FEDERAL COURT OF AUSTRALIA SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 MIGRATION – application for protection visa – decision of Refugee Review Tribunal – whether decision made in good faith – whether decision actuated by bias. ADMINISTRATIVE LAW – application for review of decision of Tribunal – effect of privative clause – application of Hickman principles. Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth) ss 36(2) Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 - applied NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 – referred to R v Hickman: Ex parte Fox and Clinton (1945) 70 CLR 598 – applied SAAG v Minister for Immigration & Multicultural Affairs [2002] FCA 547 – referred to Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 324 – referred to Sun Zhan Qui v Minister for Immigration & Ethnic Affairs 1997) 81 FCR 71 - discussed SBAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S.231 of 2001 MANSFIELD J 10 MAY 2002 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S.231 OF 2001 BETWEEN: SBAN APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 10 MAY 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal given on 28 November 2001 is invalid and of no effect. 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.215 OF 2001 BETWEEN: SBAN APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 10 MAY 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) to set aside a decision of the Refugee Review Tribunal (the Tribunal) given on 28 November 2001. The Tribunal affirmed a decision of a delegate of the respondent given on 29 August 2001 refusing to grant the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act). That application had been made on 24 July 2001, following the applicant's arrival in Australia on 20 April 2001. 2 To be eligible to be granted the visa, it was necessary for the Tribunal to be satisfied that the applicant 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). That is the criterion for the grant of a protection visa expressed in s 36(2) of the Act. In practical terms, in relation to the application, that meant that the Tribunal had to be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention. It defines a refugee as any 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 claimed to have a well-founded fear of being persecuted for reasons of political opinion imputed to him. He told the Tribunal that he is a 32 year old citizen of Iran, who has not been involved in any political activities during his life. Until he left Iran, he lived with his mother and brothers and sisters in Bandar Anzali. He had no particular problems with the authorities until an occasion in September 2000. 4 At about 10.30 pm on one night in September 2000, the applicant was walking in public with his girlfriend when he was approached by the police and the Sisters of Zainab (officers of Observing Islamic Appearance) who asked whether he was married to the person with whom he was walking, and for identity cards. They did not have identity cards with them. They were asked to go to "headquarters", apparently a few hundred yards away. One of the Sisters of Zainab took hold of the applicant's girlfriend, and the applicant moved to break that hold. He then felt a kick in his back, and turned to see that he had been hit by a police officer. He said he saw the police officer then reaching for his gun. He pushed the police officer away, and the police officer fell backwards and was knocked unconscious. The applicant and his girlfriend fled the scene. The applicant said that he went home, collected some belongings, and fled to a nearby town. From there he obtained a passport illegally and left Iran, eventually arriving in Australia. Before he fled, he made some inquiries of a police officer who was a friend. He was told that the police had been looking for him as the police officer's hand gun had gone missing, and that he was being held responsible for it. That friend advised him to leave the country promptly. He did so. He subsequently phoned that friend again from Thailand and Indonesia, and was told that he had been accused of being involved in anti-government political activities because he had left the country illegally and because the hand gun had not been found. He told the Tribunal that the missing hand gun was the most serious matter because, on the basis of the information provided to him by his friend, the authorities had taken the view that the applicant was involved with the opposition party, the Mujahedin, and had delivered the gun to political opponents of the existing regime. 5 The applicant also told the Tribunal that his father had been a supporter of the communists, and had been imprisoned for some six months. He had died about 1992. He also claimed that his brother Araz had been a member of the Mujahedin, and had escaped from Iran about 15 years ago to avoid persecution. He said that he could not claim to have suffered because of his brother's political activities, although he thought that it might have made the authorities more willing to believe that he was involved in the Mujahedin. He also claimed that his father's background made it impossible for him and his siblings to obtain employment in the public sector. the tribunal's reasons 6 As is customary, the Tribunal's decision is broken into sections headed Background, the Legislation, Claims and Evidence including country information, and a section entitled "Findings and Reasons". 