FEDERAL COURT OF AUSTRALIA SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351 MIGRATION – appeal from primary Judge dismissing application for review of decision of Refugee Review Tribunal ("Tribunal") – application to amend Notice of Appeal – proposed grounds of appeal relate to breach of s 418(3) of the Migration Act 1958 (Cth) and lack of bona fides by Tribunal – relevant considerations not taken into account – whether a lack of bona fide attempt by the Tribunal to exercise power – whether leave should be granted for appellant to amend Notice of Appeal Migration Act 1958 (Cth) s 474 NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1237 discussed Muin v Refugee Review Tribunal (2002) 190 ALR 601 discussed Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S 134/2002 cited Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 referred to NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 cited NAML v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1190 cited NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 referred to Craig v South Australia (1995) 184 CLR 163 referred to SDAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 155 of 2002 TAMBERLIN, MANSFIELD AND JACOBSON JJ ADELAIDE 19 NOVEMBER 2002 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 155 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SDAN APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: TAMBERLIN, MANSFIELD AND JACOBSON JJ DATE OF ORDER: 19 NOVEMBER 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. Leave to amend the Notice of Appeal is refused. 2. The appeal is dismissed. 3. 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 155 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SDAN APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: TAMBERLIN, MANSFIELD AND JACOBSON JJ DATE: 19 NOVEMBER 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT THE COURT: 1 Before the Court is an application for leave to amend the Notice of Appeal filed by the appellant. The appeal is from a decision of a Judge of the Court, who dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 26 February 2002, which affirmed a decision not to grant a protection visa to the appellant. 2 An appeal from the decision of the primary Judge was filed on 17 June 2002 but the grounds were expressed in generalised terms and the proposed amendment to the Notice of Appeal is in effect an application to substitute new grounds for those outlined in the initial Notice of Appeal. 3 The decision of the Tribunal is a privative clause decision within s 474 of the Migration Act 1958 (Cth) ("the Act") and the appellant, in order to succeed on judicial review, submits that the decision is not within the protection afforded by that section. 4 The two grounds sought to be relied on in the Amended Notice of Appeal are as follows: 1. The learned primary Judge erred in not finding jurisdictional error in so far as it has not been shown that the Secretary to the Department had given to the Registrar of the RRT each document considered by the Secretary to be relevant to the decision appealed from pursuant to s 418(3) of the Act. 2. The learned primary Judge erred in not finding that there had been an absence of a bona fide attempt on the part of the RRT to exercise power. Section 418(3) 5 The Court was provided with a Supplementary Appeal Book (the "SAB"), which included a copy of an extract from the decision of the delegate that lists the documentary evidence before the delegate. The SAB also contained a letter from the Tribunal to the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") dated 5 April 2002 which referred to the documents cited in the Tribunal decision and enclosed copies of those documents. That list of documents cited by the Tribunal does not include at least three documents found in the list of documents before the delegate. 6 The appellant submits, on the basis of the absence of citation of these documents, that there is no documentation which discloses what material relied on by the delegate, in reaching his decision, was given to the Tribunal pursuant to s 418(3) of the Act and that there has therefore been a failure to comply with s 418(3) as a consequence of which there has been a failure to exercise jurisdiction. 7 Section 418(3) of the Act reads as follows: "(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision." 8 As an evidentiary matter the material before the Court on this appeal does not establish that there has been a breach of s 418(3). Simply because some documents in evidence before the delegate were not cited by the Tribunal does not mean that the Secretary was in breach of the obligation imposed by s 418(3) or even that the documents were not conveyed. Accordingly, this argument fails for lack of any evidentiary basis. The circumstances are analogous to those before Sackville J in NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1237, where his Honour, at [29]-[30], after considering the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 605, 608, 611 and 629 said: "29 In the present case, the applicant has adduced no evidence to show that the Part B documents were not sent to the RRT. Nor is there any evidence to show that the Part B documents were not available to the RRT through electronic databases or libraries. The observations made by the RRT in its reasons do not assist the applicant on either of these questions. There is therefore no basis for finding that the Secretary contravened s 418(3) of the Migration Act. It is not necessary to consider whether a breach of s 418(3), considered independently of s 474(1) of the Migration Act, would constitute a jurisdictional error for the purposes of the relief available under s 39B(1) of the Judiciary Act. 30 If, contrary to my view, the RRT denied procedural fairness to the applicant, s 474(1) of the Migration Act prevents him relying on that denial as a basis for relief under s 39B(1) of the Judiciary Act. So much was decided by a majority of the Full Court in NAAV v Minister (Black CJ, Beaumont and von Doussa JJ; Wilcox and French JJ dissenting): see at [648], per von Doussa J (with whom Black CJ and Beaumont J agreed); NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294, at [17], per curiam." 9 Muin is distinguishable from the present case because in Muin it was agreed between the parties that certain relevant documents had not been conveyed by the Secretary. 