FEDERAL COURT OF AUSTRALIA WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1047 MIGRATION – refugee – protection visa application – Refugee Review Tribunal – Iranian national – alleged fear of persecution for anti-government activities in Iran – claims disbelieved by Tribunal – grounds of review – bad faith – breach of essential precondition – failing to take into account relevant considerations – operation of privative clause – no bad faith case – breach of s 424A precluded from review by privative clause – failure to take into account relevant consideration precluded – application dismissed. Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 cited R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited Craig v South Australia (1995) 184 CLR 163 cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited WACO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W557 OF 2002 FRENCH J 21 AUGUST 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W557 OF 2002 BETWEEN: WACO APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 21 AUGUST 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W557 OF 2002 BETWEEN: WACO APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH J DATE: 21 AUGUST 2002 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant is a national of Iran, who arrived in Australia on 20 June 2000. He lodged an application for a protection visa on 28 February 2001. The application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 9 April 2001. On 10 April 2001, he applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision but the decision was affirmed on 9 November 2001. An application for review of the Tribunal's decision was lodged in this Court on 3 December 2001. 2 In his post arrival interview the applicant indicated that he had left Iran because of the restricted opportunities for his advancement as a jewellery maker, to find a less restrictive political atmosphere in terms of contact with the outside world and a less restrictive social atmosphere in terms of relationships with women. He referred to an occasion on which a foreign customer trying on jewellery in his shop had let her scarf fall off her head. Morals Police had closed his shop down for ten days and fined him. This was about the middle of 1998, but he had suffered no problems since then. He had also been forced to take down a satellite dish which he had bought. There was, however, no suggestion of ongoing persecution. Asked whether he had any reasons for not wishing to return to Iran, he said: "There is no reason that I cannot go back. If I go back nothing will happen, but I came here for the reasons I mentioned." 3 In support of his subsequent application for a protection visa the applicant provided a statement in which he claimed to fear persecution from Iranian authorities because of his association with Ayatollah Sayed Mohammad Shirazi, a reformist cleric and because he had printed and distributed anti-regime literature in which he criticised the Supreme Leader and asserted the Supreme Leader's responsibility for the murder of a cleric named Allameh Jafarri. 4 On the account contained in his application for a protection visa it seems that his anti-government attitudes stemmed back to 1996. Members of his family in that year applied for a certificate to conduct an air-ticketing agency. Priority for such certificates was given to the family of Martyrs – an apparent reference to persons who had died for Iran in battle. Their claim was based on the belief that one of his uncles was a Martyr. Contrary to their belief, there was no file for his uncle in the Foundation of the Martyrs of the Islamic Revolution. On his account of it his uncle was falsely recorded as having committed suicide in battle. The applicant's angry outburst at the Foundation against the government and its leader allegedly led to his detention for six days. He said that after completing his military service he had become a professional jeweller and had attended religious classes known as "Hozeh" in the city of Qom. While at that school he attended classes conducted by Allameh Mohammad Taghi Jafarri. The applicant had private meetings with Jafarri because the applicant's grandfather was a well-known religious figure. Jafarri died in autumn 1998 at the age of 54. He had been in good health. His death was a shock for the applicant and he said there was a big question mark for him and some of the other students in relation to the circumstances of his death. He and his associates planned to see Jafarri's physician in the winter of 1998. However, before they had a chance to do so they read that the physician and his wife had been stabbed to death in their home. Further inquiries uncovered the fact that Jafarri had been in conflict with the Supreme Leader, Ayatollah Khameini, apparently over some doctrinal or policy question. There was correspondence evidencing this conflict. With the help of Grand Ayatollah Shirazi he and his associates obtained a copy of the correspondence between Jafarri and the Supreme Leader. Shirazi was subsequently arrested, but later released under some constraints. 