7 In this instance, rather than paraphrase the Tribunal's "Findings and Reasons", it is convenient to set them out in full. "The Tribunal accepts that in Iran there are mores in relation to women being in public with men. These are well known and in order to avoid problems it may be that the applicant has to abide by these. However, the Tribunal does not accept that failing to abide by such laws or mores, finding oneself in breach of such laws or mores or disagreeing with them leads to a situation amounting to persecution for a Convention reason. In the Tribunal's view such laws and mores have general application to the population at large and being punished for breaching them would not be punishment for one of the five Convention grounds. Accordingly if the applicant did have problems because he should not have been walking with his fiancee unaccompanied, such difficulties are not Convention related. If being questioned for breaching such laws or mores the applicant then ended up in a fight with those authorities, this would also not be Convention related. It is common in all societies for the police to meet violent resistance in the course of their duty and even for police or other authorities to exceed their powers. However such problems again would not, without more, be Convention related but would relate to the normal laws about public order. The applicant in this case has emphasised the missing gun as his main reason for concern. He states that the authorities think he stole it and that they would relate the theft of this to him having a political opinion opposed to them. In this regard the applicant has mentioned that they might relate the loss of the gun to the Mujahedin. However, the Tribunal considers this proposition to be fanciful. In the Tribunal's view even if in the course of a dispute between the applicant and some officers for observing Islamic appearance a gun went missing, and the applicant is accused of having taken it, it is absurd to relate such an event to a political opinion. The Tribunal notes the submission from the applicant's adviser that this is what would happen in Iran but the Tribunal does not accept it is the case. As a result the Tribunal does not accept that the applicant is accused of opposing the government, being associated with the Mujahedin or of any other political association. The Tribunal rejects the submission that the applicant's problems stemming from the gun give rise to a Convention reason. The Tribunal notes that the applicant has referred to a political association of his brother to explain why the authorities would impute to him a political opinion. However the Tribunal does not accept that this would be the case. The applicant's own evidence was that they were approached by the 'moral police' and a fight ensued. The Tribunal considers it fanciful, whatever the applicant's brother's political views, that such an event would lead to the imputation of a political opinion. In relation to the claim that the applicant departed illegally and that his applying for refugee status will cause him problems, the Tribunal notes the country information above. The Tribunal does not accept that such matters will cause the applicant any Convention related problems amounting to serious harm such that these problems could be said to amount to persecution. In relation to his claim that his family are not able to obtain employment in the public sector, the applicant stated that he was a welder by trade and also worked in export and imports. As he has been able to obtain employment in the private sector, the Tribunal does not accept that his family's inability to obtain employment in the public sector is a sufficiently serious problem to amount to persecution. The Tribunal indicated above that it was not prepared to wait for the statements to be signed. The Tribunal has found that the applicant's problems if he has any are not Convention related and it follows from this finding that there is very little to be gained from waiting for further material as such material would rarely if ever affect such a finding. The Tribunal finds that if the applicant had any problems before he left Iran these were not Convention related. As a result the Tribunal finds that if the applicant returns now there is no real chance he will face persecution for a Convention reason. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason." consideration of grounds of review 8 The applicant appeared in person at the hearing. He had previously been represented by a solicitor or solicitors, who had filed the application for review on his behalf. In so far as the application invoked grounds of review available under s 39B of the Judiciary Act, the grounds are consistent with those which the respondent acknowledges to be available, notwithstanding the broad terms of s 474(1) of the Act, by reason of the "Hickman" principles as expressed by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615-616. The grounds of the application adopt the provisos to the Hickman principles. They are that: (1) the Tribunal did not act in good faith in making the decision; (2) the decision is not reasonably capable of reference to the decision-making power given to the Tribunal; (3) the decision does not relate to the subject matter of the legislation; (4) the decision exceeded the limits set out in the Constitution. The respondent accepts that, if established, those grounds would entitle the applicant to have the Tribunal's decision set aside. Although the decision of the Tribunal is a privative clause decision as defined in s 474(2) of the Act, he accepts that the wide terms of s 474(1) must be read as being subject to the Hickman principles. The respondent contends that none of those grounds has been made out. 9 The application for review also expresses grounds of review in terms of provisions of the former s 476(1)(b), (c), (d), (e) and (f) of the Act. That provision was repealed and replaced by the Migration Legislation Amendment (Judicial Review) Act 2001, (Cth) effective from 2 October 2001. Consequently, those grounds of review are not available to the applicant. I shall treat the particulars of each of those grounds as matters which, to the extent they can apply, relate to the accepted available grounds of review under the Hickman principles. Relevantly, they may relate to the claim that the Tribunal did not act in good faith in making the decision. 