jurisdiction to entertain. These limitations were brought to the appellant's attention a number of times during his submissions but despite being given considerable time to state his case the appellant was not able to point to any reviewable error in the Tribunal's reasons or in the decision of the primary judge. 14 It is therefore necessary for us to review the decision of the primary judge without any assistance from the appellant. 15 The primary judge gave detailed consideration to the appellant's claim of jurisdictional error and gave cogent reasons for rejecting this claim. As indicated above, his Honour did not find it necessary to consider s 474 of the Act. Since his Honour's decision s 474 has been subjected to detailed consideration by a five-member Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 ("NAAV"). The Full Court held that the s 474 expands the jurisdiction of the relevant decision makers so that a decision affected by irregularities that would, in the absence of s 474, amount to jurisdictional error will be within power subject to satisfying the so-called Hickman conditions; per Black CJ at [30], per von Doussa J [636] and [638] (with whom Beaumont J agreed). 16 The Hickman conditions (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) require that the decision be reasonably capable of reference to and relate to the subject matter of the Act and be a bona fide attempt to exercise the power given to the decision maker under the Act. In addition the majority in NAAV were of the opinion that a decision will not be protected from judicial review if it contravenes an "inviolable" condition of the Act; per Black CJ at [12], per von Doussa J at [619] (with whom Beaumont J agreed). 17 Section 424(1) of the Act provides that in conducting its review the Tribunal may obtain any information it considers relevant and must have regard to any such information in making its decision. There is no evidence to support the claim that the Tribunal failed to comply with s 424(1). The first ground of appeal must therefore fail. 18 Moreover, as mentioned above, none of the grounds of appeal was the subject of argument before the primary judge. Before the primary judge the appellant had the benefit of legal representation. His Honour rejected the submissions advanced on behalf of the appellant. In our view he was right to do so. We add, however, that nothing advanced before us today provides any support for the second, third or fourth ground of appeal identified in [12] above. 19 The appeal must be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 8 November 2002 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: K Tredrea Solicitor for the Respondent: Sparke Helmore Date of Hearing: 4 November 2002 Date of Judgment: 4 November 2002