5 At the beginning of 1999 the applicant and four others who had finished a session with Shirazi were travelling on a bus to Tehran. Their bus was stopped by security forces. They were taken off and taken to Tehran in blindfolds. The applicant said he was questioned about his association with Hozeh and with Ayatollah Shirazi. He said he was tortured and detained for three months and released only after signing an undertaking not to leave Tehran for a year and to present himself to a security unit every month. 6 In March 2000, when Hozeh classes reopened, the applicant and his friends were determined to do something about publicising Jafarri's death. The applicant claimed to have made 500 copies of Khameini's letter and Jafarri's answer to the letter and their own opinions on the matter. They went to a mosque in Qom where a ceremony was being held. The applicant claimed he knew the janitor of the mosque and was able to get up into the roof where he hid the papers. He claimed to have a key cut from a key the janitor had given him. When the ceremony started the applicant and his friends released the papers from the roof and shouted that the scholar Jafarri had been murdered by the regime. He used a rope to climb down from the roof and ran to a car. One of his friends was apprehended. The applicant went to his mother's cousin's house and hid there. He claimed that his father was arrested and the friend who had been taken died mysteriously in a motorbike accident. Subsequently Shirazi told him and his associates to leave the country and said he could help them because he had a follower who worked at the airport. According to the applicant, he left the country on the passport of his cousin who looked very much like him. 7 When he arrived in Australia he claimed that he had been told that Iran and Australia were on good terms and that he would probably be deported back to Iran. It was for that reason that he decided not to mention his principal claims at his first interview. 8 The applicant gave evidence at the Tribunal hearing. He was represented by an adviser. He had no witnesses. He claimed to have obtained his own passport after the completion of his military service early in 1995. He had intended originally to travel on a pilgrimage to Syria but did not go. He used his male paternal cousin's passport to leave Iran to come to Australia and not his own. An exit stamp was granted to him at the security gate of the airport by the security police. An uncle in the customs department did everything for him and a follower of Ayatollah Shirazi from the security department of the airline helped him. He told the Tribunal that his cousin's appearance and age were similar to his. He destroyed the passport on the advice of a people smuggler in Indonesia. His own passport remained in Iran. 9 He was asked to summarise key issues which caused him to fear remaining in Iran. He said that he had been arrested in 1999, imprisoned for a while and tortured. It had taken him sometime to recover. His lecturer had been killed and he wanted revenge on the Supreme Leader who was the cause of his death. He and his friends decided they should inform all the people involved in the Hozeh religious school in Qom. He had distributed leaflets disclosing the truth at the mosque and accusing the Supreme Leader of murder. He had also disclosed confidential letters of the Supreme Leader exposing his crime. He feared returning to Iran because he would be arrested. Not only would he be in danger, but so too would Ayatollah Shirazi. He was in fear of torture and gaol and feared also that the Ayatollah would be executed. 10 In the Findings and Reasons section of its very extensive and comprehensive reasons for decision, the Tribunal accepted that the applicant was an Iranian citizen. It said that it had closely examined his claims and the evidence presented in support of them and the country information available and had given full consideration to that evidence and material, having provided the applicant with "…considerable opportunity to establish his claims for protection". It had nevertheless come to the conclusion "that the Applicant is not credible in respect of key aspects of his claims for protection." Several important elements of his claims suffered a serious lack of plausibility. The Tribunal concluded that he was not in genuine fear of persecution and that there was no real chance that he would face persecution on return to Iran. It described the applicant as an educated, articulate and intelligent businessman who had been engaged in the jewellery and silverware business in Tehran for five and a half years before coming to Australia. It was not convinced he was truthful. It said: "He was not an impressive witness in giving consistent and cohesive testimony about matters which he professed to have some close familiarity. (sic) He conveniently varied his evidence, including very subtly on occasions, to answer the Tribunal's concerns with certain key aspects of his claims. He clearly had difficulty providing convincing explanations on issues on which the Tribunal expected straightforward, informed responses. He was also generally unsatisfactory in testifying about the circumstances that he claims led to him departing Iran as a fugitive and in respect of how he managed his exit from Iran. He was also hesitant, unconvincing and shifted ground too readily in answering concerns about his actions and objectives in seeking to attack the clerical leadership." 