10 The applicant at one point in the hearing requested an adjournment to seek alternative legal representation. He did not then pursue that application when it emerged that an adjournment might involve some time while other solicitors prepared for the hearing. He made oral submissions on his own behalf. Essentially, but understandably, those oral submissions were not directed to the matters identified in the application upon which review of the Tribunal's decision might be granted under s 39B of the Judiciary Act. 11 The applicant pointed out that the independent country information specifically referred to by the Tribunal from the United States Department of State Country Reports on Iran for 2000 indicates that the Iranian Government's human rights record is a poor one. Iran restricts citizen's rights to change their government. Systematic abuses including extra-judicial killings and summary executions, disappearances, widespread use of torture and other degrading treatment, harsh prison conditions, arbitrary arrest and detention, and prolonged and incommunicado detention are apparently commonplace. At a later point, it notes that vigilante groups with strong ties to certain members of the government enforce their interpretation of appropriate social behaviour through intimidation and violence. In that context, the applicant asserted that mere suspicion on the part of the authorities of a political opinion adverse to the regime is sufficient to attract persecutory conduct. He said that the Tribunal's conclusions flew in the face of such material. 12 The applicant also contended that the Tribunal had not realised the implications of him being suspected of possession of a weapon, particularly if he were suspected of having stolen it. That would lead him to being suspected of anti-government associations. He also contended that the Tribunal had not properly apprehended that, in conjunction with the suspicion that he had taken a weapon from the police officer, his unlawful exit from Iran would mean that he would be identified upon his return to Iran and then be charged with terrorism. 13 The particular grounds of review under s 39B of the Judiciary Act were not specifically addressed by the applicant. I do not fully understand the assertion in the application that the decision exceeded the limits set out in the Constitution. I assume it is a challenge to the legislative power to enact s 474(1) of the Act. It has been decided in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 that the amendment to the Act effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which introduced s 474(1) is a valid exercise of legislative power. No submissions were made that that decision was wrong, or indeed as to the invalidity of any part of the Act. I propose therefore to proceed on the basis that s 474(1) is a valid provision. 14 The Tribunal's decision making power is set out in s 414(1) of the Act. Its decision is capable of reference to that decision making power, and its decision relates to the relevant subject matter of the Act, namely its review of a decision of a delegate of the respondent not to grant to the applicant a protection visa for which he had applied under the Act. 15 The applicant's contention in substance, although not expressed in so many words, is that the decision of the Tribunal was not made in good faith in the exercise of its powers. I have discussed in SAAG v Minister for Immigration & Multicultural Affairs [2002] FCA 547 the concept of "good faith" as used in one of the provisos in the Hickman principles referred to in [8] above. I will not repeat that consideration. As I there remarked, the cases in which the administrative decision maker will have failed to act in good faith in the exercise of the decision-making power will be rare. 16 In this matter, the alleged lack of good faith is said to be demonstrated from the Tribunal's reasons for decision. No attempt has been made to adduce evidence to demonstrate the lack of good faith. In essence, the contention is that, upon analysis, the Tribunal's reasons for decision are so unreasonable and capricious as to lead firmly to the inference that it failed to approach its task in good faith. It is not sufficient for the Court to disagree with the Tribunal's findings of fact, or its processes of reasoning. Nor is it sufficient for the Court to regard the Tribunal's findings of fact or its processes of reasoning as unreliable, or unreasonable. It will only be if the analysis of the Tribunal's findings of fact or law or its processes of reasoning leads the Court to the firm conclusion that it did not in fact conduct its review of the decision in good faith that the particular proviso to the Hickman principles will be enlivened. 17 In my judgment, the reasons of the Tribunal disclose two related potential bases upon which such a firm conclusion may be drawn. The first is that the Tribunal failed to make findings about the applicant's claims. The second is that the Tribunal prejudged the question of whether the applicant had a well-founded fear of persecution for a Convention reason. The second basis, if made out, would reveal bias on the part of the Tribunal in the sense that it did not exercise its decision-making power with a mind open to persuasion. Failure to Make Findings 18 It is the Tribunal's assessment of the applicant's claims that he fears persecution because of political opinion attributed to him by reason of being suspected of having stolen a police weapon, in part in conjunction with his departure from Iran, which is the focus of the applicant's complaints. 