10 Counsel for the appellant agreed, on this appeal, that as a consequence of the privative clause embodied in s 474 and the decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 the appeal could not succeed on this point but noted that the validity and operation of s 474 is currently under consideration by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicants S 134/2002, which has been reserved for judgment. Bona Fides 11 The appellant submits that the decision-maker failed to make a bona fide attempt to exercise power because there was a failure to take into account the cumulative effect of claims of abuse and harm which had been and would be suffered by the appellant if returned to Iran. It is said that the Tribunal failed to apply the definition of persecution as stated by McHugh J in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [65] as follows: "… · unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason · which constitutes an interference with the basic human rights or dignity of that person or the persons in the group · which the country of nationality authorises or does not stop, and · which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned." 12 Counsel submitted that the Tribunal had failed to consider important and relevant documents attached to the post-hearing submissions provided to the Tribunal by the appellant's representatives on 14 February 2002. These were accompanied by a number of attachments including a letter from the Sabian Mandaean Association in Australia Ltd, in which reference is made to the extreme difficulty faced by graduates after attaining university or other qualifications to locate appropriate employment in Iran because of prohibitions on people of the Sabian Mandaean community from physically touching products. An example is given of a Sabian Mandaean obtaining a pharmacy degree in Iran but not being permitted to "touch" pharmaceutical products under Islamic law, demonstrating the stigma imposed on Sabian people and the vocational disadvantage they suffer. Shopping for food and grocery items, for example, is difficult for the Sabian people in Iran according to the letter, because they are not permitted to touch grocery items. In addition, the submissions attached a letter from the priest at Woomera-Roxby Downs Catholic Parish, in which Father Monaghan sets out the extreme abuse and hatred manifested by Muslims towards Mandaeans in the Woomera Immigration Detention Centre generally. There is also a letter of 13 February 2002 from Father Monaghan setting out details of his observations concerning the experiences of the appellant and other members of his community and referring to documented incidents relating to attacks on compounds in which people of the Sabian Mandaean religion were abused and severely harassed. There was also attached a letter signed by a chaplain and a psychologist from the Woomera Immigration Detention Centre which refers to the general psychological impact of the type of harassment and of the type of problems which the appellant claims to have been faced with in the present case as a result of the extreme intolerance of Islamic authorities for what are perceived to be non-conforming religions such as Mandean beliefs. Counsel for the appellant submits that it is also important in forming an opinion on the question of persecution to bear in mind the youth and vulnerability of the appellant who was in fact only seventeen at the time of the Tribunal hearing and this was not taken into account by the member when assessing what would amount to persecution. 13 Counsel for the appellant contends that there was simply a cursory dismissal of the generalised opinion of Father Monaghan in his letter concerning conditions in the Detention Centre generally as between the various groups. According to counsel, there was a serious omission to deal with this evidence. 14 Counsel points out that although the decision-maker made findings as to the discrimination and abusive insults which the appellant would suffer if returned to Iran, he did not advert to the letter of the chaplain and psychologist, which expressed views as to the psychological effects, over time, of the types of harassment the appellant could be expected to suffer if returned. Nor did the decision-maker address or express any view as to the importance of the direct, detailed observations of Father Monaghan concerning the documented activities in the detention compound in which the appellant was detained. 15 The material attached to the submissions of 14 February 2002, on its face, was relevant in forming a view as to the intense antipathy towards Sabian Mandaean people both in Iran and in the narrow and confronting circumstances of the detention compound. It was also relevant to forming a view as to the intensity of the harassment in Iran resulting from the evident antipathy to Mandaeans. The letter of 13 February 2002 from Father Monaghan is documented and specific. The letter also emphasises the outspokenness of the appellant against Islam and the likelihood that he would speak out if returned to Iran with consequent punishment. 16 The Tribunal's reasons for decision indicate that the substance of the annexures to the submission were ignored by it, notwithstanding the fact that, on their face, they raised important matters to bear in mind, particularly as to the nature and extent of the likely harassment when considering whether the claims brought by the appellant amounted to persecution as described McHugh J in Ibrahim and as modified by the provisions of s 91R of the Act. 17 The failure to mention the substance of any of the annexures, in our view, amounts to a failure to address key substantive issues as to the type and continuous nature of the harassment and this was central to the case sought to be made by the appellant in relation to "persecution" and it formed the basis upon which the application was refused by the Tribunal. In our view, there has been a constructive failure to exercise jurisdiction within the meaning of Craig v South Australia (1995) 184 CLR 163, at 177-179. 18 However, notwithstanding the above conclusion as to the error on the part of the Tribunal, we do not accept that the failure to advert to these matters, having regard to the reasons for decision read as a whole, can be said to demonstrate a lack of bona fides on the part of the decision-maker. 19 The authorities point out the gravity of such a submission and the consequent need for it to be properly and fully established: see NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 and NAML v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 1110. 20 In this case there has not been demonstrated the existence of a closed mind or blameworthy conduct on the part of the decision-maker or any recklessness which would amount to an establishment of a lack of a bona fide attempt to perform the Tribunal's functions. Considered as a whole the reasons of the decision-maker indicate that a bona fide attempt to perform the Tribunal functions has been made but that the member has failed to take into account material which this Court considers relevant and important. That does not equate to lack of good faith in making an attempt to exercise jurisdiction. 21 For the above reasons we are not satisfied that the allegation of lack of bona fides is made out. As the law now stands, there is no substance in the submissions relating to the alleged breach of s 418(3) of the Act. 22 For these reasons leave to amend the Notice of Appeal is refused since the proposed grounds of appeal would not succeed. The appeal is dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Mansfield and Jacobson. Associate: Dated: 19 November 2002 Counsel for the Appellant: G Barrett QC Solicitor for the Appellant: Refugee Advocacy Service of South Australia Counsel for the Respondent: M Roder Solicitor for the Respondent: Sparke Helmore Date of Hearing: 12 November 2002 Date of Judgment: 19 November 2002