11 The applicant could not provide plausible, satisfactory or consistent answers to the Tribunal's questions as to why he chose to use the mosque, where he was known, to distribute anti-regime leaflets in the ineffectual way that he did and why he took the high risk of being identified and arrested and of ultimately compromising the positions of the clerics he claimed to support. He was particularly unconvincing in his evidence about arrangements for and actual execution of the dissemination of alleged anti-regime leaflets. When faced with serious inconsistencies between his testimony and what he had said in his protection visa application on whether the janitor knew him and could identify him, the applicant manufactured unconvincing fresh evidence that he and his friends concealed their faces with handkerchiefs during their leaflet drop to avoid recognition. The Tribunal did not accept his claim concerning this incident. It rejected his evidence that the incident occurred. 12 The Tribunal also found that the applicant gave very unconvincing evidence about why Ayatollah Shirazi might be damaged by anything he might disclose to the authorities as the Ayatollah was, according to the country information, already under house arrest for having dissident religious and political views and the Iranian authorities had placed severe restrictions on his liberty and conduct from 1996. Having considered the country information, the Tribunal did not understand how the applicant's opinions on the death of Jafarri and what he might disclose to the authorities about Shirazi would create any more difficulty for Shirazi than that which he had already experienced and which was described in country information. The Tribunal found it highly unlikely that Shirazi would be placed under any additional risk as he had been under house arrest from 1996 for harbouring and expressing dissenting religious and political views. 13 The Tribunal also observed that during his taped interview with the delegate to discuss his protection visa application, the applicant had exhibited a lack of awareness that Shirazi had been placed under house arrest in 1996. It also noted that he told the department that Shirazi taught him occasionally at his religious school in Tehran at a time when Shirazi was under house arrest. The Tribunal was not satisfied that he was a religious follower of Shirazi, nor that he attended the religious school in Qom, nor that he had a close relationship with Shirazi, Jafarri or another person he mentioned, Dr Kadivar. 14 The Tribunal was not satisfied that the applicant was detained and tortured in early 1999, as he claimed, for being a religious supporter of Shirazi. It accepted that he might have been detained in 1996, as he claimed, without sufficient cause. It also accepted that he may then have become disaffected with mistreatment he suffered from the Iranian government as he claimed in his protection visa application and that he felt oppressed and dissatisfied with life in Iran, as did many Iranian citizens. 15 The Tribunal was not satisfied also that it had been told the truth about his passport and considered he had no reason not to use his own passport to depart Iran. The Tribunal also rejected his evidence about alleged telephone communications with his family in Iran after his arrival in Australia. It was not satisfied with his "… half-hearted claim that his home and his parents' home [had] been raided nor that his parents [had] been either questioned or harassed in any way by the Iranian authorities either before or after he left Iran". The lack of any evidence of pressure being brought to bear on his family members was a further strong indication to the Tribunal, having regard to the country information, that the applicant was of no interest to Iranian authorities. The Tribunal did not accept as plausible the various explanations offered by the applicant for omitting to mention key issues of his claims at the initial interview with an officer of the department. The Grounds of Review 16 The grounds of the application, as amended at the hearing, are as follows: "1. The decision was not made in good faith. Particulars (a) In deciding the applicant was not a follower of Ayatollah Shirazi ("Shirzai"), the Tribunal relied upon an understanding of the notion of "house arrest" that the Tribunal knew the applicant did not share, as the Tribunal was informed during the course of the hearing that there is no equivalent translation in the Farsi language for that phrase; (b) By ignoring the applicant's consistent evidence that Shirazi was "under control", despite being told that this was how the notion of "house arrest", was being translated to the applicant, the Tribunal proceeded on the premise of facts or circumstances which it knew to be untrue; (c) By finding that the applicant was unaware of Shirazi's "house arrest", or that his evidence was inconsistent with Shirazi being under "house arrest", and ignoring the applicant's consistent evidence that Shirazi was "under control", the Tribunal proceeded on the premise of facts or circumstances which it knew to be untrue; (d) By rejecting corroborating evidence from the applicant in the form of a letter purporting to be from Shirazi, on the basis of its finding in relation to the applicant's awareness of Shirazi's "house arrest", the Tribunal proceeded on the premise of facts or circumstances which it knew to be untrue. 