19 The Tribunal made no findings of fact about the applicant's claims, other than the finding that there are mores in Iran in relation to women in public being in company with men. It did not accept, or reject, the applicant's claim that he had been walking in public with his fiancee and had been confronted for doing so. It assumed that the confrontation and subsequent scuffle took place for the purpose of concluding that any such confrontation and scuffle would not be for a Convention reason, but due to the application of a law of general application and resistance to that law. 20 The Tribunal also did not expressly find whether, in any such scuffle, a policeman had been pushed over and his gun had gone missing. It did not make any finding about whether the applicant is thought by the authorities to have stolen it, or whether the police came to his house the following day searching for him. It did not make any finding about whether the applicant had a friend in the police, or whether the applicant had contacted him, or whether the applicant had been told that he was suspected of being involved in anti-government groups because he had left the country illegally and that the gun had not been found. [It did not make any finding whether the applicant subjectively feared persecution because he was suspected of having stolen the gun and of having an anti-government political opinion as a result.] 21 The Tribunal took the view that if a gun had gone missing following such an alleged scuffle, and if the applicant were accused of having stolen it, it was "absurd" that the authorities might relate the stealing of a gun to any political opinion on the part of the applicant. It described his fear of such being the case as "fanciful". It rejected the submission from the applicant's migration agent that, at the hearing, the applicant responded to the Tribunal's queries on the topic well: that the Iranian authorities are insecure, and are willing to impute political motivations to non-political actions. 22 I do not understand why it is absurd that a person who (or who is suspected of having) knocked out a policeman and stolen his gun might be suspected of being against the regime. Such attribution may not be strictly logical. The likelihood of such attribution might depend upon the personal background of the person involved. The Tribunal has made no finding about the political association of the applicant's brother, but it has discarded any family political association apparently because it could not elevate the applicant's claim beyond the fanciful. I regard that view as unreasonable. If the applicant was identified as a member of a family of known political dissidents, and in an incident he knocked out a policeman and stole his gun, it is in my view not "fanciful" that the authorities might attribute to him the dissident sympathies of others in his family. The Tribunal has made no finding about the information from the policeman who was his friend. It could not have accepted that part of his claim. If it did, it was another significant piece of information which would demonstrate that the applicant's fear is not "absurd". Why the Tribunal has not referred to that evidence is unclear. If it had not believed the applicant, one would have expected the Tribunal to explain why. In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 McHugh, Gummow and Hayne JJ said at 19-20 [75]: "If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past)." The Tribunal has either overlooked that evidence, or has decided that irrespective of that evidence, it regards the claim as absurd. In this instance, I think the latter is the case, even though I consider the Tribunal's assessment of the claim in the light of such evidence is itself unreasonable. Indeed, if it were to accept such evidence, the Tribunal's conclusion would itself be irrational. 23 The reason why I take that view appears from the Tribunal's approach to the evidence, or potential evidence, of the applicant's mother and of his friend who is a policeman. Unsigned documents presented in the form of statutory declarations were provided to the Tribunal from each. The applicant's mother confirmed that the applicant had fled in haste, and that soon after five Revolutionary Guards came looking for him and subsequently checked for his whereabouts. More tellingly, the friend claims to be a member of the National Security arm of the Iranian Government. He says that the penalty for stealing a gun could be death by hanging. He also says: "I have been told that as the gun had not been located or returned, it is believed that Eldoust has taken the gun and given it to the opposition party, the Mujahidin. The Authorities believe that Eldoust is involved in either one of the foreign groups or the opposing political party, the Mujahidin." That information comes from his direct inquiries to the Revolutionary Guard. He confirms that if the applicant returns to Iran he will be arrested on the belief that he is involved in political activities. 24 The Tribunal declined to give the applicant further time to have those declarations signed, because it had concluded that his claimed problems were not Convention related. Consequently, very little would be gained by that material being signed as it "would rarely if ever affect such a finding". It has indicated therefore that that material, even if signed and even if true, would not affect its decision. 