2. The decision was made in breach of an essential precondition to the exercise of its jurisdiction because in reaching its decision the Tribunal failed to comply with section 424A of the Migration Act 1958 (Cth) and, or, failed to accord the applicant procedural fairness. Particulars The Tribunal based its decision that the applicant was not a follower of Shirazi on perceived inconsistencies between the applicant's evidence and information that Shirazi was "under house arrest". The Tribunal failed to: (i) put to the applicant how it considered his evidence to be inconsistent with the information; and (ii) ensure that the applicant understood the information, and the basis of the perceived inconsistencies; and (iii) invite the applicant to comment on the information and the perceived inconsistencies. 3. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise its jurisdiction because in reaching its decision the Tribunal failed to take account of a relevant consideration. Particulars (a) During the course of the hearing the Tribunal was informed that there is no equivalent translation in the Farsi language for the phrase "house arrest". The Tribunal was therefore aware that the applicant did not share its understanding of the notion of "house arrest". (b) The Tribunal was obliged to take that consideration into account in assessing the applicant's evidence about his awareness of Shirazi's "house arrest"; (c) The Tribunal failed to take account of that consideration." Grounds 4 and 5 were not pressed. Statutory Framework 17 The jurisdiction of the Federal Court under the Migration Act 1958 (Cth) since 2 October 2001, derives primarily from s 39B of the Judiciary Act 1903 (Cth). That provides in the relevant parts: "39B(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. 39B(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter." The other subsections of s 39B are not relevant for present purposes. 18 The relevant provisions of the Migration Act which deal with the jurisdiction of the Court are set out in greater detail in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [419] – [429]. The construction of the provisions under the Act is affected by the operation of s 474. The decision of the Tribunal in this case falls within the definition of "privative clause decision" in that section. Section 474(1) provides: "A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." Limitations on Review and the Hickman Principle 19 The operation of s 474(1) in the Migration Act has recently been the subject of the decision of the Full Court in NAAV. That case involved a bench of five judges and the disposition of five appeals. The judgment which represents the views of the majority (Black CJ, Beaumont and von Doussa JJ) is that of von Doussa J, with whom the other two members of the majority, although writing separate judgments, agreed as to matters of legal principle. His Honour accepted as provisoes to the restrictions on review imposed in s 474 those enunciated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615: . a decision that is not a bona fide attempt to exercise the power which the Act reposes in the decision-maker. There may be occasions, such as where a decision is affected by actual bias, where this is an important ground on which a decision will be rendered invalid notwithstanding s 474(1); . a decision that does not relate to the subject matter of the Act. As the Second Reading Speech observes, it is highly unlikely that an impugned decision about visas would transgress this proviso; . a decision which is not reasonably capable of reference to the power. Again, it is unlikely that a decision about a visa would not meet this requirement. In the case of a valid application for a protection visa, for example, the relevant source of power is to be found in ss 36(2) and 65 of the Act. The decision-maker (be it the Minister, a delegate or the RRT) must be satisfied as to the criterion in s 36(2) and the other criteria prescribed in s 65. If so satisfied the visa must be granted, and if not so satisfied it must be refused. See NAAV v MIMIA at [630] per von Doussa J. 20 His Honour rejected arguments that s 474(1) should give way to specific requirements which other provisions of the Act say are to be followed by decision-makers. He concluded at [635]: "Given the history of amendments to the Act, and the clear object of the 2001 amendments, in my opinion it is clear that Parliament intended that there be a hierarchy in the provisions of the Act as amended, and that s 474(1) is, in the case of privative clause decisions, to be the leading provision, with the consequence that apparently inconsistent provisions of the Act are to be construed as subject to s 474(1). Notwithstanding the rules of construction that would favour a contrary construction if there was doubt about Parliament's intention, in this instance Parliament's intention is clear." Section 474(1) was to be construed as validating decisions by extending the authority and powers of decision-makers so as to render lawful irregularities that would otherwise constitute jurisdictional error of the type referred to in Craig v South Australia (1995) 184 CLR 163. His Honour held specifically that the rules of procedural fairness had been excluded by s 474 – at [648]. Bad Faith 21 It was submitted for the applicant that the Tribunal disbelieved him on three most significant matters: (a) That he was a religious follower of Shirazi; (b) That he attended the religious school in Qom; and (c) That he had a close relationship with Shirazi. 22 Upon the basis of that disbelief the Tribunal then: (a) Disregarded letters (as not being genuine) which corroborated some of the applicant's evidence; (b) Found the applicant had fabricated the letters to bolster his claims; (c) Rejected the applicant's evidence that he had been detained and tortured in early 1999 as being a supporter of Shirazi; (d) Found the applicant had not committed any act which may attract the authority's attention and so was in no danger if he was returned to Iran; (e) Found that the applicant was not a political dissident and had not supported the political dissident, Shirazi. 23 It was submitted that it was clear to the Tribunal during the course of its hearing that its understanding of "house arrest" was not shared by the applicant because there was no equivalent expression in the Farsi language. The interpreter was unable to translate the concept to the applicant and, indeed, had given him a different concept. The interpreter, it was said, made this plain to the Tribunal. Notwithstanding this, the Tribunal proceeded at both the hearing and in its reasons as though the applicant understood, and had responded, to the Tribunal's concept of "house arrest". 24 It was submitted therefore that the Tribunal did not act in good faith in making its decisions as to the matters set out and its overall decision. Those matters demonstrated that the Tribunal proceeded on premises of facts which it knew were untrue because of what it was told by the interpreter. That was said to render the decision not in good faith and therefore within the Hickman proviso and not precluded from consideration as a ground of review by s 474(1). 25 A transcript of a relevant portion of the tape of the Tribunal hearing, provided by counsel for the applicant, indicated that the interpreter had pointed out to the Tribunal that there was no particular word for "house arrest" in Farsi. The way in which the interpreter had interpreted that was "he was controlled at home". At another point the interpreter said: "Excuse me, sir. With due respect, I just wanted to emphasis that the word I used for 'house arrest' – what I said, I literally translated into English, I said he was under control, if you like, or being observed, at his home." Counsel made it clear however in the course of oral argument that it was not being contended that the Tribunal had acted dishonestly. The Tribunal, it was said, knew of the difficulty during the course of the hearing. 26 In my opinion, this ground raised little more than a challenge to the Tribunal's findings of fact and the way in which it had regard to the evidence. It came nowhere near making out a case of bad faith. This ground therefore fails. Breach of Essential Precondition 27 It was submitted that the Tribunal was obliged, pursuant to s 424A of the Act, to put to the applicant information concerning Shirazi's "house arrest". It was said that because the Tribunal's understanding of "house arrest" was not shared by the applicant and not put to the applicant, there being no equivalent expression in the Farsi language, there was a failure to comply with s 424A of the Act and a failure to accord the applicant procedural fairness. It was submitted that the requirements of s 424A of the Act are specific, express and/or indispensable pre-conditions to jurisdiction or to the exercise of power. It was suggested they are analogous to the requirements of s 129 of the Act which was dealt with in Wang. 28 It is sufficient for present purposes to say that the majority view in NAAV is inconsistent with the characterisation of the requirements of s 424A as indispensable to jurisdiction or to the exercise of power by the Tribunal. Ground 2 therefore also fails. Failure to Take into Account a Relevant Consideration 29 It was said that proceeding on the basis that it did with respect to the question of "house arrest" the Tribunal had ignored relevant material and took into account irrelevant material. This was said to be a jurisdictional error of the kind contemplated by the High Court in Craig and applied in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. It is difficult to see how the ground of failing to take into account relevant materials is actually made out. In any event, none of the Hickman provisoes accepted by the majority in NAAV is enlivened and this ground also fails. Conclusion 30 For the preceding reasons, the application will be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French . Acting Associate: Dated: 21 August 2002 Counsel for the Applicant: Mr M Howard (Pro Bono) Counsel for the Respondent: Mr JD Allanson Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 25 June 2002 Date of Judgment: 21 August 2002