25 In my judgment, that approach is wrong. It is impossible to understand how evidence from a person working in the National Security arm of the Iranian Government, and who had access to the Revolutionary Guard who apparently were pursuing the applicant, could be ignored. That evidence indicates that the applicant had been imputed with an anti-government political opinion for having knocked out a policeman and for having stolen (or being suspected to have stolen) a gun. His mother's evidence confirmed that the Revolutionary Guard were pursuing the applicant. 26 But for the Tribunal's approach to the additional material, I would have concluded that the Tribunal's approach to the applicant's claim was not one which demonstrated a lack of good faith on its part. Whilst I find its approach difficult to comprehend, it would not be shown to have taken an approach to the claim which reflected an attempt to exercise its power other than in good faith. Its failure to specifically address the applicant's claim about what he had been told by his friend would, in the context, appear to amount to an assessment of that part of his evidence as being of no significance without the Tribunal explaining why that is so. Actual Bias 27 However, the Tribunal's approach to the additional material has persuaded me that it did not approach the applicant's claim with a mind open to persuasion. It did not accept that that material was of evidentiary significance, take it into account, and then reach findings on the claim in the light of it. For instance, it did not treat that material as having no weight because it did not accept its authenticity, or because its apparent significance was outweighed by other considerations. It did not reject that material because it was unsigned. Nor did it reject the application for further time to have that material signed because, in the circumstances, it was just or desirable to do so. It rejected that material because, even if signed, it would make no difference to the outcome of the application. And it would make no such difference because, as the Tribunal said, its content would not alter the Tribunal's assessment made already that the applicant's claim about being attributed with an anti-government political opinion in the circumstances was "absurd". But that material, as I have indicated above, was directly relevant to the claim. If it were accepted as reliable by the Tribunal, it would clearly be relevant. Indeed, if authentic, information such as that provided by the applicant's friend from the National Security arm would be directly and highly relevant to the determination of his claims. It must be a rare case when individual claims such as those of the applicant are able to be supported by such evidence. 28 In my judgment, the Tribunal's approach discloses that it was actually biased against acceptance of the applicant's claim. It demonstrates views which are incapable of alteration. In reaching that conclusion, I have had regard to the very useful discussion of Lindgren J in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997 FCA 324, pp 95-99) about the meaning of "actual bias", in that case in the context of the former s 476(1)(f) of the Act. Accepting the need for great caution which should be exercised before reaching such a conclusion, I have come to that firm conclusion for the reasons given. The Tribunal itself has indicated that its views about the applicant's claims, based upon the hypothesis of his own evidence being accurate, are incapable of alteration by the proposed additional material. As it said, that was because it had found that any problems of the applicant are not Convention related, so "it follows from this" that the additional material, if signed so as to represent apparently cogent evidence, would not alter its conclusion. Unlike the decision of the Full Court in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71, my conclusion is based upon what the Tribunal has said and not upon inference from the circumstances: compare per Burchett J at 126. In that case, on appeal, North J agreed with Burchett J that actual bias had been made out. Wilcox J agreed in the result, but upon different grounds. 29 In the light of my finding that the Tribunal was actually biased, in this instance it is then a short step to the conclusion that the Tribunal did not exercise its function of deciding the application in good faith, but did so with a mind apparently directed to deciding the claim adversely to the applicant. The Tribunal's reasons exclude the possibility that its bias was unconscious: see the remarks of North J in Sun at 134; Mason, Unconscious Judicial Prejudice, (2001) 75 ALJ 676. orders 30 In that circumstance, it is unnecessary to consider whether the Tribunal committed jurisdictional error in failing to make findings about the applicant's particular claims about what had happened to him in the past, including whether he had been told by a member of the National Security Office that he was suspected of having stolen a gun and had been imputed with anti-government political beliefs. If such an error were disclosed, then it would give rise to the need also to consider whether s 474(1) of the Act nevertheless would immunise the Tribunal's decision from judicial review on that ground. 31 In my judgment the decision of the Tribunal should be declared to be invalid. It is, in effect, set aside. The applicant thus has an application before the Tribunal for review of the decision of the delegate of the respondent given on 29 August 2001 with which the Tribunal should deal. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 8 May 2002 Counsel for the Applicant: The applicant appeared in person. Counsel for the Respondent: Mr M Roder with Ms E Reed Solicitor for the Respondent: Sparke Helmore Date of Hearing: 4 April 2002 Date of Judgment: 10 May 2002